United States v. Binder

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 1, 1999
• Docket: 97-20504
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-20504 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNNY BINDER,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-87-CR-314-2 - - - - - - - - - -

June 30, 1999

Before EMILIO M. GARZA, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Johnny Binder, Jr., federal prisoner #46490-079, appeals

from the denial of his motion for the return of property, namely,

a Rolls Royce motorcar and various jewelry items, pursuant to

FED. R. CRIM P. 41(e). Binder contends that his property should

not have been forfeited and that he did not receive due process

during the forfeiture proceedings. He argues that the property

that was forfeited was relevant to a charge of which he was

acquitted and that the notice given by the Drug Enforcement

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 97-20504 -2-

Administration was improper. He alleges that allegations

regarding the relationship of the Rolls Royce that was forfeited

to drug-trafficking were false and that Nathalia Binder (his

mother) was hoodwinked into agreeing to the forfeiture of the

Rolls Royce in a judicial forfeiture proceeding.

Because the Government sold the property that is the subject

of Binder’s motion, he may not obtain relief pursuant to Rule

41(e). Pena v. United States, 157 F.3d 984, 986 (5th Cir. 1998).

The district court need not have allowed Binder to amend his

pleadings to state a claim pursuant to Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388

(1971). First, Nathalia Binder agreed to the judgment forfeiting

the Rolls Royce and judgment was entered by the district court.

Binder is precluded from raising any claims regarding the agreed

judgment. United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir.

1994). Second, Binder received due process in the administrative

forfeiture proceedings regarding the jewelry. See Scarabin v.

Drug Enforcement Admin., 919 F.2d 337, 338-39 (5th Cir. 1990).

Binder’s appeal is frivolous.

APPEAL DISMISSED. 5TH CIR. R. 42.2.