September 6, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1037
HELEN FORMANCZYK,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Selya, Cyr, and Boudin,
Circuit Judges.
Helen Formanczyk on brief pro se.
Donald K. Stern, United States Attorney, and Dina Michael
Chaitowitz, Assistant United States Attorney, on Motion for Summary
Disposition for appellee.
Per Curiam. Pro se appellant Helen Formanczyk appeals
the denial by the district court of her motion for the return
of property seized by the United States Government. We
vacate the denial and remand for further proceedings.
Formanczyk styled her motion as one pursuant to Fed. R.
Crim. P. 41(e). However, since criminal proceedings against
her have been completed, the district court should have
construed her motion as a civil action for return of
property, pursuant to 28 U.S.C. 1331. United States v.
Giraldo, 45 F.3d 509, 511 (1st Cir. 1995) (citing cases).
Moreover, inasmuch as the property seized is no longer needed
for evidentiary purposes, "[t]he person from whom the
property [has been] seized is presumed to have a right to its
return, and the government has the burden of demonstrating
that it has a legitimate reason to retain the property."
United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir.
1987) (citing cases) (footnotes omitted). Although the
government now alleges that the property in question was
forfeited in an administrative proceeding, the instant case
was dismissed before the district court received a response
from the government. Consequently, as the government
concedes, there is no evidence of the forfeiture in the
record. In such circumstances the dismissal of Formanczyk's
claim was premature.
Vacated and remanded.
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