United States v. Powell

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 25 1997 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 96-5204 v. (N. Dist. of Oklahoma) (D.C. No. 91-CR-92E) KENNETH N. POWELL,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.

Kenneth N. Powell, proceeding pro se, appeals the district court’s denial of

his motion for recovery of currency and property brought pursuant to Fed. R. Civ.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. P. 41(e). In his motion, Powell alleged that he was entitled to the return of

certain property forfeited through judicial forfeiture proceedings to the United

States pursuant to 28 U.S.C. § 881(a). Powell contended that the Orders and

Judgments of Forfeiture forfeiting the currency and property to the United States

were invalid because he did not receive proper notice of the forfeiture

proceedings. The district court denied Powell’s motion, holding that the United

States’ attempted service of the complaint at both of Powell’s known residences,

as well as its attempted service on Powell’s attorney and constructive notice by

publication, were “‘reasonably calculated to give [Powell] actual notice of the

forfeiture proceedings.’” Dist. Ct. Order at 3 (quoting United States v. 51 Pieces

of Real Property, 17 F.3d 1306, 1317 (10th Cir. 1994)).

“Whether the government employed means reasonably calculated to provide

[Powell] actual notice is a question of fact which we review for clear error.” 51

Pieces of Real Property, 17 F.3d at 1316 (citation omitted). This court has

considered the district court order, the parties’ briefs and contentions, and the

entire record on appeal. Finding no clear error, we AFFIRM for substantially the

reasons set out in the district court’s Order dated August 8, 1996.

ENTERED FOR THE COURT,

Michael R. Murphy Circuit Judge

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