United States v. Albinson

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

1-29-2004

USA v. Albinson
Precedential or Non-Precedential: Precedential

Docket No. 01-1265

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 PRECEDENTIAL ERIC B. HENSON, ESQUIRE
(ARGUED)
UNITED STATES Office of United States Attorney
COURT OF APPEALS 615 Chestnut Street, Suite 1250
FOR THE THIRD CIRCUIT Philadelphia, Pennsylvania 19106
Attorney for Appellee

No. 01-1265
OPINION OF THE COURT

UNITED STATES OF AMERICA
SCIRICA, Chief Judge.
v.
Stanley A. Albinson appeals the
STANLEY A. ALBINSON, denial of his motion for return of
Appellant property filed under Fed. R. Crim. P.
41(g) (formerly Fed. R. Crim. P. 41(e)) 1
without an evidentiary hearing. The
On Appeal from the government asserted that it no longer
United States District Court for the retained possession of the seized
Eastern District of Pennsylvania property. At issue is whether the District
D.C. Criminal No. 95-cr-00019 Court was required to conduct an
(Honorable Lowell A. Reed, Jr.) evidentiary inquiry as set forth in United
States v. Chambers, 192 F.3d 374 (3d
Cir. 1999). We will reverse and remand.
Argued October 28, 2003

1
Before: SCIRICA, Chief Judge, Fed. R. Crim. P. 41 was amended in
NYGAARD and AMBRO, 2002 “as part of a general restyling of the
Circuit Judges Criminal Rules to make them more easily
understood and to make style and
(Filed January 27, 2004) terminology consistent throughout the
rules.” See Fed. R. Crim. P. 41 advisory
JENNIFER B. SAULNIER, ESQUIRE committee notes. As a result of the 2002
(ARGUED) amendments, the previous Fed. R. Crim.
Jones Day P. 41(e) now appears with minor stylistic
One Mellon Bank Center changes as Rule 41(g). For consistency,
500 Grant Street, Suite 3100 we will refer only to Fed. R. Crim. P.
Pittsburgh, Pennsylvania 15219 41(g) even though Albinson filed his
Attorney for Appellant motion under Fed. R. Crim. P. 41(e) and
most of the relevant case law refers to
the previous rule.
 I. App. 124. Albinson alleged he had been
deprived of property by the government
On February 24, 1994, FBI and
and that the seizures were “made by
Naval Investigative Service agents acting
government agents/employees.” Id. On
under a search warrant seized property2
August 2, 1998, Albinson filed a pro se
from the garage and residence of Stanley
motion for summary judgment on his
A. Albinson at 69 Mine Run Road in
Rule 41(g) motion. The government did
Limerick, Pennsylvania. On February
not respond to either motion.
10, 1995, Albinson was arrested for the
unauthorized sale of United States On May 14, 1999, the District
property in violation of 18 U.S.C. § 641. Court entered a default judgment in favor
The indictment alleged Albinson sold of Albinson, and ordered the government
United States property to government to return the seized property by June 15,
agents on six occasions in 1993. The 1999. The District Court also ordered
indictment did not, however, charge the government to file a “verified
Albinson with any offense related to the declaration based on first hand
property seized during the 1994 search. knowledge” for each item that “had been
lost, destroyed [or] misplaced,”
On April 24, 1995, Albinson
describing the “reasons why the property
entered a guilty plea on all six counts of
cannot be returned . . . to hold an
the indictment. Albinson subsequently
evidentiary hearing thereon.” App. 16.
attempted to withdraw his guilty plea, but
On June 15, 1999, the government
the District Court denied his motion. On
responded that it was “physically unable
February 18, 1998, Albinson was
to comply” with the order, because
sentenced to 15 months in prison, plus
certain property had been returned to
three years of supervised release.
Albinson, and the remaining items had
On April 21, 1998, while serving been either acquired by third parties or
his sentence, Albinson filed a pro se destroyed. App. 146. The government
motion for return of property under Fed. submitted no documentary evidence in
R. Crim. Pro. 41(g). Albinson sought support of its response. It simultaneously
return of “every item listed on the seizure filed a motion for reconsideration
warrant/property list and those items requesting an opportunity to respond to
seized where no receipt was given.” Albinson’s motions. The District Court
granted the motion for reconsideration,
and the government responded to
2
The inventory of seized property lists Albinson’s motions.
over 200 items, including floor tiles, tool
On January 16, 2001, the District
kits, ethanol, batteries, a pump and
Court denied Albinson’s Rule 41(g)
motor, ovens, stainless steel sinks,
motion without conducting an
computer modems, rolodex records, ear
evidentiary hearing. United States v.
plugs and trousers. Supp. App. 29-42.
Albinson, No. 95-19-01, 2001 U.S. Dist. F.3d at 376. Under Fed. R. Crim. P.
LEXIS 374 (E.D. Pa. Jan. 17, 2001). 41(g),
The District Court found the government
A person aggrieved by an
failed to carry its burden of proving a
unlawful search and
“cognizable claim of ownership or right
seizure of property or by
of possession” in the seized property, but
the deprivation of property
denied the motion nevertheless. Id. at
may move for the
*7. The District Court determined the
property’s return . . . . The
government had irrevocably lost or
court must receive
destroyed the seized property, and
evidence on any factual
therefore this Court’s holding in United
issue necessary to decide
States v. Bein, 214 F.3d 408 (3d Cir.
the motion. If it grants the
2000), rendered it “powerless” to award
motion, the court must
monetary damages in lieu of returning
return the property to the
the seized property. Albinson, 2001 U.S.
movant, but may impose
Dist. LEXIS 374, at *15. The District
reasonable conditions to
Court concluded that an evidentiary
protect access to the
hearing was “not required in light of the
property and its use in later
futile outcome.” Id. at *16.
proceedings.
Albinson timely filed this appeal. 3
Fed. R. Crim. P. 41(g) (emphasis added).
II. At the conclusion of a criminal
proceeding, the evidentiary burden for a
A.
Rule 41(g) motion shifts to the
Property seized by the government government to demonstrate it has a
as part of a criminal investigation “must legitimate reason to retain the seized
be returned once criminal proceedings property. Chambers, 192 F.3d at 377.
have concluded, unless it is contraband The burden on the government is heavy
or subject to forfeiture.” 4 Chambers, 192 because there is a presumption that the
person from whom the property was
taken has a right to its return. Id.
3
We exercise appellate jurisdiction The District Court held, and the
over the District Court’s denial of the parties do not dispute, that the
Rule 41(g) motion under 28 U.S.C. § government failed to meet its burden on
1291. United States v. Pantelidis, 335 Albinson’s Rule 41(g) motion. Albinson,
F.3d 226, 233-34 (3d Cir. 2003). 2001 U.S. Dist. LEXIS 374, at *9.
Indeed, the District Court concluded that
4
It is undisputed that the property Albinson’s “motion probably would be
seized during the 1994 search is neither granted as to the items on the inventory
contraband nor subject to forfeiture.
lists,” but for the perceived futility of Chambers, 192 F.3d at 376.
granting such an order. Id. Albinson
B.
argues the District Court abused its
discretion by denying his Rule 41(g) Rule 41(g) directs a district court
motion without conducting an to “receive evidence” on issues of fact
evidentiary hearing and instead relying necessary to dispose of the motion. Fed.
solely on the government’s R. Crim. P. 41(g). We provided more
representations that it no longer retained specific guidance on the scope of this
possession of the seized property. evidentiary inquiry in United States v.
Albinson contends that even if the Chambers, 192 F.3d 374 (3d Cir. 1999).
District Court properly determined that In that case, petitioner Chambers filed a
the seized property is “physically Rule 41(g) motion for return of property
unavailable,” he is entitled to a hearing to seized by the government during his
determine what happened to the property. arrest. Id. at 375. The government
The government responds that because argued Chambers’ motion was moot
Albinson failed to contest its because it no longer retained possession
representations in the District Court, of the seized property. Id. The district
there were no disputed issues of fact court agreed, and denied Chambers’
which required an evidentiary hearing. motion based on representations by the
government that the property at issue had
We review the District Court’s
been forfeited, repossessed, returned or
decision to “exercise its equitable
destroyed, and therefore could not be
jurisdiction” under Fed. R. Crim. P.
returned. Id. We reversed on appeal,
41(g) for abuse of discretion.5
concluding that the “government can not
defeat a properly filed motion for return
5 of property merely by stating that it has
We do not reach the merits of the
destroyed the property or given the
District Court’s decision to deny
property to third parties.” Id. at 377.
Albinson’s Rule 41(g) motion. On
Rather, “[t]he government must do more
appeal, we consider only the District
than state, without documentary support,
Court’s decision to not conduct an
that it no longer possesses the property at
evidentiary hearing prior to deciding
issue.” Id. at 377-78.
Albinson’s Rule 41(g) motion, and we
review that decision for abuse of We also held that a district court
discretion. We note, however, that other must make certain evidentiary inquiries
courts of appeals have reviewed de novo before deciding a Rule 41(g) motion for
the grant or denial of Rule 41(g) motions return of property:
after the conclusion of criminal
If . . . the
proceedings. See, e.g., United States v.
government asserts that it
Potes, 260 F.3d 1310, 1314 n.8 (11th Cir.
no longer has the property
2001).
sought, the District Court must sufficient to support a fact finder’s
determine, in fact, whether the determination. Chambers, however,
government retains possession of requires the district court to hold an
the property; if it finds that the evidentiary hearing on “any disputed
government no longer possesses issue of fact necessary to the resolution
the property, the District Court of the motion,” which may include
must determine what happened to determining “what happened” to the
the property. The District Court seized property. Id. at 378.
must hold an evidentiary hearing
The District Court expressly
on any disputed issue of fact
acknowledged the Chambers inquiry, but
necessary to the resolution of the
decided a hearing was “not required in
motion . . . .
light of the futile outcome.” Albinson,
. . . If the District 2001 U.S. Dist. LEXIS 374, at *16. The
Court concludes that the District Court determined monetary
government’s actions in damages were the only possible remedy
either regard were not based on the government’s
proper, it shall determine representations that it no longer retained
what remedies are possession of the seized property.
available. Recognizing our decision in United
States v. Bein, 214 F.3d 408, 415 (3d Cir.
Id. at 378 (citations omitted).
2000), 6 prohibits monetary damages on a
We note at the outset that a Rule 41(g) motion, the District Court
district court need not necessarily concluded there was “no other relief to
conduct an evidentiary hearing on every which petitioner is entitled under Rule
Rule 41(g) motion. The rule only directs 41[g].” Albinson, 2001 U.S. Dist.
a district court to “receive evidence on LEXIS 374, at *17.
any factual issue necessary to decide the
The District Court found the Bein
motion.” Fed. R. Crim. P. 41(g).
prohibition on monetary damages
Likewise, Chambers does not mandate
the method by which a district court must
“determine, in fact, whether the
6
government retains possession of the Two of our sister circuits have
property,” so long as this determination suggested that a district court may award
rests on a firmer basis than the monetary damages as an equitable
government’s unsubstantiated assertions remedy on a Rule 41(g) motion. See,
that it “no longer possesses the property e.g., Mora v. United States, 955 F.2d
at issue.” Id. at 377-78. For example, 156, 159-60 (2d Cir. 1992); United States
affidavits or documentary evidence, such v. Martinson, 809 F.2d 1364, 1368 (9th
as chain of custody records, may be Cir. 1987). But we have concluded to
the contrary.
“undermined Chambers’ hearing Id. at *14-15.
requirement,” 7 id. at *13, and created a
Although Bein forecloses certain
“Catch-22” in cases in which the
remedies for Rule 41(g) petitioners, it
government asserts it has lost or
does not necessarily create a
destroyed the seized property:
jurisprudential conundrum. An
On the one hand, evidentiary inquiry ensures that a district
Chambers demands that court has sufficient information to decide
this Court engage in an a Rule 41(g) motion. At the same time, it
inquiry as to what provides an opportunity for a Rule 41(g)
happened to the lost or petitioner to demand the government
missing property and return property to which he is rightfully
decide on an appropriate entitled. This inquiry assists an
remedy. On the other aggrieved party in identifying and
hand, Bein forecloses the recovering property seized in the course
only appropriate remedy in of a criminal investigation.
a case where the
As the District Court correctly
government has lost or
recognized, an evidentiary hearing
destroyed personal
potentially offers certain beneficial
property: money damages.
effects. For example, a “hearing might
In other words, Bein makes
spark a government investigation that
the inquiry required by
results in the discovery or recovery of
Chambers an exercise in
property the government initially thought
futility, because even if the
to be lost or destroyed.” Id. at *15 n.8.
Court were to conclude
Alternatively, an evidentiary hearing
after a hearing that a Rule
“might result in the government being
41[g] petitioner was
able to prove that the property was
entitled to the return of
owned by the government,” and therefore
property, and that the
not subject to return. Id. In either case,
government improperly
the prospect of a hearing provides an
disposed of the property,
incentive for the government to retain
the Court is powerless to
accurate records of seized property,
award the only available
consistent with its regulatory
remedy.
obligations.8

7
The District Court suggested that
8
“[a]n argument could be made that Bein Department of Justice regulations
essentially attempts to overrule require the FBI to maintain detailed
Chambers.” Albinson, 2001 U.S. Dist. chain of custody records for all seized
LEXIS 374, at *16 n.9. property. See, e.g., 41 C.F.R. § 128-
 Bein, by contrast, prescribes a defeat a Rule 41(g) motion simply by
limitation on the remedies available to a asserting that it no longer retains
Rule 41(g) petitioner by precluding the possession of the property would
award of monetary damages. This frustrate the purpose of the Fed R. Civ.
limitation is “not inconsistent” with the P. 41(g) evidentiary inquiry set forth in
requirement that a district court conduct Chambers. The District Court was
an evidentiary hearing before deciding a justifiably concerned with the “harsh
Rule 41(g) motion. Bein, 214 F.3d at consequences” of such a result. Id. at
416. Although Chambers directs a *17.
district court to determine what remedies
C.
are available to a Rule 41(g) petitioner,
Bein “did not consider whether such The government argues there were
available remedies would include an no “disputed issues of fact” that would
award of monetary damages.” Id. require the District Court to conduct an
evidentiary hearing because Albinson did
Moreover, the question of
not challenge the government’s
remedies should arise only after the
assertions that it no longer retained
district court has investigated the status
possession of the seized property.
of the seized property. While
Albinson responds that a hearing is
representations by the government may
required because the government’s
be credible and may suggest that “the
unsupported declaration did not resolve
likelihood of actual recovery of the
all disputed issues of fact. Specifically,
property [is] very slim,” Albinson, 2001
Albinson argues the government’s
U.S. Dist. LEXIS 374, at *15 n.8, a fact
declaration did not identify the third-
finder may not deny a Rule 41(g) motion
parties who allegedly acquired the
based on a prospective assessment of the
property, the persons who destroyed or
remedies that might (or might not) be
distributed the property, or the property
available. Allowing the government to
that was allegedly returned.
As mentioned, neither the Federal
50.101 (“Each bureau shall be Rule nor Chambers makes an evidentiary
responsible for establishing and hearing a prerequisite for deciding a Rule
maintaining inventory records of its 41(g) motion. Chambers only requires
seized personal property to ensure that . . an evidentiary hearing on “any disputed
. (d) A well documented chain of custody issue of fact necessary to the resolution
is kept; and (e) All information in the of the motion.” 192 F.3d at 378. But
inventory records is accurate and Chambers also makes clear that “[t]he
current.”). If the FBI maintains these government must do more than state,
chain of custody records as required by without documentary support, that it no
regulation, the burden of an evidentiary longer possesses the property at issue.”
inquiry is significantly reduced.
Id. at 377-78. That standard was not amendment may be particularly
satisfied here. Moreover, even if the appropriate on the facts of this case.9
District Court properly determined the
IV.
government no longer possessed the
property, it did not address the remainder To summarize, the able District
of the Chambers inquiry regarding “what Court did not conduct the full evidentiary
happened to the property.” Id. at 378. A inquiry required by Chambers in
district court may be able to make these deciding Albinson’s Rule 41(g) motion.
determinations based upon affidavits or The District Court determined
verified documentary evidence. But if Albinson’s property was unavailable
there are disputed issues of fact relating based upon the government’s
to the status of the property or what unsubstantiated assertions, and made no
happened to it, the district court should determination regarding what happened
hold an evidentiary hearing. This to the seized property. Whether these
decision is left to the sound discretion of determinations ultimately require an
the District Court.
III.
9
The allegations of a pro se litigant
Finally, Albinson argues that if an
are generally held to a “less stringent
evidentiary inquiry reveals individual
standard” than formal pleadings prepared
government agents improperly disposed
by a lawyer. Mitchell v. Horn, 318 F.3d
of his property, he is entitled to amend
523, 529 (3d Cir. 2003) (citing Haines v.
his Rule 41(g) motion to state alternative
Kerner, 404 U.S. 519, 520 (1972)). Fed.
claims consistent with this Court’s
R. Crim. P. 41(g) motions are civil in
decision in Bein. Specifically, Albinson
nature, and should be treated as a “civil
argues that if the evidentiary inquiry
complaint.” United States v. McGlory,
reveals facts indicating that specific
202 F.3d 664, 670 (3d Cir. 2000)
government agents violated his
(citation omitted). Therefore, a pro se
constitutional rights, he should be able to
Rule 41(g) motion should be liberally
amend his pleadings to state a Bivens
construed to allow the assertion of
complaint. The government responds
alternative claims. “[A]ffirming the
that it was not error to deny Albinson’s
denial [of a pro se Rule 41(e) motion]
motion without a hearing because
without leave to amend would have the
Albinson neglected to assert alternative
same effect as a 12(b)(6) dismissal of a
claims in the District Court. While we
pro se complaint,” which are generally
leave this matter also to the sound
disfavored. Pena v. United States, 157
discretion of the District Court, we note
F.3d 984, 987 (5th Cir. 1998) (reversing
that, depending on what is adduced
dismissal of pro se petitioner’s Rule
through the evidentiary inquiry,
41(g) motion without leave to amend to
state a Bivens action).
evidentiary hearing or merely the
submission of affidavits and
documentary evidence, we leave to the
sound discretion of the District Court.
For the foregoing reasons, we will
reverse and remand for proceedings
consistent with this opinion.