NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 4, 2013*
Decided November 5, 2013
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 12‐3527
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 05‐CR‐146
MARK A. CUBIE, Charles N. Clevert, Jr.,
Defendant‐Appellant. Judge.
O R D E R
Mark Cubie appeals the denial of his motion under Federal Rule of Criminal
Procedure 41(g) for the return of property that police seized during the investigation
that led to his drug and firearm prosecutions. He contends that the district court should
have conducted an evidentiary hearing to resolve certain factual questions. We affirm.
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. The appeal is thus submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 12‐3527 Page 2
After Cubie pleaded guilty to conspiring to distribute cocaine and marijuana and
carrying a firearm during that crime, United States v. Nicksion, 628 F.3d 368 (7th Cir.
2010), he moved under Rule 41(g) for the return of seized property. First, during a
traffic stop after a controlled buy in a parking lot, police had found approximately $200
in currency on Cubie and another $6,500 when they searched his Cadillac Eldorado.
Then, after releasing and eventually arresting Cubie, the police—supported by a
warrant—searched his apartment and seized Cubie’s Eldorado and $10,000 more.
When the government responded to Cubie’s 41(g) motion that the money from
the apartment was forfeited during his prosecution, Cubie abandoned his request for
the return of the $10,000.
The district court then denied Cubie’s motion, noting that the car and $6,700
from the traffic stop had both been forfeited. The government submitted records of a
Wisconsin court proceeding at which the Eldorado was forfeited to a local police
department because it was used in the drug offense, see WIS. STAT. § 961.55(1)(d); the
federal government could not return a car that it did not possess, the district court
observed. The government also informed the court that the $6,700 had been
administratively forfeited to the United States Drug Enforcement Agency (which
assisted the investigation), and was allowed to provide documentation of the
administrative forfeiture the next day. Cubie moved the court to reconsider its ruling
that the car and money had been forfeited, but the court declined the request because
Cubie provided no evidence to rebut the government’s records.
On appeal Cubie continues to concede that he forfeited the $10,000 seized from
his apartment but insists that Rule 41(g) required the district court to conduct an
evidentiary hearing to resolve two lingering factual disputes. First, he questions the
chain of custody for the Eldorado. He argues that the DEA seized his car and then gave
it to Wisconsin police to avoid federal forfeiture proceedings. (He attaches to his
appellate brief an affidavit from a DEA agent purportedly showing that the federal
agency and not local police seized the car. In the affidavit the DEA agent swears that the
Eldorado “was seized subsequent to the arrest of the defendant.”) Second, he asserts
that he was not informed of the DEA’s forfeiture proceedings and that the district court
should have recast his request under Rule 41(g) for the return of the $6,700 as a claim of
insufficient notice in violation of 18 U.S.C. § 983(e).
Contrary to Cubie’s contention, Rule 41(g) does not require district courts to
conduct a full evidentiary hearing; the Rule requires only that courts “receive evidence”
No. 12‐3527 Page 3
to support their factual determinations on contested points. See United States v. Stevens,
500 F.3d 625, 628–29 (7th Cir. 2007). Here the district court received records reflecting
that Cubie’s car was forfeited to local police. This was indeed reason enough to deny
the request for the car, since Rule 41(g) provides no relief if the federal government does
not possess the property. Stevens, 500 F.3d at 628; Okoro v. Callaghan, 324 F.3d 488, 491
(7th Cir. 2003); see also United States v. Norwood, 602 F.3d 830, 832–33 (7th Cir. 2010).
Though the federal government may not transfer property to an agent to hide or sell in
order to defeat a Rule 41(g) motion, Okoro, 324 F.3d at 491, Cubie did not present the
DEA agent’s affidavit to the district court, and we will not consider evidence submitted
for the first time on appeal, see United States v. Banks, 405 F.3d 559, 567 (7th Cir. 2005);
United States v. Raymond, 228 F.3d 804, 809 n.5 (7th Cir. 2000). Further, to the extent that
the court relied solely on the government’s assertion (unsupported at the time) that the
$6,700 taken during the traffic stop had been forfeited to the DEA, that was error.
See Stevens, 500 F.3d at 628–29. But that error was harmless because the government
provided records of the administrative forfeiture the next day, and in any event a
Rule 41(g) motion is not the appropriate mechanism to recover property lost to
administrative forfeiture. See United States v. Sims, 376 F.3d 705, 707–08 (7th Cir. 2004);
United States v. Howell, 354 F.3d 693, 695–96 (7th Cir. 2004). Even if the district court had
recast his claim as one of inadequate notice under 18 U.S.C. § 983(e), as Cubie now
insists it should have, the time for such a challenge to the 2005 administrative forfeiture
had passed when Cubie filed his motion in 2011, id. § 983(e)(3) (setting statute of
limitations at five years); Simms, 376 F.3d at 707.
AFFIRMED.