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
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
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 States v. Ohle , No. 08-cr-1109 (S.D.N.Y. Aug. 20, 2015), ECF No. 269.
More than four months later, on December 30, 2015, the district court entered a memorandum order explaining its reasoning for denying Appellants' Rule 60 motion. In that order's conclusion, the district court wrote: "Accordingly, for the foregoing reasons, the Court reaffirms its August 20, 2015 Order denying Movants' motion to set aside the forfeiture order. The Clerk of the Court is directed to close the motion at document number 264 of the docket." United States v. Ohle , No. 08-cr-1109 (S.D.N.Y. Dec. 30, 2015), ECF No. 273, *8.
On February 29, 2016, Appellants filed their notice of appeal from the denial of their motion under Rule 60.
II.
To resolve whether we have jurisdiction over this appeal, we must first determine whether a § 853(n) proceeding ancillary to a criminal conviction is civil or criminal. If it is civil, then Federal Rule of Appellate Procedure 4(a)(1)(B)'s sixty-day time limit to file a notice of appeal applies. A party's failure to meet this time limit deprives this Court of subject-matter jurisdiction. Although the time limits in the Federal Rules are not themselves jurisdictional, "the time limits of FRAP Rule[ ] 4(a)(1) ... [are] 'jurisdictional' because ... these limits were also imposed by Congressional statute[ ]-28 U.S.C. §[ ] 2107[ ]." Weitzner v. Cynosure, Inc. ,
To determine whether a § 853(n) proceeding is civil or criminal, it is instructive first to review the nature of such proceedings. Once an order of forfeiture is entered in a criminal prosecution, the Government is obligated to "publish notice of the order and of its intent to dispose of the property."
To prevail in a § 853(n) proceeding, third parties must prove by a preponderance of the evidence one of two things. They can succeed by showing that they, and not the defendant, held "the right, title, or interest" in the forfeited property (or that their interest "was superior to any right, title, or interest of the defendant" when the defendant committed the crime giving "rise to the forfeiture of the property"). § 853(n)(6)(A). Or, they can prevail by showing that they were "bona fide purchaser[s] for value" and were "reasonably without cause to believe that the property was subject to forfeiture" at the time they purchased their "right, title, or interest." § 853(n)(6)(B).
If no third party files a petition within the prescribed time (or no petitioner prevails), the Government emerges with "clear title to [the forfeited] property ... and may warrant good title to any subsequent purchaser or transferee."
It is clear from this description that appeals from § 853(n) proceedings are to be governed by subsection (a) of Rule 4, the subsection governing civil appeals, rather than subsection (b), the subsection governing criminal appeals. While § 853(n)"appears within a larger Code section dealing with the standards and procedures applicable to criminal forfeiture," it "bears few if any hallmarks of a criminal proceeding." United States v. Moser ,
In contrast, a § 853(n) proceeding "carries many of the hallmarks of a civil proceeding."
Moreover, an appeal from a § 853(n) proceeding is an ill-fit for Rule 4(b), the subsection governing criminal appeals. Subsection (b) establishes separate timelines for appeals brought by "defendant[s]" and those brought by "the government." Fed. R. App. P. 4(b)(1)(A), (B). Third-party claimants do not fit comfortably into either category. They certainly are not "the government." And they are not aptly described as the "defendant[s]," both because they are the plaintiffs in the underlying proceeding, and because the government stands in "the defendant's shoes" in a § 853(n) proceeding. United States v. Lavin ,
We, therefore, conclude that appeals from an ancillary proceeding to a criminal forfeiture under § 853(n) are governed by the civil timelines articulated in Rule 4(a). The Ninth and Third Circuits have reached this same conclusion. United States v. Alcaraz-Garcia ,
*394III.
Having determined that Rule 4(a) governs this appeal, we must determine whether Appellants filed their notice of appeal within sixty days of the "entry of the judgment or order appealed from." Fed. R. App. P. 4(a)(1)(B) ; see also
It is important to note that Appellants are appealing from a denial of a Federal Rule of Civil Procedure 60 motion. Federal Rule of Civil Procedure 58(a)(5) provides that a judgment need not be "set out in a separate document" if "an order dispos[es] of a motion ... for relief under Rule 60." The district court's August 20th order expressly "denie[d]" their Rule 60 motion. It follows that the clock to file a notice of appeal began running once the August 20th order was "entered in the civil docket," Fed. R. App. P. 4(a)(7)(A)(i).
The fact that the district court reserved the right to explain its August 20th decision until later, and gave that explanation on December 30, 2015, does nothing to prevent the clock from running. See Cumberland Mut. Fire Ins. Co. v. Express Prod., Inc .,
Because the district court entered its order on August 20th, the time to appeal expired on October 19, 2015. Appellants concededly did not file their appeal by this date. Appellants' notice of appeal was, therefore, untimely and we dismiss their appeal for lack of jurisdiction.
IV.
In sum, we hold that the timeliness of this appeal is governed by Federal Rule of Appellate Procedure Rule 4(a). Under that rule, which implements the requirements of
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.
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,