U.S. v. Solis
| Citation | 108 F.3d 722 |
| Decision Date | 27 February 1997 |
| Docket Number | No. 96-1544,96-1544 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Carlos M. SOLIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Pamela Pepper (submitted on briefs), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.
Carlos M. Solis, Medical Center for Federal Prisoners, Springfield, MO, Pro Se.
Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.
This is a successive appeal to United States v. Jerez, 108 F.3d 684 (7th Cir.1997), which we decide simultaneously. Familiarity with that opinion is assumed. Mr. Solis filed this appeal from the district court's denial of his motion, filed pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, requesting the return to his possession of certain personal property, including his automobile, seized at the time of his arrest. As the case comes to us, the only contention that is presented properly is that the automobile was taken wrongfully because its taking deprived Mr. Solis of his property in violation of the Double Jeopardy Clause.
This circuit has recognized that a post-conviction Rule 41(e) motion will be treated as a civil equitable proceeding for the return of the property in question. See United States v. Taylor, 975 F.2d 402, 403 (7th Cir.1992). Here, however, there is no evidence that the automobile was in the actual or constructive possession of the United States at the time of the filing of Mr. Solis' motion or, indeed, at any time before the filing of the motion. The record shows that the automobile was seized by Milwaukee County Deputy Sheriffs Hurrle and Lent when Mr. Solis and Mr. Jerez were arrested; therefore, the vehicle was never in the actual possession of the federal government. Mr. Solis cannot recover, therefore, on a theory that the government lost or destroyed his property. See Mora v. United States, 955 F.2d 156, 159-61 (2d Cir.1992) (). Nor does the record affirmatively establish that the vehicle was ever considered evidence in the federal prosecution; therefore, even if we were to accept the concept of constructive possession, see United States v. Fabela-Garcia, 753 F.Supp. 326, 328 (D.Utah 1989) (), there would be no basis for relief. Likewise, Mr. Solis cannot rely on an...
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