BLD

- 250 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 1286

___________ UNITED STATES OF AMERICA

v. JOHN F. WINKELMAN, JR.,

Appellant

____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. C rim. No. 01

- cr - 00304

- 009 ) District Judge: Honorable Yvette Kane

____________________________________ Submitted for Possible Dismissal Due to a Jurisdictional Defect and Pos sible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 6 May 23, 2013 Before: SCIRICA, HARDIMAN and GREENAWAY, JR. , Circuit Judges

(Opinion filed : June 14, 2013 )

_________ OPINION

_________ PER CURIAM John F. Winkel man, Jr., appeals pro se from the order of the District Court dismissing his motion for the return of property forfeited to the United States

. We will2

affir m for substantially the same reasons we affirmed the denial of a nearly identical motion filed by W inkelman’s brother and co

- defendant, George A. Winkelman. See Winkelman v. United States , 494 F. App’x 217, 220 (3d Cir. 2012)

. 1 In 2001, the Government indicted the Winkelman s and six others on drug and
firearms charges arising from their participation in a cocaine distribution ring . The third superseding indictment included a charge of criminal forfeiture under 21 U.S.C. § 85 3. During the criminal proceeding, the Government sought and the District Court granted a temporary restrain ing order freezing a Sovereign Bank account that the Winkelman s held

u nder the name Winkelman, Inc., which the Government contended contained the proceeds of drug sales. In 2003, a jury found both Winkelman s guilty of drug and firearm offenses and
found them jointly and seve rally liable for $2 million on the forfeiture count. On December 12, 2003, the District Court granted the Government’s motion for an order of forfeiture of John’s interest in the bank account and sentenced him to life imprisonment as a career offender . T he order of forfeiture became final as to John’s interest that same day. See Fed. R. Crim. P. 32.2(b)(4) (A)

. John appealed, and we affirmed his convictions and sentence. See United States v. Winkelman , 180 F. App’x 397, 402

- 03 (3d Cir. 2006). John rais ed no issue regarding the forfeiture on appeal. George ’s proceeding took somewhat longer to become final. We affirmed his

1 We will sometimes refer to John and George Winkelman by their first names for ease of3

convictions but remanded for resentencing in light of United States v. Booker , 543 U.S. 220 (2005). See Winkelman , 180 F. App’x at 402

- 03. On remand, the District Court entered an order of forfeiture as to George ’s i nterest in the bank account, and that order became final as to him when the District Court sentenced him to 480 months of imprisonment on October 17, 2006. George filed an appeal but later voluntarily withdrew it. Since then, the Winkelmans

— sometimes jointly and sometimes individually

— have raised numerous collateral challenges to their convictions and sentences by way of motions under 28 U.S.C. § 2255 and Rule 60(b) of t he Federal Rules of Civil Procedure, petitions for habeas relief under 28 U.S.C. § 2241 and for writs of audita querela, and applications under 28 U.S.C. § 2244 for authorization to fil e successive § 2255 petitions. 2 In 2012, George tried a different appr oach by filing a motion for the return of the forfeited bank account under 18 U.S.C. § 983(e). George alleged that the Government obtained the pre

- trial restraint of that account by means of perjured affidavits and that his counsel rendered ineffective as sistance in connection with that issue. In affirming the

reference. We intend no disrespect or undue familiarity in doing so. 2 John’s other proceedings in this Court alone include C.A. Nos. 08

- 1931 (§ 2255 certificate of appealability denied July 10, 2008), 09

- 2511 (§ 2241 appeal dismissed for non - prosecution), 09

- 4736 (§ 2244 application denied Feb. 1, 2010), 11

- 2055 (§ 2244 application denied May 13, 2011), 12

- 1782 (Rule 60(b) certificate of appealability denied July 5, 2012), 12

- 3851 (§ 2244 application denied Nov. 18, 2012), 13

- 1287 (Rule 60(b) appeal withdrawn), 13

- 1575 (§ 2255 appeal pending), 13

- 1647 (§ 2244 application denied Mar. 28, 2013), and 13

- 2332 (audita querela appeal pending).4

denial of that motion, we explained that George could not obtain return of the bank account without first invalidating the criminal judgment of which it was a part , which he has failed to do, and th at his arguments addressed to the pre

- trial restraint of that account did not state a basis to invalidate the subsequent criminal judgment in any event. See Winkelman , 494 F. App’x at 220

. Shortly thereafter, and despite our ruling, John tried his hand a t the same approach by filing the nearly identical motion at issue here. The District Court dismissed the motion, in large part for the reasons we explained in George’s appeal. John now appeals from that ruling, and w e have jurisdiction under 28 U.S.C. § 1291

. 3
John acknowledged that his motion was nearly identical to George’s , but he stated therein that George “is currently working on a petition for a writ of certiorari to the Supreme Court, do [sic] to the many mistakes made by the District Court and t he Court of Appeals in regard to his filing.” (Mot. for Return of Prop. at 13.) The United States Supreme Court denied certiorari on December 3, 2012 (U.S. S. Ct. No. 12

- 6968), and

3 John’s notice of appeal wa s untimely, but he sought and the District Court granted reopening of the time to appeal on the ground that he had not received notice of the judgment under Rule 77(d) of the Federal Rules of Civil Procedure. See Fed. R. App. P. 4(a)(6). Because the Dist rict Court’s reopening of the time to appeal complies with the requirements of Rule 4(a)(6) and 28 U.S.C. § 2107(c), John’s notice of appeal is timely and we have jurisdiction. See Bowles v. Russell , 551 U.S. 205, 213 (2007). Our jurisdiction does not ex tend to the District Court’s subsequent denial of reconsideration because John did not separately appeal from that ruling. See Fed. R. App. P. 4(a)(4)(B)(ii).5

there is no reason to revisit John’s materially identical allegations in this case. 4
John raises only one new argument. In our opinion addressing George ’s previous appeal, we noted that he did not allege that he lacked notice of his 2006 forfeiture order.
See Winkelman , 494 F. App’x at 219 n.3. John seize s on that reference to argue as an additional ground for return of the account that he did not receive notice of George’s 2006 forfei ture order. That argument is specious. John’s interest in the bank account was finally forfeited in 2003 as part of the criminal judgment ag ainst him that we affirmed. Thus, John no longer had any interest in the bank account to assert when the District Court later entered its 2006 order of forfeiture as to George. For the foregoing reasons, we will affirm the judgment of the District Cour t.

4 In addition to the reasons we gave in rejecting George’s appeal, we note that one of John’s § 2244 applications was based on the same purportedly new evidence of perjury on which both brothers relied in seeking the return of their account. We denied that application over two years ago. (C.A. No. 11

- 2055, May 13, 2011.)