US v. Nestor Sandoval Roca
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to remand case [999978460-2]. Originating case numberS: 8:10-cr-00472-RWT-1,8:14-cv-00885-RWT. Copies to all parties and the district court. [1000021245]. [15-7971]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7971
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NESTOR VLADAMIR SANDOVAL ROCA, a/k/a Poeta, a/k/a William
Bladamir Mexmurillo Zapatero, a/k/a Stanley Turcio Palma,
a/k/a William Santander Mendoza, a/k/a Hamilton Bachelet
Soto, a/k/a Benjamil Ortiz, a/k/a William Zapatero, a/k/a
Max, a/k/a Lzandra Santander Orester, a/k/a Jorge Alberto
Medina Alonso,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:10-cr-00472-RWT-1; 8:14-cv-00885-RWT)
Submitted:
January 31, 2017
Before KEENAN
Circuit Judge.
and
FLOYD,
Decided:
Circuit
Judges,
February 10, 2017
and
DAVIS,
Senior
Vacated and remanded by unpublished per curiam opinion.
Geoffrey J. Michael, Lindsay Vance Smith, ARNOLD & PORTER LLP,
Washington, D.C., for Appellant. Arun G. Rao, Assistant United
States Attorney, Alan Rozenshtein, Special Assistant United
States
Attorney,
OFFICE
OF
THE
UNITED
STATES
ATTORNEY,
Greenbelt, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Nestor Vladamir Sandoval Roca appeals the district court’s
order denying as moot his Fed. R. Crim. P. 41(g) motion for
return of property.
The general rule is that seized property
should
to
be
returned
the
rightful
owner
after
criminal
proceedings have terminated, “unless it is contraband or subject
to forfeiture.”
United States v. Chambers, 192 F.3d 374, 376
(3d Cir. 1999).
Rule 41(g) allows a “person aggrieved . . . by
the deprivation of property [to] move for [its] return.”
Fed.
R. Crim. P. 41(g).
We review the denial of a motion for return
of
Rule
property
Chambers,
discretion
under
192
F.3d
if
it
at
41(g)
for
376.
fails
“A
an
abuse
district
adequately
to
of
court
take
discretion.
abuses
into
its
account
judicially recognized factors constraining its exercise, or if
it bases its exercise of discretion on an erroneous factual or
legal premise.”
DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 323
(4th Cir. 2008) (internal quotation marks omitted).
Rule
41
may
be
utilized
“to
commence
a
civil
equitable
proceeding to recover seized property that the government has
retained after the end of a criminal case.”
Young v. United
States, 489 F.3d 313, 315 (7th Cir. 2007); see United States v.
Garcia, 65 F.3d 17, 20 (4th Cir. 1995) (recognizing “that a
postconviction motion for return of property is a civil action”
governed by Rule 41 that can be brought even “where no criminal
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proceeding
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is
pending”).
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During
the
pendency
of
a
criminal
prosecution, the movant bears the burden of demonstrating his
entitlement
to
the
return
of
the
subject
property;
however,
because a person from whom property was seized is presumed to
have a right to its return, at the conclusion of the criminal
proceedings, the burden shifts to the government to demonstrate
a legitimate reason for retaining the property.
Chambers, 192
F.3d at 377; United States v. Van Cauwenberghe, 934 F.2d 1048,
1061 (9th Cir. 1991).
demonstrating
a
“The government may meet this burden by
cognizable
claim
of
ownership
possession adverse to that of the movant.”
at
377
(internal
quotation
marks
or
right
to
Chambers, 192 F.3d
omitted).
However,
“[t]he
government must do more than state, without documentary support,
that it no longer possesses the property at issue.”
Id. at 377-
78.
While
an
evidentiary
hearing
is
not
a
prerequisite
for
ruling on every Rule 41(g) motion, United States v. Albinson,
356 F.3d 278, 281 (3d Cir. 2004), Rule 41(g) requires the court
to “receive evidence on any factual issue necessary to decide
the motion,” Fed. R. Crim. P. 41(g).
If a disputed issue of
fact exists “relating to the status of the property or what
happened
to
it,”
then
the
court
should
hearing to determine the chain of custody.
hold
an
evidentiary
Albinson, 356 F.3d
at 284; see United States v. Stevens, 500 F.3d 625, 628 (7th
4
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2007)
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(resolution
of
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“whether
the
Government
still
possesses the property at issue is a question of fact” which
must
be
other
supported
by
documents).
evidence
While
including
Rule
41(g)
sworn
only
affidavits
pertains
to
or
the
recovery of property actually seized and in possession of the
Government, see Stevens, 500 F.3d at 628, “a motion for return
of property is not rendered moot merely because the government
no longer possesses the seized property.”
Chambers, 192 F.3d at
377.
Here, Roca’s Rule 41(g) motion alleged that his property,
including
the
cash,
was
not
affidavit to that effect.
forfeited,
and
he
provided
an
The criminal case against Roca is
complete; therefore, the burden has shifted to the Government to
show a legitimate reason not to return the property and cash.
Id.
Recognizing
support
of
its
that
claim
it
failed
that
the
to
produce
cash
was
any
evidence
in
administratively
forfeited, the Government has moved to remand this matter to the
district court.
We
agree
with
the
Government’s
confession
of
error.
We
therefore grant the Government’s motion to remand, vacate the
district court’s order denying Roca’s Rule 41(g) motion, and
remand the matter for further proceedings consistent with this
opinion.
legal
We dispense with oral argument because the facts and
contentions
are
adequately
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presented
in
the
materials
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this
court
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and
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argument
would
not
aid
the
decisional
process.
VACATED AND REMANDED
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