United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2577
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
William J. R. Embrey, * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 7, 2002
Filed: November 19, 2002
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Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and MELLOY, Circuit
Judges.
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PER CURIAM.
Federal inmate William Embrey appeals following the district court’s denial
of Embrey’s motion to reconsider the court’s previous order denying his motion under
Federal Rule of Criminal Procedure 41(e) for return of seized property. We reverse
and remand for an evidentiary hearing.
After the Missouri Highway Patrol searched a vehicle in which Embrey was a
passenger, Embrey was indicted for and later pleaded guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g). He was sentenced to 262
months imprisonment and 5 years supervised release, and this court affirmed on direct
appeal. See United States v. Embrey, 250 F.3d 1181 (8th Cir. 2001).
Embrey later moved for return of property allegedly seized during the search.
The court--after the government responded, but without holding an evidentiary
hearing--denied Embrey’s motion on the basis that the search had been lawful and
Embrey had refused to admit the property was his. The court summarily denied
Embrey’s motion for reconsideration.
Embrey is not entitled under any circumstances to return of the firearms seized
during the search. See United States v. Felici, 208 F.3d 667, 670 (8th Cir. 2000)
(district court properly concluded without receiving evidence that convicted felon
was not entitled to return of firearms), cert. denied, 531 U.S. 1201 (2001). With
regard to the multiple items of other property that Embrey listed in the inventory
attached to his Rule 41(e) motion, however, we conclude that the district court erred
in holding that Embrey could not recover his property because the search had been
found lawful: the plain language of Rule 41(e) provides that an individual may
properly move for return of property if he was aggrieved by an unlawful search or by
a deprivation of property. See Fed. R. Crim. P. 41(e).
Furthermore, the record is unclear as to where some of the property is being
held, and whether the government continues to need the property. Among other
things, a letter from the Missouri Highway Patrol indicates that the property seized
as evidence was released to the Department of Alcohol, Tobacco, and Firearms, and
that “some” of the evidence which was not seized as evidence was released to a third
party. Because there are unresolved factual issues, and because Rule 41(e) generally
requires the district court to conduct an evidentiary hearing, we conclude remand for
an evidentiary hearing is warranted in this case. See Felici, 208 F.3d at 670-71
(reversing in part because court failed to provide evidentiary hearing on issue of
status of property as contraband); United States v. Burton, 167 F.3d 410, 410-11 (8th
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Cir. 1999) (reversing where district court improperly denied Rule 41(e) motion
without receiving evidence to determine who had custody of subject property).1
Determination of the question of ownership the property, although muddied by
Embrey’s reluctance to implicate himself by admitting to being the owner, should be
taken up in the evidentiary hearing.
Accordingly, we reverse and remand for further proceedings consistent with
this opinion. We also deny Embrey’s motion to correct the record, but we grant his
motion to hear the case on the briefs.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
Embrey also argues that the district court violated his double jeopardy rights
when it sentenced him, and that the search was illegal. These issues are not properly
before us in this Rule 41(e) proceeding and we do not address them.
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