* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 3 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JAVIER ORTIZ,

Defendant-Appellant. Nos. 96-6138 & 96-6155 (D.C. No. CR-94-115-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK, EBEL, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ases are therefore ordered submitted without oral argument.-2-

In appeal No. 96-6138, defendant appeals the distri ct court’s denial of his motion for return of property. In appeal No. 96-61 55, defendant appeals the district court’s denial of his request to proceed i n forma pauperis on appeal and the court’s denial of his request for appointment o f counsel on appeal. At defendant’s request, we consolidated these two appe als by order of May 21, 1996. As part of its investigation into the murder of def endant’s wife at Fort Sill Military Reservation, agents of the Army Criminal I nvestigation Division searched defendant’s dwelling and seized various it ems of personal property, which they subsequently turned over to the FBI. Af ter the criminal proceedings against defendant terminated, his attorney contacte d the FBI about retrieving the seized property, and the FBI turned over a number o f seized items to the attorney. Defendant, however, believed that the FBI had not r eturned all the items that had been seized, and further believed that sev eral of the returned items had been damaged. He, therefore, filed the present mot ion for return of property pursuant to Fed. R. Crim. P. 41(e), seeking a return of the additional items and damages for any items lost or damaged. The governm ent responded with affidavits establishing that it had returned to def endant all the items it had in its possession, with the exception of a Cameron Univers ity Security shirt which, after conversations with the head of university security, the FBI had returned to university security. In its order denying relief, the district court determined that-3-

the shirt in question belonged to the university, a nd that the government had otherwise returned to defendant all the property ithad in its possession. The court further held that, to the extent defendant mi ght have a claim for damages against the government, it was in the nature of a t ort claim, over which the court declined to exercise its equitable jurisdiction. When, as here, there are no criminal proceedings pe nding against a defendant who has filed a motion for return of prop erty under Rule 41(e), we and other courts have “construe[d] the motion as an ind ependent civil action based on equitable principles.” United States v. Madden , 95 F.3d 38, 40 (10th Cir. 1996). Keeping in mind that “Rule 41(e) jurisdiction shoul d be exercised with caution and restraint,” Floyd v. United States , 860 F.2d 999, 1003 (10th Cir. 1988), we review for an abuse of discretion the district court’s decision to retain or decline jurisdiction over a Rule 41(e) motion, see Frazee v. Internal Revenue Serv. , 947 F.2d 448, 449 (10th Cir. 1991). Based upon our review of the record, the parties’ b riefs, and the pertinent law, we conclude that the district court properly d enied defendant’s motion for return of property to the extent that it sought the return of property that either was no longer, or had never been, in the possession of the government. We further conclude that the court did not abuse its discretio n in declining to exercise its-4-

equitable jurisdiction over defendant’s motion to the extent that it sought damages against the government. Defendant also appeals the district court’s denial of appointed counsel for appeal. “We review the denial of appointment of co unsel in a civil case for an abuse of discretion.” Rucks v. Boergermann , 57 F.3d 978, 979 (10th Cir. 1995). We conclude that the district court did not abuse i ts discretion in denying appointed counsel for this appeal. Finally, defend ant appeals the district court’s denial of his request to proceed in forma pauperis on appeal. By order entered December 11, 1996, this court granted defendant leave to proceed in forma pauperis on appeal. Therefore, defendant’s appeal of the district court’s denial of this relief is moot. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED. To the extent it challenges the district court’s denial of defendant’s request for leave to proceed in form a pauperis on appeal, appeal No. 96-6155 is DISMISSED as moot. The mandates shall issue forthwith. Entered for the Court
Bobby R. Baldock Circuit Judge