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08-4124, 08-4278, 09-1206, 09-1330, 09-2251 & 09-2277 U.S. v. Shaaban

By: dmc-admin//April 26, 2010//

08-4124, 08-4278, 09-1206, 09-1330, 09-2251 & 09-2277 U.S. v. Shaaban

By: dmc-admin//April 26, 2010//

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Criminal Procedure
Return of property

When a defendant has been convicted of a criminal offense, a motion for return of property is converted to a civil proceeding.

"Shaaban, however, did not timely appeal from the October decision. After waiting more than 10 days, he filed a motion to reconsider, which, because the underlying proceeding is civil, is properly construed as a motion under Federal Rule of Civil Procedure 60(b). E.g., Easley v. Kirmsee, 382 F.3d 693, 696 n.2 (7th Cir. 2004); Talano v. Nw. Med. Faculty Found., Inc., 273 F.3d 757, 762 (7th Cir. 2001). So by the time Shaaban filed a notice of appeal, it was too late to challenge the October ruling. See FED. R. APP. P. 4(a)(1)(B) (providing that notice of appeal must be filed within 60 days in civil cases in which the United States is a party). Our review is limited to the denial of the Rule 60(b) motion, which cannot do service for an appeal. See Stoller v. Pure Fishing Inc., 528 F.3d 478, 480 (7th Cir.), cert. denied, 129 S. Ct. 609 (2008); Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000). And with respect to that motion, there could Nos. 08-4124, 08-4278, 09-1206, 09-1330, et al. 5 not have been a prejudicial abuse of discretion. Shaaban concedes that he never paid the civil filing fee or moved to proceed in forma pauperis with his civil action. Further still, although the district court may have erroneously required him to start over with a new civil complaint, nothing is really lost because he can still do just that. Shaaban-whose criminal proceeding in the district court closed in January 2006-has six years from the close of his criminal proceedings to initiate an action for return of his property. See United States v. Sims, 376 F.3d 705, 708-09 (7th Cir. 2004)."

Affirmed.

08-4124, 08-4278, 09-1206, 09-1330, 09-2251 & 09-2277 U.S. v. Shaaban

Appeals from the United States District Court for the Southern District of Indiana, McKinney, J., Per Curiam.

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