* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 3 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANNY LYNN MCGHEE,

Defendant-Appellant.

No. 02-7084

(D.C. No. 96-CR-55-S)

(E.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE , PORFILIO , and ANDERSON , Circuit Judges.

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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
1 Effective December 1, 2002, Rule 41(e) was amended and relocated to Rule

41(g). We refer to the formulation, i.e., Rule 41(e), effective at the time of

Mr. McGhee’s June 11, 2001 filing.

-2-

Danny Lynn McGhee, a federal prisoner proceeding pro se, appeals the

denial of his motion for return of property, construed as a post-forfeiture motion

filed pursuant to Fed. R. Crim. P. 41(e). 1 We affirm. 

In April 1996, $50,800 was seized from Mr. McGhee pursuant to a search

warrant as proceeds of, or property used to facilitate, methamphetamine

distribution. The United States initiated an administrative forfeiture proceeding in

June 1996, which resulted in a judgment of forfeiture in November 1996. 

Mr. McGhee later pleaded guilty to two counts of using a communication facility

to facilitate drug distribution. This court affirmed his conviction and sentence on

direct appeal. United States v. McGhee , No. 97-7023, 1997 WL 758852 (10th Cir.

Dec. 9, 1997) (unpublished disposition). Mr. McGhee sought habeas relief

pursuant to 28 U.S.C. § 2255, which was denied by the district court. See United

States v. McGhee , No. 99-7149, 2000 WL 1701668 (10th Cir. Nov. 14, 2000)

(unpublished disposition) (denying his request for a certificate of appealability). 

Mr. McGhee then filed the motion for return of property. He alleged the

currency was not validly forfeited because he did not receive actual notice of the

administrative forfeiture proceedings; that the seizure of the currency was

unlawful because the search warrant was not supported by probable cause, was
-3-

overly broad and was illegally executed; and that the forfeiture constituted a

constitutionally excessive fine. 

“Where criminal proceedings against the movant have already been

completed, a district court should treat a Rule 41(e) motion as a civil complaint”

for equitable relief from forfeiture. United States v. Clark , 84 F.3d 378, 381 (10th

Cir. 1996).

[W]here the property sought to be returned has been administratively

forfeited, the Court should not exercise Rule 41(e) jurisdiction if the

movant has failed to challenge the forfeiture through the appropriate

administrative and judicial procedures. However, federal question

jurisdiction pursuant to 28 U.S.C. § 1331 is available for the limited

purpose of considering collateral due process attacks; that is, deciding

whether the forfeiture offended due process rights. If an

administrative forfeiture does not have any procedural defects, other

challenges to the forfeiture, which could have been addressed under

the statutory and regulatory procedures, must be considered waived. 

United States v. Deninno , 103 F.3d 82, 84-85 (10th Cir. 1996) (citations omitted). 

The district court denied the motion, ruling that Mr. McGhee received notice

reasonably calculated to apprise him of the forfeiture proceedings and to afford

him an opportunity to present his objections. Id. at 85. Because Mr. McGhee

received constitutionally adequate notice of the forfeiture, his remaining

challenges were waived when he failed to file a timely claim in the forfeiture

proceedings. Id. at 84-85. The district court further ruled that Mr. McGhee was

collaterally estopped from relitigating the issue of notice and the legality of the

search, because he raised these same issues in his § 2255 petition. 
-4-

We review the due process argument de novo . Clark , 84 F.3d at 381. We

have considered the district court order, the parties’ briefs and contentions, and the

entire record on appeal. Finding no error, we AFFIRM for substantially the

reasons set out in the district court’s Order dated June 19, 2002.

Entered for the Court

Mary Beck Briscoe 

Circuit Judge