United States v. Albinson

• Court: Court of Appeals for the Third Circuit
• Decided: January 29, 2004
• Docket: 01-1265
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

1-29-2004

USA v. Albinson Precedential or Non-Precedential: Precedential

Docket No. 01-1265

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Recommended Citation "USA v. Albinson" (2004). 2004 Decisions. Paper 1036. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1036

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL ERIC B. HENSON, ESQUIRE (ARGUED) UNITED STATES Office of United States Attorney COURT OF APPEALS 615 Chestnut Street, Suite 1250 FOR THE THIRD CIRCUIT Philadelphia, Pennsylvania 19106 Attorney for Appellee

No. 01-1265 OPINION OF THE COURT

UNITED STATES OF AMERICA SCIRICA, Chief Judge. v. Stanley A. Albinson appeals the STANLEY A. ALBINSON, denial of his motion for return of Appellant property filed under Fed. R. Crim. P. 41(g) (formerly Fed. R. Crim. P. 41(e)) 1 without an evidentiary hearing. The On Appeal from the government asserted that it no longer United States District Court for the retained possession of the seized Eastern District of Pennsylvania property. At issue is whether the District D.C. Criminal No. 95-cr-00019 Court was required to conduct an (Honorable Lowell A. Reed, Jr.) evidentiary inquiry as set forth in United States v. Chambers, 192 F.3d 374 (3d Cir. 1999). We will reverse and remand. Argued October 28, 2003

1 Before: SCIRICA, Chief Judge, Fed. R. Crim. P. 41 was amended in NYGAARD and AMBRO, 2002 “as part of a general restyling of the Circuit Judges Criminal Rules to make them more easily understood and to make style and (Filed January 27, 2004) terminology consistent throughout the rules.” See Fed. R. Crim. P. 41 advisory JENNIFER B. SAULNIER, ESQUIRE committee notes. As a result of the 2002 (ARGUED) amendments, the previous Fed. R. Crim. Jones Day P. 41(e) now appears with minor stylistic One Mellon Bank Center changes as Rule 41(g). For consistency, 500 Grant Street, Suite 3100 we will refer only to Fed. R. Crim. P. Pittsburgh, Pennsylvania 15219 41(g) even though Albinson filed his Attorney for Appellant motion under Fed. R. Crim. P. 41(e) and most of the relevant case law refers to the previous rule. I. App. 124. Albinson alleged he had been deprived of property by the government On February 24, 1994, FBI and and that the seizures were “made by Naval Investigative Service agents acting government agents/employees.” Id. On under a search warrant seized property2 August 2, 1998, Albinson filed a pro se from the garage and residence of Stanley motion for summary judgment on his A. Albinson at 69 Mine Run Road in Rule 41(g) motion. The government did Limerick, Pennsylvania. On February not respond to either motion. 10, 1995, Albinson was arrested for the unauthorized sale of United States On May 14, 1999, the District property in violation of 18 U.S.C. § 641. Court entered a default judgment in favor The indictment alleged Albinson sold of Albinson, and ordered the government United States property to government to return the seized property by June 15, agents on six occasions in 1993. The 1999. The District Court also ordered indictment did not, however, charge the government to file a “verified Albinson with any offense related to the declaration based on first hand property seized during the 1994 search. knowledge” for each item that “had been lost, destroyed [or] misplaced,” On April 24, 1995, Albinson describing the “reasons why the property entered a guilty plea on all six counts of cannot be returned . . . to hold an the indictment. Albinson subsequently evidentiary hearing thereon.” App. 16. attempted to withdraw his guilty plea, but On June 15, 1999, the government the District Court denied his motion. On responded that it was “physically unable February 18, 1998, Albinson was to comply” with the order, because sentenced to 15 months in prison, plus certain property had been returned to three years of supervised release. Albinson, and the remaining items had On April 21, 1998, while serving been either acquired by third parties or his sentence, Albinson filed a pro se destroyed. App. 146. The government motion for return of property under Fed. submitted no documentary evidence in R. Crim. Pro. 41(g). Albinson sought support of its response. It simultaneously return of “every item listed on the seizure filed a motion for reconsideration warrant/property list and those items requesting an opportunity to respond to seized where no receipt was given.” Albinson’s motions. The District Court granted the motion for reconsideration, and the government responded to 2 The inventory of seized property lists Albinson’s motions. over 200 items, including floor tiles, tool On January 16, 2001, the District kits, ethanol, batteries, a pump and Court denied Albinson’s Rule 41(g) motor, ovens, stainless steel sinks, motion without conducting an computer modems, rolodex records, ear evidentiary hearing. United States v. plugs and trousers. Supp. App. 29-42. Albinson, No. 95-19-01, 2001 U.S. Dist. F.3d at 376. Under Fed. R. Crim. P. LEXIS 374 (E.D. Pa. Jan. 17, 2001). 41(g), The District Court found the government A person aggrieved by an failed to carry its burden of proving a unlawful search and “cognizable claim of ownership or right seizure of property or by of possession” in the seized property, but the deprivation of property denied the motion nevertheless. Id. at may move for the *7. The District Court determined the property’s return . . . . The government had irrevocably lost or court must receive destroyed the seized property, and evidence on any factual therefore this Court’s holding in United issue necessary to decide States v. Bein, 214 F.3d 408 (3d Cir. the motion. If it grants the 2000), rendered it “powerless” to award motion, the court must monetary damages in lieu of returning return the property to the the seized property. Albinson, 2001 U.S. movant, but may impose Dist. LEXIS 374, at *15. The District reasonable conditions to Court concluded that an evidentiary protect access to the hearing was “not required in light of the property and its use in later futile outcome.” Id. at *16. proceedings. Albinson timely filed this appeal. 3 Fed. R. Crim. P. 41(g) (emphasis added). II. At the conclusion of a criminal proceeding, the evidentiary burden for a A. Rule 41(g) motion shifts to the Property seized by the government government to demonstrate it has a as part of a criminal investigation “must legitimate reason to retain the seized be returned once criminal proceedings property. Chambers, 192 F.3d at 377. have concluded, unless it is contraband The burden on the government is heavy or subject to forfeiture.” 4 Chambers, 192 because there is a presumption that the person from whom the property was taken has a right to its return. Id. 3 We exercise appellate jurisdiction The District Court held, and the over the District Court’s denial of the parties do not dispute, that the Rule 41(g) motion under 28 U.S.C. § government failed to meet its burden on 1291. United States v. Pantelidis, 335 Albinson’s Rule 41(g) motion. Albinson, F.3d 226, 233-34 (3d Cir. 2003). 2001 U.S. Dist. LEXIS 374, at *9. Indeed, the District Court concluded that 4 It is undisputed that the property Albinson’s “motion probably would be seized during the 1994 search is neither granted as to the items on the inventory contraband nor subject to forfeiture. lists,” but for the perceived futility of Chambers, 192 F.3d at 376. granting such an order. Id. Albinson B. argues the District Court abused its discretion by denying his Rule 41(g) Rule 41(g) directs a district court motion without conducting an to “receive evidence” on issues of fact evidentiary hearing and instead relying necessary to dispose of the motion. Fed. solely on the government’s R. Crim. P. 41(g). We provided more representations that it no longer retained specific guidance on the scope of this possession of the seized property. evidentiary inquiry in United States v. Albinson contends that even if the Chambers, 192 F.3d 374 (3d Cir. 1999). District Court properly determined that In that case, petitioner Chambers filed a the seized property is “physically Rule 41(g) motion for return of property unavailable,” he is entitled to a hearing to seized by the government during his determine what happened to the property. arrest. Id. at 375. The government The government responds that because argued Chambers’ motion was moot Albinson failed to contest its because it no longer retained possession representations in the District Court, of the seized property. Id. The district there were no disputed issues of fact court agreed, and denied Chambers’ which required an evidentiary hearing. motion based on representations by the government that the property at issue had We review the District Court’s been forfeited, repossessed, returned or decision to “exercise its equitable destroyed, and therefore could not be jurisdiction” under Fed. R. Crim. P. returned. Id. We reversed on appeal, 41(g) for abuse of discretion.5 concluding that the “government can not defeat a properly filed motion for return 5 of property merely by stating that it has We do not reach the merits of the destroyed the property or given the District Court’s decision to deny property to third parties.” Id. at 377. Albinson’s Rule 41(g) motion. On Rather, “[t]he government must do more appeal, we consider only the District than state, without documentary support, Court’s decision to not conduct an that it no longer possesses the property at evidentiary hearing prior to deciding issue.” Id. at 377-78. Albinson’s Rule 41(g) motion, and we review that decision for abuse of We also held that a district court discretion. We note, however, that other must make certain evidentiary inquiries courts of appeals have reviewed de novo before deciding a Rule 41(g) motion for the grant or denial of Rule 41(g) motions return of property: after the conclusion of criminal If . . . the proceedings. See, e.g., United States v. government asserts that it Potes, 260 F.3d 1310, 1314 n.8 (11th Cir. no longer has the property 2001). sought, the District Court must sufficient to support a fact finder’s determine, in fact, whether the determination. Chambers, however, government retains possession of requires the district court to hold an the property; if it finds that the evidentiary hearing on “any disputed government no longer possesses issue of fact necessary to the resolution the property, the District Court of the motion,” which may include must determine what happened to determining “what happened” to the the property. The District Court seized property. Id. at 378. must hold an evidentiary hearing The District Court expressly on any disputed issue of fact acknowledged the Chambers inquiry, but necessary to the resolution of the decided a hearing was “not required in motion . . . . light of the futile outcome.” Albinson, . . . If the District 2001 U.S. Dist. LEXIS 374, at *16. The Court concludes that the District Court determined monetary government’s actions in damages were the only possible remedy either regard were not based on the government’s proper, it shall determine representations that it no longer retained what remedies are possession of the seized property. available. Recognizing our decision in United States v. Bein, 214 F.3d 408, 415 (3d Cir. Id. at 378 (citations omitted). 2000), 6 prohibits monetary damages on a We note at the outset that a Rule 41(g) motion, the District Court district court need not necessarily concluded there was “no other relief to conduct an evidentiary hearing on every which petitioner is entitled under Rule Rule 41(g) motion. The rule only directs 41[g].” Albinson, 2001 U.S. Dist. a district court to “receive evidence on LEXIS 374, at *17. any factual issue necessary to decide the The District Court found the Bein motion.” Fed. R. Crim. P. 41(g). prohibition on monetary damages Likewise, Chambers does not mandate the method by which a district court must “determine, in fact, whether the 6 government retains possession of the Two of our sister circuits have property,” so long as this determination suggested that a district court may award rests on a firmer basis than the monetary damages as an equitable government’s unsubstantiated assertions remedy on a Rule 41(g) motion. See, that it “no longer possesses the property e.g., Mora v. United States, 955 F.2d at issue.” Id. at 377-78. For example, 156, 159-60 (2d Cir. 1992); United States affidavits or documentary evidence, such v. Martinson, 809 F.2d 1364, 1368 (9th as chain of custody records, may be Cir. 1987). But we have concluded to the contrary. “undermined Chambers’ hearing Id. at *14-15. requirement,” 7 id. at *13, and created a Although Bein forecloses certain “Catch-22” in cases in which the remedies for Rule 41(g) petitioners, it government asserts it has lost or does not necessarily create a destroyed the seized property: jurisprudential conundrum. An On the one hand, evidentiary inquiry ensures that a district Chambers demands that court has sufficient information to decide this Court engage in an a Rule 41(g) motion. At the same time, it inquiry as to what provides an opportunity for a Rule 41(g) happened to the lost or petitioner to demand the government missing property and return property to which he is rightfully decide on an appropriate entitled. This inquiry assists an remedy. On the other aggrieved party in identifying and hand, Bein forecloses the recovering property seized in the course only appropriate remedy in of a criminal investigation. a case where the As the District Court correctly government has lost or recognized, an evidentiary hearing destroyed personal potentially offers certain beneficial property: money damages. effects. For example, a “hearing might In other words, Bein makes spark a government investigation that the inquiry required by results in the discovery or recovery of Chambers an exercise in property the government initially thought futility, because even if the to be lost or destroyed.” Id. at *15 n.8. Court were to conclude Alternatively, an evidentiary hearing after a hearing that a Rule “might result in the government being 41[g] petitioner was able to prove that the property was entitled to the return of owned by the government,” and therefore property, and that the not subject to return. Id. In either case, government improperly the prospect of a hearing provides an disposed of the property, incentive for the government to retain the Court is powerless to accurate records of seized property, award the only available consistent with its regulatory remedy. obligations.8

7 The District Court suggested that 8 “[a]n argument could be made that Bein Department of Justice regulations essentially attempts to overrule require the FBI to maintain detailed Chambers.” Albinson, 2001 U.S. Dist. chain of custody records for all seized LEXIS 374, at *16 n.9. property. See, e.g., 41 C.F.R. § 128- Bein, by contrast, prescribes a defeat a Rule 41(g) motion simply by limitation on the remedies available to a asserting that it no longer retains Rule 41(g) petitioner by precluding the possession of the property would award of monetary damages. This frustrate the purpose of the Fed R. Civ. limitation is “not inconsistent” with the P. 41(g) evidentiary inquiry set forth in requirement that a district court conduct Chambers. The District Court was an evidentiary hearing before deciding a justifiably concerned with the “harsh Rule 41(g) motion. Bein, 214 F.3d at consequences” of such a result. Id. at 416. Although Chambers directs a *17. district court to determine what remedies C. are available to a Rule 41(g) petitioner, Bein “did not consider whether such The government argues there were available remedies would include an no “disputed issues of fact” that would award of monetary damages.” Id. require the District Court to conduct an evidentiary hearing because Albinson did Moreover, the question of not challenge the government’s remedies should arise only after the assertions that it no longer retained district court has investigated the status possession of the seized property. of the seized property. While Albinson responds that a hearing is representations by the government may required because the government’s be credible and may suggest that “the unsupported declaration did not resolve likelihood of actual recovery of the all disputed issues of fact. Specifically, property [is] very slim,” Albinson, 2001 Albinson argues the government’s U.S. Dist. LEXIS 374, at *15 n.8, a fact declaration did not identify the third- finder may not deny a Rule 41(g) motion parties who allegedly acquired the based on a prospective assessment of the property, the persons who destroyed or remedies that might (or might not) be distributed the property, or the property available. Allowing the government to that was allegedly returned. As mentioned, neither the Federal 50.101 (“Each bureau shall be Rule nor Chambers makes an evidentiary responsible for establishing and hearing a prerequisite for deciding a Rule maintaining inventory records of its 41(g) motion. Chambers only requires seized personal property to ensure that . . an evidentiary hearing on “any disputed . (d) A well documented chain of custody issue of fact necessary to the resolution is kept; and (e) All information in the of the motion.” 192 F.3d at 378. But inventory records is accurate and Chambers also makes clear that “[t]he current.”). If the FBI maintains these government must do more than state, chain of custody records as required by without documentary support, that it no regulation, the burden of an evidentiary longer possesses the property at issue.” inquiry is significantly reduced. Id. at 377-78. That standard was not amendment may be particularly satisfied here. Moreover, even if the appropriate on the facts of this case.9 District Court properly determined the IV. government no longer possessed the property, it did not address the remainder To summarize, the able District of the Chambers inquiry regarding “what Court did not conduct the full evidentiary happened to the property.” Id. at 378. A inquiry required by Chambers in district court may be able to make these deciding Albinson’s Rule 41(g) motion. determinations based upon affidavits or The District Court determined verified documentary evidence. But if Albinson’s property was unavailable there are disputed issues of fact relating based upon the government’s to the status of the property or what unsubstantiated assertions, and made no happened to it, the district court should determination regarding what happened hold an evidentiary hearing. This to the seized property. Whether these decision is left to the sound discretion of determinations ultimately require an the District Court. III. 9 The allegations of a pro se litigant Finally, Albinson argues that if an are generally held to a “less stringent evidentiary inquiry reveals individual standard” than formal pleadings prepared government agents improperly disposed by a lawyer. Mitchell v. Horn, 318 F.3d of his property, he is entitled to amend 523, 529 (3d Cir. 2003) (citing Haines v. his Rule 41(g) motion to state alternative Kerner, 404 U.S. 519, 520 (1972)). Fed. claims consistent with this Court’s R. Crim. P. 41(g) motions are civil in decision in Bein. Specifically, Albinson nature, and should be treated as a “civil argues that if the evidentiary inquiry complaint.” United States v. McGlory, reveals facts indicating that specific 202 F.3d 664, 670 (3d Cir. 2000) government agents violated his (citation omitted). Therefore, a pro se constitutional rights, he should be able to Rule 41(g) motion should be liberally amend his pleadings to state a Bivens construed to allow the assertion of complaint. The government responds alternative claims. “[A]ffirming the that it was not error to deny Albinson’s denial [of a pro se Rule 41(e) motion] motion without a hearing because without leave to amend would have the Albinson neglected to assert alternative same effect as a 12(b)(6) dismissal of a claims in the District Court. While we pro se complaint,” which are generally leave this matter also to the sound disfavored. Pena v. United States, 157 discretion of the District Court, we note F.3d 984, 987 (5th Cir. 1998) (reversing that, depending on what is adduced dismissal of pro se petitioner’s Rule through the evidentiary inquiry, 41(g) motion without leave to amend to state a Bivens action). evidentiary hearing or merely the submission of affidavits and documentary evidence, we leave to the sound discretion of the District Court. For the foregoing reasons, we will reverse and remand for proceedings consistent with this opinion.