United States Court of Appeals,

Fifth Circuit.

Nos. 91-7392, 92-1402.

INDUSTRIAS CARDOEN, LTDA., n/k/a Metalnor, Inc., and Antuco, Inc., PetitionersAppellants,

v.

UNITED STATES of America, Respondent-Appellee.

Feb. 15, 1993.

Appeals from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.

PER CURIAM:

Appellants, Industrias Cardoen, Ltda., and Antuco, Inc. (Industrias) appeal orders o f the

district court denying injunctive relief requiring the government to return appellants' helicopter. We

find no error and affirm.

I.

In March 1991, the government seized appellants' Bell Model 206L helicopter, pursuant to

a search warrant. In July 1991, Industrias filed an emergency motion for return of that helicopter

pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure. A few day s later the district

director fo r t he U.S. Customs Service initiated an administrative forfeiture action against the

helicopter under 19 U.S.C.A. § 1595a(c) (West Supp.1992), 22 U.S.C.A. § 401 (West 1990), and

49 U.S.C.A.App. 1472(b)(3) (West Supp.1992). The Customs Service initiated this forfeiture action

after finding a number of irregularities in the registration and importation of the helicopter and after

determining that Industrias intended to export the helicopter for a milit ary, rather t han a civilian

purpose.

The district court referred Industrias's R u le 41(e) motion for return of its helicopter to a

magistrate judge for hearing. The magistrate judge issued a recommendation stating "that petitioners

have established that they have no adequate remedy at law and that they are suffer ing irreparable

injury from the government's retention of the helicopter which is the subject matter of this motion."The magistrate judge recommended that the district court grant appellants' motion for the return of

the helicopter conditioned upon the posting of a n adequate bond. The magistrate judge

recommended, however, that this order be stayed for a period of thirty days so that the government

would have an opportuni ty to init iat e judicial forfeiture proceedings, thereby furnishing appellants

with a legal forum for resolution of their claims. The magistrate judge concluded by recommending

that appellants' motion for equitable relief be denied if the government began a forfeiture proceeding

within the thirty-day period. The district court adopted the magistrate judge's recommendation and

provided that "if such forfeiture proceedings are instituted within the thirty-day period, the petitioner's

motion for equitable relief will be denied."

The district court's order did not fall on deaf ears. On November 20, 1991, the government

instituted a forfeiture complaint in the district court. The district court then noted the filing of the

fo rfeit ure action and closed the case. Industrias filed a notice of appeal from that order. Later in

January 1992, the government sought and obtained a protective order in the forfeiture proceedings

seeking a stay of all discovery for 120 days so that appellants' discovery would not jeopardize a

pending, related criminal investigation. Because appellants expected continued delay in obtaining

relief in the forfeiture proceedings, they filed a motion under Fed.R.Ci v.P. 60(b)(6) to reopen the

Rule 41(e) proceedings for return of the helicopter. In April 1992, the dist rict court denied

appellants' Rule 60(b)(6) motion. Appellants filed an additional notice of appeal from that order.

II.

Appellants argue on appeal that once the district court found that they suffered irreparable

harm from the con t inued deprivation of their helicopter, they were entitled to a Rule 41(e) order

directing the government to return the helicopter. They argue that the court abused its discretion in

failing to exercise its equitable jurisdiction to provide them this injunctive relief.

Appellants' argument hinges on a fundamental misunderstanding of Rule 41(e). Rule 41(e)

of the Federal Rules of Criminal Procedure allows a property owner to seek return of his property1

A person aggrieved by an unlawful search and seizure or by the deprivation of property may

move the district court for the district in which the property was seized for the return of

the property on the ground that such person is entitled to lawful possession of the

property. The court shall receive evidence on any issue of fact necessary to the decision

of the motion. If the motion is granted, the property shall be returned to the movant,

although reasonable conditions may be imposed to protect access and use of the property

in subsequent proceedings.

Fed.R.Crim.P. 41(e). which has been seized by the government. 1 But Rul e 41(e) does not r equire the district court to

order the government to return the property

. Actions seeking the return of property are governed

by equitable principles whether based on Rul e 41(e) or on the general equitable jurisdiction of the

federal court. R ichey v. Smith, 515 F.2d 1239, 1243 (5th Cir.1975). "Whether to exercise that

jurisdiction in a given case is subject to the sound discretion of the district court." Id.

Irreparable harm is only one of several factors the court should consider when deciding

whether to exercise its discretion to return property under Rule 41(e). Another factor a court may

consider is whether the petitioner has an adequate remedy at law for the redress of the petitioner's

grievance. R ichey, 515 F.2d at 1243-44; H unsucker v. Phinney, 497 F.2d 29, 34-35 (5th Cir.1974),

cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975). The district court found that once

the government instit ut ed fo rfeiture proceedings, those proceedings provided appellants with an

adequate remedy at law for the redress of their grievance.

Appellants argue, though, tha t t he forfeiture proceedings do not provide them with an

adequate remedy at law. In Frazee v. IRS, 947 F.2d 448 (10th Cir.1991), the Tenth Circuit addressed

this issue. In that case the court co ncluded that the district court acted within its discretion in

de clining to exercise its equitable jurisdiction and dismissing the Rule 41(e) motion. The court

reasoned that t he co urt could determine in the pending judicial forfeiture action the legality of the

seizure and that the forfeiture proceeding provided an adequate remedy at law. I d. at 450. Also, the

court rejected the property owner's contention that the judicial forfeiture was an inadequate remedy

simply because the district court extended deadlines in that proceeding. Id.

We reach the same conclusion in this case. The district court did not abuse its discretion in

concluding that the judicial forfeiture proceeding provided appellants with an adequate remedy todemonstrate that they are entitled to the return of the helicopter. The district court, therefore, did

not err in denying appellants equitable relief under Rule 41(e).

We also conclude that the district court did not abuse its discretion in denying appellants' Rule

60(b)(6) motion to reopen the Rule 41(e) proceedings. Although the court has granted a stay in the

judicial forfeiture action, the stay remains within the discretion of the court. Appellants will have an

opportunity to ask the court to lift the stay if the government takes an inordinate period of time to

complete its criminal investigation. The court will then be able to balance the government's need for

a stay against the factors supporting return of the helicopter to appellants. In any event, our review

of a denial of a Rule 60(b)(6) motion is narrower in scope than the review of the underlying order.

Thus, having denied appellants' requested relief from the original o rder denying the return of the

helicopter under Rule 41(e), we also deny the Rule 60(b)(6) motion seeking the same relief.

AFFIRMED.