[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1638
UNITED STATES,
Appellee,
v.
JOSE LUIS CINTRON MORENO, a/k/a LUIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Lipez, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.
Jose Luis Cintron Moreno on brief pro se.
Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney, and Nelson Perez-
Sosa, Assistant United States Attorney, on brief for appellee.
March 22, 2001
Per Curiam. Jose Luis Cintron Moreno appeals pro se
from the summary denial of a motion for return of property
filed pursuant to Fed. R. Crim. P. 41(e) some months after
the completion of criminal proceedings against him. The
appeal is timely because such motions should be treated as
civil, equitable actions, see United States v. Giraldo, 45
F.3d 509, 511 (1st Cir. 1995), and, thus, the sixty-day time
period under Fed. R. App. P. 4(a)(1)(B) applies, see United
States v. Bein, 214 F.3d 408, 411 n.3 (3d Cir. 2000) (citing
cases). Cintron Moreno's notice of appeal was filed well
within the sixty-day period. For the following reasons, we
vacate and remand.
In his filings before the district court, Cintron
Moreno sought the return of various personal and business
property including checks, cash, jewelry, a pickup truck,
two cellular phones, a black sport pouch, credit cards,
lottery tickets, business records, various licenses and
identification cards, and miscellaneous other items. Most
of this property was allegedly seized during a search of
Cintron Moreno's residence on April 9, 1997. Cintron Moreno
requested that these items be returned to his daughters,
through his attorney, and not his step-daughter. He stated
-2-
that he had never received notice of forfeiture with respect
to the pickup truck but that it was being used by federal
agents.1
The government moved to dismiss representing that,
approximately one month prior to the filing of the Rule
41(e) motion, the Drug Enforcement Administration ("DEA")
had returned to Cintron Moreno's step-daughter 17 cardboard
boxes "containing all the documents impounded during the
search and seizure of April 9, 199[7]." In support of this
representation, the government produced a copy of a signed
receipt. The government further represented that no jewelry
was seized from Cintron Moreno. In support of this latter
representation, the government produced a five page DEA
search warrant inventory list (which does not list any
jewelry). The list indicates that at least 21 boxes of
items were seized from Cintron Moreno's residence. Finally,
the government represented that it "had reviewed all
administrative forfeitures from 11/1/97 to 11/2/99 and the
aforementioned vehicle has not been seized or forfeited by
the government."
1On appeal, Cintron mentions for the first time that the
black sport pouch contained a pistol and ammunition. However,
in response to the government's argument that, as a convicted
felon, he cannot lawfully possess a firearm or ammunition, he
disavows any claim to return of these particular items.
-3-
Cintron Moreno filed a reply to the government in
which he argued, inter alia, that since the inventory list
reveals that at least 21 boxes were removed from his
residence, not all of the seized property could have been
returned to his step-daughter. He further suggested that
the inventory list was incomplete, and he stated that
jewelry had been removed from his person at the time of his
arrest. Cintron Moreno complained that he had never given
permission for his property to be returned to his step-
daughter. Finally, he objected to the government's
representation that his vehicle had not been seized,
suggesting that it had been seized by the United States
Customs Service.
Based on this record, we think that summary denial
of the motion for return of property was inappropriate. The
government has never explained the discrepancy between the
number of boxes seized (21) and the number of boxes returned
(17). Although the government insists that no currency was
seized, the DEA search warrant inventory list indicates that
over $ 500 in currency was seized from the residence. We
think that there was insufficient evidence from which the
district court could conclude that everything seized, and
not properly retained, was returned. In addition, the
-4-
government now concedes that Cintron Moreno's pickup truck
was administratively forfeited by Customs on some
unspecified date. On remand, the district court must
determine whether, in fact, the government retains any
property, and if not, what happened to it. See United
States v. Chambers, 192 F.3d 374, 378 (3d Cir. 1999); United
States v. Rufu, 20 F.3d 63, 64 (2d Cir. 1994) (per curiam).
The court must also determine whether it was proper to
return property to Cintron Moreno's step-daughter. Cf.
Chambers, 192 F.3d at 378 (requiring district court to
determine whether it was proper to surrender property to
third party). Further, inasmuch as Cintron Moreno has
asserted that he was not provided notice of the forfeiture
of his vehicle, the district court should permit him to
amend his motion to assert this collateral attack on the
forfeiture. See id.
If the district court determines that the
government lost or improperly disposed of property, it shall
determine what remedies, if any, are available.
Compare Mora v. United States, 955 F.2d 156, 159-160 (2d
Cir. 1992) (damages available); United States v. Martinson,
809 F.2d 1364, 1368 (9th Cir. 1987) (same) with United
States v. Jones, 225 F.3d 468, 469-70 (4th Cir. 2000)
-5-
(damages not available), petition for cert. filed, (U.S.
Dec. 12, 2000) (No. 00-7542); United States v. Bein, 214
F.3d 408, 412-16 (3rd Cir. 2000) (same). We intimate no
opinion in this regard.
Finally, to the extent that Cintron Moreno is
attempting on appeal to challenge the forfeiture of certain
real estate, this issue is foreclosed. A final order of
forfeiture as to the real estate entered on May 25, 1999.
Cintron Moreno filed a tardy notice of appeal from this
order, and this court dismissed the appeal for lack of
jurisdiction. United States v. Cintron Moreno, No. 00-1391
(1st Cir. May 1, 2000) (unpublished judgment). Cintron
Moreno cannot now attempt to insinuate the issue into this
appeal from the denial of a motion seeking return of
personal and business property.
Vacated and remanded.
-6-