US v. Nestor Sandoval Roca
UNPUBLISHED PER CURIAM OPINION filed.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. . [15-7971]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
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
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
January 31, 2017
February 10, 2017
Vacated and remanded by unpublished per curiam opinion.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
Greenbelt, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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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
proceedings have terminated, “unless it is contraband or subject
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.”
R. Crim. P. 41(g).
We review the denial of a motion for return
judicially recognized factors constraining its exercise, or if
it bases its exercise of discretion on an erroneous factual or
DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 323
(4th Cir. 2008) (internal quotation marks omitted).
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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prosecution, the movant bears the burden of demonstrating his
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.
F.3d at 377; United States v. Van Cauwenberghe, 934 F.2d 1048,
1061 (9th Cir. 1991).
“The government may meet this burden by
possession adverse to that of the movant.”
Chambers, 192 F.3d
government must do more than state, without documentary support,
that it no longer possesses the property at issue.”
Id. at 377-
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
hearing to determine the chain of custody.
Albinson, 356 F.3d
at 284; see United States v. Stevens, 500 F.3d 625, 628 (7th
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possesses the property at issue is a question of fact” which
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
Here, Roca’s Rule 41(g) motion alleged that his property,
affidavit to that effect.
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.
forfeited, the Government has moved to remand this matter to the
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
We dispense with oral argument because the facts and
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VACATED AND REMANDED
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