United States v. Gary Smith

Filing

PER CURIAM OPINION FILED - THE COURT: DUANE BENTON, JAMES B. LOKEN and DIANA E. MURPHY (UNPUBLISHED) [3755762] [10-1455]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 10-1455
___________
United States of America,
Appellee,
v.
Gary Lee Smith,
Appellant.

*
*
* Appeal from the United States
* District Court for the
* Western District of Missouri.
*
* [UNPUBLISHED]
*
*
___________
Submitted: November 11, 2010
Filed: February 15, 2011
___________

Before LOKEN, MURPHY, and BENTON, Circuit Judges.
___________
PER CURIAM.
Gary Lee Smith appeals the district court’s1 denial in part of his Federal Rule
of Criminal Procedure 41(g) motion to return property. Upon careful review, see
Jackson v. United States, 526 F.3d 394, 396 (8th Cir. 2008) (district court’s legal
conclusions are reviewed de novo and its findings of fact for clear error), this court
finds no reversible error. Specifically, this court agrees that Smith was not entitled to
the return of the Chevrolet Tahoe, which had been repossessed by a lienholder. See
id. at 396-97 (government may satisfy its burden by showing cognizable claim of
1

The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.

Appellate Case: 10-1455

Page: 1

Date Filed: 02/15/2011 Entry ID: 3755762

ownership or right to possession adverse to the movant’s). This court also concludes
Smith was not entitled to the return of the property that he admitted had been
administratively forfeited, and as to which he first alleged insufficient notice more
than five years after final publication of the notice of seizure. See 18 U.S.C. §
983(e)(1) (any person entitled to written notice in any nonjudicial civil forfeiture
proceeding under civil forfeiture statute who does not receive such notice may file
motion to set aside declaration of forfeiture), (e)(3) (motion under § 983(e)(1) may be
filed not later than 5 years after date of final publication of notice of seizure of
property), (e)(5) (motion filed under § 983(e) shall be exclusive remedy for seeking
to set aside declaration of forfeiture under civil forfeiture statute).
Accordingly, we affirm.
______________________________

-2-

Appellate Case: 10-1455

Page: 2

Date Filed: 02/15/2011 Entry ID: 3755762