### 16

‐ 601

‐ cr

United States v. Ohle

1



## In the 2 

# United States Court of Appeals 3



## for the Second Circuit 4

5

6

7

A UGUST T ERM 2017 

### 8

9

No. 16

‐ 601

‐ cr 

### 10

11

U NITED S TATES OF A MERICA

, 

### 12

Appellee

, 

### 13

14

v. 

### 15

16

W ILLIAM E. B RADLEY

, J OHN B. O HLE

, III, 

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Defendants

, 

### 18

19

P ATRICIA D ALTON O HLE

, F ESTIVUS FOR THE R EST OF U S

, I NC

., 

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T HE M USEUM OF S PORTS H ISTORY

, LLC, T HE JSJD G RANTOR T RUST

, 

### 21

T HE D ALTON O HLE I NVESTMENT P ROPERTY T RUST

, 

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Movants

‐ Appellants

. 

### 23

24

25

On Appeal from the United States District Court 

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for the Southern District of New York 

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28

29

A RGUED : J ANUARY 23, 2018 

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D ECIDED : F ERBUARY 16, 2018 

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32

33

34

### 2 Before: L EVAL

, C ALABRESI

, AND C ABRANES

, Circuit Judges. 

### 1

2

This appeal raises two questions pertaining to this Court’s 

### 3

jurisdiction. The first question is whether appeals from a 21 U.S.C. 

### 4

§ 853(n) proceeding, in which third parties claim an interest in 

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criminally forfeited property, are civil or criminal for purposes of 

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Federal Rule of Appellate Procedure 4. We hold that § 853(n) 

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proceedings are civil and, thus, governed by the time limits in Rule 

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4(a), which are jurisdictional because they implement the 

### 9

requirements of 28 U.S.C. § 2107. 

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The second question is whether the clock starts to run on filing 

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a notice of appeal at time one, when a district court enters an initial 

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order announcing its decision, or at time two, when the district court 

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enters a later order reaffirming its decision and explaining its 

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reasoning. We hold that the clock starts to run at the issuance of the 

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first order and does not reset at the issuance of the second order. 

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Because Appellants did not file their notice of appeal within 

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sixty days of the district court’s first order, as required by Rule 4(a), 

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we DISMISS the appeal for lack of jurisdiction. 

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20

N ANETTE L. D AVIS

, Special Assistant United 

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States Attorney, (Stanley J. Okula, Jr., 

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Special Assistant United States Attorney, 

### 23

### 3 Micah W.J. Smith, Sarah Lathleen Eddy, 

### 1

Assistant United States Attorneys, on the 

### 2

brief ), United States Attorney’s Office for 

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the Southern District of New York, for 

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Appellee. 

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W ESLEY D. E HRHARDT (Hiram C. Eastland, 

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Jr., Eastland Law Offices, PLLC, 

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Greenwood, Miss., on the brief ), Patterson 

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Ehrhardt PLLC, Como, Miss., for Movants

‐ 

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Appellants. 

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11

C ALABRESI

, Circuit Judge : 

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This appeal presents two questions, not previously settled by 

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this Court, concerning the application of Federal Rule of Appellate 

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Procedure 4. The first question is whether a 21 U.S.C. § 853(n) 

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proceeding, in which third parties claim an interest in criminally 

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forfeited property, is civil or criminal. The second question is whether 

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the clock starts to run on filing a notice of appeal from the court’s 

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denial of a motion seeking “Relief from a Judgment of Order” under 

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Federal Rule of Civil Procedure 60 at time one, when a district court 

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enters an initial order announcing its decision, or at time two, when 

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the district court enters a later order reaffirming its decision and 

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explaining its reasoning. 

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I. 

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### 4 On June 2, 2010, after a three

‐ week jury trial before the United 

### 1

States District Court for the Southern District of New York, John B. 

### 2

Ohle, III was convicted of tax evasion and of conspiracy to commit 

### 3

fraud. In connection with that conviction, Ohle was required to forfeit 

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both real and personal property, including significant sums of cash. 

### 5

Appellants Patricia Ohle, Festivus for the Rest of Us, Inc., The 

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Museum of Sports History, LLC, The JSJD Grantor Trust, and The 

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Dalton Ohle Investment Property Trust (collectively “Appellants”) all 

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filed petitions under 21 U.S.C. § 853(n) claiming interests in Ohle’s 

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forfeited property. In May 2013, the district court entered a stipulation 

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and order enforcing a settlement agreement between Appellants and 

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the Government which resolved Appellants’ various ownership 

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interests in the property. 

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Two years later, Appellants returned to the district court 

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claiming fraud and misconduct on the part of the Government. On 

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this basis, they filed a motion under Federal Rule of Civil Procedure 

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60 to vacate that settlement agreement. 

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On August 20, 2015, the district court entered an order denying 

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Appellants’ Rule 60 motion. The order stated: “Upon consideration, 

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the Court hereby denies the motion. A Memorandum explaining the 

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reasons for this ruling will issue in due course.” United States v. Ohle

, 

### 21

No. 08

‐ cr

‐ 1109 (S.D.N.Y. Aug. 20, 2015), ECF No. 269. 

### 22

### 5 More than four months later, on December 30, 2015, the district 

### 1

court entered a memorandum order explaining its reasoning for 

### 2

denying Appellants’ Rule 60 motion. In that order’s conclusion, the 

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district court wrote: “Accordingly, for the foregoing reasons, the 

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Court reaffirms its August 20, 2015 Order denying Movants’ motion 

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to set aside the forfeiture order. The Clerk of the Court is directed to 

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close the motion at document number 264 of the docket.” United States 

### 7

v. Ohle

, No. 08

‐ cr

‐ 1109 (S.D.N.Y. Dec. 30, 2015), ECF No. 273, *8. 

### 8

On February 29, 2016, Appellants filed their notice of appeal 

### 9

from the denial of their motion under Rule 60. 

### 10

II. 

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To resolve whether we have jurisdiction over this appeal, we 

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must first determine whether a § 853(n) proceeding ancillary to a 

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criminal conviction is civil or criminal. If it is civil, then Federal Rule 

### 14

of Appellate Procedure 4(a)(1)(B)’s sixty

‐ day time limit to file a notice 

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of appeal applies. A party’s failure to meet this time limit deprives 

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this Court of subject

‐ matter jurisdiction. Although the time limits in 

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the Federal Rules are not themselves jurisdictional, “the time limits of 

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FRAP Rule[] 4(a)(1)

. . . [are] ‘jurisdictional’ because

. . . these limits 

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were also imposed by Congressional statute[]—28 U.S.C. §[] 2107[].” 

### 20

Weitzner v. Cynosure, Inc.

, 802 F.3d 307, 310–11 (2d Cir. 2015) (applying 

### 21

Bowles v. Russell

, 551 U.S. 205 (2007)). If a 21 U.S.C. § 853(n) 

### 22

proceeding is, instead, criminal then Appellants are limited to the 

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### 6 narrower window of time prescribed by Rule 4(b), 1 which they 

### 1

concededly did not meet. Unlike Rule 4(a), however, a party’s failure 

### 2

to satisfy Rule 4(b) does not deprive this Court of jurisdiction. United 

### 3

States v. Frias

, 521 F.3d 229, 231 (2d Cir. 2008). 

### 4

To determine whether a § 853(n) proceeding is civil or criminal, 

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it is instructive first to review the nature of such proceedings. Once 

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an order of forfeiture is entered in a criminal prosecution, the 

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Government is obligated to “publish notice of the order and of its 

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intent to dispose of the property.” 21 U.S.C. § 853(n)(1). The ensuing 

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§ 853(n) proceeding then provides the exclusive means for a third 

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party to “assert[] a legal interest” in the property subject to forfeiture. 

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§ 853(n)(2). These proceedings are conducted separately from the 

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underlying criminal proceeding

― criminal defendants cannot bring a 

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petition under § 853(n), and third parties are barred from intervening 

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in the underlying criminal forfeiture. See § 853(n)(2) (allowing a 

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petition by “[a]ny person, other than the defendant”); § 853(k) 

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(barring third parties from intervening in the criminal case or 

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otherwise bringing a civil action asserting their interests in the 

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property). 

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To prevail in a § 853(n) proceeding, third parties must prove by 

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a preponderance of the evidence one of two things. They can succeed 

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1 Rule 4(b) provides a defendant with fourteen days to file a notice of

appeal and the Government with thirty days to file a notice of appeal.

### 7 by showing that they, and not the defendant, held “the right, title, or 

### 1

interest” in the forfeited property (or that their interest “was superior 

### 2

to any right, title, or interest of the defendant” when the defendant 

### 3

committed the crime giving “rise to the forfeiture of the property”). 

### 4

§ 853(n)(6)(A). Or, they can prevail by showing that they were “bona 

### 5

fide purchaser[s] for value” and were “reasonably without cause to 

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believe that the property was subject to forfeiture” at the time they 

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purchased their “right, title, or interest.” § 853(n)(6)(B). 

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If no third party files a petition within the prescribed time (or 

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no petitioner prevails), the Government emerges with “clear title to 

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[the forfeited] property

. . . and may warrant good title to any 

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subsequent purchaser or transferee.” Id. § 853(n)(7). 

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It is clear from this description that appeals from § 853(n) 

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proceedings are to be governed by subsection (a) of Rule 4, the 

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subsection governing civil appeals, rather than subsection (b), the 

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subsection governing criminal appeals. While § 853(n) “appears 

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within a larger Code section dealing with the standards and 

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procedures applicable to criminal forfeiture,” it “bears few if any 

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hallmarks of a criminal proceeding.” United States v. Moser

, 586 F.3d 

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1089, 1092–93 (8th Cir. 2009). For example, the criminal defendant is 

### 20

not a party to the proceeding, and, unlike the underlying criminal 

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forfeiture, the § 853(n) proceeding has no punitive aim. It merely 

### 22

seeks to settle legal interests in property. 

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### 8 In contrast, a § 853(n) proceeding “carries many of the 

### 1

hallmarks of a civil proceeding.” Id. at 1093. Both the applicable 

### 2

burden of proof (a preponderance of the evidence) and the 

### 3

underlying legal issue (the allocation of property interests) are civil in 

### 4

nature. And, substantively, a § 853(n) proceeding greatly resembles a 

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quiet title action. See id. (collecting cases). 

### 6

Moreover, an appeal from a § 853(n) proceeding is an ill

‐ fit for 

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Rule 4(b), the subsection governing criminal appeals. Subsection (b) 

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establishes separate timelines for appeals brought by “defendant[s]” 

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and those brought by “the government.” Fed. R. App. P. 4(b)(1)(A), 

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(B). Third

‐ party claimants do not fit comfortably into either category. 

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They certainly are not “the government.” And they are not aptly 

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described as the “defendant[s],” both because they are the plaintiffs 

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in the underlying proceeding, and because the government stands in 

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“the defendant’s shoes” in a § 853(n) proceeding. United States v. 

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Lavin

, 942 F.2d 177, 185 (3d Cir. 1991). 

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We, therefore, conclude that appeals from an ancillary 

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proceeding to a criminal forfeiture under § 853(n) are governed by the 

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civil timelines articulated in Rule 4(a). The Ninth and Third Circuits 

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have reached this same conclusion. United States v. Alcaraz

‐ Garcia

, 79 

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### 9 F.3d 769, 772 n. 4 (9th Cir. 1996); Lavin

, 942 F.2d at 181–82. Today, we 

### 1

join their holdings. 2 

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III. 

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Having determined that Rule 4(a) governs this appeal, we must 

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determine whether Appellants filed their notice of appeal within sixty 

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days of the “entry of the judgment or order appealed from.” Fed. R. 

### 6

App. P. 4(a)(1)(B); see also 28 U.S.C. § 2107(b). If they have not, we do 

### 7

not have jurisdiction to entertain their merits argument. See Perez v. 

### 8

AC Roosevelt Food Corp.

, 744 F.3d 39, 41 (2d Cir. 2013). 

### 9

It is important to note that Appellants are appealing from a 

### 10

denial of a Federal Rule of Civil Procedure 60 motion. Federal Rule of 

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Civil Procedure 58(a)(5) provides that a judgment need not be “set out 

### 12

in a separate document” if “an order dispos[es] of a motion

. . . for 

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2 Various circuits have considered the nature of forfeiture proceedings

in different contexts. Thus, the Eighth and Eleventh Circuits have

determined that § 853(n) proceedings are civil for the purposes of

allowing a successful claimant to collect attorney’s fees under the

Civil Asset Forfeiture Reform Act, 28 U.S.C. § 2645(n)(1), Moser

, 586

F.3d at 1092–94, and the Equal Access to Justice Act, 28 U.S.C.

§ 2412(d)(1)(A), United States v. Douglas

, 55 F.3d 584, 588 (11th Cir.

1995). And the First Circuit has held that proceedings involving a

criminal forfeiture were criminal in nature for the purpose of

applying the adverse spousal testimony privilege. United States v.

Yerardi

, 192 F.3d 14, 18–19 (1st Cir. 1999). None of these issues are

before us today.

### 10 relief under Rule 60.” The district court’s August 20th order expressly 

### 1

“denie[d]” their Rule 60 motion. It follows that the clock to file a notice 

### 2

of appeal began running once the August 20th order was “entered in 

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the civil docket,” Fed. R. App. P. 4(a)(7)(A)(i). 

### 4

The fact that the district court reserved the right to explain its 

### 5

August 20th decision until later, and gave that explanation on 

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December 30, 2015, does nothing to prevent the clock from running. 

### 7

See Cumberland Mut. Fire Ins. Co. v. Express Prod., Inc

., 529 F. App’x 

### 8

245, 250 (3d Cir. 2013) (citing Ludgood v. Apex Marine Corp. Ship Mgmt.

, 

### 9

311 F.3d 364, 369 (5th Cir. 2002)); In re Se. Bank Corp.

, 97 F.3d 476, 479 

### 10

(11th Cir. 1996)). The December 30th order would only have reset the 

### 11

clock on filing an appeal if it “change[d] matters of substance, or 

### 12

resolve[d] a genuine ambiguity, in a judgment previously rendered.” 

### 13

Perez

, 744 F.3d at 42 (quoting Priestley v. Headminder, Inc.

, 647 F.3d 497, 

### 14

502 (2d Cir. 2011)). The order, which merely “reaffirm[ed]” the 

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August 20th order, did nothing of the sort. 

### 16

Because the district court entered its order on August 20th, the 

### 17

time to appeal expired on October 19, 2015. Appellants concededly 

### 18

did not file their appeal by this date. Appellants’ notice of appeal was, 

### 19

therefore, untimely and we dismiss their appeal for lack of 

### 20

jurisdiction. 

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IV. 

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### 11 In sum, we hold that the timeliness of this appeal is governed 

### 1

by Federal Rule of Appellate Procedure Rule 4(a). Under that rule, 

### 2

which implements the requirements of 28 U.S.C. § 2107, 3

Appellants’ appeal is untimely because it was filed more than sixty 

### 4

days after the district court denied Appellants’ Rule 60(d)(3) motion. 

### 5

Accordingly, we DISMISS the appeal for lack of jurisdiction. 

### 6