United States v. Gregory Sperow

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 18, 2018
• Docket: 17-30064
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30064

Plaintiff-Appellee, D.C. No. 1:06-cr-00126-BLW

v. MEMORANDUM* GREGORY FRANK SPEROW,

Defendant-Appellant.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief Judge, Presiding

Submitted September 12, 2018**

Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.

Gregory Frank Sperow appeals pro se from the district court’s order granting

in part and denying in part his motion for return of property under Federal Rule of

Criminal Procedure 41(g). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

* 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). Sperow first contends that the district court erred when it relied on Special

Agent Gleason’s declaration rather than conducting an evidentiary hearing to

determine the status of his property. Gleason’s sworn declaration established that

he had personally reviewed all of the seized evidence then in the custody of the

relevant Idaho agencies, conducted additional investigations relating to the

outstanding property, and provided a detailed account of the status of each item of

property. Contrary to his contention, Sperow did not adduce any evidence that

conflicted with Gleason’s declaration. Under these circumstances, the district

court properly relied on Gleason’s declaration and did not abuse its discretion

when it declined Sperow’s request for an evidentiary hearing. See United States v.

Hagege, 437 F.3d 943, 953 (9th Cir. 2006). Sperow’s argument that, in the

absence of a hearing, the court was required to construe the facts in a light most

favorable to him, is unsupported. In any event, there were no genuine factual

issues with respect to the location of the property.

Sperow next contends that the district court erred by failing to require the

government to produce a property inventory in accordance with 41 C.F.R. § 128-

50.101. We disagree. Nothing in the regulation, which is directed to federal

bureaus, appears to give property owners like Sperow a claim for relief. Moreover,

Sperow cannot show any need for a property inventory. Sperow’s declaration

identified the items he sought, Gleason conducted a thorough search for each item,

2 17-30064 and the government ultimately returned to Sperow everything it had in its

possession with the exception of evidence that appeared to be contraband or to

have been seized from someone other than Sperow. Sperow does not explain what

else he could have obtained with a complete inventory.

Lastly, Sperow contends that the district court erred when it refused to

consider his challenge to the legality of the search of his truck. The district court

did not err because the legality of the underlying search and seizure of property is

irrelevant for purposes of Rule 41(g) once criminal proceedings are complete. See

United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987). In this case,

irrespective of whether the search was legal, the government could not return the

evidence allegedly seized from the truck because it did not possess that property.

AFFIRMED.

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