{"id":4596,"date":"2011-02-26T10:42:41","date_gmt":"2010-08-29T00:03:17","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-08-27T18:45:39","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4596","title":{"rendered":"CA11: Rule 41(g) is treated like a civil case, and defendant showed enough to get a hearing"},"content":{"rendered":"

Defendant\u2019s Rule 41(g) motion was improperly denied without a hearing. The government said that the property was destroyed after the case was over, but defendant had the right to seek return and have a hearing if she made a sufficient showing. United States v. Melquiades<\/a>, 394 Fed. Appx. 578 (11th Cir. 2010):<\/p>\n

Similarly, in this case, Melquiades needed only to allege facts sufficient to demonstrate his possessory interest in the seized goods. Despite the government’s arguments to the contrary, he was not burdened with \u201cshow[ing] that the United States ever had seized the asserted property, most of which he described in extremely vague terms,\u201d or \u201cthat the asserted property belonged to him.\u201d Rather, when evaluating whether the district court correctly denied Melquiades’s motion based solely on the party’s pleadings, \u201cwe are concerned only with the allegations contained in [the motion] and not with actual evidence.\u201d See Rodriguez-Aguirre, 264 F.3d at 1206. To hold otherwise and \u201c[r]equir[e] evidence of ownership, as opposed to allegations of ownership, [would be] antithetical to the standards for reviewing 12(b)(1) motions to dismiss for lack of facial standing.\u201d Id.<\/p>\n

Construing Melquiades’s Rule 41(g) motion\u2014the functional equivalent of a civil complaint\u2014in Melquiades’s favor, and interpreting his pro se filings liberally, Melquiades alleged that when federal law enforcement agents searched his home on January 13, 2003, they confiscated certain, specifically listed items. Melquiades clearly stated that, \u201cin this case the Movant is the owner of the property.\u201d He also asserted entitlement to its return. Thus, Melquiades has alleged facts sufficient to show that he has a possessory interest in some property, that the government seized these items, and that they were not returned. Accordingly, it was error to deny Melquiades’s motion without collecting evidence to resolve the parties’ factual disputes. See Potes Ramirez, 260 F.3d at 1314.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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