Appeal from the United States District Court for the Central District of Illinois. No. 07 C 2180-Michael P. McCuskey, Chief Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge
Before EASTERBROOK, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.
This is Lawrence Stevens' second appeal from the district court's denial of his motion to return property pursuant to Federal Rule of Criminal Procedure 41(g). In its initial disposition, the district court denied Mr. Stevens relief based solely on the arguments made by the Government. We vacated this judgment and instructed the district court that its disposition of Mr. Stevens' motion must have an evidentiary basis. United States v. Stevens, 500 F.3d 625, 628 (7th Cir. 2007) (Stevens II). On remand, the Government provided support for its position in the form of an affidavit and other documentary evidence. Based on this evidence, the district court again denied Mr. Stevens' motion. We affirm the judgment of the district court.
In March 2002, two armed men robbed the Land of Lincoln Credit Union ("Credit Union") in Decatur, Illinois. One of the suspected robbers, Alban Woods, was found nine days later; he had been shot to death. The investigation of these crimes led the police to Mr. Stevens. A search of Mr. Stevens' residence uncovered various items, including crack cocaine, firearms and ammunition, a postal scale, a cellular phone, $49,312 in currency*fn2 and two cars-a Buick Roadmaster and a Lincoln Towncar.
As a result of this search, Mr. Stevens was charged with, and convicted of, federal drug and firearms offenses. He was sentenced to a term of 327 months' imprisonment to be followed by a consecutive term of life imprisonment. The district court also imposed a special assessment of $300, but it made no reference to any restitution or forfeiture of the items seized. We affirmed Mr. Stevens' conviction and sentence on direct appeal. See United States v. Stevens, 380 F.3d 1021 (7th Cir. 2004).
B. Motion to Return Property
Over two years after we affirmed his conviction and sentence, Mr. Stevens filed a motion under Federal Rule of Criminal Procedure 41(g) in which he demanded return of unspecified property seized by the Government. The district court ordered the Government to respond to Mr. Stevens' motion.
In its response, the Government argued that Mr. Stevens' motion should be denied because it no longer possessed any of the items seized during the search of Mr. Stevens' residence. The Government gave the following account of the items taken from Mr. Stevens' residence: (1) the cars had been forfeited judicially in proceedings in the Central District of Illinois; (2) the $15,750 and the $1,580 had been used as evidence in Mr. Stevens' criminal trial and subsequently turned over to the Macon County Sheriff's Department for state forfeiture proceedings; (3) the cellular phone and the scale had been used as evidence in Mr. Stevens' federal criminal trial and subsequently were destroyed by the clerk of the court; (4) the crack cocaine had been used as evidence in Mr. Stevens' federal criminal trial and subsequently had been returned to the Macon County Sheriff's Department, where it was destroyed; (5) the guns and ammunition also had been used in the federal trial and subsequently had been turned over to the Macon County Sheriff's Department for use in its investigation into the murder of Woods; and (6) the $31,982 had been turned over to the Federal Bureau of Investigation ("FBI") for its investigation into the robbery of the Credit Union and subsequently was returned to the Credit Union by the FBI. The Government did not support this explanation with any testimonial or documentary evidence.
Based on the Government's submission, the court denied Mr. Stevens' motion. Mr. Stevens then filed a reply to the Government's response. In his reply, Mr. Stevens identified the specific items he wanted returned; these included the items identified in the Government's response, as well as clothing, jewelry, a pager and videos that he alleged also had been seized. The district court considered Mr. Stevens' reply, but it determined nevertheless that Mr. Stevens was not entitled to the relief sought. Mr. Stevens appealed.
On appeal, we vacated the district court's judgment. We acknowledged Mr. Stevens' right to employ Rule 41 "to recover evidence that the Government no longer needs." Stevens II, 500 F.3d at 628. However, we noted, "Rule 41(g) permits only the recovery of property in the possession of the Government. Therefore, if the Government no longer possesses the property at issue, no relief is available under Rule 41(g)." Id. (citations omitted). We further explained that "whether the Government still possesses the property at issue is a question of fact," and, according to Rule 41(g), the resolution of any factual issue must be supported by evidence. Id. This did not mean that the "district court must conduct an evidentiary hearing to resolve all factual disputes"; however, we noted that the rule does "require . . . the district court to receive evidence to resolve factual disputes" and that the evidence can take the form "of sworn affidavits or documents verifying the chain of custody of particular items." Id. Because the district court's factual conclusion that the Government no longer possessed Mr. Stevens' property was not ...