United States Court of Appeals 

for the Fifth Circuit 

No. 20-50833 

Summary Calendar 

United States of America, 

Plaintiff—Appellee, 

versus

Priscilla Ann Johnson-Ellis, 

Defendant—Appellant. 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 6:00-CR-70-1 

Before Stewart, Duncan, and Wilson, Circuit Judges.

Per Curiam:*

Priscilla Ann Johnson-Ellis brought this suit, which is best classified 

as arising under Federal Rule of Criminal Procedure 41(g), to seek return of 

property that was seized pursuant to a forfeiture order issued by the Middle 

*

 Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4. 

United States Court of Appeals 

Fifth Circuit 

FILED 

August 5, 2022 

Lyle W. Cayce 

Clerk 

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No. 20-50833 

2 

District of Florida. The district court dismissed without prejudice to refiling 

the motion as a new civil case in Florida. 

Rule 41(g) allows a party aggrieved by an unlawful search and seizure 

to file a motion during the pendency of a criminal proceeding seeking the 

return of property. Fed. R. Crim. P. 41(g). “The motion must be filed in 

the district where the property was seized.” Id. Once the underlying criminal 

proceedings are concluded, the Rule 41(g) motion should be construed as a 

new civil action. United States v. Bailey, 508 F.3d 736, 738 (5th Cir. 2007). 

But if the property was forfeited in the course of a criminal proceeding, the 

forfeiture should be challenged on direct appeal. See United States v. De Los 

Santos, 260 F.3d 446, 448 (5th Cir. 2001). “A preliminary order of forfeiture 

is a final judgment as to the rights of a defendant to forfeited property.” Id. 

All the property that Johnson-Ellis identified as having been 

unlawfully seized was the subject of preliminary orders of forfeiture as part 

of her criminal proceeding in the Middle District of Florida. Her interest in 

the forfeited property was resolved by the preliminary forfeiture orders, 

which became final at her October 13, 2017 sentencing and were part of the 

judgment of conviction. See id. On direct appeal to the Eleventh Circuit, 

Johnson-Ellis did not challenge the preliminary forfeiture order, forfeiture 

money judgment, or preliminary order of forfeiture as to substitute assets. 

See United States v. Ellis, 817 F. App’x 780, 785-94 (11th Cir. 2020). Any 

challenge to the validity of the forfeiture should have been raised on direct 

appeal and is barred in a later appeal. See, e.g., Federated Dep’t Stores, Inc. v. 

Moitie, 452 U.S. 394, 398 (1981) (“A final judgment on the merits of an action 

precludes the parties or their privies from relitigating issues that were or 

could have been raised in that action.”). The district court’s order of 

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dismissal is AFFIRMED1 as we may do so “on any ground supported by 

the record.” Hunter v. Tamez, 622 F.3d 427, 430 (5th Cir. 2010). JohnsonEllis’ motions to supplement the record on appeal with records stricken by 

the district court and to reinstate the case in Texas courts are DENIED. 

1

 A ruling that a case is precluded by res judicata normally warrants dismissal with 

prejudice. See Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 F. App’x 487, 490 

(5th Cir. 2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is 

conclusively barred by res judicata, dismissal with prejudice was appropriate.”). But, 

absent a cross-appeal, we cannot change the district court’s ruling from a dismissal without 

prejudice to a dismissal with prejudice. See Arvie v. Broussard, 42 F.3d 249, 250 (5th Cir. 

1994) (citations omitted) (holding that the court cannot “convert a dismissal without 

prejudice into a dismissal with prejudice” without a cross-appeal). 

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