                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    December 20, 2011
                                         PUBLISH                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                        UNITED STATES COURT OF APPEALS

                                       TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,

          v.                                                 No. 11-6095

 EDWARD KATSUAKI SHIGEMURA,

                 Defendant-Appellant.


               APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE WESTERN DISTRICT OF OKLAHOMA
                          (D.C. No. 5:09-CR-00091-C-1)


Submitted on the briefs:*

Edward Katsuaki Shigemura, pro se.

Sanford C. Coats, United States Attorney; Debra W. Paull and Chris M. Stephens,
Assistant United States Attorneys, Oklahoma City, Oklahoma, for Plaintiff–Appellee.


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.


McKAY, Circuit Judge.



      *
         After examining the parties’ briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore
ordered submitted without oral argument.
       Defendant, a federal prisoner appearing pro se, appeals the denial of his Rule 41(g)

Motion for Return of Seized Property.1 We have jurisdiction pursuant to 28 U.S.C. §

1291, and we affirm the district court’s order denying the motion.

       In 2009, Defendant was pulled over by the Oklahoma Highway Patrol, who

searched the car he was driving and found, among other things, five loaded handguns, a

rifle, and $62,368.93 in cash. Defendant was arrested, indicted, and later found guilty of

being a felon in possession of firearms. Before trial, the federal government obtained a

seizure warrant for the $62,368.93 as money furnished or intended to be furnished in

exchange for a controlled substance under 21 U.S.C. § 881(a)(6). At sentencing, the

district court found Defendant’s trip was “made for the purpose of dealing in illegal

drugs” and the “funds were being transported in connection with a drug felony.” The

district court applied a sentencing enhancement for possessing a firearm in connection

with another felony. (Supplemental R. Vol. 1 at 83.) Defendant appealed the

       1
           Rule 41(g) of the Federal Rules of Criminal Procedure provides:
               Motion to Return Property. A person aggrieved by an unlawful
       search and seizure of property or by the deprivation of property may move
       for the property’s return. The motion must be filed in the district where the
       property was seized. The court must receive evidence on any factual issue
       necessary to decide the motion. If it grants the motion, the court must
       return the property to the movant, but may impose reasonable conditions to
       protect access to the property and its use in later proceedings.
Prior to amendments in 2002, the substance of Rule 41(g) was contained in former Rule
41(e). See United States v. Copeman, 458 F.3d 1070, 1071 n. 1 (10th Cir. 2006) (“What
was formerly Rule 41(e) is now Rule 41(g), with only stylistic changes.”).

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enhancement and this court affirmed. See United States v. Kitchell, 653 F.3d 1206 (10th

Cir. 2011).

       The FBI sent, and Defendant received, notice of the administrative seizure on May

7, 2009. The notice included information regarding how and when to contest the

forfeiture and how and when to file a petition for remission or mitigation of the forfeiture.

Defendant did not file a claim to contest the forfeiture, and the FBI issued a Declaration

of Forfeiture. Defendant did not appeal this Declaration. Defendant did file a petition for

remission or mitigation, which the FBI denied. The FBI advised Defendant he had ten

days to seek reconsideration of its decision, but Defendant did not seek reconsideration.

       Fourteen months later, Defendant filed the current F.R.C.P 41(g) motion seeking

return of $44,853.39, the portion of the money he now claims as his, plus other personal

property seized at the time of his arrest.2 The district court held that it lacked jurisdiction

because Defendant had failed to challenge the forfeiture through the administrative

process, and the court therefore denied the motion.

                                       DISCUSSION

       A district court should exercise its equitable power to grant relief only if the Rule

41(g) movant shows “irreparable harm and an inadequate remedy at law.” United States

v. Copeman, 458 F.3d 1070, 1071 (10th Cir. 2006) (quotations and citation omitted).

Once criminal proceedings have terminated, “the person from whom the property was

seized is presumed to have a right to its return, and the government must demonstrate that

       2
           At sentencing, Defendant took the position the money was not his.

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it has a legitimate reason to retain the property.” United States v. Clymore, 245 F.3d

1195, 1201 (10th Cir. 2001) (quotations omitted).

       We review questions of law relating to a Rule 41(g) motion de novo, see United

States v. Howell, 425 F.3d 971, 973 (11th Cir. 2005), but we review the district court’s

weighing of equitable considerations and its decision to deny a Rule 41(g) motion for an

abuse of discretion, see Copeman, 458 F.3d at 1072.

       We agree with the district court that because Defendant failed to file an

administrative claim to contest the forfeiture of the $44,853.39 in cash, the court lacked

jurisdiction to hear his 41(g) motion as it related to this issue. See U.S. v. Deninno, 103

F.3d 82 (10th Cir. 1996). Defendant did not contest the forfeiture, but only filed a

petition for remission or mitigation. See Ibarra v. United States, 120 F.3d 472, 475 (4th

Cir. 1997) (“A petition for remission or mitigation ‘does not serve to contest the

forfeiture, but rather is a request for an executive pardon of the property based on the

petitioner’s innocence . . .’” (quoting United States v. Vega, 72 F.3d 507, 514 (7th Cir.

1995))). Because remission and mitigation are discretionary, “the courts may not review

the merits of an agency’s decision to deny mitigation or remission, but may only

determine whether the agency followed the applicable procedural requirements prior to

forfeiting the property.” Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d

731, 735 (D.C. Cir. 2001). Defendant’s 41(g) argument that the government failed to

prove a connection between the forfeited property and the alleged crime does not show

the type of procedural defect that would warrant an exercise of the district court’s

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equitable jurisdiction.3 See Deninno, 103 F.3d at 84.

       As for Defendant’s request for return of his personal property seized on the day of

arrest, the government concedes such items were not included in the forfeiture action and

might be recoverable under Rule 41(g). We therefore remand for the district court to

consider the legal and factual issues relating to this claim, beginning with the fundamental

question—unclear from the record on appeal—of whether this property is even in the

federal government’s possession. See Clymore v. United States, 415 F.3d 1113, 1120

(10th Cir. 2005).

       AFFIRMED in part and REMANDED in part. Plaintiff’s motion to proceed in

forma pauperis on appeal is GRANTED.




       3
         Defendant’s argument that he did not receive notice of the FBI’s denial of his
petition for mitigation or remission does not raise any due process concerns relating to the
notice of the forfeiture proceeding itself. See Ibarra, 120 F.3d at 474 n.4.

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