IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60412

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOHN JOSEPH MAILLET,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:10-CR-60

Before REAVLEY, JONES, and PRADO, Circuit Judges.

PER CURIAM:*

John Joseph Maillet, federal prisoner # 15800-043, appeals from the 

denial of a motion to reconsider the district court’s order construing his motion 

for return of property under Federal Rule of Criminal Procedure 41(g) as a civil 

action under 28 U.S.C. § 1331. On appeal, Maillet argues that the district court 

committed procedural error. He also contends that he is entitled to the return 

of snakes that the Government allegedly seized from his property.

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 23, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-60412 Document: 00512709058 Page: 1 Date Filed: 07/23/2014
No. 13-60412

Even if the parties do not challenge the appellate jurisdiction of this 

court, we must examine the basis of our jurisdiction, sua sponte, if necessary. 

Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). This court has jurisdiction 

over appeals from final decisions under 28 U.S.C. § 1291, certain interlocutory 

decisions under 28 U.S.C. § 1292, and partial judgments certified as final 

under Federal Rule of Civil Procedure 54(b). United States v. Powell, 468 F.3d 

862, 863 (5th Cir. 2006). For an order to be a final judgment it must end the 

litigation and leave nothing for the district court to do but execute the 

judgment. Silver Star Enters., Inc., v. M/V SARAMACCA, 19 F.3d 1008, 1013 

(5th Cir. 1994).

The order that Maillet asked the district court to reconsider is not a final 

judgment. As Maillet’s criminal proceedings had ended, the district court’s 

order properly construed his Rule 41(g) motion for return of property as a civil 

action arising under § 1331. See Clymore v. United States, 217 F.3d 370, 373 

(5th Cir. 2000). The district court’s order did not rule, nor purport to rule, on 

the merits of Maillet’s claim. Because the district court had not yet ruled on 

the merits of Maillet’s filing, its order did not “leave nothing for the court to do 

but execute judgment.” See Silver Star Enter., 19 F.3d at 1013. Therefore, the 

district court’s denial of Maillet’s motion for reconsideration is non-appealable. 

See § 1291.

No other exception to the final judgment rule applies to the district 

court’s order construing Maillet’s claim as a civil action. The ruling does not 

constitute an appealable interlocutory order. See § 1292. Finally, the district 

court’s ruling does not fall within a jurisprudential exception to the final order 

rule. See United States v. Brown, 218 F.3d 415, 420-22 (5th Cir. 2000).

Accordingly, Maillet’s appeal is DISMISSED for lack of jurisdiction, and

all outstanding motions are denied as MOOT.

2

 Case: 13-60412 Document: 00512709058 Page: 2 Date Filed: 07/23/2014