UNITED STATES COURT OF APPEALS
Filed 10/4/96
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-7063
v.
(E. Dist. of Oklahoma)
(D.C. No. CR-90-55-1-S)
HAROLD ONEE BEHRENS, also
known as Buddy Behrens,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.
Harold Onee Behrens, Jr., appearing pro se and in forma pauperis, appeals
the district court’s denial of his motion to recover property pursuant to Rule 41(e)
of the Federal Rules of Criminal Procedure. We affirm.
On July 27, 1990, officers of the Drug Enforcement Administration
(“DEA”) served a search warrant on a cabin in the area around Talihina,
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Oklahoma. After a brief standoff with the agents, Behrens and others were seen
fleeing the cabin. During their search of the cabin, the agents found an
amphetamine production laboratory and numerous weapons. The agents seized
$540.00 and all of the weapons.
Behrens was ultimately indicted and convicted for a number of drug and
weapons charges. On appeal, this court affirmed the majority of Behrens
convictions. United States v. Johnson, 977 F.2d 1360 (10th Cir. 1992).
Nevertheless, this court reversed the charges relating to the weapons that Behrens
now wants returned. Id. at 1377.
On March 18, 1996, Behrens filed a Motion for Recovery of Property or
Summary Judgment” pursuant to Fed. R. Crim. P. 41(e). Behrens sought return of
three weapons and the $540.00 seized from the cabin. The district court denied
the Motion on April 1st, holding that Behrens had not demonstrated that he was
the owner of the property or was lawfully entitled to its possession. Behrens
appeals.
Rule 41(e) provides that “[a] person aggrieved by . . . the deprivation of
property may move the district court . . . for the return of the property on the
ground that such person is entitled to lawful possession.” Accordingly, to prevail
on his Motion, Behrens must allege and prove that he is lawfully entitled to the
possession of the property at issue. Behrens has made no such allegation, either
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in his Motion or in his briefs on appeal. Instead, Behrens appears to contend that
he need not allege or prove ownership or right to possess because he was charged
with and convicted of maintaining an amphetamine laboratory in the cabin and of
possessing the weapons. 1 That fact alone, according to Behrens, creates in him
some kind of right to both the weapons and money. 2
We reject as utterly frivolous Behrens contention that his conviction on
drug and weapons charges relieved him from proving he has the right to possess
the weapons and money at issue here. Because Behrens has declined to assert any
1
As indicated above, this court reversed Behrens weapons convictions as
they relate to the specific weapons at issue here. United States v. Johnson , 977
F.2d 1360, 1377 (10th Cir. 1992).
2
In his brief to this court, Behrens asserts that “[i]t would be unnecessary
for the appellant to offer proof that he was the owner and entitled to the return of
these items because the government themselves [sic] claimed he was the owner
and offered proof enough for the jury to return a guilty verdict on the charge of
maintaining a place and possession of a firearm.”
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ownership interest in the weapons and money, he is not entitled to the “return” of
that property. Fed. R. Crim. P. 41(e). 3 Accordingly, the judgment of the United
States District Court for the District of Eastern Oklahoma is hereby AFFIRMED.
ENTERED BY THE COURT
Michael R. Murphy
Circuit Judge
3
Furthermore, at the time Behrens brought his Rule 41(e) motion he was a
convicted felon. Accordingly, he was not “entitled to lawful possession” of the
weapons as required by Rule 41(e). See 18 U.S.C. § 922(g).
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