07-1063 U.S. v. Stevens 

Posted: 1:00 am Mon, September 10, 2007
By admin

When a defendant seeks the return of property, the government must present evidence how it has disposed of it, not mere allegations.

“The Government contends, and the district court agreed, that Mr. Stevens was not entitled to the return of property under Rule 41(g) because the Government no longer possesses the property he seeks to recover. However, whether the Government still possesses the property at issue is a question of fact. Rule 41(g) provides that the district court ‘must receive evidence on any factual issue necessary to decide the motion.’ Fed. R. Crim. P. 41(g). As this provision makes clear, any factual determinations supporting the court’s decision must be based on evidence received. This requirement does not mean that a district court must conduct an evidentiary hearing to resolve all factual disputes. It does require, however, that the district court receive evidence to resolve factual disputes. See United States v. Albinson, 356 F.3d 278, 281-82 (3d Cir. 2004). Such evidence may come, for example, in the form of sworn affidavits or documents verifying the chain of custody of particular items. Id. at 282.”

Vacated and Remanded.

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Ripple, J.