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United States v. Bacon

United States Court of Appeals, Tenth Circuit

August 21, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MICHAEL ALEXANDER BACON, Defendant-Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 2:14-CR-00563-DN-1)

          Veronica S. Rossman, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant.

          Ryan D. Tenney, Assistant United States Attorney (John W. Huber, United States Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

          Before HARTZ, McKAY, and MORITZ, Circuit Judges.

          McKAY, Circuit Judge.

         Appellant Michael Bacon appeals the district court's denial of his post-conviction motion under Federal Rule of Criminal Procedure 41(g) for the return of seized property that allegedly went missing from the physical custody of state officials while federal charges were pending.

         In March 2014, Appellant was arrested by state officials on state charges. The state officials seized property in Appellant's possession at the time of his arrest, including a fake mustache; a black wig; numerous items of clothing; a bank robbery demand note; multiple wallets, knives, lighters, bags, and keys; the title to a vehicle; and a small container with a crystalline substance within it that tested positive for meth.

         In November 2014, while Appellant's state charges were still pending, he was indicted by a federal grand jury on five counts of bank robbery. Federal officials asked the state officials to hold Appellant's seized property for use as evidence in the federal case.

         In April 2015, Appellant entered a guilty plea in the state prosecution that resolved all of the state charges against him. Also in April 2015, state officials allegedly released some of the property seized from Appellant-specifically, a wallet and the keys and title to a van-to his ex-wife.

         A few months later, Appellant entered a Rule 11(c)(1)(C) plea of guilty to three counts of bank robbery in the federal case. At a hearing held on June 29, 2015, the district court accepted the plea of guilty and sentenced Appellant to the stipulated Rule 11(c)(1)(C) sentence of eighty months of imprisonment. During this hearing, defense counsel informed the court that Appellant wanted to have his seized property returned as soon as the time for appeal had expired. The court replied to this request by "releasing whatever federal hold there is." (R. Vol. III at 65.)

         Following the expiration of Appellant's time for appeal, defense counsel went to the Salt Lake City Police Department to retrieve Appellant's property for him. Several items were returned to him. However, Appellant alleges that there is a major discrepancy between what had been seized and what was turned over to counsel by state officials.

         In February 2016, Appellant filed the instant Rule 41(g) motion asking the federal government to show cause why he had not received all of his seized property. He sought an itemization of and accounting for all of the seized property, as well as monetary damages for any personal property that had been lost and/or given away.

         The district court re-appointed defense counsel to represent Appellant in the Rule 41(g) proceeding. Following a hearing, the court denied the Rule 41(g) motion for two reasons. First, the court held that Appellant had other adequate remedies at law, including state causes of action and a pending federal § 1983 civil action Appellant had already filed regarding the disposition of his seized property. Second, the court held that it lacked subject matter jurisdiction to grant monetary relief for any missing property. This appeal followed.

         "We review questions of law relating to a Rule 41(g) motion de novo, but we review the district court's weighing of equitable considerations and its decision to deny a Rule 41(g) motion for an abuse of discretion." United States v. Shigemura, 6 ...


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