UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-10970
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
VERSUS
PETER AJAEGBU
Defendant - Appellant
Appeal from the United States District Court
For the Northern District of Texas
(3:93-CR-088-R)
April 10, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Appellant, a federal prisoner proceeding pro se, sued the Drug
Enforcement Administration for return of an automobile and personal
property seized from him by the DEA and the Dallas Police
Department at the time of his arrest. The DEA responded that the
Dallas Police Department and not the DEA had forfeited and sold the
automobile and that DEA had returned Appellant’s personal property
to him after the filing of his suit. The magistrate judge
1
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
recommended dismissal of Appellant’s claim for the automobile for
lack of jurisdiction and of his claim for return of his personal
property as moot. The district court did so. We affirm in part
and reverse and remand in part.
The magistrate judge’s report and recommendation failed to
advise Appellant that he must file objections thereto within ten
days to obtain de novo review by the district court. Appellant
filed no objection but did file an “appeal” with the district court
from the magistrate judge’s Report and Recommendation in which he
argued that some personal items had not been returned, and that his
briefcase in which they were contained had been damaged. He asked
for return for the remaining items and compensation for damage to
the briefcase. The district court denied this “appeal” without
opinion. Before this Court, Appellant contends that the district
court erred in concluding that he lacked standing to contest the
forfeiture of the automobile and by failing to make findings of
fact regarding the damaged briefcase and the alleged failure to
return all of his property.
The DEA submitted documentary evidence supporting its
contention that the Dallas Police Department had forfeited and sold
the vehicle. Appellant produced no evidence to the contrary and
offered only conclusional allegations to support his claim that he
was the actual owner of the car. These allegations are
insufficient. United States v. Harrelson, 705 F.2d 733, 737 (5th
Cir. 1983). Rule 41(e) contemplates only the return of property.
The district court therefore correctly dismissed this claim.
2
Because Appellant was not informed of the necessity to file
objections to the magistrate judge’s Report and Recommendation
within ten days, there is no limitation on his right to appeal nor
in the scope of the appeal. Nettles v. Wainwright, 677 F.2d 404,
410 (5th Cir. 1982) (en banc). In his appeal, Appellant raises
issues of fact concerning whether DEA returned all of the contents
of his briefcase, whether it damaged his briefcase and whether he
is entitled to compensation. Resolution of these issues requires
factual findings. It was, therefore, an abuse of discretion for
the district court to deny his “appeal” without making findings of
fact concerning these issues. Accordingly, as to this issue, the
judgment of the district court is reversed and the matter remanded.
AFFIRMED in part, REVERSED and REMANDED in part.
3