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.
D. Tenney, Assistant United States Attorney (John W. Huber,
United States Attorney, with him on the brief), Salt Lake
City, Utah, for Plaintiff-Appellee.
HARTZ, McKAY, and MORITZ, Circuit Judges.
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.
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.
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.
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.
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.)
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.
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.
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.
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 ...