United States v. Cone

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 24, 2018
• Docket: 17-5064
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 24, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 17-5064 v. (D.C. Nos. 4:10-CR-00150-GKF-1 & 4:16-CR-00097-GKF-1) BARRY WINFIELD CONE, (N.D. Okla.)

Defendant-Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before LUCERO, BALDOCK, and BACHARACH, Circuit Judges. _________________________________

This appeal involves a federal prisoner’s motion for return of seized

property. The prisoner, Mr. Barry Cone, rented a commercial space and

alleges that he was unable to obtain his own property from his landlord.

According to Mr. Cone, U.S. marshals were prohibiting the landlord from

releasing the property because of an ongoing investigation.

* The parties do not request oral argument, and it would not materially help us to decide this appeal. As a result, we decide the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). Federal officials denied that they were prohibiting the landlord from

returning Mr. Cone’s property. But Mr. Cone was apparently unable to

convince the landlord to return the property. So, Mr. Cone moved for

return of the property under Fed. R. Crim. P. 41(g). The district court

granted summary judgment to the government, relying on the availability

of a state-court replevin action and the federal officials’ denials that they

were prohibiting release of the property. Mr. Cone appeals the grant of

summary judgment, and we affirm.

Though Mr. Cone filed his motion under a criminal rule (Fed. R.

Crim. P. 41(g)), the district court converted the government’s motion to

dismiss to one for summary judgment. With conversion of the

government’s motion, the district court had to view the evidence in the

light most favorable to Mr. Cone. See Christoffersen v. United Parcel

Serv., Inc., 747 F.3d 1223, 1227 (10th Cir. 2014). In considering the

district court’s disposition of the summary-judgment motion, we engage in

de novo review. See United States v. Rodriguez-Aguirre, 414 F.3d 1177,

1182 (10th Cir. 2005) (de novo consideration of rulings on summary

judgment); see also United States v. Soto-Diarte, 402 F. Appx. 388, 391

(10th Cir. 2010) (unpublished) (de novo consideration of rulings on

motions for return of property).

In reviewing the disposition do novo, we conclude that Mr. Cone

failed to challenge one of the district court’s two reasons for awarding

2 summary judgment to the government: Mr. Cone’s opportunity to obtain

relief through a state-court action for replevin. See Okla. Stat. tit. 41, § 52.

In granting summary judgment to the government, the district court

explained that the availability of replevin as a remedy in state court would

preclude relief under Fed. R. Crim. P. 41(g). See United States v.

Copeman, 458 F.3d 1070, 1073 (10th Cir. 2006) (holding that the

availability of a remedy in state judicial forfeiture proceedings precludes

relief under Fed. R. Crim. P. 41(g)). Mr. Cone’s failure to challenge this

part of the district court’s reasoning is fatal. See Bones v. Honeywell Int’l,

Inc., 366 F.3d 869, 877 (10th Cir. 2004). 1

Instead, Mr. Cone addresses only the second part of the district

court’s reasoning: the government’s denial of any “holds” on the property.

On this issue, Mr. Cone relied on his landlord’s stated refusal to release

property based on an alleged instruction from Deputy U.S. Marshals. In

response, the government presented

 letters from a federal prosecutor to the landlord and Mr. Cone’s wife, denying awareness of a “hold” on the property and noting that any prior “hold” was thereby removed and

1 Though Mr. Cone is pro se, he is subject to the same procedural rules governing other litigants. United States v. Green, ___ F.3d ___, 2018 WL 1660115, at *5 (10th Cir. Apr. 6, 2017) (to be published); see also Moore v. Hartley, 608 F. App’x 714, 715 (10th Cir. 2015) (unpublished) (holding that a pro se litigant’s failure to challenge one of two alternative grounds for a ruling is fatal on appeal).

3  affidavits by two deputy marshals, denying any instruction to the landlord to hold Mr. Cone’s property.

Mr. Cone argues that the district court should have conducted an

evidentiary hearing before deciding whether U.S. Marshals had placed a

hold on the property. We disagree. The district court must “receive

evidence on any factual issue necessary to decide the motion.” Fed. R.

Crim. P. 41(g). The court did receive such evidence. The court notified Mr.

Cone that the government’s motion would be treated as one for summary

judgment and provided Mr. Cone with an opportunity to present additional

evidence. Upon receiving notice of this opportunity, Mr. Cone filed a

supplemental response and provided additional evidence. The court

rendered a decision only after considering Mr. Cone’s additional evidence.

In that evidence, Mr. Cone had relied on his landlord’s alleged

statement; but a federal prosecutor subsequently disclaimed any prior

“hold” on the property. Thus, even if we were to credit Mr. Cone’s

account, the undisputed evidence would have shown the absence of an

ongoing “hold” on the property. In these circumstances, the district court’s

grant of summary judgment would have remained correct even in the

absence of Mr. Cone’s opportunity to pursue a state-court action for

replevin.

4 Affirmed.

Entered for the Court

Robert E. Bacharach Circuit Judge