United States of America v. Stanley A. Albinson

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-1265
UNITED STATES OF AMERICA
v.
STANLEY A. ALBINSON,
Appellant
On Appeal from the
United States District Court for the
Eastern District of Pennsylvania
D.C. Criminal No. 95-cr-00019
(Honorable Lowell A. Reed, Jr.)
Argued October 28, 2003
Before: SCIRICA, Chief Judge,
NYGAARD and AMBRO,
Circuit Judges
(Filed January 27, 2004)
JENNIFER B. SAULNIER, ESQUIRE
(ARGUED)
Jones Day
One Mellon Bank Center
500 Grant Street, Suite 3100
Pittsburgh, Pennsylvania 15219
Attorney for Appellant
ERIC B. HENSON, ESQUIRE
(ARGUED)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
Attorney for Appellee
OPINION OF THE COURT
SCIRICA, Chief Judge.
Stanley A. Albinson appeals the
denial of his motion for return of
property filed under Fed. R. Crim. P.
41(g) (formerly Fed. R. Crim. P. 41(e))1
without an evidentiary hearing. The
government asserted that it no longer
retained possession of the seized
property. At issue is whether the District
Court was required to conduct an
evidentiary inquiry as set forth in United
States v. Chambers, 192 F.3d 374 (3d
Cir. 1999). We will reverse and remand.
1Fed. R. Crim. P. 41 was amended in
2002 “as part of a general restyling of the
Criminal Rules to make them more easily
understood and to make style and
terminology consistent throughout the
rules.” See Fed. R. Crim. P. 41 advisory
committee notes. As a result of the 2002
amendments, the previous Fed. R. Crim.
P. 41(e) now appears with minor stylistic
changes as Rule 41(g). For consistency,
we will refer only to Fed. R. Crim. P.
41(g) even though Albinson filed his
motion under Fed. R. Crim. P. 41(e) and
most of the relevant case law refers to
the previous rule.

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I.
On February 24, 1994, FBI and
Naval Investigative Service agents acting
under a search warrant seized property2
from the garage and residence of Stanley
A. Albinson at 69 Mine Run Road in
Limerick, Pennsylvania. On February
10, 1995, Albinson was arrested for the
unauthorized sale of United States
property in violation of 18 U.S.C. § 641.
The indictment alleged Albinson sold
United States property to government
agents on six occasions in 1993. The
indictment did not, however, charge
Albinson with any offense related to the
property seized during the 1994 search.
On April 24, 1995, Albinson
entered a guilty plea on all six counts of
the indictment. Albinson subsequently
attempted to withdraw his guilty plea, but
the District Court denied his motion. On
February 18, 1998, Albinson was
sentenced to 15 months in prison, plus
three years of supervised release.
On April 21, 1998, while serving
his sentence, Albinson filed a pro se
motion for return of property under Fed.
R. Crim. Pro. 41(g). Albinson sought
return of “every item listed on the seizure
warrant/property list and those items
seized where no receipt was given.”
App. 124. Albinson alleged he had been
deprived of property by the government
and that the seizures were “made by
government agents/employees.” Id. On
August 2, 1998, Albinson filed a pro se
motion for summary judgment on his
Rule 41(g) motion. The government did
not respond to either motion.
On May 14, 1999, the District
Court entered a default judgment in favor
of Albinson, and ordered the government
to return the seized property by June 15,
1999. The District Court also ordered
the government to file a “verified
declaration based on first hand
knowledge” for each item that “had been
lost, destroyed [or] misplaced,”
describing the “reasons why the property
cannot be returned . . . to hold an
evidentiary hearing thereon.” App. 16.
On June 15, 1999, the government
responded that it was “physically unable
to comply” with the order, because
certain property had been returned to
Albinson, and the remaining items had
been either acquired by third parties or
destroyed. App. 146. The government
submitted no documentary evidence in
support of its response. It simultaneously
filed a motion for reconsideration
requesting an opportunity to respond to
Albinson’s motions. The District Court
granted the motion for reconsideration,
and the government responded to
Albinson’s motions.
On January 16, 2001, the District
Court denied Albinson’s Rule 41(g)
motion without conducting an
evidentiary hearing. United States v.
2The inventory of seized property lists
over 200 items, including floor tiles, tool
kits, ethanol, batteries, a pump and
motor, ovens, stainless steel sinks,
computer modems, rolodex records, ear
plugs and trousers. Supp. App. 29-42.

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Albinson, No. 95-19-01, 2001 U.S. Dist.
LEXIS 374 (E.D. Pa. Jan. 17, 2001).
The District Court found the government
failed to carry its burden of proving a
“cognizable claim of ownership or right
of possession” in the seized property, but
denied the motion nevertheless. Id. at
*7. The District Court determined the
government had irrevocably lost or
destroyed the seized property, and
therefore this Court’s holding in United
States v. Bein, 214 F.3d 408 (3d Cir.
2000), rendered it “powerless” to award
monetary damages in lieu of returning
the seized property. Albinson, 2001 U.S.
Dist. LEXIS 374, at *15. The District
Court concluded that an evidentiary
hearing was “not required in light of the
futile outcome.” Id. at *16.
Albinson timely filed this appeal.3
II.
A.
Property seized by the government
as part of a criminal investigation “must
be returned once criminal proceedings
have concluded, unless it is contraband
or subject to forfeiture.”4 Chambers, 192
F.3d at 376. Under Fed. R. Crim. P.
41(g),
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
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.
Fed. R. Crim. P. 41(g) (emphasis added).
At the conclusion of a criminal
proceeding, the evidentiary burden for a
Rule 41(g) motion shifts to the
government to demonstrate it has a
legitimate reason to retain the seized
property. Chambers, 192 F.3d at 377.
The burden on the government is heavy
because there is a presumption that the
person from whom the property was
taken has a right to its return. Id.
The District Court held, and the
parties do not dispute, that the
government failed to meet its burden on
Albinson’s Rule 41(g) motion. Albinson,
2001 U.S. Dist. LEXIS 374, at *9.
Indeed, the District Court concluded that
Albinson’s “motion probably would be
granted as to the items on the inventory
3We exercise appellate jurisdiction
over the District Court’s denial of the
Rule 41(g) motion under 28 U.S.C. §
1291. United States v. Pantelidis, 335
F.3d 226, 233-34 (3d Cir. 2003).
4It is undisputed that the property
seized during the 1994 search is neither
contraband nor subject to forfeiture.

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lists,” but for the perceived futility of
granting such an order. Id. Albinson
argues the District Court abused its
discretion by denying his Rule 41(g)
motion without conducting an
evidentiary hearing and instead relying
solely on the government’s
representations that it no longer retained
possession of the seized property.
Albinson contends that even if the
District Court properly determined that
the seized property is “physically
unavailable,” he is entitled to a hearing to
determine what happened to the property.
The government responds that because
Albinson failed to contest its
representations in the District Court,
there were no disputed issues of fact
which required an evidentiary hearing.
We review the District Court’s
decision to “exercise its equitable
jurisdiction” under Fed. R. Crim. P.
41(g) for abuse of discretion.5
Chambers, 192 F.3d at 376.
B.
Rule 41(g) directs a district court
to “receive evidence” on issues of fact
necessary to dispose of the motion. Fed.
R. Crim. P. 41(g). We provided more
specific guidance on the scope of this
evidentiary inquiry in United States v.
Chambers, 192 F.3d 374 (3d Cir. 1999).
In that case, petitioner Chambers filed a
Rule 41(g) motion for return of property
seized by the government during his
arrest. Id. at 375. The government
argued Chambers’ motion was moot
because it no longer retained possession
of the seized property. Id. The district
court agreed, and denied Chambers’
motion based on representations by the
government that the property at issue had
been forfeited, repossessed, returned or
destroyed, and therefore could not be
returned. Id. We reversed on appeal,
concluding that the “government can not
defeat a properly filed motion for return
of property merely by stating that it has
destroyed the property or given the
property to third parties.” Id. at 377.
Rather, “[t]he government must do more
than state, without documentary support,
that it no longer possesses the property at
issue.” Id. at 377-78.
We also held that a district court
must make certain evidentiary inquiries
before deciding a Rule 41(g) motion for
return of property:
If . . . the
government asserts that it
no longer has the property
5 We do not reach the merits of the
District Court’s decision to deny
Albinson’s Rule 41(g) motion. On
appeal, we consider only the District
Court’s decision to not conduct an
evidentiary hearing prior to deciding
Albinson’s Rule 41(g) motion, and we
review that decision for abuse of
discretion. We note, however, that other
courts of appeals have reviewed de novo
the grant or denial of Rule 41(g) motions
after the conclusion of criminal
proceedings. See, e.g., United States v.
Potes, 260 F.3d 1310, 1314 n.8 (11th Cir.
2001).

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sought, the District Court must
determine, in fact, whether the
government retains possession of
the property; if it finds that the
government no longer possesses
the property, the District Court
must determine what happened to
the property. The District Court
must hold an evidentiary hearing
on any disputed issue of fact
necessary to the resolution of the
motion . . . .
. . . If the District
Court concludes that the
government’s actions in
either regard were not
proper, it shall determine
what remedies are
available.
Id. at 378 (citations omitted).
We note at the outset that a
district court need not necessarily
conduct an evidentiary hearing on every
Rule 41(g) motion. The rule only directs
a district court to “receive evidence on
any factual issue necessary to decide the
motion.” Fed. R. Crim. P. 41(g).
Likewise, Chambers does not mandate
the method by which a district court must
“determine, in fact, whether the
government retains possession of the
property,” so long as this determination
rests on a firmer basis than the
government’s unsubstantiated assertions
that it “no longer possesses the property
at issue.” Id. at 377-78. For example,
affidavits or documentary evidence, such
as chain of custody records, may be
sufficient to support a fact finder’s
determination. Chambers, however,
requires the district court to hold an
evidentiary hearing on “any disputed
issue of fact necessary to the resolution
of the motion,” which may include
determining “what happened” to the
seized property. Id. at 378.
The District Court expressly
acknowledged the Chambers inquiry, but
decided a hearing was “not required in
light of the futile outcome.” Albinson,
2001 U.S. Dist. LEXIS 374, at *16. The
District Court determined monetary
damages were the only possible remedy
based on the government’s
representations that it no longer retained
possession of the seized property.
Recognizing our decision in United
States v. Bein, 214 F.3d 408, 415 (3d Cir.
2000),6 prohibits monetary damages on a
Rule 41(g) motion, the District Court
concluded there was “no other relief to
which petitioner is entitled under Rule
41[g].” Albinson, 2001 U.S. Dist.
LEXIS 374, at *17.
The District Court found the Bein
prohibition on monetary damages
6Two of our sister circuits have
suggested that a district court may award
monetary damages as an equitable
remedy on a Rule 41(g) motion. See,
e.g., Mora v. United States, 955 F.2d
156, 159-60 (2d Cir. 1992); United States
v. Martinson, 809 F.2d 1364, 1368 (9th
Cir. 1987). But we have concluded to
the contrary.

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“undermined Chambers’ hearing
requirement,”7 id. at *13, and created a
“Catch-22” in cases in which the
government asserts it has lost or
destroyed the seized property:
On the one hand,
Chambers demands that
this Court engage in an
inquiry as to what
happened to the lost or
missing property and
decide on an appropriate
remedy. On the other
hand, Bein forecloses the
only appropriate remedy in
a case where the
government has lost or
destroyed personal
property: money damages.
In other words, Bein makes
the inquiry required by
Chambers an exercise in
futility, because even if the
Court were to conclude
after a hearing that a Rule
41[g] petitioner was
entitled to the return of
property, and that the
government improperly
disposed of the property,
the Court is powerless to
award the only available
remedy.
Id. at *14-15.
Although Bein forecloses certain
remedies for Rule 41(g) petitioners, it
does not necessarily create a
jurisprudential conundrum. An
evidentiary inquiry ensures that a district
court has sufficient information to decide
a Rule 41(g) motion. At the same time, it
provides an opportunity for a Rule 41(g)
petitioner to demand the government
return property to which he is rightfully
entitled. This inquiry assists an
aggrieved party in identifying and
recovering property seized in the course
of a criminal investigation.
As the District Court correctly
recognized, an evidentiary hearing
potentially offers certain beneficial
effects. For example, a “hearing might
spark a government investigation that
results in the discovery or recovery of
property the government initially thought
to be lost or destroyed.” Id. at *15 n.8.
Alternatively, an evidentiary hearing
“might result in the government being
able to prove that the property was
owned by the government,” and therefore
not subject to return. Id. In either case,
the prospect of a hearing provides an
incentive for the government to retain
accurate records of seized property,
consistent with its regulatory
obligations.8
7The District Court suggested that
“[a]n argument could be made that Bein
essentially attempts to overrule
Chambers.” Albinson, 2001 U.S. Dist.
LEXIS 374, at *16 n.9.
8Department of Justice regulations
require the FBI to maintain detailed
chain of custody records for all seized
property. See, e.g., 41 C.F.R. § 128-

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Bein, by contrast, prescribes a
limitation on the remedies available to a
Rule 41(g) petitioner by precluding the
award of monetary damages. This
limitation is “not inconsistent” with the
requirement that a district court conduct
an evidentiary hearing before deciding a
Rule 41(g) motion. Bein, 214 F.3d at
416. Although Chambers directs a
district court to determine what remedies
are available to a Rule 41(g) petitioner,
Bein “did not consider whether such
available remedies would include an
award of monetary damages.” Id.
Moreover, the question of
remedies should arise only after the
district court has investigated the status
of the seized property. While
representations by the government may
be credible and may suggest that “the
likelihood of actual recovery of the
property [is] very slim,” Albinson, 2001
U.S. Dist. LEXIS 374, at *15 n.8, a fact
finder may not deny a Rule 41(g) motion
based on a prospective assessment of the
remedies that might (or might not) be
available. Allowing the government to
defeat a Rule 41(g) motion simply by
asserting that it no longer retains
possession of the property would
frustrate the purpose of the Fed R. Civ.
P. 41(g) evidentiary inquiry set forth in
Chambers. The District Court was
justifiably concerned with the “harsh
consequences” of such a result. Id. at
*17.
C.
The government argues there were
no “disputed issues of fact” that would
require the District Court to conduct an
evidentiary hearing because Albinson did
not challenge the government’s
assertions that it no longer retained
possession of the seized property.
Albinson responds that a hearing is
required because the government’s
unsupported declaration did not resolve
all disputed issues of fact. Specifically,
Albinson argues the government’s
declaration did not identify the third-
parties who allegedly acquired the
property, the persons who destroyed or
distributed the property, or the property
that was allegedly returned.
As mentioned, neither the Federal
Rule nor Chambers makes an evidentiary
hearing a prerequisite for deciding a Rule
41(g) motion. Chambers only requires
an evidentiary hearing on “any disputed
issue of fact necessary to the resolution
of the motion.” 192 F.3d at 378. But
Chambers also makes clear that “[t]he
government must do more than state,
without documentary support, that it no
longer possesses the property at issue.”
50.101 (“Each bureau shall be
responsible for establishing and
maintaining inventory records of its
seized personal property to ensure that . .
. (d) A well documented chain of custody
is kept; and (e) All information in the
inventory records is accurate and
current.”). If the FBI maintains these
chain of custody records as required by
regulation, the burden of an evidentiary
inquiry is significantly reduced.

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Id. at 377-78. That standard was not
satisfied here. Moreover, even if the
District Court properly determined the
government no longer possessed the
property, it did not address the remainder
of the Chambers inquiry regarding “what
happened to the property.” Id. at 378. A
district court may be able to make these
determinations based upon affidavits or
verified documentary evidence. But if
there are disputed issues of fact relating
to the status of the property or what
happened to it, the district court should
hold an evidentiary hearing. This
decision is left to the sound discretion of
the District Court.
III.
Finally, Albinson argues that if an
evidentiary inquiry reveals individual
government agents improperly disposed
of his property, he is entitled to amend
his Rule 41(g) motion to state alternative
claims consistent with this Court’s
decision in Bein. Specifically, Albinson
argues that if the evidentiary inquiry
reveals facts indicating that specific
government agents violated his
constitutional rights, he should be able to
amend his pleadings to state a Bivens
complaint. The government responds
that it was not error to deny Albinson’s
motion without a hearing because
Albinson neglected to assert alternative
claims in the District Court. While we
leave this matter also to the sound
discretion of the District Court, we note
that, depending on what is adduced
through the evidentiary inquiry,
amendment may be particularly
appropriate on the facts of this case.9
IV.
To summarize, the able District
Court did not conduct the full evidentiary
inquiry required by Chambers in
deciding Albinson’s Rule 41(g) motion.
The District Court determined
Albinson’s property was unavailable
based upon the government’s
unsubstantiated assertions, and made no
determination regarding what happened
to the seized property. Whether these
determinations ultimately require an
9The allegations of a pro se litigant
are generally held to a “less stringent
standard” than formal pleadings prepared
by a lawyer. Mitchell v. Horn, 318 F.3d
523, 529 (3d Cir. 2003) (citing Haines v.
Kerner, 404 U.S. 519, 520 (1972)). Fed.
R. Crim. P. 41(g) motions are civil in
nature, and should be treated as a “civil
complaint.” United States v. McGlory,
202 F.3d 664, 670 (3d Cir. 2000)
(citation omitted). Therefore, a pro se
Rule 41(g) motion should be liberally
construed to allow the assertion of
alternative claims. “[A]ffirming the
denial [of a pro se Rule 41(e) motion]
without leave to amend would have the
same effect as a 12(b)(6) dismissal of a
pro se complaint,” which are generally
disfavored. Pena v. United States, 157
F.3d 984, 987 (5th Cir. 1998) (reversing
dismissal of pro se petitioner’s Rule
41(g) motion without leave to amend to
state a Bivens action).

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evidentiary hearing or merely the
submission of affidavits and
documentary evidence, we leave to the
sound discretion of the District Court.
For the foregoing reasons, we will
reverse and remand for proceedings
consistent with this opinion.

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