FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 24, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 10-3195
v. (D. Kansas)
EDUARDO SOTO-DIARTE, (D.C. No. 2:06-CR-20142-JWL-3)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and appellant Eduardo Soto-Diarte appeals the partial denial of a
motion he made under Fed. R. Crim. P. 41(g) for the return of fifteen firearms,
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
which he claims were seized from him prior to his incarceration. We affirm the
district court’s partial denial.
BACKGROUND
In 2007, Mr. Soto-Diarte pled guilty to one count of conspiracy to
distribute and to possess, with the intent to distribute, 500 grams or more of a
substance containing methamphetamine, in violation of 21 U.S.C. § 846. He was
sentenced to 135 months’ imprisonment. During the course of its investigation
into Mr. Soto-Diarte’s activities, the government apparently seized numerous
firearms, ammunition and gun-related items from Mr. Soto-Diarte.
Almost two years after he was sentenced, Mr. Soto-Diarte filed a Rule
41(g) motion seeking the return of the firearms and other materials. He claimed
to be the “lawful owner” of the property. The government opposed the motion,
arguing that it would be unlawful, under 18 U.S.C. § 922(g)(1), for Mr. Soto-
Diarte, a convicted felon, to possess the firearms or the ammunition. Mr. Soto-
Diarte responded that he had “signed over his property rights of the weapons to a
Family member who is not a convicted felon.” Reply to Resp. to R. 41(g) Mot.
at 2, R. Vol. 1 at 27.
The district court denied the motion, concluding that as a convicted felon,
Mr. Soto-Diarte was not entitled to exercise even constructive authority over the
firearms. The court also observed that, if he had transferred ownership of the
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items before his felony conviction, the motion would also fail because he had no
ownership interest in the weapons.
On appeal, our court vacated that order and remanded the matter to the
district court for it to make findings on whether the government still had
possession of the guns. United States v. Soto-Diarte, 370 Fed. Appx. 886 (10th
Cir. 2010) (unpublished). That issue had not been presented to the district court.
On remand, the district court entered an order giving Mr. Soto-Diarte until
May 14, 2010, “to provide evidence to [the district] court of the status of the
firearms and to assert an alternative theory for monetary relief if he can show that
they have been destroyed.” Order at 1, R. Vol. 1 at 40. The government filed a
notice indicating that it had learned, following the remand from our court, that the
firearms were still in the possession of the Kansas City, Kansas, Police
Department (“KCPD”).
On June 14, 2010, the district court determined that Mr. Soto-Diarte had
failed to make any filing within the allotted time, and it denied his Rule 41(g)
motion. Later that day, the district court received Mr. Soto-Diarte’s motion for
leave to file a late response, which the court then granted.
Mr. Soto-Diarte subsequently filed a pleading with attachments that
constituted his evidence as to the status of the firearms. He averred that on
December 4, 2008, he had written a letter to the Drug Enforcement
Administration (“DEA”) asking for the return of sixteen firearms. In response, he
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had received a letter dated December 18, 2008, from Special Agent in Charge
Preston L. Grubbs of the St. Louis division of the DEA, stating that the firearms
had been seized and maintained by the KCPD. The letter further stated that,
following the conclusion of Mr. Soto-Diarte’s case, the U.S. Attorney’s office had
informed the KCPD that the evidence was no longer needed and that the KCPD
had sought and obtained an order from a Kansas state court for the disposal of the
weapons. Agent Grubbs additionally stated that he had “been informed that the
weapons [had] since been destroyed,” although he failed to identify the source of
that information. Mot. Providing Evidence, Ex. A, R. Vol. 1 at 53. The letter, as
well as the state court motion and order concerning the disposal of the weapons,
was included with Mr. Soto-Diarte’s pleading. Mr. Soto-Diarte also presented
“an alternative claim for monetary relief in the amount of $10,000.00,” but he
failed to state a theory for that proposed relief or provide a factual basis for the
dollar amount. Id. at 2, R. Vol. 1 at 49.
Mr. Soto-Diarte filed a motion for reconsideration of the district court’s
June 14, 2010, memorandum and order denying his Rule 41(g) motion. The
district court granted the motion and vacated its earlier memorandum and order.
It also directed the government to provide evidence supporting its contention that
the weapons were still in the possession of the KCPD.
The government’s response included a July 20, 2010, letter from Sergeant
Gerald Henre of the KCPD’s property/logistics unit, stating that the firearms were
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still in the custody of the KCPD, but that the ammunition and magazines seized
with them had been destroyed on March 7, 2009.
After receiving evidence from both parties, the district court determined
that the government still possessed the firearms, and it granted in part and denied
in part Mr. Soto-Diarte’s motion as to those weapons. The court concluded that
“[i]n light of the evidence both parties have submitted, . . . an evidentiary hearing
to elicit further evidence [was] not needed.” Mem. & Order at 3, R. Vol. 1 at 79.
The district court further compared the evidence presented by each party:
Mr. Soto-Diarte’s 2008 letter from the DEA agent, claiming to have been “told”
that the weapons had been destroyed, but written without direct knowledge of the
status of the weapons, and the government’s 2010 letter from a sergeant in the
KCPD, stating that the firearms had not been destroyed and were, in fact, still at
the KCPD.
The court concluded that the evidence from the KCPD sergeant was more
accurate: “This more recent statement from someone within the KCKPD, the
agency with custody of the property in question, provides more accurate
information than Mr. Soto-Diarte’s older letter from someone with only second-
hand knowledge.” Id. The district court then denied Mr. Soto-Diarte’s Rule
41(g) motion as to the firearms, stating that any recourse for the destruction of the
ammunition and magazines should be sought in state court where the destruction
order was issued. It granted his motion as to certain firearms-related items (rifle
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tripods and cases) and directed them to be returned to Mr. Soto-Diarte because he
was not prohibited from possessing them. This appeal followed, in which Mr.
Soto-Diarte argues that the district court abused its discretion in denying his
motion for return of the firearms without conducting an evidentiary hearing and
without requiring the government to present “tangible evidence.”
DISCUSSION
Rule 41(g) provides as follows:
Motion to Return Property. A person aggrieved by an unlawful
search and seizure of property or by the deprivation of property may
move for the property’s return. The motion must be filed in the
district where the property was seized. The court must receive
evidence on any factual issue necessary to decide the motion. If it
grants the motion, the court must return the property to the movant,
but may impose reasonable conditions to protect access to the
property and its use in later proceedings. 1
A district court should exercise its equitable power to grant relief only if the Rule
41(g) movant shows “irreparable harm and an inadequate remedy at law.”
Copeman, 458 F.3d at 1071 (quotations and citations omitted). Once criminal
proceedings have terminated, however, “the person from whom the property was
seized is presumed to have a right to its return, and the government must
demonstrate that it has a legitimate reason to retain the property.” United States
1
Prior to amendments in 2002, the substance of Rule 41(g) was contained in
former Rule 41(e). The changes made in these amendments were stylistic only.
See United States v. Copeman, 458 F.3d 1070, 1071 n.1 (10th Cir. 2006) (“What
was formerly Rule 41(e) is now Rule 41(g), with only stylistic changes.”).
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v. Rodriguez-Aguirre, 264 F.3d 1195, 1213 n.14 (10th Cir. 2001) (quotations and
citation omitted).
We review questions of law relating to a Rule 41(g) motion de novo, see
United States v. Howell, 425 F.3d 971, 973 (11th Cir. 2005), but we review the
district court’s weighing of equitable considerations and its decision to deny a
Rule 41(g) motion for an abuse of discretion. See Copeman, 458 F.3d at 1072.
We conclude the district court did not abuse its discretion in denying Mr.
Soto-Diarte’s motion to return the firearms without conducting an evidentiary
hearing. The district court quite reasonably determined that the more recent
information, based on first-hand knowledge, of the KCPD sergeant adequately
established that the firearms had not been destroyed, but were actually in the
custody of the KCPD. There was no need to provide more “tangible evidence”
and nothing to be gained by conducting an evidentiary hearing.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s disposition of
the Rule 41(g) motion.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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