United States v. Shaaban Hafiz Ahmad AliShaaban ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-4124, 08-4278, 09-1206,
09-1330, 09-2251 & 09-2277
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S HAABAN H AFIZ A HMAD A LI S HAABAN,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 05-34-CR-01—Larry J. McKinney, Judge.
S UBMITTED M ARCH 31, 2010 Œ —D ECIDED A PRIL 26, 2010
Before K ANNE, R OVNER, and W OOD , Circuit Judges.
P ER C URIAM. Shortly before the United States invaded
Iraq in 2003, Shaaban Hafiz Ahmad Ali Shaaban offered
Œ
After examining the briefs and records, we have concluded
that oral argument is unnecessary. Thus these appeals are
submitted on the briefs and records. See F ED . R. A PP . P.
34(a)(2)(B)-(C).
2 Nos. 08-4124, 08-4278, 09-1206, 09-1330, et al.
to sell the Iraqi Intelligence Service the names of CIA
agents working covertly in that country. The scheme
fell apart, but Shaaban, a naturalized American citizen
born in Jordan, was convicted after a jury trial of acting
as an agent for Iraq and other crimes and sentenced to
a total of 160 months’ imprisonment. We affirmed his
convictions and sentences. United States v. Shaaban, 252
F. App’x 744, 747 (7th Cir. 2007), cert. denied, 129 S. Ct. 584(2008). Since then Shaaban has peppered the district
court with postjudgment motions and each time
appealed the district court’s adverse ruling.
We have consolidated for decision six appeals (encom-
passing challenges to the denials of seven of Shaaban’s
postjudgment motions), but only two of the appeals
merit discussion. First, Shaaban contests the denial of his
motion for a new trial. Shaaban had asserted that he
possessed newly discovered evidence, but in rejecting
this contention the district court reasoned that his mate-
rials—including a book published before trial and prof-
fered testimony from relatives and former Iraqi
agents—were known to Shaaban or readily ascer-
tainable before trial, or were needlessly cumulative, or
were unlikely to lead to acquittal in the event of a new
trial. See F ED. R. C RIM. P. 33(a). We agree with the
court’s conclusion and find no abuse of discretion.
See United States v. Reyes, 542 F.3d 588, 595 (7th Cir. 2008),
cert. denied, 129 S. Ct. 1027 (2009) (explaining that retrial
based on newly discovered evidence is proper only if
evidence was discovered after trial, could not have been
discovered sooner, is not cumulative, and would probably
result in acquittal); Envtl. Barrier Co. v. Slurry Sys., Inc.,
Nos. 08-4124, 08-4278, 09-1206, 09-1330, et al. 3
540 F.3d 598, 608 (7th Cir. 2008) (same); United States v.
Bender, 539 F.3d 449, 455-56 (7th Cir. 2008), cert. denied,
129 S. Ct. 2415 (2009) (same).
Second, Shaaban contests the adverse ruling on a
motion to reconsider the denial of his demand for the
return of seized property. Throughout trial Shaaban had
asked the district court to order the government to
return seized property, including electronics, currency,
postage stamps, and technology-related documents
he claims are worth several million dollars. The district
court put off these motions while the criminal case was
pending, and then in October 2008 the court issued an
order telling Shaaban that, if he wanted to pursue the
return of his property, he would have to file a new civil
action and either pay the filing fee or request leave to
proceed in forma pauperis. In December 2008, Shaaban
moved the district court to reconsider that decision be-
cause, he said, he could not afford the civil filing fee. But
the district court declined to revisit its decision and
reiterated that Shaaban should file a civil action.
On appeal, Shaaban argues that the district court erred
in requiring him to start all over and file a new civil
action. Shaaban has a point, or at least he would if
this was an appeal from the October order instead of
the December order. Federal Rule of Criminal Proce-
dure 41(g) states that a person aggrieved by a search
and seizure may move for the return of property, and
that the district court must receive evidence on any
factual issue necessary to decide the motion. See F ED. R.
C RIM. P. 41(g). We have held that, once a defendant has
4 Nos. 08-4124, 08-4278, 09-1206, 09-1330, et al.
been convicted, a motion under Rule 41(g) is deemed to
initiate a civil equitable proceeding, see United States v.
Norwood, No. 09-2507, 2010 WL 1541268, at *1 (7th Cir.
Apr. 20, 2010); United States v. White, 582 F.3d 787, 806 n.3
(7th Cir. 2009), cert. denied, 78 U.S.L.W. 3481 (U.S. Feb. 22,
2010) (No. 09-8319); Chairez v. United States, 355 F.3d 1099,
1100 (7th Cir. 2004); United States v. Howell, 354 F.3d 693,
695 (7th Cir. 2004), so in effect the district court ordered
Shaaban to do a second time what he already had done
once. The district court failed to recognize that the civil
action was already underway, and also failed to ap-
preciate that Shaaban could be ordered to pay the civil
fees and would be subject to the Prison Litigation
Reform Act without making him jump through the hoop
of filing another case. See Howell, 354 F.3d at 695.
Shaaban, however, did not timely appeal from the
October decision. After waiting more than 10 days, he
filed a motion to reconsider, which, because the under-
lying proceeding is civil, is properly construed as a
motion under Federal Rule of Civil Procedure 60(b).
E.g., Easley v. Kirmsee, 382 F.3d 693, 696 n.2 (7th Cir. 2004);
Talano v. Nw. Med. Faculty Found., Inc., 273 F.3d 757, 762
(7th Cir. 2001). So by the time Shaaban filed a notice
of appeal, it was too late to challenge the October ruling.
See F ED. R. A PP. P. 4(a)(1)(B) (providing that notice of
appeal must be filed within 60 days in civil cases in
which the United States is a party). Our review is limited
to the denial of the Rule 60(b) motion, which cannot
do service for an appeal. See Stoller v. Pure Fishing Inc.,
528 F.3d 478, 480 (7th Cir.), cert. denied, 129 S. Ct. 609(2008); Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th
Cir. 2000). And with respect to that motion, there could
Nos. 08-4124, 08-4278, 09-1206, 09-1330, et al. 5
not have been a prejudicial abuse of discretion. Shaaban
concedes that he never paid the civil filing fee or moved
to proceed in forma pauperis with his civil action. Further
still, although the district court may have erroneously
required him to start over with a new civil complaint,
nothing is really lost because he can still do just that.
Shaaban—whose criminal proceeding in the district
court closed in January 2006—has six years from the
close of his criminal proceedings to initiate an action
for return of his property. See United States v. Sims, 376
F.3d 705, 708-09 (7th Cir. 2004).
The district court appropriately dealt with the
remainder of Shaaban’s postjudgment motions. Accord-
ingly, the decisions of the district court are A FFIRMED.
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