BLD-250 NOT PRECEDENTIAL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. Crim. No. 01-cr-00304-009)

District Judge: Honorable Yvette Kane

____________________________________

Submitted for Possible Dismissal Due to a Jurisdictional Defect and 

Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.66

May 23, 2013

Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

(Opinion filed: June 14, 2013)

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OPINION

_________

PER CURIAM

John F. Winkelman, 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 will 
2

affirm for substantially the same reasons we affirmed the denial of a nearly identical 

motion filed by Winkelman’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 Winkelmans 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. § 853. 

During the criminal proceeding, the Government sought and the District Court granted a 

temporary restraining order freezing a Sovereign Bank account that the Winkelmans held 

under the name Winkelman, Inc., which the Government contended contained the 

proceeds of drug sales.

In 2003, a jury found both Winkelmans guilty of drug and firearm offenses and 

found them jointly and severally 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. The 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 raised 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 of 
3

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 interest 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 the 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 file successive § 2255 petitions.2

In 2012, George tried a different approach 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 assistance 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).
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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 that 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 at 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 we 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 the 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 was 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 District 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 extend 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).
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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 seizes on that reference to argue as an 

additional ground for return of the account that he did not receive notice of George’s

2006 forfeiture order. That argument is specious. John’s interest in the bank account 

was finally forfeited in 2003 as part of the criminal judgment against 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 Court.

 

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.)