Unpublished Disposition, 923 F.2d 864 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 923 F.2d 864 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Carl Eugene JONES, Defendant-Appellant.

No. 89-10288.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 10, 1990.* Decided Jan. 25, 1991.

Before MERRILL, KILKENNY and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Carl Eugene Jones appeals, pro se, the district court's order denying his motion for the return of personal property seized pursuant to search warrants and used in criminal proceedings against him. Jones contends that the district court erred in denying compensation to him for the destruction of his seized property because the government failed to institute civil forfeiture proceedings against him. We affirm.

On April 9, 1985, and August 14, 1985, Mendocino County-Wide Narcotics Task Force officers seized personal property from Jones' residence and storage locker pursuant to search warrants. On January 13, 1986, Jones was convicted, following a jury trial, of conspiracy and attempt to manufacture methamphetamine in violation of 21 U.S.C. § 846, unlawful use of a telephone to further a conspiracy in violation of 21 U.S.C. § 843(b), and firearm possession by a felon in violation of 18 U.S.C.App. Sec. 1202(a) (1). He appealed, and this court affirmed his conviction.1 

On May 19, 1987, the government moved to dispose of the remaining property which had been seized and used as evidence in the criminal prosecution.2  The government divided the property into four categories: (A) items to be destroyed, (B) items to be released to Jones or his codefendant, (C) items to be released to the Mendocino County-Wide Task Force as training aids, and (D) items to be released to the Fort Bragg Police Department. Jones objected only to the government's proposed disposition of the category C property, which consisted of glassware and laboratory equipment. The district court granted the government's motion, and Jones appealed.

In a published opinion, this court held that the district court lacked jurisdiction over the government's motion to dispose of Jones' property because the government had failed to post a notice of intent to forfeit or otherwise dispose of property, as required to effect civil forfeiture. United States v. Jones, 852 F.2d 1235, 1237 (9th Cir. 1988) (citing 21 U.S.C. § 881(d); 19 U.S.C. § 1607). Jones then filed a petition for rehearing. The government's response to the petition included a letter from the Fort Bragg Chief of Police which stated that the category C evidence mistakenly had been destroyed. This court denied the petition for rehearing.

On February 24, 1989, Jones filed a motion in the district court pursuant to Fed. R. Crim. P. 41(e) for the return of non-contraband property seized on April 9, 1985, and August 14, 1985, or for damages. Following a hearing, the district court denied Jones' motion. The district court found that the category C property inadvertently had been destroyed and held that because the category C property was forfeitable, Jones was not entitled to compensation for the destroyed property. Jones timely appeals.

We have jurisdiction over the district court's denial of a motion seeking the return of property or compensation. See United States v. Martinson, 809 F.2d 1364, 1367-69 (9th Cir. 1987).3 

Motion for Return of Property

Former Fed. R. Crim. P. 41(e) provided that " [a] person aggrieved by an unlawful search and seizure may move ... for the return of the property on the ground that such person is entitled to lawful possession of the property."4  When seized property is no longer needed as evidence following the termination of a criminal case, it is presumed that the person from whom the property was seized has a right to its return. Martinson, 809 F.2d at 1369. The government then bears the burden of showing a legitimate reason to keep the property by demonstrating that the property is contraband or subject to forfeiture. Id.

Property is subject to forfeiture under 21 U.S.C. § 881 if probable cause exists to believe that the property was used or intended to be used in connection with a drug offense. See United States v. 1 Parcel of Real Property, Lot 4, Block 5 of Eaton Acres, 904 F.2d 487, 490 (9th Cir. 1990). Probable cause is shown if the government establishes "reasonable grounds to believe that the property was related to [a drug offense], supported by less than prima facie proof but more than mere suspicion." United States v. $5,644,540.00 in U.S. Currency, 799 F.2d 1357, 1362 (9th Cir. 1986). Once probable cause is shown to exist, the burden shifts to the claimant to show by a preponderance of the evidence that forfeiture is inappropriate. Eaton Acres, 904 F.2d at 491. "If the claimant offers no proof, ... the government wins." Id.

Here, the jury found beyond a reasonable doubt that Jones was guilty of conspiring and attempting to manufacture methamphetamine. The government's response and exhibits filed in relation to Jones' motion for the return of property showed that the trial testimony provided evidence linking the category C property with the manufacture of methamphetamine. By convicting Jones, the jury necessarily rejected Jones' testimony that he was merely a businessman who bought and sold chemicals and glassware and instead found that Jones had used the property in the commission of his crimes. Accordingly, the government demonstrated reasonable grounds to believe that Jones' property was used or intended for use in the manufacture of drugs, supported by more than mere suspicion. See $5,644,540.00 in U.S. Currency, 799 F.2d at 1362. Further, Jones submitted no evidence to support his motion for return of property and, therefore, failed to show that forfeiture was inappropriate. See Eaton Acres, 904 F.2d at 491.5 

Accordingly, because the government showed that the property was subject to forfeiture, the district court properly held that Jones was not entitled to compensation for his destroyed property. See id.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

United States v. Jones, Nos. 86-1012 and 86-1056, unpublished memorandum disposition (9th Cir. Dec. 3, 1986)

 2

In response to a September 19, 1985 motion filed by the government, the district court ordered the return of some of the items seized in August 1985 on the basis that they were stolen or not related to Jones' prosecution. On January 10, 1986, the district court ordered the destruction of seized chemicals

On September 3, 1986, a state court judge ordered the return of property seized in April 1985. On October 20, 1986, Mendocino County-Wide Narcotics Task Force Agent John Naulty advised the judge that part of that property could not be returned because it had been used in Jones' federal prosecution, which was pending on appeal.

 3

Because criminal proceedings were not pending against Jones when he filed his motion for the return of property, the district court had jurisdiction to consider the motion. See Martinson, 809 F.2d at 1366-68. In such a case, the court possesses the equitable power to award damages for illegally destroyed property. Id. at 1367-68

 4

The district court noted that although former Rule 41(e) provided for the return of illegally seized property, the court construed Jones' Rule 41(e) motion as a request for the return of all property seized, whether legally or illegally

 5

Jones' argument that he is entitled to compensation for the destroyed property because the government failed to institute forfeiture proceedings is meritless. Upon a claimant's request for the return of property pursuant to Rule 41(e), the government must prove only that the property is subject to forfeiture, not that it has already been forfeited in a forfeiture proceeding. See Martinson, 809 F.2d at 1369