United States v. Rudisill , 358 F. App'x 421 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7046
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD DONNELL RUDISILL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:01-cr-00048-LHT-7)
Submitted: November 12, 2009 Decided: December 28, 2009
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard Donnell Rudisill, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Donnell Rudisill appeals the district court’s
order denying his Federal Rule of Criminal Procedure 41(g)
motion for return of property. The denial of a motion for
return of property under Fed. R. Crim. P. 41(g) is reviewed for
an abuse of discretion. United States v. Chambers, 192 F.3d
374, 376 (3d Cir. 1999). A district court abuses its discretion
when it fails or refuses to exercise its discretion, fails
“adequately to take into account judicially recognized factors
constraining its exercise” of discretion, or exercises its
discretion based upon “erroneous factual or legal premises.”
James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).
Although the district court improperly declined to
consider the merits of Rudisill’s motion, we nevertheless affirm
the denial of the Rule 41(g) motion. “A person aggrieved by an
unlawful search and seizure of property or by the deprivation of
property may move for the property’s return.” Fed. R. Crim. P.
41(g). A defendant’s Rule 41(g) motion “may be denied if the
defendant is not entitled to lawful possession of the seized
property, the property is contraband or subject to forfeiture or
the government’s need for the property as evidence continues.”
United States v. Van Cauwenberghe, 934 F.2d 1048, 1060-61 (9th
Cir. 1991). There is no evidence that $2,956 was seized from
Rudisill as he claims. Rather, the Government acknowledges that
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$1,480 was seized, but was retuned to Rudisill on September 16,
2008. Moreover, Rudisill’s Rule 41(g) motion as to his Jaguar
is denied because the car was subject to forfeiture. Van
Cauwenberghe, 934 F.2d at 1060-61. The indictment sought
forfeiture of the Jaguar on the ground that it was used to
facilitate Rudisill’s drug trafficking. See 21 U.S.C.
§ 853(a)(2) (2006). Evidence at trial established that Rudisill
drove the car to buy drugs, and that drug dogs indicated that
drugs had been inside of the car.
Rudisill next alleges that the district court judge
was biased. A judge “shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned,” 28
U.S.C. § 455(a) (2006); see United States v. Cherry, 330 F.3d
658, 665 (4th Cir. 2003), or in situations in which the judge
has a personal bias or prejudice against or in favor of an
adverse party. See Liteky v. United States, 510 U.S. 540, 555
(1994). We have thoroughly reviewed the record and conclude
that there is nothing to suggest that the district court’s
impartiality might reasonably be questioned.
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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