U.S. v. Machado

• Citation: 465 F.3d 1301
• Decision Date: 02 October 2006
• Docket Number: No. 05-11420.,05-11420.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregorio MACHADO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

465 F.3d 1301

UNITED STATES of America, Plaintiff-Appellee, v. Gregorio MACHADO, Defendant-Appellant.

No. 05-11420.

United States Court of Appeals, Eleventh Circuit.

October 2, 2006.

David Jonathon Joffe (Court-Appointed), Joffe & Joffe, P.A., Ft. Lauderdale, FL, for Machado.

Lisette M. Reid, Anne R. Schultz, Asst. U.S. Atty., Jonathan D. Colan, Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and CARNES, Circuit Judges, and HODGES,^* District Judge.

CARNES, Circuit Judge:

I.

In March 1997 a grand jury indicted Gregorio Machado on thirteen counts of conspiracy to launder drug proceeds. The indictment included a forfeiture count pursuant to 18 U.S.C. § 982. After reaching a plea agreement with the government, Machado entered a guilty plea in May 1997. The written plea agreement contained an appeal waiver provision and a detailed forfeiture provision through which Machado pledged "to fully and unreservedly cooperate and assist the United States in the forfeiture and recovery of the forfeited assets, portions thereof, or their substitutes wherever located." That provision included a detailed list of all the money and items that were to be forfeited. Machado says that the value of those listed items was approximately $12 million at the time of the indictment.

On July 28, 1997, the district court sentenced Machado to 51 months imprisonment. At sentencing, the Assistant United States Attorney representing the government moved to dismiss eleven of the thirteen counts of the indictment in accordance with the plea agreement, and stated that "[t]he United States has not dismissed Count I or the forfeiture count at the very end." The court responded, "Count II through XI[I] are dismissed. Count I and the forfeiture count remain in full force and effect." The formal judgment in the case, which was entered on July 30, 1997, recited the numbers of the counts that had been dismissed, stated that the defendant had pleaded guilty to Count 1, and accordingly adjudged him guilty of conspiracy to launder money and sentenced him to a term of 51 months. The only mention of forfeiture in the judgment entry is this sentence: "A separate Forfeiture order shall be entered in this cause."

On March 11, 1998, about seven months later, the government filed a motion for an order of forfeiture. The following day the district court granted the motion and entered a preliminary order of forfeiture. On the government's motion, the district court on April 24, 1998 entered an amended order to include additional property. A final order of forfeiture was entered on July 14, 1998, nearly a year after sentencing. Machado did not attempt to appeal any of those orders, including the final order of forfeiture.

Instead, on September 4, 1998, about six weeks after entry of the final order, he filed a pro se motion for return of property pursuant to Fed. R. Crim. P. 41(e), requesting a return of "all documents and records seized or taken from the movant, his businesses, and residence that were used as evidence in the criminal and [forfeiture] actions." In that motion Machado claimed that the documents he sought would reveal that some of his property had been improperly forfeited. At a hearing on January 20, 1999, the district court ordered the documents returned to Machado. The government could not fully comply because some of the original documents were destroyed, but it ultimately returned others to Machado. Machado filed a pro se motion for sanctions which was ultimately denied.

On April 23, 2003, three months shy of five years after entry of the final order of forfeiture, Machado filed under Rule 60(b)(4) a pro se motion for relief from that order "in light of this Circuit's decision in United States v. Petrie, 302 F.3d 1280, 1284-85 (11th Cir.2002)." Machado contended that because the district court had not entered the final order of forfeiture until twelve months after he was sentenced, it lacked jurisdiction to do so, and for that reason the order must be vacated. Because the district court had previously issued an order prohibiting the parties from filing any new motions until all pending motions were resolved, the district court denied that motion. Machado appealed, but we affirmed after concluding that the denial of his Rule 60(b)(4) motion on that ground was not an abuse of discretion. We never reached the merits of Machado's claim.

On May 17, 2004, Machado filed pursuant to Rule 60(b) another motion to vacate the forfeiture order. After the district court denied that motion a week later, we affirmed on November 17, 2004, explaining that Rule 60(b) cannot be used to challenge criminal forfeiture orders. Again, we did not reach the merits of Machado's claim.

On December 17, 2004, which was six years and five months after the final order of forfeiture was entered, Machado filed yet another pro se motion seeking return of the forfeited property. This one asserted that he was proceeding under Fed. R. Crim. P. 41(g) and the All Writs Act, 28 U.S.C. § 1651(a). In February 2005, the district court denied the motion in a three-sentence order: "This cause came before the Court upon Defendant's Motion for Return of Property Pursuant to Fed. R. Crim. P. Rule 41(e) ... filed December 17, 2004. The Court having reviewed the pertinent portions of the record, and being otherwise fully advised in the premises, it is ordered and adjudged that Defendant's Motion for Return of Property is Denied. Done and ordered in Chambers, at Miami, Florida this 7th Day of February, 2005." Thereafter Machado filed his notice of appeal, and we appointed counsel to represent him.

II.

At the heart of all Machado's arguments and efforts is his contention that the district court lacked subject matter jurisdiction to enter the final order of forfeiture nearly a full year after the judgment incorporating the sentence had been entered. Federal Rule of Criminal Procedure 32(d)(2), which was in effect when Machado was sentenced, stated that: "At sentencing, a final order of forfeiture shall be made part of the sentence and included in the judgment." Fed. R. Crim. P. 32(d)(2) (1997). Machado contends that the district court's failure to comply with Rule 32(d)(2) when it sentenced him on July 28, 1997 means that the court lost jurisdiction to enter a forfeiture order, and did not have the power to do so when it attempted to enter the order of forfeiture on July 14, 1998. The government's position is that Rule 32(d)(2) is not jurisdictional, and instead is a claim-processing rule that can be forfeited if the party waits too long to raise the argument, as Machado did. See Eberhart v. United States, ___ U.S. ___, 126 S.Ct. 403, 405-07, 163 L.Ed.2d 14 (2005).

We lack jurisdiction to decide the issue of whether the district court had jurisdiction to belatedly enter the final order of forfeiture. Federal Rule of Appellate Procedure 4 requires a criminal litigant who takes an appeal as of right to file a notice of appeal "within 10 days after the later of ... the entry of either the judgment or the order being appealed ...." Fed. R. App. P. 4(b)(1)(A)(i). Under that rule the district court may extend that ten day period by up to thirty days if a party shows excusable neglect. Fed. R. App. P. 4(b)(4). Even if there is excusable neglect the latest a defendant may wait before appealing a final order in a criminal case is forty days after it was entered. See id.

Filing a timely notice of appeal is "mandatory and jurisdictional" and if a defendant fails to do so, a court of appeals is "without jurisdiction to review the decision on the merits." See Budinich v. Becton Dickinson and Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988); accord United States v. Cartwright, 413 F.3d 1295, 1299-1300 (11th Cir.2005) (criminal defendant's failure to file a timely notice of appeal under Rule 4(b) requires dismissal for lack of jurisdiction); United States v. Arevalo, 408 F.3d 1233, 1236 (9th Cir.2005) (defendant's "failure to file a timely or effective notice of appeal renders us without jurisdiction to consider the merits of the petitioner's claims"); United States v. Hirsch, 207 F.3d 928, 930-31 (7th Cir.2000) (if the notice of appeal is untimely the "appeal must be dismissed for want of jurisdiction"); United States v. Rapoport, 159 F.3d 1, 2-3 (1st Cir.1998) (same); United States v. Christunas, 126 F.3d 765, 768-69 (6th Cir. 1997) (Rule 4(b) compliance "is a jurisdictional prerequisite which this court can neither waive nor extend."); United States v. Marbley, 81 F.3d 51, 52 (7th Cir.1996) (same); United States v. Houser, 804 F.2d 565, 568 (9th Cir.1986) (time limits on filing a notice of appeal are "mandatory and jurisdictional"); United States v. Whitaker, 722 F.2d 1533, 1534 (11th Cir.1984) ("Failure to file a timely notice of appeal leaves the appellate court without jurisdiction.").

The final order of forfeiture about which Machado complains was entered on July 14, 1998 and the ten days he had to file his notice of appeal ran out on July 24, 1998.¹ Assuming that the district court might somehow have found excusable neglect and granted Machado thirty more days for that reason, the last possible date for filing the notice of appeal was August 23, 1998, which was forty days after the district court entered the order. See Sanders v. United States, 113 F.3d 184, 186 (11th Cir.1997). Machado missed that deadline. Indeed, he never filed a notice of appeal from the order which he seeks to have set aside.

Even if we agreed with Machado's suggestion at oral argument that his Rule 41(e) motion for return of documents could be construed as an appeal from the final order of forfeiture, it still came too late. The Rule 41(e) motion was filed on September 4, 1998, well after the deadline for filing his notice of appeal. And even if the deadline could have been extended under Rule 4(a)(5) for excusable neglect,...