United States of America v. James Riccardi

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES RICCARDI,
Defendant - Appellant.
No. 20-3205
(D.C. No. 2:02-CR-20060-JWL-1)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, KELLY, and HOLMES, Circuit Judges.
_________________________________
James Riccardi appeals the district court’s order denying his motion for return
of property pursuant to Fed. R. Crim. P. 41(g). Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
BACKGROUND
In 2003, Riccardi was convicted of multiple crimes for which he was
sentenced to 262 months’ imprisonment. We affirmed his conviction and sentence.
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
August 24, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-3205 Document: 010110565892 Date Filed: 08/24/2021 Page: 1

-- 1 of 7 --

2
United States v. Riccardi, 405 F.3d 852, 876 (10th Cir. 2005). In 2006, he filed his
first motion to vacate his conviction and sentence under 28 U.S.C. § 2255. The
district court denied the motion and we affirmed. He has since filed three requests
for authorization to file a second or successive § 2255 motion, which we denied.
In early 2019, Riccardi wrote letters to the district court and the Federal Public
Defender’s Office (FPD) about his suspicion that his communications with his
attorneys were recorded when he was housed in the Leavenworth Detention Center
between 2002 and 2003. His suspicion stemmed from findings in an unrelated
criminal case in the District of Kansas that the U.S. Attorney’s office in Kansas had
obtained unauthorized audio and video recordings of some inmate attorney-client
phone calls and visits while those inmates were housed at Leavenworth. Riccardi
requested an investigation into a potential Sixth Amendment claim based on the
recordings he suspected had been made of his communications with counsel. In
response to both inquiries, a federal public defender informed him that the FPD had
no evidence that would permit it to file a § 2255 motion on that basis on his behalf.
She explained that cameras were not installed in the attorney-client meeting rooms at
Leavenworth until 2008 and the investigation into phone calls there only dated back
to 2010, so there was no evidence of any video or audio recordings of Riccardi’s
conversations with his attorneys in 2002 and 2003.
Unsatisfied, Riccardi filed a motion in July 2019 asking the district court
either to appoint private counsel to investigate potential improper-recording claims or
to order the government to produce all recordings of his conversations with counsel
Appellate Case: 20-3205 Document: 010110565892 Date Filed: 08/24/2021 Page: 2

-- 2 of 7 --

3
while housed there, along with any records of such recordings. In response to the
government’s argument that the motion was an unauthorized successive § 2255
motion, he asked the court to construe the motion as one for the return of property
pursuant to Rule 41(g). The court denied his requests for court-appointed counsel
and post-conviction discovery, declined to treat the motion as a post-conviction Rule
41(g) motion because such motions cannot be used to collaterally attack a conviction,
and, to the extent the motion was an unauthorized successive § 2255 motion,
dismissed it for lack of jurisdiction.
Soon thereafter, Riccardi filed his third motion in this court seeking
authorization to file a successive § 2255 motion raising claims that the presumed
recordings of his conversations with counsel violated his Sixth Amendment rights. In
denying authorization, we noted that he presented no evidence that his visits or phone
calls with counsel had been recorded, his name was not on the list submitted in the
unrelated criminal case identifying inmates who may have been impacted by the
unauthorized recordings, and the FPD had informed him that there was no evidence
of any recordings of his conversations with counsel. We concluded he failed to meet
the standard for authorization in 28 U.S.C. § 2255(h)(1), because he had not
explained how any evidence of recordings of those conversations would establish that
no jury would have found him guilty of the offenses for which he was convicted. See
In re Riccardi, No. 19-3260, Order at 2 (10th Cir. Dec. 17, 2019).
Undaunted, Riccardi filed the Rule 41(g) motion at issue here, asking that any
recordings of his conversations with counsel at Leavenworth and any related records
Appellate Case: 20-3205 Document: 010110565892 Date Filed: 08/24/2021 Page: 3

-- 3 of 7 --

4
be released to him. He stated in the motion that he did “not seek to collaterally attack
his conviction,” R. at 83, but in his reply to the government’s response to his motion,
he maintained that “serious prosecutorial misconduct has occurred,” id. at 113.
Specifically, he alleged it is “conceivable that [the facility] turned recordings over to
the [U.S. Attorney’s Office],” and that the prosecutor who handled his case and other
government officials obtained and listened to the recordings. Id. at 108. He also
alleged it was “plausible” that prosecutors had “these recordings at one time only to
destroy them at a later date.” Id. at 109.1
Noting the similarities between Riccardi’s July 2019 motion and this one, the
district court concluded the motion was an improper attempt to use Rule 41(g) to
obtain discovery, presumably to challenge his conviction based on an alleged Sixth
Amendment violation, and it denied the motion on that basis. Further, noting that
Riccardi’s reply brief suggested that his purpose in obtaining any recordings was to
pursue a prosecutorial misconduct claim, the court explained that such a claim would
be a collateral challenge to his conviction and sentence that must be asserted in a
§ 2255 motion. The court also explained that it could not simply construe the motion
1 The government filed an untimely response to Riccardi’s motion, including
an affidavit by the assistant U.S. attorney who handled his prosecution, indicating
that she had no recollection of requesting his calls and that her review of the case file
revealed no evidence of such calls. She also swore she did not listen to any
recordings of calls he made to his attorneys or anybody working for his attorneys
while he was detained at Leavenworth or any other facility. The district court
accepted the untimely response but stated in its order that in denying the Rule 41(g)
motion, it did not rely on any grounds asserted in the response.
Appellate Case: 20-3205 Document: 010110565892 Date Filed: 08/24/2021 Page: 4

-- 4 of 7 --

5
as a § 2255 motion because Riccardi had not obtained authorization from this court to
file such a motion and the district court would lack jurisdiction to consider it.
DISCUSSION
A. Legal Standards
Rule 41(g) allows a person “aggrieved by an unlawful search and seizure of
property or by the deprivation of property” to “move for the property’s return.” Fed.
R. Crim. P. 41(g). Attempts to use Rule 41(g) motions to obtain relief other than the
return of unlawfully seized property in the government’s possession have failed. See,
e.g., Clymore v. United States, 415 F.3d 1113, 1120 (10th Cir. 2005) (discussing
former Rule 41(e), now found at Rule 41(g), and holding that a motion for return of
property cannot be used to obtain compensatory damages for property that can no
longer be returned); United States v. Rodriguez-Aguirre, 414 F.3d 1177, 1182
(10th Cir. 2005) (holding that a motion for return of property is “an inappropriate
vehicle” for attacking a civil forfeiture judgment); see also United States v. Burton,
167 F.3d 410, 410 (8th Cir. 1999) (holding that a motion for return of property may
not be used to collaterally attack a guilty plea).
The rule “provides an equitable remedy” that is available only if the movant
“can show irreparable harm and an inadequate remedy at law.” United States v.
Bacon, 900 F.3d 1234, 1237 (10th Cir. 2018) (internal quotation marks omitted).
“Rule 41(g) jurisdiction should be exercised with caution and restraint, and the
district court should dismiss a Rule 41(g) motion if the movant has failed to make
this showing.” Id. (brackets and internal quotation marks omitted).
Appellate Case: 20-3205 Document: 010110565892 Date Filed: 08/24/2021 Page: 5

-- 5 of 7 --

6
We review a district court’s resolution of legal questions in ruling on a Rule
41(g) motion de novo, but we review its weighing of equitable considerations and its
decision to deny the motion for an abuse of discretion. United States v. Shigemura,
664 F.3d 310, 312 (10th Cir. 2011).
B. Application
Riccardi maintains that his reason for seeking the recordings and related
records was immaterial to whether he is entitled to them under Rule 41(g), and that
the district court erred by denying his motion on the ground that it was an improper
attempt to obtain discovery to support a collateral attack on his conviction.
The bulk of Riccardi’s motion and reply focused on issues relevant not to a
Rule 41(g) motion, but to making speculative arguments about prosecutorial
misconduct. It is thus not surprising that the district court interpreted his motion as
an attempt to obtain information he could use to support a § 2255 motion, and it
correctly resisted his efforts to do so—Rule 41(g) is not a discovery tool.
Further, although the district court did not address other reasons the motion
fell short, we “may affirm on any basis supported by the record,” Richison v. Ernest
Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011), and the record plainly demonstrates
that Riccardi was not entitled to relief under the Rule 41(g) standard. The motion
was based on speculation that his conversations with counsel had been recorded—he
provided no evidence to that effect. And he ignored competent evidence in the
record that there were no such recordings, including the FPD’s letters in response to
his initial inquiries explaining that there was no evidence of any video or audio
Appellate Case: 20-3205 Document: 010110565892 Date Filed: 08/24/2021 Page: 6

-- 6 of 7 --

7
recordings of Riccardi’s conversations with his attorneys. Further, the motion did not
even mention the irreparable harm/inadequate legal remedy standard, much less
establish that it was satisfied here. Accordingly, the district court could have denied
his motion on that basis as well. See Bacon, 900 F.3d at 1237 (explaining that a
district court should dismiss a Rule 41(g) motion if the movant fails to establish
irreparable harm and the inadequacy of legal remedies).
CONCLUSION
We affirm the order denying Riccardi’s Rule 41(g) motion.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
Appellate Case: 20-3205 Document: 010110565892 Date Filed: 08/24/2021 Page: 7

-- 7 of 7 --