Not for publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2148
UNITED STATES,
Appellee,
v.
JOSUE G. REYES-HERNANDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Josue G. Reyes-Hernandez on brief pro se.
H. S. Garcia, United States Attorney, Sonia I. Torres-Pabon,
Assistant United States Attorney, and Nelson Perez-Sosa, Assistant
United States Attorney, on brief for appellee.
May 14, 2003
Per Curiam. In June 2002, four years after his
conviction, the appellant, Josue G. Reyes-Hernandez, filed a motion
in the district court, pursuant to Fed. R. Crim. P. 41(e)1, seeking
the return of $1055 that was found in his possession when he was
arrested in 1997. Reyes-Hernandez asserted that the criminal
proceedings against him had concluded, that he was entitled to
lawful possession of the money, and that he had no reason to
believe that the government had instituted forfeiture proceedings
with respect to the $1055. Although served by Reyes-Hernandez, the
government did not respond to the Rule 41(e) motion. Nonetheless,
six weeks later, the district court summarily denied it. Reyes-
Hernandez has appealed.
On appeal, the government has informed this court that it
has no objection to the return of the $1055 to Reyes-Hernandez.
Accordingly, we vacate the district court's order denying the Rule
41(e) motion and remand for entry of an order granting the Rule
41(e) motion. Where no forfeiture proceeding with respect to the
$1055 has been instituted, nor is any such proceeding intended to
be instituted, the government does not convincingly argue that the
district court lacked jurisdiction to grant Reyes-Hernandez's
requested relief. Similarly unconvincing is the government's
1
Effective December 1, 2002, Rule 41 was amended and
reorganized. What was formerly Rule 41(e) is now found at Rule
41(g) with minor stylistic changes. We refer to the formulation,
i.e., Rule 41(e), effective at the time of Reyes-Hernandez's June
2002 filing.
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suggestion that Reyes-Hernandez should be required to file a
separate civil action pursuant to 28 U.S.C. § 1331. Even were we
to conclude that a Rule 41(e) motion is an inappropriate vehicle by
which to obtain the requested relief, we would also conclude that
the district court erred in failing to treat the Rule 41(e) motion
as a civil complaint. See United States v. Giraldo, 45 F.3d 509
(1st Cir. 1995) (per curiam).
The district court order entered on July 31, 2002 denying
the motion for return of property is vacated and the case is
remanded for entry of an order granting the motion.
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