United States of America, Plaintiff-appellee, v. Johnny Lance Johnston, Defendant-appellant, 74 F.3d 1250 (10th Cir. 1996)

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 cause is therefore ordered submitted without oral argument.

This is a related case to number 95-2167 already decided by this panel. The appeal here is from the denial of a motion for return of property under Fed. R. Crim. P. 41(e). Mr. Johnston contends the district court erred because it did not address his claim the government illegally seized an airplane belonging to a corporation in which he had an interest.

Having already addressed the operative facts in 95-2167, we need not do so here. Although Mr. Johnston vociferously argues the district court failed him by not hearing his contentions relative to the original seizure of the aircraft, it need be noted the only relief to which he was entitled under Rule 41(e) would have been the return of the property. Yet, the government cannot return what it does not possess or control. United States v. White, 718 F.2d 260, 261 (8th Cir. 1983). Thus, even assuming Mr. Johnston is correct that the original seizure was illegal, the government's prior release of the airplane to the lienor and its subsequent sale, aided by a power of attorney signed by Mr. Johnston's mother, make his motion moot.

AFFIRMED.