Hunt v. U.S. Department of Justice

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT

                      _____________________

                           No. 92-4152
                      _____________________


     TERRANCE KEITH HUNT,

                                     Plaintiff-Appellant,

                               versus

     U. S. DEPARTMENT OF JUSTICE, ET AL.,

                                     Defendants-Appellees.

     _______________________________________________________

        Appeals from the United States District Court for
                  the Western District of Texas
     _______________________________________________________
                        (August 31, 1993)

Before REAVLEY, DUHÉ and BARKSDALE, Circuit Judges.

PER CURIAM:

     Terrance Hunt appeals from the district court's dismissal of

his motion to return property.   We agree with the district court

that Hunt's motion can be dismissed if he has an alternate

adequate legal remedy, but we disagree with its conclusion that

Hunt has such a remedy.

                            I. BACKGROUND

     In May 1990, Terrance Hunt filed a motion under FED. R. CRIM.

P. 41(e) for the return of approximately $46,000, claiming that

the Federal Bureau of Investigation (FBI) erroneously held this
money.   Hunt later added several Louisiana parties as defendants

to his motion.1

     In August 1990, the FBI issued two checks to Hunt for the

total amount that he claimed.           Louisiana seized these checks two

months later according to a Louisiana judge's warrant, which

"authorized [Louisiana officials] to seize said aforementioned

checks and hold them subject to the orders of th[e] court."            In

November 1990, Louisiana claimed the checks in forfeiture

proceedings.

     By adopting a magistrate's recommendations, the district

court held that Hunt's Rule 41(e) motion must be dismissed

because the Louisiana forfeiture proceeding represents an

adequate remedy at law under which he can recover his property.

Alternatively, the court held that the Louisiana defendants must

be dismissed because Hunt did not properly name them or state

claims against them.

                                   II. DISCUSSION

A. TIMELINESS   OF   APPEAL

     Hunt filed his notice of appeal in this case after the ten-

day limit for criminal appeals imposed by FED. R. APP. P. 4(b),

but before the sixty-day limit for civil appeals imposed by FED.

R. APP. P. 4(a)(1).           Though Hunt initiated this case under Federal

Rule of Criminal Procedure 41(e), the district court at all times

treated this case as a civil proceeding.            This court has also

     1
       These parties are Jay Via, Marcus Clark, Metro Narcotics
Unit of the Ouachita Parish Sheriff's Department, and Ouachita
Parish Sheriff's Office.

                                          2
before decided procedural questions in Rule 41(e) cases according

to the Federal Rules of Civil Procedure.      Industrias Cardoen,

Ltda. v. United States, 983 F.2d 49, 52 (5th Cir. 1993)

(addressing merits of appellants' arguments concerning FED. R.

CIV. P. 60(b) in a Rule 41(e) case).     Other circuits have held

that, for simplicity and clarity, "all appeals from orders

granting or denying motions under Rule 41(e) will be treated as

civil appeals."      United States v. Taylor, 975 F.2d 402, 403 (7th

Cir. 1992); accord United States v. Martinson, 809 F.2d 1364,

1367 (9th Cir. 1987).     We agree with these courts because Rule

41(e) motions represent a means by which a criminal defendant can

determine her rights in property, and not a part of the trial and

punishment process that is criminal law.     Accordingly, Hunt

timely appealed the district court's dismissal of his Rule 41(e)

motion.

B. REMEDY ADEQUACY

     The district court correctly held that a court may deny a

Rule 41(e) motion where an adequate remedy at law exists.

Industrias Cardoen, 983 F.2d at 51-52.     But the court erred by

holding that Hunt has an adequate remedy at law in the Louisiana

forfeiture proceeding.     The October 1990 warrant which permitted

Louisiana authorities to seize the two United States checks

payable to Hunt required a court order before Louisiana could

cash those checks.     The record contains no indication that

Louisiana cashed the checks, nor that any court permitted

Louisiana to do so.     Moreover, the checks each state on the front


                                    3
"VOID AFTER ONE YEAR," and bear an issuance date of August 28,

1990.   Thus, the checks were worthless before the magistrate

issued his Recommendation on December 24, 1991.

     The FBI retains Hunt's money, and the Louisiana forfeiture

proceeding will not help him get it back.   On remand, the

district court must follow Industrias Cardoen and provide Hunt a

means of challenging the FBI's retention of his money.   We

admonish the court to act swiftly to resolve Hunt's claims, which

have lingered in the courts for years through no fault of Hunt.

C. LOUISIANA DEFENDANTS

     We agree with the district court's legal conclusions that

require dismissal of the Louisiana defendants.

                          III. CONCLUSION

     We affirm the district court's judgment except as it applies

to the Department of Justice.   We reverse the judgment as it

applies to the Department of Justice and remand this case for

further consideration.

     AFFIRMED in part, REVERSED in part, and REMANDED.




                                 4