In the Matter of the Search of 2440 Willow Lane, Lakewood,colorado, Described As a One Story, Single Familydwelling of Red Brick and Wood Frameconstruction with Grey Trim,respondent-appellee,joseph v. Libretti, Jr., Movant-appellant, 39 F.3d 1192 (10th Cir. 1994)

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U.S. Court of Appeals for the Tenth Circuit - 39 F.3d 1192 (10th Cir. 1994) Oct. 19, 1994

Before LOGAN and BARRETT, Circuit Judges, and RUSSELL,**  District Judge.


After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

This is an appeal from an order of the magistrate judge (1)denying the motion of Joseph V. Libretti, Jr. for a return of property pursuant to Fed. R. Crim. P. 41(e) and 18 U.S.C. 924(d) (1); (2)denying his motion for discovery and preliminary hearing; and (3)informing movant he must file a separate civil action to pursue the recovery requested in the motions.

Appellate jurisdiction is limited to appeals from final decisions of district courts. 28 U.S.C. 1291. Entry of a final judgment must be made by a district court judge, not a magistrate judge, Harding v. Kurco, Inc., 603 F.2d 813, 814 (10th Cir. 1979); United States v. Jones, 581 F.2d 816, 817-18 (10th Cir. 1978), unless the parties have otherwise consented. 28 U.S.C. 636(c). The parties here did not consent, so we lack jurisdiction over this appeal.

Even if this appeal was properly before us, its disposition would be controlled by our decision in appeal No. 93-1373, also decided today, holding Libretti's appeal is barred by res judicata because appellant has already litigated the issue of the legality of the underlying search and seizure. Allen v. McCurry, 449 U.S. 90 (1980).

This appeal is DISMISSED for lack of jurisdiction. The mandate shall issue forthwith.


Honorable David L. Russell, District Judge, United States District Court for the Western District of Oklahoma, sitting by designation


This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470