                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     June 26, 2008
                     UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                     Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 07-6226
                                                (D.C. No. 5:02-CR-00070-D-1)
    EUGENE ISIAH ROBERTS,                               (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.



         Eugene Isiah Roberts appeals the denial of his motion under Fed. R. Crim.

P. 41(g) (formerly Fed. R. Crim. P. 41(e)) for the return of $1,257,280 in United

States currency, jewelry, watches, and documents that were seized in connection

with his arrest and conviction on drug charges. We have jurisdiction under

28 U.S.C. § 1291, and we AFFIRM.


*
       After examining the briefs and 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(a)(2); 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                    Background

      In the district court, the government introduced documents that supported a

finding of three seizures of currency totaling $1,192,280: a February 15, 2002,

seizure of $13,280 from Mr. Roberts’ residence; a February 22, 2002, seizure of

$1,077,000 from Mr. Roberts’ residence; and a February 22, 2002, seizure of

$102,000 from a car driven by someone other than Mr. Roberts. 1 All of these

amounts were the subject of forfeiture proceedings, with $13,280 being judicially

forfeited to the State of Oklahoma in an Oklahoma state court proceeding,

$1,077,000 being judicially forfeited to the United States in federal district court,

and $102,000 being administratively forfeited to the Drug Enforcement

Administration (DEA). The government also acknowledged that jewelry,

watches, and documents had been seized, but argued that those items were, and

always had been, in the custody of the Oklahoma City Police Department rather

than the federal government.

      The district court declined to exercise jurisdiction over the Rule 41(g)

motion, indicating that Mr. Roberts had adequate remedies at law and that the

federal government did not have possession of the remaining property.

Accordingly, it dismissed the motion. Mr. Roberts appeals.


1
      The government asserted that $1,192,280 was the total of all currency
seized and that no agent or authority had any knowledge of the additional $65,000
that Mr. Roberts claimed was seized. Mr. Roberts has not presented any evidence
to undermine these assertions.

                                         -2-
                                   Payment of Fees

      Mr. Roberts claims that he was improperly assessed a filing fee for this

action. He argues that his motion is made pursuant to the Federal Rules of

Criminal Procedure and thus does not count as a “civil action” subject to the

Prison Litigation Reform Act.

      Once the criminal proceedings have ended, a Rule 41(g) motion is treated

as a civil equitable proceeding. See United States v. Madden, 95 F.3d 38, 40

(10th Cir. 1996); United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996). Thus,

the Clerk did not err in informing Mr. Roberts that he must pay the filing fee or

move for leave to proceed without prepayment of the fee. Mr. Roberts’s request

for the refund of his filing fee is denied.

                                       Analysis

      Generally we review the denial of a Rule 41(g) motion for an abuse of

discretion. See United States v. Deninno, 103 F.3d 82, 84 (10th Cir. 1996). Here

the district court dismissed the motion, however, so our review is de novo. See

United States v. Rodriguez-Aguirre, 414 F.3d 1177, 1181 (10th Cir. 2005)

(reviewing de novo the dismissal of a Rule 41(g) motion for lack of subject matter

jurisdiction).

                                 Judicial Forfeitures

      The sums of $13,280 and $1,077,000 were judicially forfeited in state and

federal proceedings, respectively.

                                          -3-
      A Rule 41(g) motion is available only where a movant does not have an

adequate remedy at law. With regard to the state proceedings, “[a]ssuming [the

movant] has state avenues of relief open to him, he cannot show an inadequate

remedy at law.” Clymore v. United States, 164 F.3d 569, 571 (10th Cir. 1999);

see also United States v. Copeman, 458 F.3d 1070, 1073 (10th Cir. 2006).

Mr. Roberts has not shown that he has no state avenues of relief.

      With regard to the federal proceedings, Mr. Roberts has an adequate

remedy at law in the form of a Fed. R. Civ. P. 60(b) motion. “A Rule 41([g])

motion is an inappropriate vehicle for challenging a judicial forfeiture; the proper

vehicle is a motion for relief of judgment under Rule 60(b) of the Federal Rules

of Civil Procedure.” Rodriguez-Aguirre, 414 F.3d at 1182. “Because [the

movant] did not challenge the forfeiture by filing a Fed. R. Civ. P. 60(b) motion

in the civil forfeiture proceeding, the district court was correct to deny relief.”

Madden, 95 F.3d at 40.

                              Administrative Forfeiture

      The sum of $102,000 was administratively forfeited to the DEA. “We have

held that where the property sought to be returned has been administratively

forfeited, the Court should not exercise Rule 41([g]) jurisdiction if the movant has

failed to challenge the forfeiture through the appropriate administrative and

judicial procedures.” Deninno, 103 F.3d at 84. This court may, however,




                                          -4-
consider “collateral due process attacks; that is, deciding whether the forfeiture

offended due process rights.” Id.

      There is no indication that Mr. Roberts has challenged the forfeiture

through the appropriate procedures. But this claim does involve a collateral due

process attack: the government’s filings indicate that Mr. Roberts may not have

been given constitutionally adequate notice of the forfeiture proceeding. The

DEA knew he was in jail, so appropriately it mailed notice there. See Clark,

84 F.3d at 381 (“When the government is aware that an interested party is

incarcerated, due process requires the government to make an attempt to serve

him with notice in prison.”). The notice, however, had an error in the address and

was returned undelivered. We need not decide whether this unsuccessful attempt

was constitutionally sufficient. See id. (finding that notice mailed to jail was

constitutionally adequate even though prisoner did not receive it). Even assuming

insufficient notice and moving to the merits, the district court did not abuse its

discretion in declining to adjudicate the motion because the motion “does not

offer any plausible legal theories upon which to challenge the forfeitures.”

Deninno, 103 F.3d at 85. 2 While Mr. Roberts argues that he should have been

2
       In Clymore, we held that Deninno was not controlling where the statute of
limitations for commencing a forfeiture has expired. 164 F.3d at 573. Although
more than five years have passed since the seizures at issue, see 28 U.S.C. § 2462
(establishing a five-year limitation period for civil forfeitures), there is no
limitations problem in this case. See 18 U.S.C. § 983(e)(2)(A) (“Notwithstanding
the expiration of any applicable statute of limitations, if the court grants a motion
                                                                          (continued...)

                                          -5-
given the opportunity to amend his pleadings before dismissal, he fails to show

that any amendments would not have been futile.

                                Remaining Property

      Finally, Mr. Roberts requests the return of his jewelry, watches, and

documents. It is undisputed that this property is not in the custody of federal

authorities, but instead was seized by and, to the extent it has not already been

destroyed, is still in the custody of the Oklahoma City Police Department. There

are only

      limited circumstances under which Rule 41([g]) can be used as a
      vehicle to petition for the return of property seized by state
      authorities. Those circumstances include actual federal possession of
      the property forfeited by the state, constructive federal possession
      where the property was considered evidence in the federal
      prosecution, or instances where property was seized by state officials
      acting at the direction of federal authorities in an agency capacity.

Clymore, 164 F.3d at 571. Mr. Roberts has not shown that any of these

circumstances exist in this case. He contends that his motion is proper because,

when he faced federal charges, his property should have been transferred to

federal authorities. We disagree. Cf. Copeman, 458 F.3d at 1072 (rejecting the

idea that federal prosecution confers constructive possession of property seized by

2
 (...continued)
[to set aside an administrative declaration of forfeiture due to lack of written
notice] the court shall set aside the declaration of forfeiture as to the interest of
the moving party without prejudice to the right of the Government to commence a
subsequent forfeiture proceeding as to the interest of the moving party.”); see also
28 U.S.C. § 2462 (allowing exception to five-year limitations period where
Congress has provided otherwise).

                                         -6-
a state, even if the item is not being held as potential evidence in a federal

prosecution).

      The judgment of the district court is AFFIRMED.


                                                      Entered for the Court



                                                      Wade Brorby
                                                      Senior Circuit Judge




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