BLD-250                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-1286
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                            JOHN F. WINKELMAN, JR.,
                                               Appellant
                      ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                           (D.C. Crim. No. 01-cr-00304-009)
                        District Judge: Honorable Yvette Kane
                      ____________________________________

          Submitted for Possible Dismissal Due to a Jurisdictional Defect and
     Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.66
                                    May 23, 2013

       Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

                              (Opinion filed: June 14, 2013)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

       John F. Winkelman, Jr., appeals pro se from the order of the District Court

dismissing his motion for the return of property forfeited to the United States. We will
affirm for substantially the same reasons we affirmed the denial of a nearly identical

motion filed by Winkelman’s brother and co-defendant, George A. Winkelman. See

Winkelman v. United States, 494 F. App’x 217, 220 (3d Cir. 2012).1

         In 2001, the Government indicted the Winkelmans and six others on drug and

firearms charges arising from their participation in a cocaine distribution ring. The third

superseding indictment included a charge of criminal forfeiture under 21 U.S.C. § 853.

During the criminal proceeding, the Government sought and the District Court granted a

temporary restraining order freezing a Sovereign Bank account that the Winkelmans held

under the name Winkelman, Inc., which the Government contended contained the

proceeds of drug sales.

         In 2003, a jury found both Winkelmans guilty of drug and firearm offenses and

found them jointly and severally liable for $2 million on the forfeiture count. On

December 12, 2003, the District Court granted the Government’s motion for an order of

forfeiture of John’s interest in the bank account and sentenced him to life imprisonment

as a career offender. The order of forfeiture became final as to John’s interest that same

day. See Fed. R. Crim. P. 32.2(b)(4)(A). John appealed, and we affirmed his convictions

and sentence. See United States v. Winkelman, 180 F. App’x 397, 402-03 (3d Cir. 2006).

John raised no issue regarding the forfeiture on appeal.

         George’s proceeding took somewhat longer to become final. We affirmed his


1
    We will sometimes refer to John and George Winkelman by their first names for ease of
                                             2
convictions but remanded for resentencing in light of United States v. Booker, 543 U.S.

220 (2005). See Winkelman, 180 F. App’x at 402-03. On remand, the District Court

entered an order of forfeiture as to George’s interest in the bank account, and that order

became final as to him when the District Court sentenced him to 480 months of

imprisonment on October 17, 2006. George filed an appeal but later voluntarily

withdrew it.

       Since then, the Winkelmans—sometimes jointly and sometimes individually—

have raised numerous collateral challenges to their convictions and sentences by way of

motions under 28 U.S.C. § 2255 and Rule 60(b) of the Federal Rules of Civil Procedure,

petitions for habeas relief under 28 U.S.C. § 2241 and for writs of audita querela, and

applications under 28 U.S.C. § 2244 for authorization to file successive § 2255 petitions.2

       In 2012, George tried a different approach by filing a motion for the return of the

forfeited bank account under 18 U.S.C. § 983(e). George alleged that the Government

obtained the pre-trial restraint of that account by means of perjured affidavits and that his

counsel rendered ineffective assistance in connection with that issue. In affirming the



reference. We intend no disrespect or undue familiarity in doing so.
2
  John’s other proceedings in this Court alone include C.A. Nos. 08-1931 (§ 2255
certificate of appealability denied July 10, 2008), 09-2511 (§ 2241 appeal dismissed for
non-prosecution), 09-4736 (§ 2244 application denied Feb. 1, 2010), 11-2055 (§ 2244
application denied May 13, 2011), 12-1782 (Rule 60(b) certificate of appealability denied
July 5, 2012), 12-3851 (§ 2244 application denied Nov. 18, 2012), 13-1287 (Rule 60(b)
appeal withdrawn), 13-1575 (§ 2255 appeal pending), 13-1647 (§ 2244 application
denied Mar. 28, 2013), and 13-2332 (audita querela appeal pending).

                                              3
denial of that motion, we explained that George could not obtain return of the bank

account without first invalidating the criminal judgment of which it was a part, which he

has failed to do, and that his arguments addressed to the pre-trial restraint of that account

did not state a basis to invalidate the subsequent criminal judgment in any event. See

Winkelman, 494 F. App’x at 220. Shortly thereafter, and despite our ruling, John tried

his hand at the same approach by filing the nearly identical motion at issue here. The

District Court dismissed the motion, in large part for the reasons we explained in

George’s appeal. John now appeals from that ruling, and we have jurisdiction under 28

U.S.C. § 1291.3

       John acknowledged that his motion was nearly identical to George’s, but he stated

therein that George “is currently working on a petition for a writ of certiorari to the

Supreme Court, do [sic] to the many mistakes made by the District Court and the Court

of Appeals in regard to his filing.” (Mot. for Return of Prop. at 13.) The United States

Supreme Court denied certiorari on December 3, 2012 (U.S. S. Ct. No. 12-6968), and



3
  John’s notice of appeal was untimely, but he sought and the District Court granted
reopening of the time to appeal on the ground that he had not received notice of the
judgment under Rule 77(d) of the Federal Rules of Civil Procedure. See Fed. R. App. P.
4(a)(6). Because the District Court’s reopening of the time to appeal complies with the
requirements of Rule 4(a)(6) and 28 U.S.C. § 2107(c), John’s notice of appeal is timely
and we have jurisdiction. See Bowles v. Russell, 551 U.S. 205, 213 (2007). Our
jurisdiction does not extend to the District Court’s subsequent denial of reconsideration
because John did not separately appeal from that ruling. See Fed. R. App. P.
4(a)(4)(B)(ii).

                                              4
there is no reason to revisit John’s materially identical allegations in this case.4

       John raises only one new argument. In our opinion addressing George’s previous

appeal, we noted that he did not allege that he lacked notice of his 2006 forfeiture order.

See Winkelman, 494 F. App’x at 219 n.3. John seizes on that reference to argue as an

additional ground for return of the account that he did not receive notice of George’s

2006 forfeiture order. That argument is specious. John’s interest in the bank account

was finally forfeited in 2003 as part of the criminal judgment against him that we

affirmed. Thus, John no longer had any interest in the bank account to assert when the

District Court later entered its 2006 order of forfeiture as to George.

       For the foregoing reasons, we will affirm the judgment of the District Court.




4
 In addition to the reasons we gave in rejecting George’s appeal, we note that one of
John’s § 2244 applications was based on the same purportedly new evidence of perjury
on which both brothers relied in seeking the return of their account. We denied that
application over two years ago. (C.A. No. 11-2055, May 13, 2011.)
                                               5
