USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 95-1234

UNITED STATES OF AMERICA,

Appellee,

v.

HECTOR GUZMAN, a/k/a HECTOR GUZMAN RIVERA,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED SATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini, Senior U.S. District Judge]

__________________________

_________________________

Before

Selya and Cummings,* Circuit Judges,

______________

and Coffin, Senior Circuit Judge.

____________________

_________________________

Gabriel Hernandez Rivera on brief, and Hector Guzman Rivera,

________________________
____________________
pro se ipso, on supplemental brief, for appellant.
___ __ ____
John C. Keeney,
______________

Acting Assistant Attorney General,

M.B. Van Vliet and Philip Urofsky, Criminal Division,

______________
______________
of Justice, and

Guillermo Gil, United States Attorney,

Theresa
_______

U.S. Dept.

on brief

_____________
for appellee.

_________________________

June 7, 1996

_________________________

____________

*Of the Seventh Circuit, sitting by designation.

SELYA, Circuit Judge.

SELYA, Circuit Judge.

This appeal raises, inter alia,

_____________

the question

whether

(Guzman) was twice

violating

his

_____ ____

defendant-appellant Hector

put in

jeopardy for the

Fifth Amendment

constitutional flaw

nor any

rights.

Guzman

same offense,

Rivera

thus

Discerning neither

other significant error,

we affirm

the judgment below.

I.
I.

BACKGROUND
BACKGROUND

The

indictment in this

case arises out

of an aborted

drug smuggle

that took the appellant by

sea from Puerto Rico to

the

of

Netherlands

island

According

Ayala,

St.

Maarten

to the appellant's

an

agent

Administration

appellant)

of

the

(DEA), followed

in

the

Antilles.1

uncontradicted allegations, Victor

United

States

the LEE

Drug

Enforcement

MARY (captained

by the

to St. Maarten in August 1990, and then surveilled it

for two days.

At

this juncture Dutch

ship, searched

her, seized

and detained several

joined in the

merely observed it

is

seventy-three kilograms

persons.

search, but

authorities boarded

of cocaine,

The appellant alleges

the United States

the

that Ayala

maintains that

from his surveillance post.

At

he

any rate, it

undisputed that after the search had begun Ayala informed the

Dutch

authorities of

Guzman's

involvement.

Local police

ran

Guzman to ground nearby and arrested him.

The

Dutch

involving possession

government

of the

charged

Guzman

cocaine stashed

on

with

board the

crime

LEE

____________________

1Further details of the

be

found in our opinion

failed drug-smuggling operation can

in United States
_____________

F.3d ___ (1st Cir. 1996) [No. 95-1863].

v. LaBoy-Delgado, ___
_____________

MARY.

of

He was tried, convicted, and sentenced to a ten-year

immurement

Approximately

Rico when he

After being

in

St. Maarten.

He

escaped in

seven months later the DEA

attempted to

of 1992.

arrested him in Puerto

sell heroin to

found guilty of that

May

term

an undercover

agent.

crime he was sentenced

to 147

months' imprisonment.

The appellant's troubles were

not yet behind him:

in

November

of 1993,

federal authorities

in Puerto

several individuals (including Guzman)

for the attempted smuggle

that had occurred in the summer of 1990.

appellant

included

conspiring

to

Rico indicted

The charges against the

possess,

with

intent

to

distribute, in excess of five kilograms of cocaine, see 21 U.S.C.

___

841(a)(1) & 846; attempting to import cocaine into the United

States, see id.

___ ___

952,

960, & 963; and aiding and

abetting the

commission of certain charged offenses, see 18 U.S.C.

___

dismiss

bringing

Const.

In

due season

the

the

indictment

which

of charges

amend. V,

district court

cl.2,

denied motions

posited, inter
_____

violated the

and that

alia,
____

Double Jeopardy

the

2.

delay in

that

to

the

Clause, U.S.

procuring

the

indictment countervailed the Speedy Trial Act, 18 U.S.C.

3174.

Rather

entered into

than entrust

a plea

agreement with

which he pleaded guilty

distribute.

All

his fate

the appellant

the government pursuant

to possession of cocaine with

other charges

district court imposed

to a jury,

against him were

a sentence of

3161-

intent to

dropped.

seventy months in

to

The

prison,

directing that the term run consecutive to the previously imposed

heroin-trafficking sentence.

II.
II.

This appeal ensued.

ANALYSIS
ANALYSIS

In addition

been extensively

himself

to the double

briefed by Guzman's appellate

advances

four

other

supplemental pro se brief.

A.
A.

The appellant

are one

possession

of

and the same,

the

assignments

of

error

contends that the offense

Maarten

though

counsel

Guzman

in

Double Jeopardy.
Double Jeopardy.
_______________

case and the offense

Even

which has

We address all five claims.

in this

concerns.

jeopardy claim

both

identical

for which he was

convicted in St.

thus triggering

cases

involve

seventy-three

of conviction

double jeopardy

the

appellant's

kilos

of cocaine,

destined for importation

into the United States via St. Maarten,

a towering obstacle looms:

by

different

prosecutions

matter how

specter

commonly

undertaken

The

rule

of double

derives from the

do not

that constitutional

Heath v.
_____

Alabama,
_______

486 U.S.

tenet that when

1034

dignity' of two

doctrine is

82, 88

1167 (1st

This

in a single

rule

act

sovereigns by breaking

he has committed two distinct

can be prosecuted and punished for both.

that

raise the

474 U.S.

(1988).

"a defendant

is

governments, no

Lopez Andino, 831 F.2d 1164,

____________

denied,
______

the `peace and

the laws of each,

See
___

sovereign

be in character,

jeopardy as

understood.

black-letter

by separate

similar they may

1987), cert.
_____

violates

of charges were brought

governments.

(1985); United States v.

_____________

Cir.

the two sets

`offences'" and

Heath, 474 U.S. at 88.

_____

The

appellant concedes

the

general validity

of this

"dual sovereign" rule, and recognizes that, if applicable in this

instance,

it

shields

prosecution

prong of

nonetheless

that

the

the

United States

Double Jeopardy

the shield

is

from

the

Clause.

unavailable

successive

He

argues

here because

the

United

States

investigation

effectively

government

orchestrated

and superintended

merging

the

two

the

the

St.

Maarten

ensuing prosecution,

sovereigns into

one

for

thus

double

jeopardy purposes.

The argument is not entirely without basis.

v.

Illinois,
________

359 U.S.

121,

131-33 (1959),

upheld the second of two convictions of

prosecuted by two sovereigns

for the same conduct.

very

at

123-24.

record did

Supreme Court

a defendant who had been

the federal government and a state

The Court indicated, however, that under

limited circumstances

sovereigns might

the

In Bartkus
_______

successive prosecutions

by separate

transgress the Double Jeopardy Clause.

Bartkus was
_______

not such

a case

See id.
___ ___

because, there,

the

not

support

Illinois

in

the

claim

bringing

that
its

the State

prosecution

of
was

merely a tool of the federal authorities, who

thereby avoided the
Amendment

against

prohibition of the Fifth

a

retrial

of

a federal

prosecution after an acquittal.

It does not

sustain

the

prosecution

conclusion
was a

sham

that
and a

state

cover for

federal prosecution, and thereby in essential

fact another federal prosecution.

Id.
___

This

language

strongly

suggests

that

prosecuted by two sovereign governments for the same

on

defendants

conduct may

occasion be able to invoke double jeopardy protection.

While

some courts have brushed aside this language as dictum and hinted

that the Bartkus

_______

exception to

the dual sovereign

rule may

not

exist at all, see United States v. Paiz, 905 F.2d 1014, 1024 n.13
___ _____________
____

(7th Cir. 1990), cert. denied, 499 U.S. 924 (1991); United States
_____ ______
_____________

v. Patterson, 809 F.2d 244, 247

_________

have

treated the

n.2 (5th Cir. 1987), most courts

Bartkus intimation
_______

as good

law.

See, e.g.,
___ ____

United States v. Certain Real Property and Premises Known as 38

_____________
________________________________________________

Whalers Cove Dr.,

________________

954 F.2d 29, 38 (2d Cir.

1992), cert. denied,

_____ ______

506 U.S. 815 (1992); United States v. Raymer, 941 F.2d 1031, 1037
_____________
______

(10th Cir. 1991); United States v. Louisville Edible Oil Prods.,

_____________
______________________________

Inc., 926 F.2d 584,

____

587-88 (6th Cir. 1991); In re Kunstler, 914

_______________

F.2d 505, 517 (4th Cir. 1990), cert. denied, 499 U.S. 969 (1991);
_____ ______

United States v. Bernhardt, 831 F.2d 181, 182-83 (9th Cir. 1987);
_____________
_________

United States v. Lane, 891

_____________
____

F. Supp. 8, 10 (D. Me.

1995); United
______

States v. Bouthot, 685 F. Supp. 286, 294 (D. Mass. 1988).

______
_______

We find the gravitational pull of Bartkus irresistible.

_______

Indeed, we think that

principles

the exception is compelled by

of dual sovereignty.

the bedrock

See United States v. Liddy, 542

___ _____________
_____

F.2d 76, 79 (D.C. Cir. 1976) ("Bartkus, as we view it, stands for
_______

the

proposition

that federal

authorities

are proscribed

from

manipulating state processes to accomplish that which they cannot

constitutionally

course,

do themselves.

To hold

otherwise would,

of

result in a mockery of the dual sovereignty concept that

underlies our system of criminal justice.").

We emphasize that the Bartkus exception

_______

is limited

to situations

in which one

is narrow.

sovereign so

It

thoroughly

dominates or

that

manipulates the prosecutorial machinery

the latter

proceedings.

retains

See, e.g.,
___ ____

F.3d 1354, 1361 (11th

Raymer, 941 F.2d

______

little

or

no

volition

of another

in

its

own

United States v. Baptista-Rodriguez, 17

_____________
__________________

Cir. 1994); Whalers Cove, 954

____________

at 1037; Kunstler, 914 F.2d at

________

F.2d at 38;

517; Liddy, 542

_____

F.2d at 79.

Some courts

shelter under the

that

one

have suggested that a

Bartkus exception bears the burden

_______

sovereign dominated

Raymer, 941 F.2d at 1037; Liddy,

______
_____

this

court has

defendant who seeks

erected

the

other's

acts.

542 F.2d at 79.

a framework

that

of proving

See,
___

e.g.,
____

Nevertheless,

dictates a

somewhat

different

allocation of

defendant must

the

meets his

evidentiary

persuasion

are not identical.2

this matrix,

to

same offense.

burden

that effect,

by

making an

the

devoir

Booth, 673
_____

F.2d 27,

of

that the offenses

See United States v. Garcia-Rosa,

___ _____________
___________

cert. denied, 493

_____ ______

the

establish a prima

government to prove

Cir. 1989),

United States v.
______________

entry-level

showing

shifts to the

209, 229 (1st

Under

two prosecutions were for the

defendant

adequate

burden.

proffer evidence sufficient to

facie case that the

If

the

876 F.2d

U.S. 1030

30-31 (1st

(1990);

Cir.), cert.
_____

____________________

2Although
prosection type
defense

to

double

jeopardy

is admittedly

an indictment,

requiring

the government to

vis-a-vis

the existence

once

sufficient

claim

in the

there

is

bear the

of an alleged

evidence

is

adduced

of

the

nature of an

successive

affirmative

nothing unorthodox
ultimate burden

about

of proof

constitutional violation
to

put

the

question

legitimately into issue.

See,
___

e.g., United States v. Rodriguez,

____ _____________
_________

858 F.2d 809, 813-15 (1st Cir. 1988) (holding that if a defendant
identifies record evidence from which a jury could
the

conclude that

defendant was entrapped, the government must bear the burden

of proving that no entrapment occurred).

denied, 456 U.S. 978 (1982); see also United States v. Schinnell,
______
___ ____ _____________
_________

80 F.3d

1064, 1066

United States
______________

(5th Cir.

v. Inmon,
_____

1996) (employing

568 F.2d

326,

same paradigm);

331-32 (3d

Cir. 1977)

(same); United States v. Mallah, 503 F.2d 971, 986 (2d Cir. 1974)
_____________
______

(same), cert. denied, 420 U.S. 995 (1975).

_____ ______

In

the

Bartkus
_______

context,

the

question

whether

defendant is being twice prosecuted for the same offense turns in

part on the applicability of the dual sovereign rule.

474 U.S.

at 88.

tending

to

sovereign

Thus, the

prove that

was

a pawn

notion

of two

sham.

If the defendant

such a finding

must

defendant must produce some evidence

the rule

of the

should

other, with

supposedly independent

in

See Heath,
___ _____

not apply

because one

the result

that the

prosecutions is

merely a

proffers evidence sufficient to support

effect, a prima facie case

shoulder the burden of

proving that one

the government

sovereign did not

orchestrate

both prosecutions,

sovereign was

v.

or,

put another

not a tool of the other.

way, that

one

See, e.g., United States

___ ____ _____________

Harrison, 918 F.2d 469, 475 (5th Cir. 1990) (applying burden________

shifting matrix in the Bartkus context).3

_______
____________________

3There is some controversy in the circuits over whether this

procedural
review

matrix

applies

unreservedly both

Compare United States v. Dortch, 5 F.3d 1056, 1060_______ _____________

______

61 (7th Cir. 1993)

of proof

on

(holding that the defendant bears

posttrial review),

(1994) and United States v.

___ _____________

States
______

(same), cert.
_____

denied,
______

v. Loyd, 743 F.2d

____

States v. Adamo,
______
_____

742 F.2d

cert.
_____

denied, 114
______

the burden
S.Ct.

Bendis, 681 F.2d 561, 564

______
459 U.S.

973

1555, 1563 (11th

standard burden-shifting framework

cert.
_____

interlocutory

of double jeopardy claims and to direct appeals following

convictions.

1981)

to

(9th Cir.

(1982) with
____

United
______

Cir. 1984) (applying

to posttrial review);

927, 946-47 (6th

1077

Cir. 1984)

United
______

(same),

denied, 469 U.S. 1193 (1985); United States v. Kalish, 690

______
_____________
______

F.2d

1144, 1147 (5th Cir.

1982) (same), cert.

_____

denied, 459 U.S.

______

In this case,

did not

it is crystal

offer enough evidence

clear that the

to carry his

appellant

entry-level burden.

Factually, his claim comes down

to this:

Ayala

surveilled the LEE MARY, alerted

traveled to St. Maarten,

the St. Maarten police

he asserts that

Agent

to the appellant's presence, participated

in the shipboard search (a fact that the United States contests),

and testified at the

ensuing trial.

proffer remotely suggests that

handmaidens

of

the DEA

reality a prosecution

government.

Even

Nothing in

the Dutch authorities were merely

or that

the

Dutch prosecution

undertaken sub rosa

___ ____

if all

the appellant's

was in

by the United

the appellant's facts

States

stripped,

course, of opprobrious epithets and unsupported conclusions

taken

at

rendering

law

face value,

those facts

of routine intergovernmental

enforcement

efforts

between

commendable, and, without more,

legally

show

nothing more

assistance.

independent

are

than the

Cooperative

sovereigns

such efforts will not

of

are

furnish a

adequate basis for invoking the Bartkus exception to the

_______

dual sovereign rule.

See Whalers Cove, 954 F.2d at 38; Paiz, 905

___ ____________
____

F.2d at 1024.

Viewed against

the

indictment

in

this legal

this

case

did

and factual mise

en sc ne,

not

constitute

second

prosecution

for the same offense within the purview of the Fifth

Amendment.

Consequently,

the district

court

did not

err

in

____________________

1108

(1983); Mallah, 503

______

Rosa, 876 F.2d

____
hold that the

at 229 n.17

F.2d at 986 (same).

See also Garcia___ ____ _______

(noting the uncertainty).

appellant did not satisfy his

entry-level burden,

we need not take sides on this controversial issue today.

Since we

denying the

motion to dismiss the indictment

on double jeopardy

grounds.

B.
B.

The baseline

requirement that a

Speedy Trial Act.

Speedy Trial Act.
________________

premise of

defendant has

following his indictment or

F.3d

596,

requirement

600

is the

(1st

a right to

Trial Act is

be tried

the

promptly

initial appearance before a judicial

officer (whichever first occurs).

80

the Speedy

Cir.

See United States

___ _____________

1996).

requirement that,

Juxtaposed

once arrested,

v. Staula,
______

with

this

a suspect

must be indicted or otherwise formally charged within thirty days

of his

arrest.

See 18 U.S.C.
___

two reasons why the

claim embodies

He

The appellant suggests

government's actions in this case

of this latter proscription.

1.
1.

3161(b).

run afoul

Neither reason is persuasive.

The first iteration of the appellant's speedy trial

a repullulation of his

asseverates that

since

arrest

in St. Maarten, 18

States

to indict

the United

U.S.C.

States orchestrated

3161(b)

him within thirty

asseveration elevates hope

double jeopardy analysis.

required the United

days of that

over reason, and

his

arrest.

we need not

This

linger

long in dispatching it.

The Speedy

Trial Act, in

conduct of the United States.

the

United States did

terms, applies

Because

only to

the

we already have held that

not control, dominate,

or manipulate the

actions of

the Dutch authorities

and prosecution in St.

that

in respect to

Guzman's arrest

Maarten, see supra Part II(A),

___ _____

the claim

the date of that arrest affected the movement of the speedy

10

trial

clock in

indictment

by

this

one

case is

sovereign

without

does

not

foundation.

engage

the

Arrest

or

statutory

guarantee of a speedy trial in respect to a subsequent indictment

by

a different sovereign.

See United States

___ _____________

v. MacDonald, 456
_________

U.S. 1, 10 n.11 (1982).

2.
2.

The

second

trial claim takes a

the appellant's

somewhat divergent slant.

when he was arrested

United States

iteration of

He

in Puerto Rico for heroin

knew of

his 1990

speedy

asserts that,

trafficking, the

involvement with

the ill-fated

cocaine smuggle and, hence, the government was obliged to

him within thirty days

or in

of that arrest, see 18 U.S.C.

___

the alternative,

Prisons

(which

3161(j)(1).

custody of

detainer from

him

at

3161(b),

the Bureau

the time),

see
___

of

id.
___

This assertion is equally devoid of merit.

In the

a person

had

to seek a

charge

first place, the Speedy Trial Act requires that

arrested for a crime

must be charged by

indictment or

information

within thirty days of his arrest "in connection with

such charges."

Id.
___

trafficking incident

arrest

3161(b).

that led

had no connection with

and-one-half years

earlier.

In this

situation, the heroin-

to the appellant's

his activity in

December 1992

St. Maarten two-

It follows, therefore,

the authorities did not arrest the appellant

that since

in 1992 for a crime

related to his St. Maarten conduct, the Speedy Trial Act did

require

that

he be

charged

with

within thirty days of that arrest.

981

the cocaine-smuggling

See
___

not

crime

United States v. Orbino,

_____________
______

F.2d 1035, 1036-37 (9th Cir. 1992), cert. denied, 114 S. Ct.
_____ ______

11

256

(1993); United States v.

_____________

Savage, 863 F.2d

______

595, 597-98 (8th

Cir. 1988), cert. denied, 490 U.S. 1082 (1989).

_____ ______

In

the second

place, 18

U.S.C.

3161(j)(1) applies

only to a person who has been "charged with an offense."

instance, the

appellant

conspiracy

to possess

importation

until the

charge,

was not

charged with

with intent

end of

1993.

the offenses

to distribute

Until

In this

of

and attempted

it brought

such a

the government had no obligation to file a detainer with

the Bureau of Prisons.4

C.
C.

Plea Agreement.
Plea Agreement.
______________

The appellant contends that the government breached the

plea

agreement.

He tells

promised it would

sentence, but

us that

not oppose a

the prosecutor

the U.S.

Attorney's office

recommendation for a

concurrent

instead argued successfully

for a

consecutive sentence.

This

signed

by

contention

the

is

appellant

unambiguously states:

baseless.5

specifically,

The

plea

agreement

explicitly,

and

"The United States and the defendant agree

____________________

4To cinch matters, the law is pellucid that the dismissal of

an

indictment is

U.S.C.

not a suitable

3161(j)(1).

remedy for

a violation

of 18

See United States v. Wickham, 30 F.3d 1252,

___ _____________
_______

1255 (9th Cir. 1994); United States v. Dawn, 900 F.2d 1132, 1135_____________
____
36 (7th Cir.), cert.
_____

denied, 498 U.S. 949 (1990);

______

United States
_____________

v. Anderton, 752 F.2d 1005, 1008 (5th Cir. 1985).

________

5As
raise

an initial matter, we

the issue

district

court.

of the government's
The question

claims involving breached plea

of

appeals.

note that the

alleged breach

of procedural

before the

default vis-a-vis

agreements has divided the courts

See United States v. Gonzalez-Perdomo, 980 F.2d 13,

___ _____________
________________

15-16 (1st Cir. 1992) (collecting cases).

thicket

appellant did not

We need not enter this

today because we find the appellant's claim of breach to

be without basis.

12

that

the

sentence

consecutive

defendant

contains

agreement

to

is

to

any

be

imposed

other

currently

clause

constitutes the

set

that

plea

colloquy

is

run

that

the

"This

plea agreement

written

and the defendant's counsel.

completed in

with

advance of

these

also

between the

no promises or representations

consistent

shall

agreement

that provides:

forth in writing in this plea agreement."

the appellant

case

imprisonment

The

complete

United States, the defendant,

United States has made

this

sentence of

serving."

an integration

in

The

except as

The questionnaire

the change-of-plea

understandings.6

The

appellant has made no allegation that he was coerced into signing

the

plea agreement, that

he was misled

that the questionnaire is bogus.

as to its

contents, or

In short, the appellant

justify

agreement

the

an

objectively

identifies nothing that

reasonable expectation

that

would

the

meant anything other than what it plainly says.

government

abided faithfully

written agreement, we have

imposed by the

by

the

clear

district court.

Since

terms of

no warrant to set aside

See United States

___ _____________

plea

its

the sentence

v. Hogan, 862
_____

F.2d 386, 388 (1st Cir. 1988).

D.
D.

Ineffective Assistance of Counsel.

Ineffective Assistance of Counsel.
_________________________________

The appellant

claims that

his trial

counsel provided

____________________

6The record does not contain a transcript of the

plea hearing.
answers

We must

assume, therefore, that

change-of-

the appellant's

to the judge's questions did not differ from the written

questionnaire.

See, e.g., Moore v. Murphy, 47 F.3d 8, 10-11 (1st

___ ____ _____
______

Cir. 1995) (explaining that

the appellant must bear the

onus of

an incomplete record on

appeal); Real v. Hogan, 828

____
_____

F.2d 58, 60

(1st Cir. 1987) (similar).

13

him

with

ineffective

assistance

appropriate pretrial motions, (2)

health

problems afflicting

request for the return

in

this

circuit

that

his

by

failing

to

(1)

file

notify the sentencing court of

family, and

of property.

The rule

"fact-specific

claims

(3) make

a proper

is firmly settled

of

ineffective

assistance cannot make their

convictions."

the rule and collecting

114 S. Ct. 1839 (1994).

rule in

denied,
______

within

the

cases), cert. denied,

_____ ______

While we have made occasional exceptions

certain idiosyncratic circumstances,

United States v.
______________

cert.
_____

criminal

United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.

_____________
____

1993) (explaining

to the

debut on direct review of

Natanel, 938
_______

502 U.S.

isthmian

F.2d 302,

1079 (1992),

confines

Because the appellant did not

of

309 (1st

this

any

see, e.g.,
___ ____

Cir. 1991),

case does

recognized

present this claim of

not fall

exception.

ineffective

assistance to the lower court, we decline to consider it.7

E.
E.

Seizure of Property.
Seizure of Property.
___________________

Under the Criminal Rules, a person deprived of property

"may

move the

district

court for

property was seized for the return

that

such

property."

person

Fed.

such a motion

is

district in

which

the

of the property on the ground

to

lawful

possession

R. Crim. P. 41(e).

Acting

pro se, Guzman made

below; in

entitled

the

it, he claimed

entitlement to

of

the

certain

items allegedly seized from him at the time of his initial arrest

____________________

7Of
appellant's

course,

our

disposition

right to raise a claim

does

not

prejudice

the

of ineffective assistance of

counsel in a petition for postconviction relief under 28 U.S.C.

2255.

See Mala, 7 F.3d at 1064.

___ ____

14

in

St. Maarten.

He

also

claimed entitlement

to a

tool box,

together with its contents, alleging that the tool box was inside

in

car, belonging to his sister,

Puerto

Rico.

The district

seized in St. Maarten was

the Netherlands

that federal authorities seized

court

found that

taken not by the United States

Antilles, and that, therefore,

jurisdiction to order its

the property

return.8

but by

the court lacked

However, the

district court

did not rule on the appellant's motion insofar as it pertained to

the

tool

box's confiscation.

reconsideration

based

on

this

The

appellant

oversight.

did not

He

ask for

nevertheless

attempts

to appeal from the

court's failure to

direct that the

tool box be returned.

The

It

contends,

government's brief

correctly,

that

ownership referable to the

to contest its seizure.

misses the

Guzman

never

Cir. 1992)

ownership

cannot

United States
_____________

made a

car, and thus does not

claim

of

have standing

Cf. United States v. One Parcel of Real

___ _____________
___________________

Property . . . Known as Plat 20, Lot 17, 960

_________________________________________

(1st

appellant's point.

(noting

contest

that

the

person

civil

who

F.2d 200, 206 n.3

does

forfeiture

not

claim

of property);

v. One Parcel of Real Property . . . Known as 116

_______________________________________________

Emerson Street, 942 F.2d 74, 78 (1st Cir. 1991) (same).

______________

observation does not

But this

in any way trump the appellant's insistence

that he owns,

and is entitled to the return of, the tool box and

its contents.

____________________

8On appeal,

the appellant

does not challenge

this ruling,

and we do not address it.

15

Although

separable

from,

the

and

appellant's

has

no

point is

effect

upon,

arguable,

the

it

is

appellant's

conviction and

civil

sentence.

action for the return

criminal case has

defendant may bring

of property even

been closed.

an independent

if the underlying

See United States

___ _____________

v. Garcia, 65
______

F.3d 17, 19-20 (4th Cir. 1995); United States v. Giraldo, 45 F.3d
_____________
_______

509, 511 (1st Cir.

1995); United States v. Giovanelli,

_____________
__________

116, 118-19 (2d Cir. 1993).

998 F.2d

Since such a complaint serves as the

functional equivalent of a Rule 41(e) motion, we perceive no need

to prolong this

view of the

case in order to pursue the point (especially in

fact that

regard to the tool box).

relief

the district

court made

no findings

We therefore deny Guzman's request

in

for

vis-a-vis the tool box, without prejudice to his right to

bring a separate civil action

to compel its return.

See
___

United
______

States v. $8,850, 461 U.S. 555, 569 (1983).

______
______

III.
III.

CONCLUSION
CONCLUSION

We

was

need go no further.

lawfully

sentenced.

Affirmed.
Affirmed.
________

prosecuted,

For aught that appears, Guzman

justly convicted,

and

appropriately

His conviction and sentence must therefore be

16