Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Ricky Lynn Balthrop, Defendant-appellant, 830 F.2d 194 (6th Cir. 1987)

The defendant appeals an order of the district court denying his motion for the return of property seized under a search warrant. The government moves for dismissal of the appeal on grounds the order was not final for purposes of 28 U.S.C. § 1291. The defendant has not filed a response.

Certain property belonging to the defendant was seized by Internal Revenue Service agents pursuant to a search warrant issued by a Magistrate on November 8, 1986. The defendant filed a motion for return of that property on grounds the search warrant was invalid. The matter was referred to another Magistrate who concluded the search warrant was invalid and recommended the property be excluded as evidence to prove a crime or to support a forfeiture order under 26 U.S.C. § 7302. Upon review, the district court rejected that recommendation, holding the search warrant was properly issued. Although not so stating in explicit language, that order implicitly denied the defendant's motion for return of the seized property. This appeal followed.

The government asserts in the present motion that the district court's order is not a final order for purposes of Sec. 1291 and cannot be appealed. The government also informs the Court that, subsequent to the order under appeal, the defendant was indicted for and pleaded guilty to charges of illegal wagering in violation of 18 U.S.C. § 1955 and failure to file a wagering tax return in violation of 26 U.S.C. § 7203. He was sentenced on July 8, 1987, and placed on a total of four years probation. He did not appeal that conviction. The government also states it has begun judicial forfeiture proceedings against the property which is the object of this appeal.

Upon consideration of the government's motion, and noting the subsequent developments in this case,

It is ORDERED that the motion to dismiss is granted.