USA v. John Maillet

Filing

UNPUBLISHED OPINION FILED. [13-60412 Dismissed for Lack of Jurisdiction] Judge: TMR , Judge: EHJ , Judge: ECP; denying as moot motion to consider filings in related case 13-60660 filed by Appellant Mr. John Joseph Maillet [7569196-2]; denying as moot motion to appoint counsel filed by Appellant Mr. John Joseph Maillet [7433520-2] [13-60412]

Case: 13-60412

Document: 00512709058

Page: 1

Date Filed: 07/23/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60412
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
July 23, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHN JOSEPH MAILLET,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:10-CR-60
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *

John Joseph Maillet, federal prisoner # 15800-043, appeals from the
denial of a motion to reconsider the district court’s order construing his motion
for return of property under Federal Rule of Criminal Procedure 41(g) as a civil
action under 28 U.S.C. § 1331. On appeal, Maillet argues that the district court
committed procedural error. He also contends that he is entitled to the return
of snakes that the Government allegedly seized from his property.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 13-60412

Document: 00512709058

Page: 2

Date Filed: 07/23/2014

No. 13-60412
Even if the parties do not challenge the appellate jurisdiction of this
court, we must examine the basis of our jurisdiction, sua sponte, if necessary.
Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). This court has jurisdiction
over appeals from final decisions under 28 U.S.C. § 1291, certain interlocutory
decisions under 28 U.S.C. § 1292, and partial judgments certified as final
under Federal Rule of Civil Procedure 54(b). United States v. Powell, 468 F.3d
862, 863 (5th Cir. 2006). For an order to be a final judgment it must end the
litigation and leave nothing for the district court to do but execute the
judgment. Silver Star Enters., Inc., v. M/V SARAMACCA, 19 F.3d 1008, 1013
(5th Cir. 1994).
The order that Maillet asked the district court to reconsider is not a final
judgment. As Maillet’s criminal proceedings had ended, the district court’s
order properly construed his Rule 41(g) motion for return of property as a civil
action arising under § 1331. See Clymore v. United States, 217 F.3d 370, 373
(5th Cir. 2000). The district court’s order did not rule, nor purport to rule, on
the merits of Maillet’s claim. Because the district court had not yet ruled on
the merits of Maillet’s filing, its order did not “leave nothing for the court to do
but execute judgment.” See Silver Star Enter., 19 F.3d at 1013. Therefore, the
district court’s denial of Maillet’s motion for reconsideration is non-appealable.
See § 1291.
No other exception to the final judgment rule applies to the district
court’s order construing Maillet’s claim as a civil action. The ruling does not
constitute an appealable interlocutory order. See § 1292. Finally, the district
court’s ruling does not fall within a jurisprudential exception to the final order
rule. See United States v. Brown, 218 F.3d 415, 420-22 (5th Cir. 2000).
Accordingly, Maillet’s appeal is DISMISSED for lack of jurisdiction, and
all outstanding motions are denied as MOOT.

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