                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              OCT 2 1997
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                          No. 97-6069
 v.
                                                     (D.C. No. 88-CR-81)
                                                 (Western District of Oklahoma)
 JOHNNY LEE SANDERS,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, Circuit Judges.


      In this long-running post-conviction dispute over jewelry seized by the

government during the initial investigation of the defendant’s drug conspiracy,

the defendant seeks a money judgment for the value of the jewelry because the

property itself is no longer in the government’s possession. The defendant has

failed, however, to show that the district court’s factual determinations in this



      *
         After examining appellant’s brief 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(f) and 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
case were clearly erroneous, and under the law of the case doctrine, we decline to

revisit legal issues we previously have decided.

                                          I.

      Johnny Lee Sanders was convicted in 1989 on 27 counts stemming from a

conspiracy to distribute heroin in Oklahoma City, and he was sentenced to thirty

years in prison. See United States v. Sanders, 928 F.2d 940, 942 (10th Cir. 1991)

(Sanders I). In an unpublished decision, this court rejected Mr. Sanders’ habeas

corpus petition. See United States v. Sanders, No. 93-6291, 1994 WL 118199

(10th Cir. Apr. 6, 1994) (Sanders II).

      Following the demise of his efforts to overturn his conviction, Mr. Sanders

has waged an unrelenting battle under Fed. R. Crim. P. 41(e) challenging the

government’s seizure of various items of personal property from his home. In a

previous unpublished decision, this court upheld the major portion of the district

court’s decision rejecting Mr. Sanders’ motion for return of the property. See

United States v. Sanders, No. 94-6219, 1995 WL 94666 (10th Cir. 1995) (Sanders

III). We affirmed the district court’s determination that the fugitive

disentitlement doctrine barred Mr. Sanders from challenging the procedures under

which the property was forfeited. See id. at *1. We held, however, that the

record failed to demonstrate whether one of the lots of jewelry, out of the nine

lots that the government had seized, was subject to the government’s


                                         -2-
administrative forfeiture proceedings. 1 See id. Mr. Sanders claimed then and

continues to claim now that the documentary evidence in the record implies that

the government excluded the disputed lot of jewelry, Lot 3, 2 from its notice of

forfeiture. (See Appellant’s Br. at 9.) Mr. Sanders’ argument relies on the

mathematical coincidence of the fact that one can exclude the appraised value of

Lot 3 -- $17,195 -- from the appraised value of all nine lots -- $67,287 -- and

reach a figure close to $50,000. (See id.) On the basis of this calculation, Mr.

Sanders contends that the government’s notice of forfeiture -- referring to

$50,000 worth of jewelry -- could not possibly have included the disputed lot.

(See id.)

       We therefore remanded with directions that the district court determine

whether Lot 3 was included in the forfeiture notice. See United States v. Sanders,

       1
        To consider this lot as “included” in the forfeiture proceeding, the government
was required to demonstrate that the notice of forfeiture sent to Mr. Sanders’ address and
published in USA Today actually referred to the disputed lot of jewelry. This notice of
forfeiture referred only generally to “assorted gold and diamond jewelry,” valued at
$50,000. See United States v. Sanders, No. CR-88-81-A, slip op. at 2 (W.D. Okla. Feb.
10, 1997) (Sanders V); United States v. Sanders, No. 95-6338, 1996 WL 378836, at *2
(10th Cir. July 8, 1996) (Sanders IV).
       2
        Lot 3 consists of nine pieces of jewelry that subsequently were claimed by Mr.
Sanders’ ex-wife Renee Phillips Sanders. (This particular Mrs. Sanders is not the same
Mrs. Sanders -- Renee Armstrong Sanders -- who was married to Mr. Sanders at the time
of his arrest and who was convicted as a co-conspirator with him. See Sanders III, 1995
WL 94666, at *1 n.2.) The government returned the jewelry in Lot 3 to Renee Phillips
Sanders in 1990. See id. at *1. This court held that even though the jewelry may have
belonged to Rene Phillips Sanders, Mr. Sanders continued to have a property interest in
the jewelry because of his mere possession of it in his home. See id.

                                           -3-
No. 95-6338, 1996 WL 378836, at *1 (10th Cir. July 8, 1996) (Sanders IV). The

government then submitted documents that it argued demonstrated that Lot 3 had

been included in the forfeiture notice. See id. The district court treated the

government’s submission as a motion for summary judgment, and granted

judgment to the government. See id. This court reversed the district court’s

decision on the grounds that the government’s submission had failed to meet its

burden on summary judgment of showing that there were no material facts in

dispute. See id. at *2. In Sanders IV, we instructed the district court that “[i]t

therefore appears to us that the only way the government can prevail on remand

on summary judgment is by submitting an uncontroverted affidavit of the DEA

agent affirmatively linking all seized jewelry to the forfeiture proceeding.” Id.

       Following this remand, the district court declined to consider the matter on

summary judgment and instead conducted an evidentiary hearing at which three

government agents testified. See United States v. Sanders, No. CR-88-81-A, slip

op. at 1 (W.D. Okla. Feb. 10, 1997) (Sanders V). 3 The district court found this

testimony to be credible and concluded that the agents had demonstrated that Lot

3 was indeed included in the initial notice of forfeiture. Consequently, the district


       3
         The parties have not included in the record on appeal either their briefs to the
district court for the Rule 41(e) hearing held on February 4, 1997, or a complete transcript
of the hearing. Mr. Sanders has included one page of the transcript of the district court’s
hearing, but this portion is insufficient to review the factual findings of the district court.
See 10th Cir. R. 10.1.1; 10.3.1 & 10.3.2.

                                             -4-
court dismissed Mr. Sanders’ Rule 41(e) petition. See id. at 5. Mr. Sanders now

contends that the district court’s decision violated the mandate of Sanders IV.

(See Appellant’s Br. at 9.)

                                          II.

      Under the holding in United States v. Clark, we treat Mr. Sanders’ Fed. R.

Crim. P. 41(e) motion more appropriately as a civil action invoking the federal

question jurisdiction of this court. 84 F.3d 378, 381 (10th Cir. 1996) (“‘Where

criminal proceedings against the movant have already been completed, a district

court should treat a rule 41(e) motion as a civil complaint.’”) (quoting Onwubiko

v. United States, 969 F.2d 1392, 1397 (2d Cir. 1992)). We review the district

court’s legal conclusions de novo, but the district court’s factual findings are

reviewed only for clear error. See id.

      In this case, Mr. Sanders’ essential complaint is with the factual findings

and credibility determinations of the district court. However, we have no basis on

which to dispute those findings because there is no record before us of the

testimony of the government agents. We must, therefore, defer to the district

court’s factual findings. See United States v. Davis, 60 F.3d 1479, 1481 (10th

Cir. 1995), cert. denied, 116 S. Ct. 1829 (1996) (holding that when the record on

appeal is insufficient, “we must defer to the trial court’s decisions”) (quoting

Moore v. Subaru of America, 891 F.2d 1445, 1448 (10th Cir. 1989)).


                                         -5-
      Our presumption of the correctness of the district court’s findings is

buttressed by our review of Mr. Sanders’ brief in which he points to no evidence

that would undermine the district court’s findings. His reliance on the

mathematical coincidence in the valuation of Lot 3 is misplaced. The fact of this

coincidence merely created the necessity we observed in Sanders IV for obtaining

more direct evidence as to whether Lot 3 was included in the notice of forfeiture.

The government has provided this evidence in the testimony of its agents. Mr.

Sanders’ disparaging commentary on this testimony does not qualify as evidence,

and thus fails to overcome the district court’s determination that the testimony

was credible. Thus, we have no basis to find that the district court’s factual

findings were clearly erroneous.

                                          III.

      Mr. Sanders also asks this court to reconsider the decision in Sanders III,

which held that the forfeiture proceedings used in his case were appropriate under

the fugitive disentitlement doctrine. See Sanders III, 1995 WL 94666, at *1. In

the intervening years since Sanders III, the fugitive disentitlement doctrine has

fallen into disfavor with respect to its application in civil forfeiture proceedings.

See Degen v. United States, 116 S. Ct. 1777, 1783 (1996) (holding that a

summary civil forfeiture, approved without any hearing for the defendant under

the fugitive disentitlement doctrine, violates a defendant’s due process rights);


                                          -6-
United States v. Rodgers, 108 F.3d 1247, 1253 (10th Cir. 1997) (holding that the

fugitive disentitlement doctrine may not be invoked to avoid the due process

requirement of sending notice of a civil forfeiture to the known address of a

defendant).

      We need not decide whether the forfeiture in this case violated the rule in

Degen and Rodgers because the issue is foreclosed by the doctrine of “the law of

the case.” Under this practical rule of judicial economy, a subsequent court may

not revisit issues that have been finally adjudicated by prior decisions in the same

case, absent some extraordinary circumstances. See Ute Indian Tribe v. Utah, 114

F.3d 1513, 1520 (10th Cir. 1997). One of those possible circumstances is a

change in controlling law during the intervening period. See Stifel, Nicolaus &

Co. v. Woolsey & Co., 81 F.3d 1540, 1544 (10th Cir. 1997). However, this

exception applies only when the case has not been finally decided. See Ute

Indian Tribe, 114 F.3d at 1521 (“[T]he intervening-change-in-law exception does

not apply where . . . the case in which the erroneous ruling occurred is no longer

sub judice -- that is, where the case has become final.”).

      In Mr. Sanders’ case, the issue of the legality of the government’s initial

forfeiture proceedings was decided finally in Sanders III. See Sanders III, 1995

WL 94666, at *1. The case itself remained open solely as a result of the

continuing remands on the separate issue of the scope of the forfeiture notice.


                                         -7-
Nevertheless, we believe the decision in Sanders III on the now-questionable

fugitive disentitlement doctrine is the law of the case. Except for his bare

assertion that the government’s forfeiture proceedings violated Degen and

Rodgers, Mr. Sanders has failed to suggest how his due process rights were

violated or what the government could have done differently in the forfeiture

proceeding. In light of the paucity of his legal argument and the extended history

of this case, we do not find the necessary extraordinary circumstances to warrant

revisiting the fugitive disentitlement issue. Thus, we decline Mr. Sanders’

invitation to reconsider Sanders III.

      For the foregoing reasons, the decision of the district court dismissing Mr.

Sanders’ Rule 41(e) motion is AFFIRMED.



      The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT


                                        David M. Ebel
                                        Circuit Judge




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