United States v. Duran

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 25, 2019
• Docket: 18-5063
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS April 25, 2019 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 18-5063 (D.C. No. 4:09-CR-00040-GKF-1) JOHN ROBERT DURAN, (N.D. Okla.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.

Appellant John Robert Duran appeals from the district court’s dismissal for

lack of jurisdiction of his Rule 41(g) motion for the return of funds allegedly

seized by the government. See Fed. R. Crim. P. 41(g).

In February 2009, Appellant was apprehended attempting to rob a bank. He

was indicted on charges of attempted bank robbery, possessing a firearm in

furtherance of a crime of violence, and possessing a firearm after prior felony

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. convictions.

During the investigation of this attempted bank robbery, Appellant

allegedly admitted that he had successfully robbed the same bank on December 9,

2008, obtaining approximately $18,000 from that crime. He allegedly informed

government officials that he had used $9,000 of the robbery proceeds to open a

certificate of deposit at IBC Bank, then deposited the rest in an IBC checking

account. Government officials located both of these accounts, as well as clothing

in Appellant’s room that matched the clothing used in the December 9 robbery.

On May 11, 2009, Appellant signed a plea agreement in which he pled

guilty to the firearm charges. On that same date, he executed a consent to

forfeiture of the proceeds of the IBC certificate of deposit. Approximately one

month later, Appellant executed a consent to forfeiture of the contents of the IBC

checking account. In both consent forms, Appellant agreed that he was

“knowingly and voluntarily waiv[ing his] rights to . . . notice being sent within

the time frames in 18 U.S.C. § 983.” (R. Vol. II at 10 (checking account); Case

No. 09-MJ-00063-TLW-1, Doc. #4 (N.D. Okla. May 13, 2009) (certificate of

deposit).) 1 Appellant also “waiv[ed] all constitutional, legal and equitable claims

1 Although only one of these documents appears in the record on appeal, we may take judicial notice of court records from related cases. See Turner v. McGee, 681 F.3d 1215, 1217 n.2 (10th Cir. 2012) (citing St. Louis Baptist Temple, Inc. v. F.D.I.C., 605 F.2d 1169, 1172 (10th Cir. 1979)). We have reviewed the district court’s record from the certificate-of-deposit forfeiture

-2- arising out of and/or defenses to the forfeiture of this property in any

proceeding.” (R. Vol. II at 10; Case No. 09-MJ-00063-TLW-1, Doc. #4.) He

“further agree[d] not to petition or assist anyone else in petitioning for the

remission or mitigation of the forfeiture.” (R. Vol. II at 10; Case No. 09-MJ-

00063-TLW-1, Doc. #4.)

In 2018, Appellant filed a Rule 41(g) motion for the return of seized

property. Although he initially argued that he was entitled to the return both of

the contents of his IBC bank accounts and of cash found on his person at the time

of his arrest, the government introduced evidence that the cash had been turned

over to his sister, at Appellant’s request, and Appellant subsequently narrowed

the scope of his Rule 41(g) motion to be based solely on the two IBC accounts.

In addressing Appellant’s motion for the return of these bank funds, the

district court first noted that the funds had been civilly forfeited, not simply

seized. The court further noted that “the consents to forfeiture reflect

[Appellant’s] signature, and [Appellant] has provided no evidence that the

consents were not validly executed.” (R. Vol. I at 75.) The court then dismissed

Appellant’s Rule 41(g) motion for lack of jurisdiction, holding that Appellant had

action, and we take judicial notice of the consent to forfeiture signed by Appellant in that action.

-3- not demonstrated a valid basis for the court to exercise its equitable jurisdiction.

Appellant appeals this decision.

“A Rule 41([g]) motion is governed by equitable principles, and we review

the district court’s exercise of its equitable jurisdiction and its denial of the

motion for an abuse of discretion.” United States v. Grover, 119 F.3d 850, 851

(10th Cir. 1997) (citation omitted).

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. However, federal question jurisdiction pursuant to 28 U.S.C. § 1331 is available for the limited purpose of considering collateral due process attacks; that is, deciding whether the forfeiture offended due process rights.

United States v. Deninno, 103 F.3d 82, 84 (10th Cir. 1996) (citations omitted).

In this case, Appellant did not challenge the civil forfeitures through the

appropriate administrative and judicial procedures. Moreover, Appellant’s

arguments do not implicate legitimate due process concerns. We note that

Appellant in fact admits in his appellate reply brief that he signed the consent to

forfeiture of his IBC checking account. While he still maintains that he did not

execute a consent to forfeiture of his IBC certificate of deposit, this argument

appears to be based simply on the fact that the government did not introduce an

executed consent form into the record of this case. Having reviewed both the

record on appeal and the relevant district court documents from the forfeiture

-4- actions, as well as Appellant’s arguments on appeal, we see no error in the district

court’s reliance on both of the pertinent consent forms that bear Appellant’s

signature. Based on these consent forms, which Appellant does not otherwise

challenge, we see no abuse of discretion in the district court’s decision not to

exercise jurisdiction over Appellant’s Rule 41(g) motion.

We accordingly AFFIRM the district court’s discretionary denial of

Appellant’s Rule 41(g) motion.

Entered for the Court

Monroe G. McKay Circuit Judge

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