Unpublished Disposition, 878 F.2d 1439 (9th Cir. 1986)

MEMORANDUM^** 

Martin Johnson appeals the district court's denial of his Fed. R. Crim. P. 41(e) motion to return property seized pursuant to a warrant and used as evidence against Johnson in his trial. We affirm.

FACTS AND PROCEEDINGS

On April 9, 1986, Portland police officers searched an apartment at S.E. 18th and Morrison, Portland, Oregon pursuant to a valid search warrant. Appellant in his brief never mentions the specific property he wants returned; however, the government's exhibit list included cocaine, marijuana, approximately $40,000 in cash, firearms, and other miscellaneous property including two personal computers, stereo equipment, a waterbed, a barbecue, cowboy boots, and cameras, among other items. The Portland authorities asked the United States Attorney to prosecute the case. The state charges were dismissed. Appellant was convicted of possession with intent to distribute cocaine and marijuana and possession of the firearms. The federal government took temporary possession of the items from the state to use as evidence in their case. After appellant's conviction, the court returned the items to the United States Attorney, who then returned the property to the Portland Police Bureau. Multnomah County (where Portland is located) took possession of the cash and the other property through a forfeiture proceedings by default judgment. Appellant attempted to reopen the forfeiture proceeding, alleging he had inadequate notice, that he was incarcerated at the time of the hearing and it was otherwise unfair to not set aside the default judgment. Appellant appealed the order denying the motion to set aside the default but his appeal was made over 30 days past judgment and the court dismissed the appeal.

DISCUSSION

The appellant is moving the federal courts to return his property under Rule 41(e) of the Federal Rules of Criminal Procedure. Rule 41 provides that

a person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property which was illegally seized.

The standard of review for denial of Rule 41(e) motions, although never clearly stated in the case law, is de novo on issues of law and clearly erroneous for factual findings by the district court. United States v. Francis, 646 F.2d 251, 262 (6th Cir.), cert. denied, 454 U.S. 1082 (1981).

For appellant to prevail on a Rule 41(e) motion, once he demonstrates that the government no longer needs the property in question for evidentiary purposes, the government must show that it has a legitimate reason to retain the property. United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987). As appellant has already been convicted and upon appeal his conviction was affirmed, the federal government no longer has a need for the evidence. The government can satisfy their burden by showing that the evidence is contraband or subject to forfeiture. Id. Appellant has not specified the particular property he wants returned so all the property will be addressed.

The government has shown that the cocaine and marijuana were contraband not subject to a 41(e) motion. Appellant did not assert ownership in the firearms or the $40,000 at his criminal trial so he cannot obtain the return of those items. United States v. Van Cauwenberghe, 827 F.2d 424, 433 (9th Cir. 1987) (criminal defendant must demonstrate as threshold matter that s/he is entitled to lawful possession of the seized property) cert. denied, 108 S. Ct. 773 (1988); United States v. Marshall, 526 F.2d 1349, 1355 (9th Cir. 1975) (defendant not entitled to money as he disclaimed ownership in it at trial), cert. denied, 426 U.S. 923 (1976).

Appellant here is also asking for the return of items that were disposed of in a state forfeiture proceeding in which a default judgment was entered against him. This appeal is moot if the government legally turned over the items to the state. Francis, 646 F.2d at 264 (DEA did not act unlawfully in turning money over to state pursuant to a tax lien making case moot as no basis remains for federal court's jurisdiction). A forfeiture proceeding was held pursuant to a county ordinance, notice was given and a default judgment was entered. Appellant tried to reopen the state proceedings and set aside the default judgment. Now, it appears that appellant wants to collaterally attack that state judgment by asserting rights to the property in the federal court. He cannot do so. Once the property is legally out of the possession of the federal courts, no relief can be given. United States v. Lowrie, 824 F.2d 827, 829 (10th Cir. 1987) ("an order that the FBI return material under 41(e) which it does not have, nor does it have control over, cannot stand."); United States v. Prevatt, 414 F.2d 239, 241 (5th Cir. 1969) (if property in hands of state officials, this appeal is moot because the property is not within the jurisdiction of the federal court); Francis, 646 F.2d at 264 (after government turned over defendant's property pursuant to a state tax levy, defendant's remedy was to contest the tax lien in the state court rather than seek the return of property which the federal court no longer has). Generally a case is moot when the controversy is no longer "live." Pemberton, 852 F.2d at 1243. Here, the state forfeiture proceeding has been tried, directly appealed, and is now final. The federal government no longer has control over the items seized. This appeal is moot.

Appellant has raised numerous other issues including violation of his Sixth Amendment right to counsel and the legality of the search warrants which were not raised in or addressed by the district court below. We cannot consider them here. The district court is

AFFIRMED.