FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 24, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 17-5064
v. (D.C. Nos. 4:10-CR-00150-GKF-1 &
4:16-CR-00097-GKF-1)
BARRY WINFIELD CONE, (N.D. Okla.)
Defendant-Appellant.
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ORDER AND JUDGMENT *
_________________________________
Before LUCERO, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________
This appeal involves a federal prisoner’s motion for return of seized
property. The prisoner, Mr. Barry Cone, rented a commercial space and
alleges that he was unable to obtain his own property from his landlord.
According to Mr. Cone, U.S. marshals were prohibiting the landlord from
releasing the property because of an ongoing investigation.
*
The parties do not request oral argument, and it would not materially
help us to decide this appeal. As a result, we decide the appeal based on
the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
Federal officials denied that they were prohibiting the landlord from
returning Mr. Cone’s property. But Mr. Cone was apparently unable to
convince the landlord to return the property. So, Mr. Cone moved for
return of the property under Fed. R. Crim. P. 41(g). The district court
granted summary judgment to the government, relying on the availability
of a state-court replevin action and the federal officials’ denials that they
were prohibiting release of the property. Mr. Cone appeals the grant of
summary judgment, and we affirm.
Though Mr. Cone filed his motion under a criminal rule (Fed. R.
Crim. P. 41(g)), the district court converted the government’s motion to
dismiss to one for summary judgment. With conversion of the
government’s motion, the district court had to view the evidence in the
light most favorable to Mr. Cone. See Christoffersen v. United Parcel
Serv., Inc., 747 F.3d 1223, 1227 (10th Cir. 2014). In considering the
district court’s disposition of the summary-judgment motion, we engage in
de novo review. See United States v. Rodriguez-Aguirre, 414 F.3d 1177,
1182 (10th Cir. 2005) (de novo consideration of rulings on summary
judgment); see also United States v. Soto-Diarte, 402 F. Appx. 388, 391
(10th Cir. 2010) (unpublished) (de novo consideration of rulings on
motions for return of property).
In reviewing the disposition do novo, we conclude that Mr. Cone
failed to challenge one of the district court’s two reasons for awarding
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summary judgment to the government: Mr. Cone’s opportunity to obtain
relief through a state-court action for replevin. See Okla. Stat. tit. 41, § 52.
In granting summary judgment to the government, the district court
explained that the availability of replevin as a remedy in state court would
preclude relief under Fed. R. Crim. P. 41(g). See United States v.
Copeman, 458 F.3d 1070, 1073 (10th Cir. 2006) (holding that the
availability of a remedy in state judicial forfeiture proceedings precludes
relief under Fed. R. Crim. P. 41(g)). Mr. Cone’s failure to challenge this
part of the district court’s reasoning is fatal. See Bones v. Honeywell Int’l,
Inc., 366 F.3d 869, 877 (10th Cir. 2004). 1
Instead, Mr. Cone addresses only the second part of the district
court’s reasoning: the government’s denial of any “holds” on the property.
On this issue, Mr. Cone relied on his landlord’s stated refusal to release
property based on an alleged instruction from Deputy U.S. Marshals. In
response, the government presented
letters from a federal prosecutor to the landlord and Mr. Cone’s
wife, denying awareness of a “hold” on the property and noting
that any prior “hold” was thereby removed and
1
Though Mr. Cone is pro se, he is subject to the same procedural rules
governing other litigants. United States v. Green, ___ F.3d ___, 2018 WL
1660115, at *5 (10th Cir. Apr. 6, 2017) (to be published); see also Moore
v. Hartley, 608 F. App’x 714, 715 (10th Cir. 2015) (unpublished) (holding
that a pro se litigant’s failure to challenge one of two alternative grounds
for a ruling is fatal on appeal).
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affidavits by two deputy marshals, denying any instruction to
the landlord to hold Mr. Cone’s property.
Mr. Cone argues that the district court should have conducted an
evidentiary hearing before deciding whether U.S. Marshals had placed a
hold on the property. We disagree. The district court must “receive
evidence on any factual issue necessary to decide the motion.” Fed. R.
Crim. P. 41(g). The court did receive such evidence. The court notified Mr.
Cone that the government’s motion would be treated as one for summary
judgment and provided Mr. Cone with an opportunity to present additional
evidence. Upon receiving notice of this opportunity, Mr. Cone filed a
supplemental response and provided additional evidence. The court
rendered a decision only after considering Mr. Cone’s additional evidence.
In that evidence, Mr. Cone had relied on his landlord’s alleged
statement; but a federal prosecutor subsequently disclaimed any prior
“hold” on the property. Thus, even if we were to credit Mr. Cone’s
account, the undisputed evidence would have shown the absence of an
ongoing “hold” on the property. In these circumstances, the district court’s
grant of summary judgment would have remained correct even in the
absence of Mr. Cone’s opportunity to pursue a state-court action for
replevin.
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Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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