United States v. Stephen George Hudson ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 31, 2005
No. 05-11988
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60119-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN GEORGE HUDSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 31, 2005)
Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Appellant Stephen George Hudson appeals the district court’s denial of his
motion for return of property, pursuant to Fed.R.Crim.P. 41(g).1 On appeal,
Hudson argues that the administrative forfeiture violated his Fifth Amendment
right against self incrimination and did not afford him due process of law.
Specifically, he maintains that his Fifth Amendment right to remain silent was
violated when he was forced to choose between waiving his privilege in the
criminal case or having his property administratively forfeited in the civil case.
Hudson also contends that he was not afforded due process because the
government began judicial criminal forfeiture proceedings with respect to the same
property that was the subject of the administrative proceedings, but did not allow
the criminal forfeiture proceedings to reach a conclusion before the government
declared an administrative forfeiture. As the government asserted in its answer
brief, the sole issue on appeal is whether Hudson waived his constitutional
arguments because he did not raise them in the district court. In his reply brief,
Hudson maintains that he did not have the opportunity to raise his constitutional
claims below.
As a general rule, appellate courts “will not consider a legal issue or theory
raised for the first time on appeal.” United States v. Southern Fabricating Co.,
1
In his motion for return of property, Hudson cited former Fed.R.Crim.P. 41(e) as the
basis for his motion. However, motions for return of property are now addressed in
Fed.R.Crim.P. 41(g).
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Inc., 764 F.2d 780, 781 (11th Cir. 1985). “The decision whether to consider such
an argument is left to the appellate court’s discretion.” Id. We have identified five
exceptions to the general rule. See Narey v. Dean, 32 F.3d 1521, 1526 (11th Cir.
1994). Specifically, we will exercise our discretion to consider arguments not
raised in the district court where (1) the issue involves a pure question of law and
refusing to consider it would result in a miscarriage of justice, (2) an appellant had
no opportunity to raise the issue at the district court level, (3) “the interest of
substantial justice is at stake,” (4) “the proper resolution is beyond any doubt,” and
(5) the issue involves “significant questions of general impact or of great public
concern.” Id. at 1526-27.
Because the record demonstrates that Hudson did not raise his constitutional
arguments in the district court nor present arguments on appeal other than those
based on constitutional violations, we refuse to exercise our discretion to consider
Hudson’s constitutional claims. Accordingly, we affirm the district court’s denial
of Hudson’s Rule 41(g) motion for return of property.
AFFIRMED.
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