United States v. Kaleb Basey

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30014
Plaintiff-Appellee, D.C. No. 4:14-cr-00028-RRB-1
v.
MEMORANDUM*
KALEB L. BASEY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Submitted February 17, 2021**
Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.
Kaleb L. Basey appeals pro se from the district court’s order denying
reconsideration of its denial of Basey’s motion for return of property under Federal
Rule of Criminal Procedure 41(g). We have jurisdiction under 28 U.S.C. § 1291.
Reviewing de novo, see United States v. Harrell, 530 F.3d 1051, 1057 (9th Cir.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Basey’s motion to appoint
counsel to permit oral argument is therefore denied.
2008), we affirm.
As an initial matter, we are not persuaded by the government’s argument
that Basey’s pending 28 U.S.C. § 2255 motion renders his criminal proceedings
“ongoing,” such that we lack jurisdiction over this appeal. The government cites
no authority to support this assertion, and our precedent suggests that criminal
proceedings are over for purposes of a Rule 41(g) motion once the defendant is
convicted. See Harrell, 530 F.3d at 1057. Likewise, Basey is correct that, given
the timing of his motion, the government had the burden of showing a legitimate
need to retain the property. See id.Nevertheless, the government met its burden here. Even assuming the
district court should have treated the government’s opposition to Basey’s motion as
a motion for summary judgment, it provided Basey an opportunity to respond in
the form of a motion for reconsideration. In his motion for reconsideration, Basey
failed to raise a genuine issue as to any material fact. See Mendiola-Martinez v.
Arpaio, 836 F.3d 1239, 1247 (9th Cir. 2016). Nor has he done so on appeal. The
government demonstrated a reasonable need to retain the property in light of
Basey’s pending collateral attack on his 2017 convictions. See United States v.
Kriesel, 720 F.3d 1137, 1144 (9th Cir. 2013).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
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appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Basey’s motion to expedite is denied as moot.
AFFIRMED.
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