                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                         ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             October 31, 2005
                               No. 05-11988
                                                            THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 04-60119-CR-FAM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

STEPHEN GEORGE HUDSON,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                              (October 31, 2005)

Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

     Appellant Stephen George Hudson appeals the district court’s denial of his
motion for return of property, pursuant to Fed.R.Crim.P. 41(g).1 On appeal,

Hudson argues that the administrative forfeiture violated his Fifth Amendment

right against self incrimination and did not afford him due process of law.

Specifically, he maintains that his Fifth Amendment right to remain silent was

violated when he was forced to choose between waiving his privilege in the

criminal case or having his property administratively forfeited in the civil case.

Hudson also contends that he was not afforded due process because the

government began judicial criminal forfeiture proceedings with respect to the same

property that was the subject of the administrative proceedings, but did not allow

the criminal forfeiture proceedings to reach a conclusion before the government

declared an administrative forfeiture. As the government asserted in its answer

brief, the sole issue on appeal is whether Hudson waived his constitutional

arguments because he did not raise them in the district court. In his reply brief,

Hudson maintains that he did not have the opportunity to raise his constitutional

claims below.

       As a general rule, appellate courts “will not consider a legal issue or theory

raised for the first time on appeal.” United States v. Southern Fabricating Co.,



       1
         In his motion for return of property, Hudson cited former Fed.R.Crim.P. 41(e) as the
basis for his motion. However, motions for return of property are now addressed in
Fed.R.Crim.P. 41(g).

                                                2
Inc., 764 F.2d 780, 781 (11th Cir. 1985). “The decision whether to consider such

an argument is left to the appellate court’s discretion.” Id. We have identified five

exceptions to the general rule. See Narey v. Dean, 32 F.3d 1521, 1526 (11th Cir.

1994). Specifically, we will exercise our discretion to consider arguments not

raised in the district court where (1) the issue involves a pure question of law and

refusing to consider it would result in a miscarriage of justice, (2) an appellant had

no opportunity to raise the issue at the district court level, (3) “the interest of

substantial justice is at stake,” (4) “the proper resolution is beyond any doubt,” and

(5) the issue involves “significant questions of general impact or of great public

concern.” Id. at 1526-27.

       Because the record demonstrates that Hudson did not raise his constitutional

arguments in the district court nor present arguments on appeal other than those

based on constitutional violations, we refuse to exercise our discretion to consider

Hudson’s constitutional claims. Accordingly, we affirm the district court’s denial

of Hudson’s Rule 41(g) motion for return of property.

       AFFIRMED.




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