United States v. Kaleb Basey

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 2021
• Docket: 20-30014
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 24 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 20-30014 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.

3 20-30014