United States v. O'Brien ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-11309
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CURTIS MITCHELL O’BRIEN,
a/k/a Rudolph P. (Peter) Heim,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:89-CR-0009-1
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June 30, 1999
Before DAVIS, DUHE’, and PARKER, Circuit Judges.
PER CURIAM:*
Curtis Mitchell O'Brien, federal prisoner # 17872-077,
appeals the district court’s denial of his Fed. R. Crim. P. 41(e)
motion for return of property. O’Brien seeks the return of his
aircraft seized on April 5, 1989. The district court denied his
Rule 41(e) motion based on the statute of limitations, finding
that his claim accrued on the date of seizure. O’Brien argues
that the district court erred in denying his motion for return of
property based on the statute of limitations. He contends that
*
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that this opinion should not be published and is not precedent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.
No. 98-11309
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his claim could not have accrued on the date of seizure on April
5, 1989.
O’Brien alleges that he was informed that the U.S. Customs
Service had given the aircraft to the Menard County Sheriff’s
Office in 1991. Because the plane is no longer in the possession
of the Government, O’Brien’s claim is one for money damages. See
Armendariz-Mata v. U.S. Dep’t of Justice, DEA, 82 F.3d 679, 682
(5th Cir. 1996). Rule 41(e) does not provide for monetary
damages. Pena v. United States, 157 F.3d 984, 986 (5th Cir.
1998).
Accordingly, we AFFIRM the district court’s denial of
O’Brien’s motion for return of property because, according to his
allegations, the property is no longer in the possession of the
federal government and because there is no avenue of relief
currently available to him to seek monetary damages in federal
court. See Matthews v. Wozencraft, 15 F.3d 432, 439 (5th Cir.
1994) (court may affirm judgment of district court on other
grounds).
AFFIRMED.