United States v. Deninno

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 12/24/96TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.
No. 96-6113
BONARD RAY DENINNO,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CR-93-55-T)

Bonard Ray Deninno, pro se.

Patrick M. Ryan, United States Attorney, M. Jay Farber, Assistant United States
Attorney, Oklahoma City, Oklahoma, for Defendant-Appellant.

Before BRORBY, EBEL, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Defendant Bonard Ray Deninno appeals from an order denying his motion

for return of forfeited property. The United States District Court for the Western

District of Oklahoma adopted the Report and Recommendation of Magistrate

Judge Doyle W. Argo which found the administrative forfeitures of defendant’s
property procedurally valid. Although we find the record insufficient to hold the

administrative forfeitures procedurally valid, we dismiss Mr. Deninno’s Rule

41(e) motion because it fails to offer any legal basis for the return of the forfeited

property. 1

I. BACKGROUND

Mr. Deninno was convicted in the United States District Court for the

Western District of Oklahoma on four drug counts related to manufacturing,

possessing, and distributing methamphetamine. His conviction resulted from the

execution of a federal search warrant at a motel room where Mr. Deninno was

present. During the search federal agents seized laboratory equipment, controlled

substances, $16,150.00 in United States currency, a .357 caliber Colt revolver,

and a 10 millimeter magazine. The Drug Enforcement Administration (DEA)

administratively forfeited this property. Subsequent to his conviction and

unsuccessful appeal thereof, Mr. Deninno filed a motion in the district court

pursuant to Fed. R. Crim. P. 41(e) for the return of the laboratory equipment,

valued at $1,250.00, and the $16,150.00 in United States currency. Mr. Deninno

1
After examining the briefs and appellate record, this panel has
unanimously determined that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.

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also sought in his motion the return of a vehicle that had been seized and

judicially forfeited by the state of Oklahoma.

II. DISCUSSION

We review the district court’s denial of Mr. Deninno’s motion for the

return of property under Fed. R. Crim. P. 41(e) for an abuse of discretion. See

Frazee v. IRS, 947 F.2d 448, 449 (10th Cir. 1991).

Mr. Deninno seeks the return of the seized items under Fed. R. Crim. P.

41(e). Rule 41(e) provides in part:

(e) Motion for Return of Property. 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.

Whether to assume jurisdiction over a Rule 41(e) motion is governed by equitable

principles. Floyd, 860 F.2d at 1003. “Rule 41(e) jurisdiction should be exercised

with caution and restraint. A Rule 41(e) motion should be dismissed if the

claimant has an adequate remedy at law or cannot show irreparable injury.” Id.

(citations omitted).

We have held that where the property sought to be returned has been

administratively forfeited, the Court should not exercise Rule 41(e) jurisdiction if

the movant has failed to challenge the forfeiture through the appropriate

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administrative and judicial procedures. See Frazee, 947 F.2d at 450 (citing In re

Harper, 835 F.2d 1273, 1274 (8th Cir. 1988)); Linarez v. United States Dep’t of

Justice, 2 F.3d 208, 213 (7th Cir. 1993); see also 19 U.S.C. § 1608 (providing that

a person claiming any right to seized property must file a claim and cost bond

within twenty days of first publication of the notice of seizure). However, federal

question jurisdiction pursuant to 28 U.S.C. § 1331 is available for the limited

purpose of considering collateral due process attacks; that is, deciding whether

the forfeiture offended due process rights. See United States v. Giraldo, 45 F.3d

509, 511 (1st Cir. 1995) (per curiam) (“[D]istrict courts have jurisdiction to

entertain collateral due process attacks on administrative forfeitures.”); United

States v. Woodall, 12 F.3d 791, 795 (8th Cir. 1993) (“[T]he federal courts have

universally upheld jurisdiction to review whether an administrative forfeiture

satisfied statutory and due process requirements.”); Marshall Leasing, Inc. v.

United States, 893 F.2d 1096, 1102-03 (9th Cir. 1990) (holding that the district

court had jurisdiction over due process attack on forfeiture); Willis v. United

States, 787 F.2d 1089, 1093 (7th Cir. 1986) (holding that federal question subject

matter jurisdiction exists over constitutional challenge to forfeiture). If an

administrative forfeiture does not have any procedural defects, other challenges to

the forfeiture, which could have been addressed under the statutory and regulatory

procedures, must be considered waived. See Giraldo, 45 F.3d at 511; Woodall, 12

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F.3d at 795; Linarez, 2 F.3d at 213. Furthermore, the fact that Mr. Deninno’s

Rule 41(e) motion comes after his criminal proceedings have ended does not

defeat the district court’s jurisdiction. See Woodall, 12 F.3d at 794 n. 1 (holding

that once criminal proceedings have ended, a pleading by a pro se plaintiff which

is styled as a Rule 41(e) motion “should be liberally construed as seeking to

invoke the proper remedy”); Onwubiko v. United States, 969 F.2d 1392, 1397 (2d

Cir. 1992) (“Where criminal proceedings against the movant have already been

completed, a district court should treat a Rule 41(e) motion as a civil

complaint.”); United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir. 1987)

(treating Rule 41(e) motions as “civil equitable proceedings” when criminal

proceedings have been completed).

Here, due process requires “notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and

afford them an opportunity to present their objections.” See Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950), cited in Giraldo, 45 F.3d at

511. Although Mr. Deninno admits that “[he] was served notice of the

forfeitures,” see Rec. vol 1, doc 167, at 2, he avers that the government failed to

allow him access to writing materials and postage. If indeed Mr. Deninno was

given notice while being deprived of writing materials and postage, such notice

was not “reasonably calculated . . . to . . . afford [him] an opportunity to present

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[his] objections,” see Mullane, 339 U.S. at 314. The government fails to offer

any evidence, in the form of affidavits or otherwise, that Mr. Deninno had access

to writing materials and a stamp other than the assertion that “it is inconceivable

that these items would not be made available to him.” Rec. vol. 1, doc. 170, at 5.

It is unlikely, but not inconceivable. Thus, we must turn to the merits of Mr.

Deninno’s motion. 2

Based upon the record, we conclude that because Mr. Deninno’s Rule 41(e)

motion does not offer any plausible legal theories upon which to challenge the

forfeitures, it must be dismissed pursuant to 28 U.S.C. § 1915(d). See LaFevers

v. Saffle, 936 F.2d 1117, 1118 (10th Cir. 1991) (holding that a pro se, in forma

pauperis action may be dismissed under section 1915(d) “if plaintiff cannot make

a rational argument on the law and facts”). Mr. Deninno contends that the

forfeiture violated his constitutional rights, specifically: (1) his Fifth Amendment

right to due process; (2) his Sixth Amendment right to counsel; (3) his Eighth

Amendment right to be free from cruel and unusual punishment; and (4) his Fifth

2
Although the district court found Mr. Deninno’s collateral attack to
be without merit, a conclusion we are unable to make based on this record, we
may affirm its decision for any reason contained in the record. See United States
v. Sandoval, 29 F.3d 537, 542 n. 6 (10th Cir. 1994) (“‘We are free to affirm a
district court decision on any grounds for which there is a record sufficient to
permit conclusions of law, even grounds not relied upon by the district court.’”)
(quoting Medina v. City & County of Denver, 960 F.2d 1493, 1495 n.1 (10th Cir.
1992))

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Amendment right not to be subjected to double jeopardy. Each of the allegations

of the motion are precluded by clear precedent.

A. Due Process

Facially, both federal and Oklahoma state administrative forfeiture laws

satisfy the requirements of due process. Both give notice to possible claimants

and provide a procedure by which claimants may contest the pending forfeiture.

See 21 U.S.C. § 881(d); 19 U.S.C. §§ 1607-1609; 21 C.F.R. §§ 1316.75-1316.78;

63 Okla. Stat. § 2-506. Mr. Deninno’s claim that these procedures do not provide

due process is without merit. See Calero-Toledo v. Pearson Yacht Leasing Co.,

416 U.S. 663, 676-80 (1974).

Although Mr. Deninno has questioned the adequacy of the notice he

received prior to the forfeiture of his property, these alleged procedural faults are

irrelevant because Mr. Deninno fails to allege that they prejudiced him. See

United States v. Nelson, 54 F.3d 1540, 1545 (10th Cir. 1995) (“Claims of

deprivation of due process rights require the accused to make a specific showing

of identifiable prejudice affecting his substantial rights.”). Mr. Deninno was

convicted of conspiracy to manufacture methamphetamine in violation of 21

U.S.C. § 846, possession with intent to distribute a substance containing a

detectable amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1),

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possession of a listed precursor chemical in violation of 21 U.S.C. § 841(d)(1),

and maintaining a place for the manufacture of methamphetamine in violation of

21 U.S.C. § 856(a)(1). All of the property at issue in this case was seized from a

hotel where Mr. Deninno was carrying out these crimes. Section 881(a) of Title

21 of the United States Code provides in relevant part:

The following shall be subject to forfeiture . . .

(2) All . . . equipment of any kind which are used, or intended
for use, in manufacturing . . . any controlled substance . . .
(6) All moneys . . . furnished or intended to be furnished by
any person in exchange for a controlled substance . . . and all
moneys . . . used or intended to be used to facilitate any
violation of this subchapter . . . .

21 U.S.C. § 881(a). Section 2-503 of title 63 of the Oklahoma Statutes Annotated

provides, in relevant part:

The following shall be subject to forfeiture:

4. All conveyances, including . . . vehicles . . . which are used
to transport or conceal, for the purpose of distribution . . . , or
in any manner facilitate the transportation for the purpose of
sale or receipt of [controlled substances or raw materials,
products, and equipment of any kind which are used, or
intended for use, in manufacturing a controlled substance] . . .

Okla. Stat. Ann. tit. 63, § 2-503.A.4 (West 1991). Mr. Deninno fails to offer any

reason why the property at issue is not subject to forfeiture under the preceding

provisions. Upsetting the forfeitures because of the alleged procedural faults,

when Mr. Deninno appears to have no basis for the return of the property once the

8
faults are remedied in new proceedings, would serve no purpose other than to

waste limited judicial resources. Thus, Mr. Deninno’s contention that his due

process rights have been violated must be dismissed.

B. Sixth Amendment

“The protections provided by the Sixth Amendment are explicitly confined

to ‘criminal prosecutions.’” Austin v. United States, 113 S. Ct. 2801, 2804

(1993). However, “even those protections associated with criminal cases may

apply to a civil forfeiture proceeding if it is so punitive that the proceeding must

reasonably be considered criminal.” Id. at 2805 n.4. We note, as our sister

circuits have, that “the Supreme Court has so far been unwilling to deem

forfeiture proceedings ‘criminal’ for the purpose of counsel.” See United States

v. 7108 W. Grand Ave., 15 F.3d 632, 635 (7th Cir.), cert. denied, 114 S. Ct. 2691

(1994), quoted in United States v. $292,888.04 in U.S. Currency, 54 F.3d 564,

569 (9th Cir. 1995).

The Sixth Amendment’s right to counsel is also limited to the risk of loss

of liberty. See Scott v. Illinois, 440 U.S. 367, 373 (1979) (adopting “actual

imprisonment” as the line defining the constitutional right to appointment of

counsel). Even if we were to assume, which we do not, that the forfeiture here

was punitive under the Sixth Amendment, we hold that no Sixth Amendment right

9
to counsel attached in this case because imprisonment is not authorized by the

administrative and civil forfeiture statutes used. See $292,888.04 in U.S.

Currency, 54 F.3d at 569; 7108 W. Grand Ave., 15 F.3d at 635; see also 21 U.S.C.

§ 881(d); 19 U.S.C. §§ 1607-1609; 21 C.F.R. §§ 1316.75-1316.78; 63 Okla. Stat.

§ 2-506.

C. Eighth Amendment

Similarly, Mr. Deninno’s Eighth Amendment claim must fail. 3 In Austin,

the Supreme Court held that the Eighth Amendment’s prohibition against

excessive fines applies to civil forfeitures. 113 S. Ct. at 2803. Since that

decision, the circuits have not settled upon any clear rule to determine which

forfeitures violate the Eighth Amendment. See United States v. 427 and 429 Hall

Street, 74 F.3d 1165, 1170 (11th Cir. 1996); United States v. 11869 Westshore

Drive, 70 F.3d 923, 926 (6th Cir. 1995).

It is clear however that the forfeitures at issue here could not be deemed

excessive under any rule applying the Eighth Amendment’s prohibition of

3
Mr. Deninno claims his Eighth Amendment right to be free from
cruel and unusual punishment has been violated. This clause of the Eighth
Amendment does not apply to forfeitures. See Alexander v. United States, 113 S.
Ct. 2766, 2775 (1993). However, we liberally construe Mr. Deninno’s pro se
motion to make the more plausible argument that the forfeiture violated his
Eighth Amendment right to be free from excessive fines.

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excessive fines to forfeitures. The money, the laboratory equipment and the

automobile were all seized from a hotel room where Mr. Deninno, among others,

was present. Also seized from the hotel room were 8.5 grams of

methamphetamine, a 1.8 liter bottle of liquid containing a detectable amount of

methamphetamine, 1,985.25 grams of processed ephedrine, 1.9 grams of

marijuana, a loaded .357 caliber Colt revolver, a 10 millimeter magazine, and two

sets of scales. As a result of these seizures, Mr. Deninno was convicted on four

drug counts related to the manufacture, possession, and distribution of

methamphetamine. Given these convictions, we hold that the forfeiture of money,

laboratory equipment and an automobile from the premises where the foregoing

criminal activity transpired does not violate the Eighth Amendment’s prohibition

against excessive fines.

D. Double Jeopardy

The recent Supreme Court decision in United States v. Ursery, 116 S. Ct.

2135 (1996), precludes Mr. Deninno’s double jeopardy claim. In Ursery, the

Supreme Court held that civil forfeiture does not constitute punishment for the

purposes of the Fifth Amendment’s prohibition on double jeopardy. 116 S. Ct. at

2138. Therefore, Mr. Deninno has no legal basis for his claim that the forfeitures

in this case constituted double jeopardy.

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 III. CONCLUSION

For the foregoing reasons we AFFIRM the district court’s dismissal of Mr.

Deninno’s motion under Fed. R. Crim. P. 41(e). The mandate shall issue

forthwith.

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