United States v. Cardona-Sandoval

United States Court of Appeals
For the First Circuit

No. 07-1748

UNITED STATES,

Appellee,

v.

JOAQUÍN EMILIO CARDONA-SANDOVAL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Lipez and Howard,
Circuit Judges.

Joaquin E. Cardona-Sandoval on brief pro se.
Nelson Pérez-Sosa, Assistant U.S. Attorney, Germán A.
Rieckehoff, Assistant U.S. Attorney, and Rosa Emilia Rodríguez-
Vélez, United States Attorney, on brief for appellee.

February 25, 2008
 Per Curiam. This appeal is from the district court's

order denying appellant's motion under Fed.R.Crim.P. 41(g) for the

return of property seized at the time of his arrest. The limited

question before us is whether the government's response to that

request provided an adequate evidentiary basis for the court's

decision.

BACKGROUND

Appellant Cardona-Sandoval (Cardona) entered a straight

plea of guilty to an indictment charging him with (1) possession

with intent to distribute more than 1,000 kilograms of marijuana on

board a vessel subject to the jurisdiction of the United States,

and (2) participation in a conspiracy to do the same, in violation

of 46 U.S.C. App. § 1903 (2004)(currently 46 U.S.C. § 70503). He

was sentenced to serve 135 months in prison in a judgment imposed

on November 29, 2004. The judgment was affirmed on appeal. United

States v. Cardona-Sandoval, No. 05-1022 (1st Cir. Mar. 17,

2006)(unpub).

The parties agree that various items belonging to Cardona

were seized at the time of his arrest. Prior to the entry of

Cardona's plea, the government had filed a notice of designation of

evidence pursuant to Fed.R.Crim.P. 12(b)(4), dated August 11, 2004,

which included the category "Personal items of the defendants found

on the vessel."

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 In May of 2006, shortly after the conclusion of his

direct appeal, Cardona moved under Fed.R.Crim.P. 41(g) to have

certain personal items returned.1 The motion requested the return

of all personal property, some of which was specified as followed:

GPS Yellow Garmin, Blue Agenda (date book),
Black Watch, Belt, Nine Thousand Colombian
Pesos, and other personal articles....

Attached to the motion was a copy of a Drug Enforcement

Administration (DEA) form receipt signed by Special Agent Jesus

Gonzales, dated April 19, 2004. This receipt listed the same items

named by Cardona in his motion.

The government's response to Cardona's request asserted

that the DEA Caribbean Division did not have possession of any of

the defendant's personal property, "with the exception of items

seized as evidence." The government explained:

Pursuant to agency regulations, the
defendant's personal items were destroyed on
or about April 28, 2006 by the DEA because the
defendant and/or his representative refused to
accept responsibility for the items.

Attached to the government's response were four DEA form

receipts, identified as coming from Cardona's file, each containing

the handwritten notation "Destruction of property owners refused to

receive." The four lists identified the property destroyed as a

1
Rule 41(g) reads in pertinent part: A person aggrieved ...
by the deprivation of property may move for the property's return.
... The court must receive evidence on any factual issue necessary
to decide the motion. ...

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backpack and three other carrying bags, many items of clothing

(including a belt), and one photograph. With the exception of the

belt, the government response made no reference to any of the

property specifically identified in Cardona's request.

Cardona appeals from the district court's margin order

denying his second Rule 41(g) request for the return of his

property, filed in January, 2007.2

ANALYSIS

The parties do not dispute that a person convicted of

an offense is entitled to the return of property seized at the

time of his arrest, unless that property falls into certain

categories.

Once seized property is no longer needed
as evidence, a criminal defendant is
presumed to have the right to its return.
... However, a Rule 41(g) motion is

2
Cardona's second request for the return of his property was
identical to one filed the previous May. The government responded
to the first request with the statements discussed in this opinion.
The government's response to the second request asserted only that
the second request was frivolous as the earlier request had already
been denied; no further information regarding Cardona's property
was offered. Each request was denied by the district court in
light of the government's response. Cardona appealed from the
district court order denying his second request. In his notice of
appeal, Cardona asserted that he had never received a copy of the
government's responses. Neither this duplication of requests,
responses, and orders, nor the reasons therefore, bear on the
question before the court.
The government certified that its first response was filed
electronically with the court and sent by regular mail to
appellant. The government certified that its second response was
filed electronically with the court "which will send notification
of such filing to all attorneys of record."

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 properly denied if the defendant is not
entitled to lawful possession of the
seized property, the property is
contraband or subject to forfeiture, or
the government's need for the property as
evidence continues.

United States v. Pierre, 484 F.3d 75, 87 (1st Cir.

2007)(internal quotation and citation omitted; punctuation

adjusted). The government does not claim that the items

requested in Cardona's motion are contraband, subject to

forfeiture, or needed as evidence.

Given Cardona's presumptive right to his property, we

do not view the government's response to his request as

adequate to support the district court's decision. First, the

government's response failed to address the status of the

property specified. On the face of the documents submitted by

the parties, it is clear that the government made no reference

to the location or destruction of items both identified by

Cardona and specifically listed in the receipt recorded at the

time of his arrest: the GPS, the datebook, the watch, or the

cash. This, silence, in itself, would render the government's

filing unresponsive to Cardona's request. Thus, as to these

items, the motion was decided in the absence of any evidence or

even any relevant statement by the government.

Second, Cardona sought "other personal articles," in

addition to those specifically identified. The government provided

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the court with no information as to how and when Cardona was first

notified of the impending destruction of his other personal

articles and then given the opportunity to receive the property he

purportedly refused.

When the government intends to make permanent the

deprivation of property seized at the time of an arrest, whether

through forfeiture or destruction of that property, adequate notice

is required. While there is no bright-line test for adequacy of

notice, reasonableness is the touchstone. Gonzalez-Gonzalez v.

United States, 257 F.3d 31, 36 (1st Cir. 2001).3 Notice should be

reasonably calculated to apprise the interested party of the

impending action and afford him or her an opportunity to present

objections.

In the instant case, the government failed to supply the court

with any information as to when or where Cardona was notified that

it intended to destroy his property and how his refusal to receive

it was communicated. Thus, the government's response supplied the

court with no evidence as to the status of the specified property

3
We have had occasion to address the adequacy of notice in a
situation analogous to the appeal before us, where the government
refused to return property not because it was destroyed but because
of an administrative forfeiture. We held that the government's
sending of notice of an impending administrative forfeiture to the
home address of a person it knew to be incarcerated was not
adequate. United States v. Giraldo, 45 F.3d 509, 511 (1st Cir.
1995).

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and no information regarding notice and the procedure followed

prior to the destruction of the remainder of the property.

We have held in previous appeals that the government

failed to meet its obligation under Rule 41(g) to present

sufficient evidence to the district court to permit adjudication of

the dispute over the return of seized property. For example, in

United States v. Uribe-Londono, 238 Fed. Appx. 628, 629-30 (1st

Cir. 2007)(unpub), following his conviction on child pornography

charges, petitioner requested return of seized property pursuant to

Rule 41(g). Uribe-Londono asserted that property he sought

contained no information relating to minors or child pornography.

The government countered that the property was "derivative

contraband," but it failed to submit any evidence to substantiate

this assertion. Therefore, this court held, it was not "apparent"

that the property was derivative contraband. The district court's

denial of the motion was reversed and the case was remanded. In

United States v. Cintron-Moreno, 6 Fed. Appx. 23 (1st Cir. 2001),

due to the government's failure to adequately account for the

property requested, we held that there was insufficient evidence

from which the district court could conclude that everything not

properly retained had been returned to appellant.

We have not held and do not now hold that an evidentiary

hearing is necessary. Affidavits or documentary evidence, such as

chain of custody records, may suffice to support the district

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court's determination in a given case. But an evidentiary

determination is necessary to ensure that there is sufficient

evidence to support the court's decision.

Other courts of appeal agree that denial of a Rule 41(g)

motion for return of property based on the government's bare

assertion that it no longer retains possession of the property is

error. In United States v. Stevens, 500 F.3d 625, 628 (7th Cir.

2007), appellant's Rule 41(g) motion requested the return of his

property, which included several thousand dollars worth of cash.

The government responded that various items had either been

forfeited, destroyed, or returned to a credit union that had

suffered a robbery. The district court denied the Rule 41(g)

motion on the ground that Stevens was not entitled to the return of

his property because it was no longer in the possession of the

government. The Seventh Circuit, noting that arguments in a

government filing are not evidence, vacated and remanded for the

taking of evidence and the finding of facts in regard to the

current status of the property. The Third Circuit has held that

the district court must determine what happened to property

requested under Rule 41(g) but not returned. If it concludes that

the government's actions were not proper, it must determine what

remedies are available. Peloro v. United States, 488 F.3d 163, 177

(3d Cir. 2007).

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 The Second Circuit has noted that the DEA is presumed to

keep records of the properties it seizes and stores under

Department of Justice regulations found at 41 C.F.R. § 128-50.101.4

"With these records at hand, is should be a simple matter for the

Government to establish on remand what property was seized from

Rufu and how that property was disposed of." Rufu v. United

States, 20 F.3d 63, 65 (2d Cir. 1994). The court found the

government response - an assertion that it had returned the

property to Rufu's designee - inadequate to support the district

court's denial of the Rule 41(e) [now 41(g)] motion.5 Among other

defects, as in Cardona's case, the government's description of the

items it had purportedly returned did not match the description of

the items sought by Rufu. The government had not accounted for all

of the petitioner's property in its possession despite the

4
The DOJ regulation, 41 C.F.R. § 128-50.101, reads in
pertinent part:

Each bureau shall be responsible for establishing and maintaining
inventory records of its seized personal property to ensure that:
(a) The date the property seized is recorded;
(b) All of the property associated with a case is recorded together
under the case name and number;
(c) The location of the storage of the property is recorded;
(d) A well documented chain of custody is kept; and
(e) All information in the inventory records is accurate and
current.

5
In 2002, Rule 41 was amended and reorganized. What was
formerly Rule 41(e) is now found at Rule 41(g) with minor stylistic
changes.

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government's obligation to keep records that would have supplied

the pertinent information.

As the Third Circuit noted in United States v. Albinson,

356 F.3d 278 (3d Cir. 2004), the required evidentiary determination

may prove beneficial in a number of ways. It might assist in the

recovery of property by triggering an investigation that results in

the discovery or recovery of property the government initially

thought to be lost or destroyed. It also provides an incentive for

the government to retain accurate records of seized property,

consistent with its regulatory obligations, as record-keeping

renders the burden of an evidentiary inquiry minimal. And, if the

property cannot be located, an evidentiary hearing can determine

what, in fact, happened to the property.

CONCLUSION

The district court denied Cardona's request for the

return of his property despite the fact that the government's

response made no reference to the location or destruction of items

both specifically requested by Cardona and specifically listed in

the receipt recorded at the time of his arrest. Moreover, the

government provided the court with no information identifying how

and when Cardona was notified of the impending destruction and

given the opportunity to receive the property he purportedly

refused. Finally, what assertions the government did make were not

supported by evidence.

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 The government devoted the lion's share of its brief to

addressing the question of whether or not Cardona is entitled to

damages if his property cannot be returned, concededly a vexing

question. See e.g., Clymore v. United States, 415 F.3d 1113 (10th

Cir. 2005)(and cases cited therein). But the question of remedies

arises only after the district court has investigated the status of

the seized property. Peloro v. United States, 488 F.3d at 177. As

it may turn out that the government possesses many of the items

requested, for which it has not submitted an accounting, the

question of remedies if Cardona's property is not returned is

premature.

The order of the district court is vacated and the cause

is remanded for an evidentiary determination regarding the status

and location of Cardona's property.

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