                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         NOV 14 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 01-3108
v.                                                  (District of Kansas)
                                               (D.C. No. 97-CR-10034-JTM)
ROBERT LEE DOWNS,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this court 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). The case is

therefore ordered submitted without oral argument.

      Defendant-Appellant Robert Lee Downs pleaded guilty to a charge of

possession with intent to distribute marijuana. The marijuana was discovered in


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the trunk of Downs’ vehicle during a roadside search conducted by a Kansas

Highway Patrol officer. The indictment against Downs was handed down by a

federal grand jury and Downs was sentenced by the United States District Court

for the District of Kansas.

      In a motion filed on August 17, 2000, Downs sought the return of cash,

jewelry, and other personal effects allegedly seized when he was arrested. The

district court granted the motion in part, ordering the United States to return the

currency and to engage in a good-faith effort to locate Downs’ other personal

property. On February 9, 2001, the United States filed a status report with the

district court detailing its efforts at locating the property. The United States

reported that it had contacted members of the Kansas Highway Patrol and the

Sherman County Sheriff’s Department but had been unable to locate Downs’

property or even confirm that any property other than clothing had been received.

      Downs then filed a motion requesting compensation for the personal

property. The court construed Downs’ motion as one filed pursuant to Rule 41(e)

of the Federal Rules of Criminal Procedure. The court noted that Downs’

property was seized by Kansas state officials, it was not introduced as evidence

during the federal criminal proceeding against Downs, and the United States did

not have actual possession of the property. The court concluded that Downs

failed to establish that the United States had “extensive federal possession or



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control” over Downs’ property. Clymore v. United States, 164 F.3d 569, 571

(10th Cir. 1999). The court denied the motion and vacated the portion of its

earlier ruling requiring the United States to return the cash to Downs. The court

also denied Downs’ subsequent motion for reconsideration, reiterating its

conclusion that the United States did not have actual or constructive possession

of Downs’ property.

      When property is seized by state officials, a movant can invoke Rule 41(e)

if: (1) federal authorities have actual possession of the property, (2) federal

authorities have constructive possession of the property that “was considered

evidence in the federal prosecution,” or (3) the state officials acted at the

direction of federal authorities when the property was seized. Id. Downs does

not contend that the United States has actual possession of his property.

Additionally, Downs has not demonstrated that the personal property at issue is

constructively possessed by the United States because it “was considered

evidence in the federal prosecution.” Id. The items identified by Downs are

personal effects and cash and were not relevant to the prosecution of the charge

contained in the indictment. A movant must show more than the mere fact that

the charges against him were ultimately prosecuted in federal court to establish

that the United States is in constructive possession of his personal property.




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      Downs also argues that Kansas state officials were acting at the direction

of the United States when the items were seized because the State of Kansas has

entered into an agreement with the United States pursuant to which it defers

prosecution of all drug pipeline cases involving a sufficiently large quantity of

drugs to the United States. Downs has not offered a scintilla of evidence to

support his bald allegation that the United States and the State of Kansas have

entered into a tacit agreement governing the prosecution of drug pipeline cases.

Thus, he cannot rely on the theory that the State of Kansas was acting as the

agent of the United States when it seized the property.

      Because Downs has failed to show that the United States has actual or

constructive possession of his property, there is no federal jurisdiction over

Downs’ motion. Id. at 571-72. Although the district court concluded that it

lacked jurisdiction over Downs’ motion, it nonetheless denied the motion.

Because we likewise conclude there is no federal jurisdiction over Downs’

motion, we remand with instructions to the district court to vacate its order

denying Downs’ motion and to enter an order dismissing the motion. The

mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge

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