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United States v. Bradley

United States Court of Appeals, Second Circuit

February 16, 2018

United States of America, Appellee,
v.
William E. Bradley, John B. Ohle, III, Defendants, Patricia Dalton Ohle, Festivus for the Rest of Us, Inc., The Museum of Sports History, LLC, The JSJD Grantor Trust, The Dalton Ohle Investment Property Trust, Movants-Appellants.

          Argued: January 23, 2018

         On Appeal from the United States District Court for the Southern District of New York

         This appeal raises two questions pertaining to this Court's jurisdiction. The first question is whether appeals from a 21 U.S.C. § 853(n) proceeding, in which third parties claim an interest in criminally forfeited property, are civil or criminal for purposes of Federal Rule of Appellate Procedure 4. We hold that § 853(n) proceedings are civil and, thus, governed by the time limits in Rule 4(a), which are jurisdictional because they implement the requirements of 28 U.S.C. § 2107.

         The second question is whether the clock starts to run on filing a notice of appeal at time one, when a district court enters an initial order announcing its decision, or at time two, when the district court enters a later order reaffirming its decision and explaining its reasoning. We hold that the clock starts to run at the issuance of the first order and does not reset at the issuance of the second order.

         Because Appellants did not file their notice of appeal within sixty days of the district court's first order, as required by Rule 4(a), we DISMISS the appeal for lack of jurisdiction.

          Nanette L. Davis, Special Assistant United States Attorney, (Stanley J. Okula, Jr., Special Assistant United States Attorney, Micah W.J. Smith, Sarah Lathleen Eddy, Assistant United States Attorneys, on the brief), United States Attorney's Office for the Southern District of New York, for Appellee.

          Wesley D. Ehrhardt (Hiram C. Eastland, Jr., Eastland Law Offices, PLLC, Greenwood, Miss., on the brief), Patterson Ehrhardt PLLC, Como, Miss., for Movants- Appellants.

          Before: Leval, Calabresi, and Cabranes, Circuit Judges.

          Calabresi, Circuit Judge.

         This appeal presents two questions, not previously settled by this Court, concerning the application of Federal Rule of Appellate Procedure 4. The first question is whether a 21 U.S.C. § 853(n) proceeding, in which third parties claim an interest in criminally forfeited property, is civil or criminal. The second question is whether the clock starts to run on filing a notice of appeal from the court's denial of a motion seeking "Relief from a Judgment of Order" under Federal Rule of Civil Procedure 60 at time one, when a district court enters an initial order announcing its decision, or at time two, when the district court enters a later order reaffirming its decision and explaining its reasoning.

         I.

         On June 2, 2010, after a three-week jury trial before the United States District Court for the Southern District of New York, John B. Ohle, III was convicted of tax evasion and of conspiracy to commit fraud. In connection with that conviction, Ohle was required to forfeit both real and personal property, including significant sums of cash. Appellants Patricia Ohle, Festivus for the Rest of Us, Inc., The Museum of Sports History, LLC, The JSJD Grantor Trust, and The Dalton Ohle Investment Property Trust (collectively "Appellants") all filed petitions under 21 U.S.C. § 853(n) claiming interests in Ohle's forfeited property. In May 2013, the district court entered a stipulation and order enforcing a settlement agreement between Appellants and the Government which resolved Appellants' various ownership interests in the property.

         Two years later, Appellants returned to the district court claiming fraud and misconduct on the part of the Government. On this basis, they filed a motion under Federal Rule of Civil Procedure 60 to vacate that settlement agreement.

         On August 20, 2015, the district court entered an order denying Appellants' Rule 60 motion. The order stated: "Upon consideration, the Court hereby denies the motion. A Memorandum explaining the reasons for this ruling will issue in due course." United ...


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