PUBLISH
UNITED STATES COURT OF APPEALS
Filed 9/3/96
TENTH CIRCUIT
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-6118
RAYMOND D. MADDEN,
Defendant-Appellant.
_____________________
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CR-92-10-T)
_____________________
Submitted on the briefs. *
Patrick M. Ryan, United States Attorney; M. Jay Farber, Assistant United States
Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Raymond D. Madden, pro se.
_____________________
Before BRORBY, EBEL and HENRY, Circuit Judges.
_____________________
BRORBY, Circuit Judge.
Raymond D. Madden, a federal prisoner proceeding pro se and in forma
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
pauperis, appeals the district court's denial of his motion for the return of property
pursuant to Fed. R. Crim. P. 41(e). We exercise jurisdiction pursuant to 28 U.S.C.
§ 1291 and affirm.
I
A jury convicted Mr. Madden of one count of distributing phenylacetic acid,
a precursor chemical in the manufacture of methamphetamine (21 U.S.C.
§ 841(d)(2)), one count of conspiracy to distribute phenylacetic acid (21 U.S.C.
§§ 841(d)(2) & 846), and one count of using a telephone to facilitate a conspiracy
to distribute phenylacetic acid (21 U.S.C. § 843(b)). United States v. Madden, No.
CR-92-010-T (W.D. Okla.). We later affirmed Mr. Madden's conviction and
sentence on direct appeal. United States v. Madden, No. 92-6202 (10th Cir. Aug. 20,
1993), 1993 WL 332262, cert. denied, 114 S. Ct. 1116 (1994). Mr. Madden then
moved for post-conviction relief pursuant to 28 U.S.C. § 2255. The district court
denied the motion and we again affirmed. Madden v. United States, No. 94-6465
(10th Cir. Aug. 21, 1995), 1995 WL 495247.
After the jury convicted Mr. Madden, the government initiated an in rem civil
forfeiture proceeding against certain real property pursuant to 21 U.S.C. § 881(a)(7),
alleging the property was used to facilitate the commission of a drug offense. United
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States v. Real Property Located at Rt. 1, Box 118, Washita County, Okla., Civil Case
No. 92-2012-A (W.D. Okla.). Mr. Madden answered the complaint, and the
government subsequently moved for summary judgment. The magistrate judge
presiding over the case did not rule on the motion for summary judgment. Instead,
both the government and Mr. Madden's attorney, acting on behalf of Mr. Madden,
signed an "Agreed Order of Forfeiture." Mr. Madden did not appeal the forfeiture
order.
Mr. Madden later filed a Fed. R. Crim. P. 41(e) motion in his criminal case,
seeking the return of his real property. In his motion, Mr. Madden contended the
forfeiture amounted to double jeopardy in violation of the Fifth Amendment. The
district court denied Mr. Madden's motion. In doing so, however, the district court
did not reach the merits of Mr. Madden's double jeopardy argument, but instead
concluded it lacked jurisdiction to grant relief under Fed. R. Crim. P. 41(e) because
his criminal case was complete and that even if were to construe Mr. Madden's
motion as an independent civil action based upon equitable principles, equitable
relief was not appropriate because Mr. Madden has an adequate remedy at law,
namely, a motion for relief from judgment pursuant Fed. R. Civ. P. 60(b) filed in his
civil forfeiture case. Mr. Madden did not heed the district court's recommendation
that he file a Fed. R. Civ. P. 60(b) motion in his civil forfeiture case, but has instead
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appealed the denial of the Fed. R. Crim. P. 41(e) motion he filed in his criminal
case. 2
II
Fed. R. Crim. P. 41(e), which is a part of the federal rule governing the
issuance and execution of search warrants and suppression of evidence obtained as
a result of unlawful searches and seizures, provides in pertinent part:
The district court denied Mr. Madden's motion on February 27, 1996. Mr.
2
Madden did not file his notice of appeal until March 26, 1996. If we view Mr.
Madden's Fed. R. Crim. P. 41(e) motion as a "criminal case," we must dismiss his
appeal for lack of jurisdiction, because his notice of appeal was not filed within ten
days after the district court entered its order denying his motion. Fed. R. App. P.
4(b). If, however, we view the motion as a "civil case," the notice of appeal was
timely, because Mr. Madden filed it within sixty days after the district court entered
its order. Fed. R. App. P. 4(a)(1). We have never considered whether a motion for
return of property is a civil or criminal action for the purposes of determining the
time for filing the notice of appeal. Our sister circuits have unanimously held,
however, that a Fed. R. Crim. P. 41(e) motion is a "civil case" within the meaning
of Fed. R. App. P. 4(a)(1) and that the sixty-day period prescribed therein applies.
See United States v. Garcia, 65 F.3d 17, 18 n. 2 (4th Cir. 1995); Hunt v. Department
of Justice, 2 F.3d 96, 97 (5th Cir. 1993) ("Rule 41(e) motions represent a means by
which a criminal defendant can determine her rights in property, and not a part of the
trial and punishment process that is criminal law"); United States v. Taylor, 975 F.2d
402, 403 (7th Cir. 1992) ("All appeals from orders granting or denying motions under
Rule 41(e) will be treated as civil appeals."); United States v. Martinson, 809 F.2d
1364, 1367 (9th Cir. 1987) (holding sixty-day limit in Fed. R. App. P. 4(a)(1) applies
even though motion was filed in defendant's criminal case and bore a criminal docket
number). We agree with our sister circuits on this point. Also, because there is no
criminal proceeding currently pending against Mr. Madden, the district court's order
denying his Fed. R. Crim. P. 41(e) motion is a "final decision[] of the district
court[]" within the meaning of 28 U.S.C. § 1291. Martinson, 809 F.2d at 1367.
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A person aggrieved by an unlawful search and seizure or by the
deprivation of property may move the district court for the district in
which the property was seized for the return of the property on the
ground that such person is entitled to lawful possession of the property.
Although Fed. R. Crim. P. 41(e) is contained in the Federal Rules of Criminal
Procedure, we have held "[p]roceedings surrounding the motion for return of
property seized in a criminal case are civil in nature," and that the higher standard
of proof applicable in criminal proceedings does not apply. United States v. Maez,
915 F.2d 1466, 1468 (10th Cir. 1990), cert. denied, 498 U.S. 1104 (1991). We have
also held the remedy provided under Fed. R. Crim. P. 41(e) may be available even
if there is no criminal action currently pending against the party seeking the return
of property. United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996); Floyd v.
United States, 860 F.2d 999, 1006 (10th Cir. 1988). For example, we and a number
of our sister circuits have held that if there are no criminal proceedings pending
against the defendant, and the defendant files a Fed. R. Crim. P. 41(e) motion for
return of property seized in a prior nonjudicial forfeiture proceeding or as part of
some other nonjudicial proceeding or occurrence, the district court should construe
the motion as an independent civil action based on equitable principles. See Clark,
84 F.3d at 380-81; United States v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995);
Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir. 1992); United States v.
Woodall, 12 F.3d 791, 793-94 & n.1 (8th Cir. 1993); United States v. Martinson, 809
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F.2d 1364, 1366-67 (9th Cir. 1987).
The cases holding the district court should construe a Fed. R. Crim. P. 41(e)
motion for return of property seized in a prior nonjudicial forfeiture proceeding or
as part of some other nonjudicial proceeding or occurrence filed after the criminal
case is complete as an independent civil action based on equitable principles are
distinguishable from this case, however, because the property Mr. Madden seeks was
forfeited in a judicial forfeiture proceeding brought in district court pursuant to 21
U.S.C. § 881(a)(7). Fed. R. Crim. P. 54(b)(5) provides that the Federal Rules of
Criminal Procedure, including Fed. R. Crim. P. 41(e), "are not applicable to ... civil
forfeiture of property for violation of a statute of the United States." We have
explained that Fed. R. Crim. P. 54(b)(5) "stands for the proposition" Fed. R. Crim.
P. 41(e) "will not govern a judicial civil forfeiture proceeding in district court"
pursuant to 21 U.S.C. § 881. Floyd, 860 F.2d at 1007. Therefore, in light of Fed.
R. Crim. P. 54(b)(5), neither Fed. R. Crim. P. 41(e) nor an independent equitable
action brought under the guise of Fed. R. Crim. P. 41(e) was the appropriate vehicle
for seeking the return of the forfeited property in this case.
There was, however, an adequate remedy available to Mr. Madden. In United
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States v. Mosquera, 845 F.2d 1122, 1126 (1st Cir. 1988), the First Circuit recognized
that although a party cannot challenge a judicial forfeiture by filing an independent
civil action under the guise of Fed. R. Crim. P. 41(e), as he could have had the
property been seized in a nonjudicial forfeiture proceeding, he may nevertheless
challenge the forfeiture by filing a motion for relief from judgment entered in the
civil forfeiture proceeding pursuant to Fed. R. Civ. P. 60(b). Mosquera, 845 F.2d
at 1126. We agree with the First Circuit on this point, and hold the appropriate
vehicle for challenging a civil forfeiture judgment is a motion for relief from
judgment under Fed. R. Civ. P. 60(b). See United States v. Timbers Preserve, Routt
County, Colo., 999 F.2d 452, 454 (10th Cir. 1993) (motion under Fed. R. Civ. P.
55(c) and 60(b) appropriate vehicle for challenging a default entered in an in rem
judicial forfeiture proceeding in district court); see generally United States v. 51
Pieces of Real Property, 17 F.3d 1306, 1308-09 n. 2 (10th Cir. 1994) (Federal Rules
of Civil Procedure and Supplemental Rules for Certain Admiralty and Maritime
Claims govern civil forfeiture actions in district court); United States v. $39,000 in
Canadian Currency, 801 F.2d 1210, 1216 (10th Cir. 1986) (same). Because Mr.
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Madden did not challenge the forfeiture by filing a Fed. R. Civ. P. 60(b) motion in
the civil forfeiture proceeding, the district court was correct to deny relief.
AFFIRMED.
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