United States of America v. Daniel Mitchell Davis, a.k.a. Daniel M. Davis

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANIEL MITCHELL DAVIS, a.k.a. Daniel
M. Davis,
Defendant-Appellant.
No. 18-35112
D.C. Nos. 1:12-cv-00646-EJL
1:07-cr-00255-EJL
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted January 15, 2019**
Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.
Federal prisoner Daniel Mitchell Davis appeals pro se from the district
court’s orders denying his motion for return of property under Federal Rule of
Criminal Procedure 41(g) and his motion for reconsideration. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm in part, vacate in part, and remand.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-35112
We review de novo the district court’s denial of a motion for return of
property under Rule 41(g). See United States v. Gladding, 775 F.3d 1149, 1151-52
(9th Cir. 2014). The district court properly denied Davis’s request for money
damages for forfeited property that had been destroyed. See Ordonez v. United
States, 680 F.3d 1135, 1140 (9th Cir. 2012) (“[E]ven when it results in a wrong
without a remedy, the federal courts are without jurisdiction to award money
damages against the government under Rule 41(g) until Congress tells [the court]
otherwise.”). However, based on the government’s incomprehensible general
response in the district court and on appeal, we are unable to determine the merits
of Davis’s appeal as to the Zenith Monitor and HP Pavilion computer, which the
government indicated were still in its possession, and remand to the district court
for further consideration on these items.1 In light of this disposition, we do not
reach Davis’s argument that he is entitled to compensation under the Fifth
Amendment for the government’s use of those items.
The district court did not abuse its discretion by denying Davis’s motion for
reconsideration as to the destroyed property because Davis presented no proper
1 The district court properly denied Davis’s motion to return the remaining
items of property in light of the government’s explanation that it was retaining the
property in connection with Davis’s pending habeas corpus proceedings under 28
U.S.C. § 2255. See Gladding, 775 F.3d at 1152. Because Davis’s § 2255
proceedings have concluded, the government has agreed to return these items of
property (miscellaneous papers, HP mouse and keyboard) to Davis.

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3 18-35112
basis for reconsideration. See School Dist. No. 1J, Multnomah Cty., Or. v.
ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (stating abuse of discretion
standard and explaining when reconsideration is appropriate).
AFFIRMED in part, VACATED in part, REMANDED.

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