United States v. Nelson

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 8, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 05-6091
(W .D. Oklahoma)
V IRGIL EA RL N ELSO N , (D.C. No. CR-03-06-M )
Defendant - Appellant.
____________________________
OR D ER AND JUDGM ENT *
Before KELLY, O’BRIEN, and TYM KOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Virgil Earl Nelson, appearing pro se, 1 appeals from the district court’s
denial of his M otion for Return of Property Pursuant to Federal Rule of Criminal
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
1
We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
Procedure 41(g). Exercising jurisdiction under 28 U.S.C. § 1291, we REVERSE
and R EM AN D .
Discussion:
In January 2001, federal agents initiated a lengthy investigation into
possible criminal activities of the Oklahoma chapter of the Outlaw s M otorcycle
Club (O M C). During the investigation, agents executed several search warrants
at various locations seeking evidence of, inter alia, methamphetamine
manufacturing and distribution. The federal agents seized various items including
firearms, ammunition, drug paraphernalia, components and equipment used to
manufacture methamphetamine, and documents containing OM C organizational
information. Included in this material were cameras, computers, personal photos
and papers, as well as clothing and accessories associated with the OM C. Various
items of Nelson’s personal property were among those seized.
On M ay 8, 2003, Nelson was indicted for various offenses including
methamphetamine production. On February 9, 2004, he pled guilty to attempting
to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846,
and was sentenced to 240 months imprisonment on M ay 19, 2004. Nelson filed
an appeal of his sentence on M ay 28, 2004, based on United States v. Booker, 543
U.S. 220 (2005). 2 On January 3, 2005, Nelson filed a M otion for Return of
2
See United States v. Nelson, (04-6182).
-2-
Property Pursuant to Federal Rule of Criminal Procedure 41(g). 3 The government
responded by asking to retain the property until Nelson’s direct appeal was final.
The district court denied Nelson’s motion on February 14, 2005.
On appeal, Nelson argues the district court abused its discretion by not
granting his Rule 41(g) M otion and ordering the return of property unreasonably
retained by the government. The government argues the present appeal is moot
because “the government is prepared to initiate the return of [Nelson’s] property.”
(Appellee’s Br. at 7.) The government concedes the “return of [N elson’s]
property is not unreasonable at this time.” (Id. at 6.) It even goes so far as to
suggest “that a scheduling order could be entered by the district court, either by
agreement of the parties or pursuant to a hearing on the matter before the district
court . . . .” (Id. at 8.) Nelson objects that such statements are “more rhetorical
than real.” (A ppellant’s Reply Br. at 2-3.)
I. M ootness
“W e address the issue of mootness as a threshold question because in the
absence of a live case or controversy, we have no subject-matter jurisdiction over
an appeal.” In re BCD Corp., 119 F.3d 852, 856 (10th Cir. 1997). “A case is
moot when it is impossible for the court to grant any effectual relief whatever to a
prevailing party.” In re Overland Park Fin. Corp., 236 F.3d 1246, 1254 (10th
3
Prior to December 1, 2002, Rule 41(g) was Rule 41(e), with minor stylistic
differences. See Clymore v. United States, 415 F.3d 1113, 1114 n.1 (10th Cir. 2005).
-3-
Cir. 2001) (internal quotation omitted).
W hile the government expresses a willingness to return the property, it has
not actually done so. See F.E.R. v. Valdez, 58 F.3d 1530, 1534 (10th Cir. 1995)
(Case moot where government actually “returned the files and [could not] simply
decide to confiscate them again without a warrant issued by a detached and
neutral magistrate.”). Nor does the government’s proffer of potentially available
future legal avenues serve to moot the present appeal, as it has not instituted any
binding proceedings aimed at returning the property. See Longstreth v. M aynard,
961 F.2d 895, 900-01 (10th Cir. 1992) (“[V]oluntary cessation of a challenged
practice does not deprive a federal court of its power to determine the legality of
the practice,” unless it can “be said with assurance that there is no reasonable
expectation that the wrong would be repeated.”) (internal quotations omitted).
Thus, Defendant’s motion under Rule 41(g) is not moot simply because the
government states that it is “prepared to initiate” the return of the property,
especially where it equivocates its position by characterizing the return as “not
unreasonable at this tim e.” (Appellee’s Br. at 6 (emphasis added).) The
government’s statements, so qualified, have no binding effect on the government
and do not guarantee the return of Nelson’s property. Consequently, this appeal
is not moot.
II. Rule 41(g) M otion
Rule 41(g) provides, in part, that “[a] person aggrieved by an unlawful
-4-
search and seizure of property or by the deprivation of property may move for the
property’s return.” A Rule 41(g) motion is governed by equitable principles.
Floyd v. United States, 860 F.2d 999, 1002-03 (10th Cir. 1988) (discussing former
Rule 41(e)). The defendant bears the burden of establishing under Rule 41(g) that
“the retention of the property by the government is unreasonable . . . .” In re
M atter of Search of Kitty’s East, 905 F.2d 1367, 1375 (10th Cir. 1990). W e
review a district court’s denial of a Rule 41(g) motion for an abuse of discretion.
United States v. Deninno, 103 F.3d 82, 84 (10th Cir. 1996) (applying former Rule
41(e)). A district court abuses its discretion where it “fails to consider the
applicable legal standard or the facts upon which the exercise of its discretionary
judgment is based.” Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997).
Judging by the list of objects presented in Nelson’s Rule 41(g) M otion and
his filings before this Court, several of the objects appear on their face to be
innocuous and irrelevant to the government’s asserted interest in maintaining
possession for possible resentencing. Thus Nelson met his initial burden of
establishing that the continued retention of those items by the government is
unreasonable, at least on its face. However, no justification for the continued
retention of those items w as offered other than the possibility of use in
resentencing. W hile the government has a legitimate interest in maintaining
control of property relevant to the prosecution and sentencing of a defendant until
-5-
his criminal proceedings are final, 4 it must establish the property seized is
actually relevant to that process. The government cannot simply rely on the
possibility of resentencing to justify retaining all property seized, especially that
of an apparently innocuous and irrelevant nature.
The district court abused its discretion in denying Nelson’s Rule 41(g)
M otion without differentiating between the obviously relevant and facially
irrelevant property seized and retained by the government. 5 Rather, confronted
with the retention of apparently innocuous and irrelevant property, the court
should have required the government to state its reasons for retaining Nelson’s
property with respect (at least) to the classes of property at issue.
R EV ER SED and REM AND ED.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
4
Toward this end, Rule 41(g) specifically provides that if the district court “grants
the motion, the court must return the property to the movant, but may impose reasonable
conditions to protect access to the property and its use in later proceedings.”
5
Rule 41(g) requires that “[t]he court must receive evidence on any factual issue
necessary to decide the motion.”
-6-