                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           APR 3 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   Nos. 96-6138
                                                                &
    JAVIER ORTIZ,                                             96-6155
                                                    (D.C. No. CR-94-115-C)
                Defendant-Appellant.                      (W.D. Okla.)




                             ORDER AND JUDGMENT *



Before BALDOCK, EBEL, and LUCERO, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are

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      This order and judgment is not binding precedent, except under the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.
      In appeal No. 96-6138, defendant appeals the district court’s denial of his

motion for return of property. In appeal No. 96-6155, defendant appeals the

district court’s denial of his request to proceed in forma pauperis on appeal and

the court’s denial of his request for appointment of counsel on appeal. At

defendant’s request, we consolidated these two appeals by order of May 21, 1996.

      As part of its investigation into the murder of defendant’s wife at Fort Sill

Military Reservation, agents of the Army Criminal Investigation Division

searched defendant’s dwelling and seized various items of personal property,

which they subsequently turned over to the FBI. After the criminal proceedings

against defendant terminated, his attorney contacted the FBI about retrieving the

seized property, and the FBI turned over a number of seized items to the attorney.

      Defendant, however, believed that the FBI had not returned all the items

that had been seized, and further believed that several of the returned items had

been damaged. He, therefore, filed the present motion for return of property

pursuant to Fed. R. Crim. P. 41(e), seeking a return of the additional items and

damages for any items lost or damaged. The government responded with

affidavits establishing that it had returned to defendant all the items it had in its

possession, with the exception of a Cameron University Security shirt which, after

conversations with the head of university security, the FBI had returned to

university security. In its order denying relief, the district court determined that


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the shirt in question belonged to the university, and that the government had

otherwise returned to defendant all the property it had in its possession. The

court further held that, to the extent defendant might have a claim for damages

against the government, it was in the nature of a tort claim, over which the court

declined to exercise its equitable jurisdiction.

      When, as here, there are no criminal proceedings pending against a

defendant who has filed a motion for return of property under Rule 41(e), we and

other courts have “construe[d] the motion as an independent civil action based on

equitable principles.” United States v. Madden, 95 F.3d 38, 40 (10th Cir. 1996).

Keeping in mind that “Rule 41(e) jurisdiction should be exercised with caution

and restraint,” Floyd v. United States, 860 F.2d 999, 1003 (10th Cir. 1988), we

review for an abuse of discretion the district court’s decision to retain or decline

jurisdiction over a Rule 41(e) motion, see Frazee v. Internal Revenue Serv., 947

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

      Based upon our review of the record, the parties’ briefs, and the pertinent

law, we conclude that the district court properly denied defendant’s motion for

return of property to the extent that it sought the return of property that either was

no longer, or had never been, in the possession of the government. We further

conclude that the court did not abuse its discretion in declining to exercise its




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equitable jurisdiction over defendant’s motion to the extent that it sought damages

against the government.

       Defendant also appeals the district court’s denial of appointed counsel for

appeal. “We review the denial of appointment of counsel in a civil case for an

abuse of discretion.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).

We conclude that the district court did not abuse its discretion in denying

appointed counsel for this appeal. Finally, defendant appeals the district court’s

denial of his request to proceed in forma pauperis on appeal. By order entered

December 11, 1996, this court granted defendant leave to proceed in forma

pauperis on appeal. Therefore, defendant’s appeal of the district court’s denial of

this relief is moot.

       The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED. To the extent it challenges the district court’s denial

of defendant’s request for leave to proceed in forma pauperis on appeal, appeal

No. 96-6155 is DISMISSED as moot.

       The mandates shall issue forthwith.

                                                    Entered for the Court


                                                    Bobby R. Baldock
                                                    Circuit Judge




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