U.S. v. Faloy

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Victor Dele FALOY…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 9, 2001

7 F. App'x 733 (9th Cir. 2001)

Opinion

7 Fed.Appx. 733 (9th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Victor Dele FALOY, Defendant-Appellant, United States of America, Plaintiff-Appellee, v. Victor Dele Faloy, Defendant-Appellant. Nos. 98-10371, 98-16640. D.C. No. CR-90-00934-1-ACK, CV-97-01432-ACK. United States Court of Appeals, Ninth Circuit. April 9, 2001

Submitted March 15, 2001. ^*

* The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

The United States District Court for the District of Hawai'i, Alan C. Kay, J., denied defendant's motion for return of certain speakers and his motion attacking sentence, and defendant appealed. The Court of Appeals held that: (1) defendant was not entitled to was not entitled return of the speakers, and (2) defendant could not move under § 2255 to vacate a fine.

Affirmed.

Page 734.

Appeal from the United States District Court for the District of Hawaii Alan C. Kay, District Judge, Presiding.

Before MAGILL, ^** FERNANDEZ, KLEINFELD, Circuit Judges.

** The Honorable Frank J. Magill, Senior Circuit Judge for the Eighth Circuit, sitting by designation.

MEMORANDUM ^***

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Victor Dele Faloy, a federal prisoner, appeals the denial of his motion for return of certain speakers pursuant to Fed.R.Crim.P. 41(e). He also appeals the denial of his 28 U.S.C. § 2255 motion to vacate his fine, and for ineffective assistance of counsel. We affirm.

(1) Faloy was not entitled to lawful possession of the speakers because he conceded that the property in question did not belong to him, but rather to his co-defendant. See United States v. Fitzen, 80 F.3d 387, 388 (9th Cir.1996). Furthermore, the Rule 41(e) motion was properly denied because property used as a vessel to carry contraband is subject to forfeiture. See 21 U.S.C. § 881(a)(3); see also United States v. 1 Parcel of Real Prop., Lot 4, Block 5 of Eaton Acres, 904 F.2d 487, 491 (9th Cir.1990).

(2) The district court correctly dismissed Faloy's motion for failure to file within the one-year limitations period. See 28 U . S.C. § 2255. Faloy's conviction was affirmed by this court on December 17, 1991. See Faloy v. United States, Nos. 91-10031, 91-10033, 1991 WL 270708 (9th Cir. Dec. 17, 1991) (unpublished disposition). Faloy did not file his section 2255 petition until October 14, 1997. ¹

1 At any rate, Faloy cannot move under § 2255 to vacate a fine. See United States v. Kramer, 195 F.3d 1129, 1130 (9th Cir.1999). Moreover, counsel was not ineffective.

AFFIRMED.