* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. PUBLISH

UNITED STATES COURT OF APPEALS Filed 9/3/96 TENTH CIRCUIT

_____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RAYMOND D. MADDEN, Defendant-Appellant. No. 96-6118

_____________________ Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CR-92-10-T)

_____________________ Submitted on the briefs. * Patrick M. Ryan, United States Attorney; M. Jay Far ber, Assistant United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Ap pellee. Raymond D. Madden, pro se.

_____________________ Before BRORBY, EBEL and HENRY , Circuit Judges.

_____________________ BRORBY , Circuit Judge. Raymond D. Madden, a federal prisoner proceeding pro se and in forma-2-

pauperis , appeals the district court's denial of his motion for the return of property pursuant to Fed. R. Crim. P. 41(e). We exercise ju risdiction pursuant to 28 U.S.C. § 1291 and affirm.

I A jury convicted Mr. Madden of one count of distrib uting phenylacetic acid, a precursor chemical in the manufacture of methamph etamine (21 U.S.C. § 841(d)(2)), one count of conspiracy to distribute phenylacetic acid (21 U.S.C. §§ 841(d)(2) & 846), and one count of using a telep hone to facilitate a conspiracy to distribute phenylacetic acid (21 U.S.C. § 843(b) ). United States v. Madden , No. CR-92-010-T (W.D. Okla.). We later affirmed Mr. Ma dden's conviction and sentence on direct appeal. United States v. Madden , No. 92-6202 (10th Cir. Aug. 20, 1993), 1993 WL 332262, cert. denied, 114 S. Ct. 1116 (1994). Mr. Madden then moved for post-conviction relief pursuant to 28 U.S .C. § 2255. The district court denied the motion and we again affirmed. Madden v. United States , No. 94-6465 (10th Cir. Aug. 21, 1995), 1995 WL 495247.

After the jury convicted Mr. Madden, the governmentinitiated an in rem civil forfeiture proceeding against certain real property pursuant to 21 U.S.C. § 881(a)(7), alleging the property was used to facilitate the co mmission of a drug offense. United-3-

States v. Real Property Located at Rt. 1, Box 118, Washita County, Okla. , Civil Case No. 92-2012-A (W.D. Okla.). Mr. Madden answered th e complaint, and the government subsequently moved for summary judgment. The magistrate judge presiding over the case did not rule on the motion for summary judgment. Instead, both the government and Mr. Madden's attorney, acti ng on behalf of Mr. Madden, signed an "Agreed Order of Forfeiture." Mr. Madden did not appeal the forfeiture order.

Mr. Madden later filed a Fed. R. Crim. P. 41(e) mot ion in his criminal case, seeking the return of his real property. In his mo tion, Mr. Madden contended the forfeiture amounted to double jeopardy in violation of the Fifth Amendment. The district court denied Mr. Madden's motion. In doin g so, however, the district court did not reach the merits of Mr. Madden's double jeo pardy argument, but instead concluded it lacked jurisdiction to grant relief unde r Fed. R. Crim. P. 41(e) because his criminal case was complete and that even if wer e to construe Mr. Madden's motion as an independent civil action based upon eq uitable principles, equitable relief was not appropriate because Mr. Madden has a n adequate remedy at law, namely, a motion for relief from judgment pursuant Fed. R. Civ. P. 60(b) filed in his civil forfeiture case. Mr. Madden did not heed the district court's recommendation that he file a Fed. R. Civ. P. 60(b) motion in his civ il forfeiture case, but has instead2The district court denied Mr. Madden's motion on February 27, 1996. Mr.

Madden did not file his notice of appeal until Marc h 26, 1996. If we view Mr. Madden's Fed. R. Crim. P. 41(e) motion as a "crimin al case," we must dismiss his appeal for lack of jurisdiction, because his notice of appeal was not filed within ten days after the district court entered its order den ying his motion. Fed. R. App. P. 4(b). If, however, we view the motion as a "civil case," the notice of appeal was timely, because Mr. Madden filed it within sixty days afte r the district court entered its order. Fed. R. App. P. 4(a)(1). We have never considered whether a motion for return of property is a civil or criminal action fo r the purposes of determining the time for filing the notice of appeal. Our sister c ircuits have unanimously held, however, that a Fed. R. Crim. P. 41(e) motion is a "civil case" within the meaning of Fed. R. App. P. 4(a)(1) and that the sixty-day p eriod prescribed therein applies. See United States v. Garcia , 65 F.3d 17, 18 n. 2 (4th Cir. 1995); Hunt v. Department of Justice , 2 F.3d 96, 97 (5th Cir. 1993) ("Rule 41(e) motion s represent a means by which a criminal defendant can determine her rights in property, and not a part of the trial and punishment process that is criminal law") ; United States v. Taylor , 975 F.2d 402, 403 (7th Cir. 1992) ("All appeals from orders granting or denying motions under Rule 41(e) will be treated as civil appeals."); United States v. Martinson , 809 F.2d 1364, 1367 (9th Cir. 1987) (holding sixty-day limitin Fed. R. App. P. 4(a)(1) applies even though motion was filed in defendant's crimina l case and bore a criminal docket number). We agree with our sister circuits on this point. Also, because there is no criminal proceeding currently pending against Mr. M adden, the district court's order denying his Fed. R. Crim. P. 41(e) motion is a "fin al decision[] of the district court[]" within the meaning of 28 U.S.C. § 1291. Martinson , 809 F.2d at 1367. -4- appealed the denial of the Fed. R. Crim. P. 41(e) m otion he filed in his criminal

case. 2

II Fed. R. Crim. P. 41(e), which is a part of the fede ral rule governing the issuance and execution of search warrants and suppr ession of evidence obtained as a result of unlawful searches and seizures, provide s in pertinent part:-5-

A person aggrieved by an unlawful search and seizur e or by the deprivation of property may move the district courtfor the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful posse ssion of the property.
Although Fed. R. Crim. P. 41(e) is contained in the Federal Rules of Criminal Procedure, we have held "[p]roceedings surrounding the motion for return of property seized in a criminal case are civil in nat ure," and that the higher standard of proof applicable in criminal proceedings does no t apply. United States v. Maez , 915 F.2d 1466, 1468 (10th Cir. 1990), cert. denied, 498 U.S. 1104 (1991). We have also held the remedy provided under Fed. R. Crim. P . 41(e) may be available even if there is no criminal action currently pending ag ainst the party seeking the return of property. United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996); Floyd v. United States , 860 F.2d 999, 1006 (10th Cir. 1988). For example , we and a number of our sister circuits have held that if there are no criminal proceedings pending against the defendant, and the defendant files a Fe d. R. Crim. P. 41(e) motion for return of property seized in a prior nonjudicialforfeiture proceeding or as part of some other nonjudicialproceeding or occurrence, the district court shoul d construe the motion as an independent civil action based on equitable principles. See Clark, 84 F.3d at 380-81; United States v. Giraldo , 45 F.3d 509, 511 (1st Cir. 1995); Onwubiko v. United States , 969 F.2d 1392, 1397 (2d Cir. 1992); United States v. Woodall , 12 F.3d 791, 793-94 & n.1 (8th Cir. 1993); United States v. Martinson , 809-6-

F.2d 1364, 1366-67 (9th Cir. 1987).

The cases holding the district court should constru e a Fed. R. Crim. P. 41(e) motion for return of property seized in a prior nonjudicialforfeiture proceeding or as part of some other nonjudicialproceeding or occurrence filed after the criminal case is complete as an independent civil action bas ed on equitable principles are distinguishable from this case, however, because th e property Mr. Madden seeks was forfeited in ajudicialforfeiture proceeding brought in district court pu rsuant to 21 U.S.C. § 881(a)(7). Fed. R. Crim. P. 54(b)(5) prov ides that the Federal Rules of Criminal Procedure, including Fed. R. Crim. P. 41(e), "a re not applicable to ... civil forfeiture of property for violation of a statute o f the United States." We have explained that Fed. R. Crim. P. 54(b)(5) "stands fo r the proposition" Fed. R. Crim. P. 41(e) "will not govern a judicial civil forfeitu re proceeding in district court" pursuant to 21 U.S.C. § 881. Floyd, 860 F.2d at 1007. Therefore, in light of Fed. R. Crim. P. 54(b)(5), neither Fed. R. Crim. P. 41(e ) nor an independent equitable action brought under the guise of Fed. R. Crim. P. 41(e ) was the appropriate vehicle for seeking the return of the forfeited property in this case.

There was, however, an adequate remedy available to Mr. Madden. In United-7-

States v. Mosquera , 845 F.2d 1122, 1126 (1st Cir. 1988), the First Ci rcuit recognized that although a party cannot challenge ajudicialforfeiture by filing an independent civil action under the guise of Fed. R. Crim. P. 41 (e), as he could have had the property been seized in a nonjudicialforfeiture proceeding, he may nevertheless challenge the forfeiture by filing a motion for rel ief from judgment entered in the civil forfeiture proceeding pursuant to Fed. R. Civ . P. 60(b). Mosquera , 845 F.2d at 1126. We agree with the First Circuit on this p oint, and hold the appropriate vehicle for challenging a civil forfeiture judgment is a motion for relief from judgment under Fed. R. Civ. P. 60(b). See United States v. Timbers Preserve, Routt County, Colo. , 999 F.2d 452, 454 (10th Cir. 1993) (motion under Fed. R. Civ. P. 55(c) and 60(b) appropriate vehicle for challenging a default entered in an in rem judicial forfeiture proceeding in district court); see generally United States v. 51 Pieces of Real Property , 17 F.3d 1306, 1308-09 n. 2 (10th Cir. 1994) (Fede ral Rules of Civil Procedure and Supplemental Rules for Certa in Admiralty and Maritime Claims govern civil forfeiture actions in district court); United States v. $39,000 in Canadian Currency , 801 F.2d 1210, 1216 (10th Cir. 1986) (same). Bec ause Mr.-8-

Madden did not challenge the forfeiture by filing a Fed. R. Civ. P. 60(b) motion in the civil forfeiture proceeding, the district court was correct to deny relief.

AFFIRMED.