United States of America v. Shigemura

Filing

[9927949] Affirmed in Part and Remanded in Part;Terminated on the merits after submissions without oral hearing;Written, signed, published; Judges O'Brien, McKay (authoring), and Tymkovich. Mandate to issue.

FILED
Appellate Case: 11-6095

Document: 01018764637

United States Court of Appeals
Date Filed: 12/20/2011 Page: 1
Tenth Circuit

December 20, 2011
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 11-6095

EDWARD KATSUAKI SHIGEMURA,
Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 5:09-CR-00091-C-1)
Submitted on the briefs:*
Edward Katsuaki Shigemura, pro se.
Sanford C. Coats, United States Attorney; Debra W. Paull and Chris M. Stephens,
Assistant United States Attorneys, Oklahoma City, Oklahoma, for Plaintiff–Appellee.

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

McKAY, Circuit Judge.

*

After examining the parties’ briefs and the 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)(2); 10th Cir. R. 34.1(G). This case is therefore
ordered submitted without oral argument.

Appellate Case: 11-6095

Document: 01018764637

Date Filed: 12/20/2011

Page: 2

Defendant, a federal prisoner appearing pro se, appeals the denial of his Rule 41(g)
Motion for Return of Seized Property.1 We have jurisdiction pursuant to 28 U.S.C. §
1291, and we affirm the district court’s order denying the motion.
In 2009, Defendant was pulled over by the Oklahoma Highway Patrol, who
searched the car he was driving and found, among other things, five loaded handguns, a
rifle, and $62,368.93 in cash. Defendant was arrested, indicted, and later found guilty of
being a felon in possession of firearms. Before trial, the federal government obtained a
seizure warrant for the $62,368.93 as money furnished or intended to be furnished in
exchange for a controlled substance under 21 U.S.C. § 881(a)(6). At sentencing, the
district court found Defendant’s trip was “made for the purpose of dealing in illegal
drugs” and the “funds were being transported in connection with a drug felony.” The
district court applied a sentencing enhancement for possessing a firearm in connection
with another felony. (Supplemental R. Vol. 1 at 83.) Defendant appealed the
1

Rule 41(g) of the Federal Rules of Criminal Procedure provides:

Motion to Return Property. A person aggrieved by an unlawful
search and seizure of property or by the deprivation of property may move
for the property’s return. The motion must be filed in the district where the
property was seized. The court must receive evidence on any factual issue
necessary to decide the motion. If it grants the motion, the court must
return the property to the movant, but may impose reasonable conditions to
protect access to the property and its use in later proceedings.
Prior to amendments in 2002, the substance of Rule 41(g) was contained in former Rule
41(e). See United States v. Copeman, 458 F.3d 1070, 1071 n. 1 (10th Cir. 2006) (“What
was formerly Rule 41(e) is now Rule 41(g), with only stylistic changes.”).
-2-

Appellate Case: 11-6095

Document: 01018764637

Date Filed: 12/20/2011

Page: 3

enhancement and this court affirmed. See United States v. Kitchell, 653 F.3d 1206 (10th
Cir. 2011).
The FBI sent, and Defendant received, notice of the administrative seizure on May
7, 2009. The notice included information regarding how and when to contest the
forfeiture and how and when to file a petition for remission or mitigation of the forfeiture.
Defendant did not file a claim to contest the forfeiture, and the FBI issued a Declaration
of Forfeiture. Defendant did not appeal this Declaration. Defendant did file a petition for
remission or mitigation, which the FBI denied. The FBI advised Defendant he had ten
days to seek reconsideration of its decision, but Defendant did not seek reconsideration.
Fourteen months later, Defendant filed the current F.R.C.P 41(g) motion seeking
return of $44,853.39, the portion of the money he now claims as his, plus other personal
property seized at the time of his arrest.2 The district court held that it lacked jurisdiction
because Defendant had failed to challenge the forfeiture through the administrative
process, and the court therefore denied the motion.
DISCUSSION
A district court should exercise its equitable power to grant relief only if the Rule
41(g) movant shows “irreparable harm and an inadequate remedy at law.” United States
v. Copeman, 458 F.3d 1070, 1071 (10th Cir. 2006) (quotations and citation omitted).
Once criminal proceedings have terminated, “the person from whom the property was
seized is presumed to have a right to its return, and the government must demonstrate that
2

At sentencing, Defendant took the position the money was not his.
-3-

Appellate Case: 11-6095

Document: 01018764637

Date Filed: 12/20/2011

Page: 4

it has a legitimate reason to retain the property.” United States v. Clymore, 245 F.3d
1195, 1201 (10th Cir. 2001) (quotations omitted).
We review questions of law relating to a Rule 41(g) motion de novo, see United
States v. Howell, 425 F.3d 971, 973 (11th Cir. 2005), but we review the district court’s
weighing of equitable considerations and its decision to deny a Rule 41(g) motion for an
abuse of discretion, see Copeman, 458 F.3d at 1072.
We agree with the district court that because Defendant failed to file an
administrative claim to contest the forfeiture of the $44,853.39 in cash, the court lacked
jurisdiction to hear his 41(g) motion as it related to this issue. See U.S. v. Deninno, 103
F.3d 82 (10th Cir. 1996). Defendant did not contest the forfeiture, but only filed a
petition for remission or mitigation. See Ibarra v. United States, 120 F.3d 472, 475 (4th
Cir. 1997) (“A petition for remission or mitigation ‘does not serve to contest the
forfeiture, but rather is a request for an executive pardon of the property based on the
petitioner’s innocence . . .’” (quoting United States v. Vega, 72 F.3d 507, 514 (7th Cir.
1995))). Because remission and mitigation are discretionary, “the courts may not review
the merits of an agency’s decision to deny mitigation or remission, but may only
determine whether the agency followed the applicable procedural requirements prior to
forfeiting the property.” Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d
731, 735 (D.C. Cir. 2001). Defendant’s 41(g) argument that the government failed to
prove a connection between the forfeited property and the alleged crime does not show
the type of procedural defect that would warrant an exercise of the district court’s
-4-

Appellate Case: 11-6095

Document: 01018764637

Date Filed: 12/20/2011

Page: 5

equitable jurisdiction.3 See Deninno, 103 F.3d at 84.
As for Defendant’s request for return of his personal property seized on the day of
arrest, the government concedes such items were not included in the forfeiture action and
might be recoverable under Rule 41(g). We therefore remand for the district court to
consider the legal and factual issues relating to this claim, beginning with the fundamental
question—unclear from the record on appeal—of whether this property is even in the
federal government’s possession. See Clymore v. United States, 415 F.3d 1113, 1120
(10th Cir. 2005).
AFFIRMED in part and REMANDED in part. Plaintiff’s motion to proceed in
forma pauperis on appeal is GRANTED.

3

Defendant’s argument that he did not receive notice of the FBI’s denial of his
petition for mitigation or remission does not raise any due process concerns relating to the
notice of the forfeiture proceeding itself. See Ibarra, 120 F.3d at 474 n.4.
-5-