FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 17, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-13551

Non-Argument Calendar

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D. C. Docket No. 06-10004-CR-KMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIMOTHY N. HOMRIGHAUSEN,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(February 17, 2010)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

Timothy N. Homrighausen appeals the district court’s order that (1) denied

his motion for return of property ($3,040 in cash) filed pursuant to Federal Rule of
Criminal Procedure 41(g), and (2) simultaneously directed that the funds

Homrighausen sought to have returned be deposited with the U.S. Treasury,

pursuant to 18 U.S.C. § 3006A(f), as payment for Homrighausen’s legal

representation. After review, we affirm the district court’s denial of

Homrighausen’s Rule 41(g) motion, but dismiss Homrighausen’s appeal to the

extent he seeks review of the district court’s § 3006A(f) payment order.

I. BACKGROUND

This is Homrighausen’s second appeal regarding his motion for return of

property. In 2006, Federal Bureau of Investigation agents arrested Homrighausen

in connection with a bank robbery and seized $3,040 found in his pocket. A

federal grand jury indicted Homrighausen for bank robbery, but the indictment did

not include a forfeiture count. Because at an initial appearance hearing

Homrighausen indicated that he did not have funds to hire a lawyer, a magistrate

judge appointed an assistant public defender to represent Homrighausen pursuant

to the Criminal Justice Act, 18 U.S.C. § 3006A(b). After trial, the jury found

Homrighausen not guilty.

On the same day that the district court entered a judgment of acquittal,

Homrighausen filed a Rule 41(g) motion for the return of the $3,040 seized at the

time of his arrest. The government did not respond to this motion. Without notice

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or a hearing, the district court entered an order denying Homrighausen’s Rule

41(g) motion and directing that the $3,040 be paid to the Treasury to defray the

costs of hiring the public defender to represent Homrighausen.

On appeal, this Court vacated the district court’s order and remanded with

instructions that “if the district court wants to remit the funds to the Treasury as

reimbursement, it must comply with 18 U.S.C. § 3006A(f) and the procedures

outlined in Bursey. Failing that, the district court must return the funds to

Homrighausen.” United States v. Homrighausen, No. 08-11962, slip op. at 6

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(11th Cir. Nov. 20, 2008).

Section 3006A(f) permits a district court to direct that funds be deposited in

the Treasury as a reimbursement when the court “finds that funds are available for

payment from or on behalf of a person furnished representation.” 18 U.S.C.

§ 3006A(f). Our decision in Bursey prohibits the district court from summarily

disbursing funds to the Treasury under § 3006A(f) and requires the district court to

first “make an ‘appropriate inquiry’ as to the availability of the funds for payment

as required under subsection (f).” 515 F.2d at 1236, 1238 (quoting § 3006A(b)).

On remand, the district court held an initial hearing and ordered the

United States v. Bursey, 515 F.2d 1228 (5th Cir. 1975). In Bonner v. City of Prichard, 1

661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of

the former Fifth Circuit decided before October 1, 1981.

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government to respond to Homrighausen’s Rule 41(g) motion. After the

government complied and Homrighausen filed a reply, the district court notified

Homrighausen of its intent to deposit the $3,040 in seized funds with the Treasury

pursuant to § 3006A(f) and advised him to file any objections. Homrighausen filed

his objections, arguing that he had been unemployed for the past three years,

currently had no significant assets and was in virtually the same financial condition

as when he was originally found eligible for court-appointed counsel.

The district court held a second hearing and heard testimony from

Homrighausen about his financial resources. Homrighausen testified that he had

less than $100 in cash, had no savings account or investments, currently earned

approximately $200 per week, paid $115 per week in rent, and owned two bicycles

and some modest jewelry. Homrighausen was not married and did not have any

dependents.

After the hearing, the district court entered an order finding that because the

$3,040 in cash belonged to Homrighausen and he was entitled to its return absent a

legitimate reason to withhold it, Homrighausen had “funds available for payment”

for his court-appointed representation, as required by § 3006A(f) and Bursey. The

district court thus denied Homrighausen’s Rule 41(g) motion for the return of this

cash and directed that the $3,040 be deposited with the Treasury for partial

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reimbursement of his legal representation, pursuant to § 3006A(f). Homrighausen

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filed this second appeal.

II. DISCUSSION

At the outset, we must address whether we have jurisdiction to review the

district court’s order. Citing United States v. Griggs, 240 F.3d 974 (11th Cir.

2001), the government argues that we lack jurisdiction to review the district court’s

§ 3006A(f) ruling. We agree. Under Griggs, an order for the payment of funds

under § 3006A(f) is not a final appealable order within the meaning of 28 U.S.C.

§ 1291 because, inter alia, it is administrative in nature and left to the discretion of

the trial court. 240 F.3d at 974. Thus, we do not address the merits of the district

court’s § 3006A(f) ruling.

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We do have jurisdiction to review the district court’s ruling on

Homrighausen’s Rule 41(g) motion. See United States v. Machado, 465 F.3d

At the hearing, Homrighausen’s public defender advised the district court that he spent 2

approximately fifty hours on Homrighausen’s trial. The district court estimated, based on the

current pay rate of $110 an hour for attorney’s appointed under the Criminal Justice Act, that

Homrighausen’s defense cost approximately $5,500. Thus, the $3,040 was only a partial

reimbursement for Homrighausen’s representation.

Under Griggs, we lack jurisdiction to review the merits of a district court’s § 3006A(f) 3

ruling (i.e., the finding that funds are available for payment and the discretionary decision

whether to direct that funds be paid to the Treasury as reimbursement for court-appointed

counsel). Under Bursey, however, we can review whether the district court has complied with

the procedural requirements before entering the § 3006A(f) ruling. In this second appeal,

Homrighausen does not contend that the district court failed to comply with the procedures in

§ 3006A(f) and Bursey before directing payment to the Treasury.

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1301, 1307 (11th Cir. 2006), overruled on other grounds by United States v.

Lopez, 562 F.3d 1309, 1311-13 (11th Cir. 2009). Rule 41(g) provides that “a

person aggrieved . . . by the deprivation of property may move for the property’s

return.” Fed. R. Crim P. 41(g). When the Rule 41(g) motion is filed after criminal

proceedings have terminated, “the person from whom the property was seized is

presumed to have a right to its return and the government must demonstrate that it

has a legitimate reason to retain the property.” United States v. Potes Ramirez, 260

F.3d 1310, 1314 (11th Cir. 2001).

A Rule 41(g) motion filed after the termination of the criminal proceedings

is a motion in equity, for which the district court “will determine all the equitable

considerations in order to make a fair and just decision.” United States v. Howell,

425 F.3d 971, 974 (11th Cir. 2005). We review questions of law relating to a Rule

41(g) motion de novo, but review “the equitable equation of the district court’s

decision to deny a Rule 41(g) motion only for abuse of discretion.” Machado, 465

F.3d at 1307.

Here, the district court denied Homrighausen’s Rule 41(g) motion because,

after following the procedures set forth in § 3006A(f) and Bursey, the district court

determined that the seized funds were “available for payment” to the Treasury for

of Homrighausen’s court-appointed representation. And, Homrighausen does not

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dispute that he had court-appointed representation or that the representation

through trial was more than the $3,040. Under the circumstances, we cannot say

the district court abused its discretion in denying the Rule 41(g) motion.

AFFIRMED IN PART, DISMISSED IN PART.

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