United States v. John J. Osorio

24 F.3d 251, 1994 U.S. App. LEXIS 18900, 1994 WL 169686

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 4, 1994
• Docket: 93-6397
• Status: Published

Opinion

24 F.3d 251
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

UNITED STATES of America, Plaintiff-Appellee,
v.
John J. OSORIO, Defendant-Appellant.

No. 93-6397.

United States Court of Appeals, Sixth Circuit.

May 4, 1994.

Before: KENNEDY and BOGGS, Circuit Judges, and HILLMAN, Senior District Judge.*

ORDER

John J. Osorio, a pro se federal prisoner, appeals a district court judgment granting in part and denying in part his Fed.R.Crim.P. 41(e) motion for the return of seized property. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Osorio filed a motion under Fed.R.Crim.P. 41(e) for the return of personal property seized at the time of his arrest in June 1992. Agents of the Drug Enforcement Administration arrested Osorio in California and seized: 1) a 1989 Chevrolet Corsica; 2) a 1990 Ford pickup truck; 3) two Coleman Maxa 500ER generators; 4) a Panasonic cellular telephone; 5) a gold crucifix; and 6) forty-seven dollars. The district court granted the motion as to items 4, 5 and 6 and denied the motion as to items 1, 2 and 3. In his timely appeal, Osorio has filed a document entitled "Motion for Clarification and Disposition," which is construed as a motion for counsel and an injunction staying this appeal.

Upon review, we conclude that the district court properly ruled on Osorio's motion. Osorio is not entitled to Rule 41(e) relief as to the two vehicles and the two generators because they are the subject of a forfeiture action in the Superior Court of the State of California. See United States v. Mills, 991 F.2d 609, 612 (9th Cir.1993); United States v. Van Cauwenberghe, 934 F.2d 1048, 1061 (9th Cir.1991); Shaw v. United States, 891 F.2d 602, 603-04 (6th Cir.1989).

Accordingly, we hereby deny the motion for an injunction and the appointment of counsel, and affirm the district court's judgment. Rule 9(b)(3), Rules of the Sixth Circuit.

* The Honorable Douglas W. Hillman, Senior U.S. District Judge for the Western District of Michigan, sitting by designation