United States of America, Plaintiff-appellee, v. Stephen Martin Beddow, Defendant-appellant, 50 F.3d 11 (6th Cir. 1995)

Before: KENNEDY and NORRIS, Circuit Judges, and BECKWITH, District Judge.^* 

ORDER

Stephen Martin Beddow, a pro se federal prisoner, appeals a district court judgment, granting in part and denying in part his Fed. R. Crim. P. 41(e) motion for the return of seized property. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Beddow filed a motion for the return of approximately 50 items of personal property seized in November 1988. The government responded, stating that it had returned some of the property to Beddow's brother, but intended to retain possession of property that had been entered as evidence or as an exhibit during Beddow's criminal proceedings. Beddow argued that his brother was not authorized to receive his property. The district court ordered the government to return all of Beddow's property still in its possession, but concluded that the government sufficiently met its burden of returning some of the seized items when it released them to Beddow's brother.

Beddow has filed a timely appeal, as well as a motion for the appointment of counsel and a motion to proceed in forma pauperis on appeal.

Upon review, we conclude that the district court properly ruled on Beddow's motion. Beddow is not entitled to Rule 41(e) relief as to the property already released to his brother because the government did so pursuant to an agreement between Beddow and his brother; thus, the property is legally out of the government's possession. See Lowrie v. United States, 824 F.2d 827, 829 (10th Cir. 1987).

Accordingly, we grant Beddow pauper status for the limited purpose of permitting review of this appeal and deny his motion for the appointment of counsel. We also hereby affirm the district court's judgment pursuant to Rule 9(b) (3), Rules of the Sixth Circuit.