                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                       JUL 21 1997
                                   PUBLISH

                     UNITED STATES COURT OF APPEALS                 PATRICK FISHER
                                                                            Clerk
                                 TENTH CIRCUIT




 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,
                                                      No. 96-1329
 vs.

 BRADLEY GROVER,

        Defendant - Appellant.




           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                         (D.C. No. 88-CR-61-D)


Richard J. Troberman, Seattle, Washington (Jeralyn E. Merritt, Denver, Colorado,
with him on the brief), for Defendant - Appellant.

Charlotte J. Mapes, Assistant United States Attorney, Denver, Colorado (Henry L.
Solano, United States Attorney, with her on the brief), for Plaintiff - Appellee.


Before EBEL, KELLY, and LUCERO, Circuit Judges.


KELLY, Circuit Judge.



       Defendant Bradley Grover appeals from the denial of his Motion for Return
of Property pursuant to Fed. R. Crim. P. 41(e). We exercise jurisdiction under 28

U.S.C. § 1291 and affirm.



                                    Background

      After a federal grand jury indictment in March 1988, charging him with a

variety of drug-related crimes, Mr. Grover pled guilty to engaging in a continuing

criminal enterprise, 21 U.S.C. § 848, and signing a tax return that was false as to

a material matter, 26 U.S.C. § 7206(1). On the same day he entered into the plea

agreement, Mr. Grover and the government executed a separate document entitled

“Forfeiture Agreement.” Mr. Grover agreed to sell his residence in Aspen,

Colorado, and turn over a portion of the proceeds to the government. In return,

the government agreed not to seek forfeiture of other property, including a

residence in Honolulu, Hawaii, and a business known as Lounge Lizards, Inc.

Also that same day, Mr. Grover and the government executed an “Addendum to

the Forfeiture Agreement,” in which Mr. Grover agreed to surrender the proceeds

of his property sale to the government “for the purpose of bringing a civil

narcotics forfeiture action against those proceeds” under 21 U.S.C. § 881, and not

to contest the forfeiture.

      Mr. Grover was sentenced to thirty years in prison on the continuing

criminal enterprise charge, with a concurrent five year sentence for the tax


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violation. He was allowed to market and sell the Aspen property, and to keep

nearly half of the proceeds to pay his attorneys and provide for his wife. Just

over a year after he was sentenced, Mr. Grover’s counsel sent the government a

certified check in the amount of $286,028.31 from the sale of the property. That

same day, Mr. Grover’s counsel and a government representative executed a

document entitled “Satisfaction of Forfeiture Agreement.”

      The government never initiated a civil forfeiture against those proceeds,

however, and on January 16, 1996, Mr. Grover filed a Rule 41(e) Motion for

Return of Property, arguing that because the five-year statute of limitations on the

civil forfeiture had run, the government was no longer entitled to keep the money.

The district court denied the motion, holding that Rule 41(e) did not contemplate

or encompass the return of property under these facts, and that even if it did, the

equities in the case favored the government. Mr. Grover now appeals.



                                     Discussion

      Rule 41(e) provides: “A person aggrieved by an unlawful search and

seizure or by the deprivation of property may move the district court for the

district in which the property was seized for the return of the property on the

ground that such person is entitled to lawful possession of the property.” A Rule

41(e) motion is governed by equitable principles, Floyd v. United States, 860 F.2d


                                         -3-
999, 1002-03 (10th Cir. 1988), 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. Deninno, 103 F.3d 82, 84 (10th Cir. 1996); Frazee v. I.R.S., 947

F.2d 448, 449 (10th Cir. 1991).

      Mr. Grover argues that he only surrendered possession of the property, and

not ownership, and that it was the government’s obligation to complete the

transfer of ownership by instituting a civil forfeiture. Because the limitations

period has run, Mr. Grover contends that the government may no longer institute a

civil forfeiture, and therefore, legal ownership of the property was never

transferred to the government. We agree with Mr. Grover that “nothing vests in

the government until some legal step shall be taken,” United States v. A Parcel of

Land, 507 U.S. 111, 125 (1993) (quoting United States v. Grundy, 7 U.S. (3

Cranch) 337, 350-51 (1806)), and that until the government obtains a judgment of

forfeiture, someone else owns the property and may assert defenses unless

waived. A Parcel of Land, 507 U.S. at 127. We also agree with Mr. Grover that

in this case no forfeiture has yet taken place. This does not, however, translate

into success for Mr. Grover on the merits of his Rule 41(e) motion.

      Rule 41(e) requires that Mr. Grover show he is “entitled to lawful

possession of the property.” Whatever the weakness of the government’s legal

entitlement to the property, that alone does not establish Mr. Grover’s entitlement


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to possession. By the terms of the Forfeiture Agreement, under which he has

already received the full benefit of his bargain, Mr. Grover relinquished any

possessory claim he had to the property. That the agreement still required the

government to act in order to secure legal title does not change this fact.

      In addition, the equities in this case weigh in favor of the government’s

continued possession of the property. In the Forfeiture Agreement, Mr. Grover

agreed not to contest the forfeiture. Thus, he agreed not to contest the

government’s efforts to complete the transfer of legal title to the property, and,

necessarily, not to contest the government’s possession of the property. In return,

he bargained for and received the government’s promise not to seek forfeiture of

other pieces of property which were potentially forfeitable, as well as the right to

market the house and conduct the sale himself, and to keep a portion of the

proceeds. Now, in violation of the terms of his agreement, Mr. Grover is

contesting the government’s right to continued possession of the property.

      Mr. Grover asserts the statute of limitations as a grounds for returning the

property. The statute of limitations, however, is an affirmative defense—which

by definition means the asserter of the defense is contesting the action against

him. His Rule 41(e) motion seeks equitable relief, but “he who seeks equity must

come into the court with clean hands.” Hocker v. New Hampshire Ins. Co., 922

F.2d 1476, 1486 (10th Cir. 1991) (quotation omitted). Mr. Grover is asking the


                                         -5-
court to ignore his own breach of the agreement, while at the same time asking

the court to treat the government’s admitted mistake as if it nullifies any

obligations he had under the agreement. To do so would unjustly enrich Mr.

Grover at the government’s expense—he would receive all the benefits of his

bargain as well as the money he agreed to transfer to the government in return for

those benefits. Equity cannot be so used.

      AFFIRMED.




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