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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-15632
Non-Argument Calendar
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D.C. Docket No. 8:14-cr-00123-CEH-MAP-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES LEE COBB, III,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 9, 2017)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
Defendant James Lee Cobb, III (“Defendant”), proceeding pro se, appeals
the district court’s denial of his motion under Fed. R. Crim. P. 41(g) for the return
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of property seized during the investigation of his underlying criminal case.
Concluding that the district court did not err in denying Defendant’s motion, we
affirm.
I. BACKGROUND
In December 2014, Defendant pled guilty without a plea agreement to
various criminal charges related to wire fraud, identity theft, and unlawful
possession of a firearm. Although the superseding indictment contained forfeiture
provisions, these provisions did not cover the items at issue in this appeal. The
court sentenced Defendant to 324 months’ imprisonment and five years of
supervised release.
After his sentencing, Cobb filed a motion under Fed. R. Crim. P. 41(g)1 for
return of property confiscated during a search of his home. He sought the return of
five vehicles,2 two flat-screen televisions, three pieces of white-gold jewelry, and
two pieces of yellow-gold jewelry. He argued that the confiscated property was
1
Rule 41(g) reads:
Motion to Return Property. A person aggrieved by an unlawful search and
seizure of property or by the deprivation of property may move for the property’s
return. The motion must be filed in the district where the property was seized.
The court must receive evidence on any factual issue necessary to decide the
motion. If it grants the motion, the court must return the property to the movant,
but may impose reasonable conditions to protect access to the property and its use
in later proceedings.
2
The five vehicles listed were a 2007 Chevy Silverado, a 1988 Nissan Sentra, a 2005 Kawasaki
Ninja ZX 10, a 2005 Cadillac XLR, and a 2002 Ford Focus.
2
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not relevant to his criminal case and thus was seized in violation of his Fourth and
Fourteenth Amendment rights.
In its initial reply to Defendant’s motion, the Government argued, among
other things, that returning Defendant’s property would be premature, as
Defendant was appealing his criminal conviction. The Government noted it would
need to maintain all existing evidence in the event Defendant’s appeal succeeded.
If Defendant’s conviction was affirmed, the Government would then consider
whether to return any property it possessed. 3 Alternatively, the Government
observed that the personal property could properly be used to help satisfy part of
the $1.8 million in restitution previously ordered by the district court. In a
supplemental response filed two days later, the Government advised that it had
learned that the federal government did not have possession of any of the five
vehicles whose return was sought by Defendant in his motion and that the City of
Tampa, having earlier released some of the vehicles, was in the process of
auctioning off any remaining vehicles.4 The Government attached portions of a
report from the Tampa Police Department indicating that the Department had
3
This Court affirmed Defendant’s convictions and sentences in his direct appeal several months
after his Rule 41(g) motion was denied. See United States v. Cobb, 842 F.3d 1213, 1215 (11th
Cir. 2016).
4
The Tampa Police Department had worked with the federal government in the investigation of
Defendant and it was purportedly the entity that had custody of vehicles listed in Defendant’s
motion.
3
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seized the televisions and vehicles listed in Defendant’s motion. The records
further indicated two of the vehicles purportedly owned by Defendant—a 1988
Nissan Sentra and a 2005 Kawasaki Ninja ZX 10—had been authorized for release
by Sharla Canfield, a detective with the Tampa Police Department, though the
records did not indicate to whom the vehicles were released. The remaining three
vehicles had either already been auctioned or were scheduled to be auctioned a
week after the Government filed its supplemental response.
In a second supplemental response, the Government noted that the yellow-
gold jewelry referenced in Defendant’s motion was never seized by law
enforcement, and included an affidavit from Canfield so testifying. The
Government also included an affidavit from IRS special agent Glenn Hayag, who
testified as well that the yellow-gold jewelry was not seized and that the
Government was still holding the white-gold jewelry for evidence. Over
Defendant’s objection, 5 the district court adopted the magistrate judge’s Report
and Recommendation, and denied Defendant’s motion.
Defendant appeals the district court’s denial of his motion. In his appellate
brief, Defendant addresses only the vehicles that were auctioned or released, so we
5
Defendant argued that his property was seized without a valid warrant, that the federal
government did not have jurisdiction to hold the property and did not need to continue to hold it,
and that the federal government and the Tampa Police Department had conspired to steal his
property. He did not discuss, however, the impact of the release and auction of his vehicles on
the viability of his Rule 41(g) motion.
4
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affirm the district court’s denial of Defendant’s motion as to the jewelry and
televisions. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680–81
(11th Cir. 2014) (collecting cases from this Circuit holding that arguments or
claims not raised in an opening brief are abandoned). We now turn to Defendant’s
claims regarding the vehicles.
II. DISCUSSION
A. Whether the District Court Properly Denied Defendant’s Rule
41(g) Motion
The district court held that Rule 41(g) does not provide relief for Defendant
because the federal government was not in possession of any of the vehicles. A
district court’s conclusions of law in denying a motion for return of seized property
are reviewed de novo, and factual findings are reviewed for clear error. United
States v. Howell, 425 F.3d 971, 973 (11th Cir. 2005). The ultimate decision of
whether to deny a Rule 41(g) motion is reviewed under the abuse of discretion
standard. United States v. De La Mata, 535 F.3d 1267, 1279 (11th Cir. 2008).
When an individual moves for return of his property under Rule 41(g) after
the close of criminal proceedings, the motion is treated as a civil action in equity.
Howell, 425 F.3d at 974. To prevail, he must show a possessory interest in the
property seized and that he has “clean hands.” Id. The court can deny a motion if
the Government claims it no longer possesses the property, provided the
5
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Government provides some evidence to support that claim. See United States v.
Potes Ramirez, 260 F.3d 1310, 1314 (11th Cir. 2001).
Defendant argues on appeal that the district court erred in denying his
motion because the vehicles had not been properly released or sold. Defendant
asserts that there is no evidence in the record that a court authorized the auction of
the three vehicles that were sold, nor that a Florida state court had jurisdiction to
order the distribution of federal evidence. Defendant also argues that the Sentra
and Ninja were improperly released because he, as the vehicles’ owner, never
authorized anyone to take possession of them.
As far as we can determine, none of the five vehicles at issue were ordered
forfeited by a state or federal court as part of Defendant’s criminal conviction. For
that reason, we understand Defendant’s frustration at what he claims was the
absence of any meaningful notice to him6 that the Tampa Police Department was
releasing these vehicles and the absence of any meaningful opportunity to contest
their release or sale. Nevertheless, we cannot order the federal government to
return something that it does not possess. And there seems to be no dispute that it
was the Tampa Police Department, not the federal government, that exercised
6
Defendant acknowledges that the Department sent out notices of the impending auction, but
argues that because those notices were sent to his home address, at a time when he was in federal
custody, he did not receive them.
6
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custody over the vehicles, released the vehicles to persons it deemed authorized to
possess them, and auctioned the remaining vehicles.
As the United States cannot return something it does not have, the court
cannot order it to return to Defendant the vehicles listed in the motion. While this
alone might not necessarily leave Defendant without a remedy, see Potes Ramirez,
260 F.3d at 1314–15 (noting that a district court can exercise equitable jurisdiction
over a motion to return property even if the court determines that the federal
government has destroyed the property), Defendant has made no argument that it
was the federal government, as opposed to the Tampa Police Department, that
released and/or auctioned the vehicles.
B. Whether an Evidentiary Hearing was Required
Defendant also argues that the district court erred by not holding an
evidentiary hearing. Defendant states that an evidentiary hearing would give him
an opportunity to address the allegedly conflicting evidence as to the Tampa Police
Department’s authority to release or auction the vehicles, the Tampa Police
Department’s various failures to notify Defendant and his defense counsel
concerning the impending auction, and the validity of documents provided by the
Tampa Police Department.
A district court’s denial of an evidentiary hearing is reviewed for abuse of
discretion. See Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002). In
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reviewing a Rule 41(g) motion, “[t]he court must receive evidence on any factual
issue necessary to decide the motion.” Fed. R. Crim. P. 41(g). The movant is
presumed to have a right to an item’s return, so the Government must demonstrate
it has a legitimate reason to retain the property. Potes Ramirez, 260 F.3d at 1314
(quoting United States v. Chambers, 192 F.3d 374, 377 (3d Cir. 1999)). The
district court has discretion to determine whether the Government has made the
necessary showing. Id. (“We leave it to the district court’s discretion on remand to
determine how the government should present evidence of the property’s
destruction.”).
Defendant’s reliance on Potes Ramirez in arguing for an evidentiary hearing
is misplaced. In Potes Ramirez, the Government pointed to no evidence in the
record and offered no verification of or support for its claim that the property being
sought was no longer in its custody. Id. Here, in contrast, the Government
presented evidence confirming that the items Defendant seeks were not in its
possession; Defendant has not disputed that evidence.
Accordingly, the district court did not abuse its discretion by refusing to hold
an evidentiary hearing in this case.
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III. CONCLUSION
For the above reasons, we conclude the district court properly denied
Defendant’s Rule 41(g) motion for the return of his property, and its order is
AFFIRMED.
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