United States v. Ajaegbu

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 95-10970 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

VERSUS

PETER AJAEGBU

Defendant - Appellant

Appeal from the United States District Court For the Northern District of Texas (3:93-CR-088-R)

April 10, 1996 Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

Appellant, a federal prisoner proceeding pro se, sued the Drug

Enforcement Administration for return of an automobile and personal property seized from him by the DEA and the Dallas Police

Department at the time of his arrest. The DEA responded that the

Dallas Police Department and not the DEA had forfeited and sold the

automobile and that DEA had returned Appellant’s personal property

to him after the filing of his suit. The magistrate judge

1 Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. recommended dismissal of Appellant’s claim for the automobile for

lack of jurisdiction and of his claim for return of his personal

property as moot. The district court did so. We affirm in part

and reverse and remand in part.

The magistrate judge’s report and recommendation failed to

advise Appellant that he must file objections thereto within ten

days to obtain de novo review by the district court. Appellant

filed no objection but did file an “appeal” with the district court

from the magistrate judge’s Report and Recommendation in which he

argued that some personal items had not been returned, and that his

briefcase in which they were contained had been damaged. He asked

for return for the remaining items and compensation for damage to

the briefcase. The district court denied this “appeal” without

opinion. Before this Court, Appellant contends that the district

court erred in concluding that he lacked standing to contest the

forfeiture of the automobile and by failing to make findings of

fact regarding the damaged briefcase and the alleged failure to

return all of his property.

The DEA submitted documentary evidence supporting its

contention that the Dallas Police Department had forfeited and sold

the vehicle. Appellant produced no evidence to the contrary and

offered only conclusional allegations to support his claim that he

was the actual owner of the car. These allegations are

insufficient. United States v. Harrelson, 705 F.2d 733, 737 (5th

Cir. 1983). Rule 41(e) contemplates only the return of property.

The district court therefore correctly dismissed this claim.

2 Because Appellant was not informed of the necessity to file

objections to the magistrate judge’s Report and Recommendation

within ten days, there is no limitation on his right to appeal nor

in the scope of the appeal. Nettles v. Wainwright, 677 F.2d 404,

410 (5th Cir. 1982) (en banc). In his appeal, Appellant raises

issues of fact concerning whether DEA returned all of the contents

of his briefcase, whether it damaged his briefcase and whether he

is entitled to compensation. Resolution of these issues requires

factual findings. It was, therefore, an abuse of discretion for

the district court to deny his “appeal” without making findings of

fact concerning these issues. Accordingly, as to this issue, the

judgment of the district court is reversed and the matter remanded.

AFFIRMED in part, REVERSED and REMANDED in part.