FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 25, 2019
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-5063
(D.C. No. 4:09-CR-00040-GKF-1)
JOHN ROBERT DURAN, (N.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
Appellant John Robert Duran appeals from the district court’s dismissal for
lack of jurisdiction of his Rule 41(g) motion for the return of funds allegedly
seized by the government. See Fed. R. Crim. P. 41(g).
In February 2009, Appellant was apprehended attempting to rob a bank. He
was indicted on charges of attempted bank robbery, possessing a firearm in
furtherance of a crime of violence, and possessing a firearm after prior felony
*
This order and judgment is not binding precedent, except under the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.
convictions.
During the investigation of this attempted bank robbery, Appellant
allegedly admitted that he had successfully robbed the same bank on December 9,
2008, obtaining approximately $18,000 from that crime. He allegedly informed
government officials that he had used $9,000 of the robbery proceeds to open a
certificate of deposit at IBC Bank, then deposited the rest in an IBC checking
account. Government officials located both of these accounts, as well as clothing
in Appellant’s room that matched the clothing used in the December 9 robbery.
On May 11, 2009, Appellant signed a plea agreement in which he pled
guilty to the firearm charges. On that same date, he executed a consent to
forfeiture of the proceeds of the IBC certificate of deposit. Approximately one
month later, Appellant executed a consent to forfeiture of the contents of the IBC
checking account. In both consent forms, Appellant agreed that he was
“knowingly and voluntarily waiv[ing his] rights to . . . notice being sent within
the time frames in 18 U.S.C. § 983.” (R. Vol. II at 10 (checking account); Case
No. 09-MJ-00063-TLW-1, Doc. #4 (N.D. Okla. May 13, 2009) (certificate of
deposit).) 1 Appellant also “waiv[ed] all constitutional, legal and equitable claims
1
Although only one of these documents appears in the record on appeal, we
may take judicial notice of court records from related cases. See Turner v.
McGee, 681 F.3d 1215, 1217 n.2 (10th Cir. 2012) (citing St. Louis Baptist
Temple, Inc. v. F.D.I.C., 605 F.2d 1169, 1172 (10th Cir. 1979)). We have
reviewed the district court’s record from the certificate-of-deposit forfeiture
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arising out of and/or defenses to the forfeiture of this property in any
proceeding.” (R. Vol. II at 10; Case No. 09-MJ-00063-TLW-1, Doc. #4.) He
“further agree[d] not to petition or assist anyone else in petitioning for the
remission or mitigation of the forfeiture.” (R. Vol. II at 10; Case No. 09-MJ-
00063-TLW-1, Doc. #4.)
In 2018, Appellant filed a Rule 41(g) motion for the return of seized
property. Although he initially argued that he was entitled to the return both of
the contents of his IBC bank accounts and of cash found on his person at the time
of his arrest, the government introduced evidence that the cash had been turned
over to his sister, at Appellant’s request, and Appellant subsequently narrowed
the scope of his Rule 41(g) motion to be based solely on the two IBC accounts.
In addressing Appellant’s motion for the return of these bank funds, the
district court first noted that the funds had been civilly forfeited, not simply
seized. The court further noted that “the consents to forfeiture reflect
[Appellant’s] signature, and [Appellant] has provided no evidence that the
consents were not validly executed.” (R. Vol. I at 75.) The court then dismissed
Appellant’s Rule 41(g) motion for lack of jurisdiction, holding that Appellant had
action, and we take judicial notice of the consent to forfeiture signed by
Appellant in that action.
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not demonstrated a valid basis for the court to exercise its equitable jurisdiction.
Appellant appeals this decision.
“A Rule 41([g]) motion is governed by equitable principles, and we review
the district court’s exercise of its equitable jurisdiction and its denial of the
motion for an abuse of discretion.” United States v. Grover, 119 F.3d 850, 851
(10th Cir. 1997) (citation omitted).
We have held that where the property sought to be returned has been
administratively forfeited, the Court should not exercise Rule 41([g])
jurisdiction if the movant has failed to challenge the forfeiture
through the appropriate administrative and judicial procedures.
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.
United States v. Deninno, 103 F.3d 82, 84 (10th Cir. 1996) (citations omitted).
In this case, Appellant did not challenge the civil forfeitures through the
appropriate administrative and judicial procedures. Moreover, Appellant’s
arguments do not implicate legitimate due process concerns. We note that
Appellant in fact admits in his appellate reply brief that he signed the consent to
forfeiture of his IBC checking account. While he still maintains that he did not
execute a consent to forfeiture of his IBC certificate of deposit, this argument
appears to be based simply on the fact that the government did not introduce an
executed consent form into the record of this case. Having reviewed both the
record on appeal and the relevant district court documents from the forfeiture
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actions, as well as Appellant’s arguments on appeal, we see no error in the district
court’s reliance on both of the pertinent consent forms that bear Appellant’s
signature. Based on these consent forms, which Appellant does not otherwise
challenge, we see no abuse of discretion in the district court’s decision not to
exercise jurisdiction over Appellant’s Rule 41(g) motion.
We accordingly AFFIRM the district court’s discretionary denial of
Appellant’s Rule 41(g) motion.
Entered for the Court
Monroe G. McKay
Circuit Judge
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