United States v. Henderson ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11310
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESSE JAMES HENDERSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:95-CR-284-3
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June 13, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Jesse James Henderson, federal prisoner # 27821-077, appeals
the district court’s denial of his Fed. R. Crim. P. 41 motion for
return of property. Henderson seeks the return of $18,936.55 in
U.S. currency that was seized from his home and administratively
forfeited. He argues that the Government failed to provide
constitutionally-required adequate notice of the forfeiture of
the currency and that the district court erred by not ordering
its return because there was insufficient evidence that the funds
were connected to illegal activity.
*
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that this opinion should not be published and is not precedent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. 00-11310
-2-
Although Henderson has styled his claim as one involving
Fed. R. Crim. P. 41(e), the criminal proceeding against him had
already concluded when he brought this action. We therefore
treat the Rule 41(e) motion as a civil action under 28 U.S.C.
§ 1331, seeking the return of property, and treat the district
court’s denial of that motion as the grant of summary judgment in
favor of the Government. See Clymore v. United States, 217 F.3d
370, 373 (5th Cir. 2000). This court reviews the grant of
summary judgment de novo. Horton v. City of Houston, 179 F.3d
188, 191 (5th Cir.), cert. denied, 528 U.S. 1021 (1999).
In his motion to dismiss the indictment, Henderson admitted
that notice of the seizure had been sent to him at his home
address. He, in fact, attached a copy of the notice. The
Government also submitted evidence showing that it had published
the notice of the seizure in the USA Today newspaper during three
successive weeks. Henderson has not presented any evidence to
support his allegation that he did not receive adequate notice.
He therefore has failed to show that the district court erred in
denying his motion. Accordingly, the judgment of the district is
AFFIRMED.