OPINION and ORDER

JOHN KEENAN, Senior District Judge

Before the Court is Petitioner Eric Mendez'("Mendez") pro se motion pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure for the return of personal property seized from his apartment. Petitioner's motion is denied in part and granted in part.

BACKGROUND

The indictment, filed October 28, 1994, charged Mendez and sixteen co-defendants with racketeering crimes in connection with their membership in, and association with, an enterprise identified as the Head Crackers/Willis Avenue Lynch Mob ("HC/WALM"). The trial of Mendez and sixteen co-defendants began on August 9, 1995. Opinion and Order, 94 Cr. 466, 99 Civ. 3496 (JFK).

On August 24, 1995, Mendez and his trial attorney executed a plea agreement, in which the Government agreed to accept Mendez' guilty plea to Counts Seven and Seventy of the indictment. Count Seven charged Mendez with conspiracy to murder Angel Montalvo, in violation of 18 U.S.C. § 1959 (a)(5). Count Seventy charged Mendez with using and carrying a firearm during and in relation to the conspiracy to murder charged in Count Seven, in violation of 18 U.S.C. § 924 (c). Id. On November 6, 1996, after denying Mendez' motion to withdraw his guilty plea, this Court sentenced Mendez to fifteen years imprisonment, followed by a three-year term of supervised release. Id.

Mendez moved to vacate and set aside his sentence pursuant to 28 U.S.C. § 2255. He filed a supplemental pleading and alleged that the Government's failure to charge the jurisdictional elements of his offense, pursuant to § 924(c)(1), eliminated federal jurisdiction and caused the petitioner to be illegally convicted; thereby requiring that the conviction for the offense be vacated. See Petitioner's Supp. 2255 Motion Pursuant To U.S.C.A. 28 Fed.R.Civ.P. 15(D). Mendez argued that because the words "for which he may be prosecuted in a court of the United States" were never included in count seventy, he plead guilty to a jurisdictionally defective charge. Id.

In a second motion, Petitioner alleged that the § 1959 statute under which he was convicted was unconstitutionally applied to him due to the Government's failure to establish the requisite jurisdictional connection required to sustain federal jurisdiction. Petitioner's Second Supp. to His § 2255 Motion.

The Government argued for the dismissal of both motions as untimely. In addition, the Government asserted that Mendez' second motion should be denied because it lacked merit due to Mendez' misconstruction of the interstate commerce element of 18 U.S.C. § 1959.

This Court rejected the Government's argument on timeliness and addressed the merits of petitioner's motion. The Court rejected Mendez' motion after concluding that the facts in the indictment supplied Mendez with enough information to recognize that the underlying crimes were ones which could be prosecuted in a court of the United States. Regarding Mendez' second supplemental motion, the Court: found Mendez to have misconstrued the interstate commerce element of 18 U.S.C. § 1959.

Subsequent to Mendez' § 2255 motion, Mendez brought the instant action for the return of his property pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure. Fed.R.Crim.P. 41(e), amended by Fed.R. Grim. P. 41(g) (2002).

DISCUSSION

[A] person aggrieved by . . . the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movants, but may impose reasonable conditions to protect access to the property and its use in later proceedings. Id.

Once a criminal case is concluded, however, a defendant can no longer rely on 41(g) to obtain the return of property. Onwubiko v. United States, 969 F.2d 1392, 1396-97 (2d Cir. 1992). Instead, in a case such as Mendez', in which the action for return of property is brought subsequent to the conclusion of the criminal case, "the motion [is] treated as a civil complaint for equitable relief." Id. As such, the Court has the authority to grant Mendez equitable relief or award money damages. United States v. Beras, No. 99, 2003 WL 21136727, at *1 (S.D.N.Y. May 15, 2003); Haley v. United States, No. 01, 2002 WL 718059, at *2 (E.D.N.Y. Jan. 22, 2002).

I. Request for Items Not On the Report

At the conclusion of a criminal proceeding the evidentiary burden for a Rule 41(g) motion shifts to the Government. United States v. Mohammad, 95 F. Supp.2d 236 (3d Cir. 2000); see also United States v. Chambers, 192 F.3d 374, at 375 (3d Cir. 1999) (citing United States v. Martinson, 809 F.2d 1364 (9th Cir. 1987). The burden on the Government is heavy because there is a presumption that "the person from whom the property was allegedly taken has a right to its return." Mohammad, 95 F. Supp.2d at 240; see also Chambers, 192 F.3d at 377. The Government can rebut this presumption by proving it has a legitimate reason for retaining the property or that it never had the property. Mohammad, 95 F. Supp.2d at 240. The Government must, however, do more than state without documentary support that it no longer possesses the property at issue. Id.

Mendez contends that his aunt and grandmother were in the apartment at the time of the search and informed him that the agents seized the telephone book and mini-cassette recorder. See Mendez Ltr. dated October 30, 1998. The Government addresses this allegation by referencing the search warrant and providing an affidavit from Special Agent Robert Patterson ("Patterson") of the Drug Enforcement Agency ("DBA"). Agent Patterson was a participant in the search in question on June 18, 1995. The return of the search warrant provides a list of items seized from the apartment. The record lists two video tapes, miscellaneous photographs and documents taken from the dresser, and miscellaneous photographs and documents taken from the closet along with a box of type stamp lettering kit. Patterson stated in his affidavit that "no other items were seized from the Mendez apartment in the course of the search, except for a small quantity of Heroin which was wrapped in paper." Patterson Aff. dated March 4, 2003, at p. 2. The Heroin was discovered after the warrant had been returned and therefore not noted on the return. Moreover, Patterson, now working in the DEA's Miami office, spoke with the New York office of the DEA and asked them to search their records for any evidence that a computerized telephone book or mini-cassette recorder were taken from either Mendez' person or seized from the Mendez apartment. To Patterson's knowledge, no DEA records exist of these items. Patterson's sworn statement is enough to rebut the presumption in favor of returning the allegedly seized property. The Court finds that the government has satisfied its burden of demonstrating that it does not have the requested property and Mendez has failed to prove its existence. Mendez, therefore, is not entitled to return of or equitable relief for the computerized telephone book or mini-cassette recorder.

II. Mendez' Attempts to Retrieve Property

Mendez claims that he attempted to retrieve his property but Patterson failed to comply. "The Government must return seized evidence when the proceedings have concluded, unless it constitutes contraband or is subject to forfeiture." Mohammad, 95 F. Supp.2d at 239; Chambers, 192 F.3d at 376. Mendez claims his aunt Evelyn Cordero ("Cordero") left a message on Patterson's answering service due to the fact he could not be reached. Cordero requested the opportunity to retrieve Mendez' property. Mendez states that Cordero is willing to sign an affidavit in support of her statement. Assistant United States Attorney Alexandra Shapiro's letter dated September 17, 1998 made available certain property seized by the Government to be returned to Mendez. In spite of Mendez having made a minimal effort to retrieve his property, the items that he specifically requests were unavailable to him. The Government classified the photos and documents as evidence, therefore, the government was not required to make them available to Mendez at that time. The Government has the authority to retain seized property when it has possible evidentiary value. Beras, 2003 WL 21136727 at *2; Haley, 2002 WL 718059 at *2. The argument, therefore, that Patterson was unreachable is irrelevant to Mendez motion for the return of such items. The more important question is whether or not the Government has meritoriously retained these items as evidence for such a long period of time.

III. Return of Evidence Subsequent to the Conclusion of Trial

The Government also has the authority to retain seized property for use as evidence in related criminal proceedings. Vega v. United States, No. 00 Civ 8920, 2001 WL 823874, at *2 (S.D.N.Y. July 20, 2001). If the seized property however, no longer has any evidentiary value it can not be withheld on those grounds. United States v. Beras, 2003 WL 21136727, at *2. The Government stated in a letter dated November 6, 1998 that the remainder of requested items (including the photographs and documents) are considered evidence. The Mendez trial has concluded and the Government has not established or even offered any basis for its continued evidentiary interest in the photographs. The Government, cannot legally retain property indefinitely because it was evidence in a previous case. United States v. Katz, 238 F. Supp. 689 (S.D.N.Y. 1965). When the Government fails to provide "any compelling reasons, evidentiary or otherwise, for its continued retention" the property must be returned. Id. at 695. Because the Government "failed to offer post-seizure evidence to justify continued . . . retention of the seized property," such retention would violate Petitioner's Fourth Amendment rights. Kirkstock v. Kelly, 306 F.3d 40 (2d Cir. 2002).

Governmental seizure of property should be a temporary deprivation of use and possession, not a permanent transfer of title in the thing seized. Fuentes v. Shevin, 407 U.S. 67 (1972). In general, the Government may not interfere with an owner's use and continued possession of property without affording the owner due process. Fuentes, 407 U.S. at 84-86.

The Government has not satisfied its burden, so the seized property must be returned to Mendez. Legitimate Government interest could justify forfeiture, but without having initiated any further proceedings or offered any other justification, the Court must rule in favor of Mendez' request. Mendez put the Government on notice that he was seeking the return of all items seized, not just the phone book and mini-cassette recorder, in a letter dated October 30, 1998. The Government's letter dated November 6, 1998 stated that certain items requested were considered evidence and could not be returned. Since the conclusion of Mendez' trial he has persisted on the return of his photographs and miscellaneous documents. The response of Agent Patterson in his affidavit dated March 3, 2003, failed to address the return of items other than the phone book and mini-cassette recorder. Nothing in any of the Government's submissions to the Court provides a justification or even an explanation, for withholding the items as contraband or for evidentiary value. The Government, therefore, is hereby ordered to return to Mendez the photographs and miscellaneous documents seized from his dresser and closet, but not the heroin. The Court orders this case closed, and directs the Clerk of the Court to remove it from the Court's active docket.

SO ORDERED.