* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral 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.

UNITED STATES COURT OF APPEALS Filed 8/27/96 TENTH CIRCUIT

_____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. BILLY GENE HARRIS, Defendant-Appellant. No. 96-5067 (D.C. No. 89-CR-72-2-B) (N.D. Okla.)

_____________________ ORDER AND JUDGMENT *

_____________________ Before BRORBY, EBEL and HENRY , Circuit Judges.

_____________________ After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist 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.
Billy Gene Harris, a federal prisoner proceeding pro se andin forma-2-

pauperis , appeals the denial of his motion for return of pr operty pursuant to Fed. R. Crim. P. 41(e). We exercise jurisdiction pursua nt to 28 U.S.C. § 1291, see United States v. Madden ,77 F.3d 1215, 1218 n. 1 (10th Cir. 1996), and affi rm.
A jury convicted Mr. Harris of two counts of first degree murder in violation of 18 U.S.C. §§ 2, 1111, and 1152. On di rect appeal, we remanded the case to the district court with directions to recon sider its restitution order, but affirmed Mr. Harris's conviction and sentence in al l other respects. United States v. Harris , No. 90-5028, 1992 WL 33210 (10th Cir. Feb. 21), cert. denied, 504 U.S. 962 (1992). The district court reconsidered i ts ruling in accordance with our instructions and reimposed the restitution order. We affirmed. United States v. Harris , 7 F.3d 1537 (10th Cir. 1993). Mr. Harris later m oved to obtain a free transcript to assist him in preparing a motion for post-conviction relief under 28 U.S.C. § 2255. The district court denied the motio n and we affirmed. United States v. Harris , No. 94-5029, 1995 WL 394151 (10th Cir. July 5, 19 95).
Mr. Harris then filed the motion for return of prop erty pursuant to Fed. R. Crim. P. 41(e) which is the subject of this order a nd judgment. In his motion, Mr. Harris sought the return of property seized from hi s residence pursuant to a search warrant on May 19, 1989. After the government located the property, which-3-

involved a substantial effort due to the age of the case, it contacted Joe Chessawalla, the son and heir of Mr. Harris's victi ms, Mr. and Mrs. Chessawalla, and showed him an inventory list. Mr. Chessawalla identified all of the property as being items Mr. Harris had stolen during the rob bery and murder of his parents. The government returned the property to Mr. Chessaw alla. In light of this evidence, the district court found the property in question had been stolen from Mr. and Mrs. Chessawalla and their son Joe Chessawa lla was the rightful owner, and denied Mr. Harris's motion.

Mr. Harris now contends the district court erred indenying his motion for the return of property pursuant to Fed. R. Crim. P. 41(e). We disagree. In order to prevail on a motion for the return of property, the claimant must prove either than he owned the property in question or that the party in possession holds the property unlawfully. United States v. Maez , 915 F.2d 1466, 1468 (10th Cir. 1990), cert. denied, 498 U.S. 1104 (1991). We review the district cou rt's findings on these issues for clear error. Id. at 1469. In light of the evidence submitted by-4-

the government, the district court's finding Mr. Ch essawalla, not Mr. Harris, is not the rightful owner of the property in question was by no means clear error.

AFFIRMED.

Entered for the Court
WADE BRORBY United States Circuit Judge