                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0556n.06

                                            No. 12-5994                                   FILED
                                                                                      Jun 07, 2013
                           UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE MIDDLE
                                       )                  DISTRICT OF TENNESSEE
YOUNG MOON,                            )
                                       )
                                                                  OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: SILER, MOORE, and ROGERS, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge.                      Defendant-Appellant Young Moon

challenges two district court orders: R. 417 (Page ID #4681) and R. 420 (Page ID #4702).1 D. Ct.

Case No. 05-cr-00003, R. 421 (Notice of Appeal at 1) (Page ID #4703). In its first order, the district

court denied Moon relief under Federal Rule of Civil Procedure 60(b) because Moon failed to cite

“any authority indicating that Rule 60 provides a basis for voiding a judgment in a criminal case.”

D. Ct. Case No. 05-cr-00003, R. 417 (07/10/2012 D. Ct. Order at 2) (Page ID #4682). In its second

order, the district court denied Moon’s “Motion To Alter Or Amend A Judgment Under Rule 59(e)”

because “Rule 59(e) of the Federal Rules of Civil Procedure does not apply in a criminal case.” D.

Ct. Case No. 05-cr-00003, R. 420 (07/30/2012 D. Ct. Order at 1) (Page ID #4702). Because we

agree with the district court that neither rule of civil procedure applies to criminal proceedings, we

       1
        These orders appear on the docket for District Court Case No. 05-cr-00003, which is also
the case number listed on Moon’s notice of appeal.
No. 12-5994
United States v. Young Moon


AFFIRM the district court’s orders that denied Moon’s motions under Rules 60(b) and 59(e).

United States v. Gibson, 424 F. App’x 461, 464 (6th Cir. 2011) (“Rule 60(b) does not provide relief

from judgment in criminal proceedings”); see United States v. McCalister, 601 F.3d 1086, 1087–88

(10th Cir. 2010); see also United States v. Bender, 96 F. App’x 344, 345 (6th Cir. 2004)).

       At the district court, Moon also challenged the judgment in her False Claims Act (FCA) case,

District Court Case No. 06-cv-00406, in the same motions that challenged her criminal conviction

under Rules 60(b) and 59(e). The district court denied these motions in two orders listed on the

district court’s docket for Moon’s FCA case: R. 148 (Page ID #1013) and R. 155 (Page ID #1039).2

Although Moon has not designated these district court orders for appeal, we have jurisdiction to

consider them because “failure to mention or misidentification of the ruling being appealed from

does not destroy appellate jurisdiction as long as the intent to appeal is apparent and the appellee

suffers no prejudice” and “courts have been especially reluctant to enforce strictly the notice of

appeal requirements when such notice is filed by a pro se appellant.” United States v. Willis, 804

F.2d 961, 963 (6th Cir. 1986); see FED . R. APP . P. 3(c)(1)(B). Nonetheless, we AFFIRM the district

court’s orders that rejected Moon’s motions under Rules 60(b) and 59(e) with respect to the FCA

judgment because the motions were untimely and do not otherwise demonstrate extraordinary

circumstances.

       Also at the district court, Moon listed her 28 U.S.C. § 2255 case, District Court Case No. 09-

cv-00060, on the cover of her pro se Rule 60(b) motion. D. Ct. Case No. 05-cr-00003, R. 415 (Rule


       2
           These orders appear on the docket for District Court Case No. 06-cv-00406.

                                                 2
No. 12-5994
United States v. Young Moon


60(b) Mot.) (Page ID #4518). The district court did not, however, address Moon’s Rule 60(b)

motion with regard to her § 2255 case. If the district court had addressed Moon’s Rule 60(b) motion

with regard to her § 2255 case, it had two options. The district court could have determined that the

motion was a proper Rule 60(b) motion, attacking “some defect in the integrity of the” § 2255

proceedings, and ruled on the motion. Gonzalez v. Crosby, 545 U.S. 524, 532 (2005); see In re

Nailor, 487 F.3d 1018, 1021–23 (6th Cir. 2007) (discussing the application of Gonzalez in § 2255

proceedings). Alternatively, the district court could have determined that Moon’s Rule 60(b) motion

was actually a second or successive § 2255 motion and transferred the motion to this court. See In

re Nailor, 487 F.3d at 1023. The record before this court is exceptionally muddled as to whether

Moon was attempting to file a proper Rule 60(b) motion or a second or successive § 2255 motion.

Compare D. Ct. Case No. 05-cr-00003, R. 412 (D. Ct. Order at 1) (Page ID #4513) (“The Defendant

shall file a reply brief . . . addressing . . . whether her letter is intended to be filed as a second or

successive Section 2255 . . . motion, or as a motion to be made under Rule 60(b) . . . .”) with D. Ct.

Case No. 05-cr-00003, R. 415 (Rule 60(b) Mot. at 1) (Page ID #4518). Judged either way, Moon’s

Rule 60(b) motion or application to file a second or successive § 2255 motion fails.

        The thrust of Moon’s motion, read as a proper Rule 60(b) motion, is that the government

withheld information during the course of litigating Moon’s § 2255 motion in violation of Brady v.

Maryland, 373 U.S. 83 (1963); see FED . R. CIV . P. 60(b)(2)–(3). Moon’s motion, dated May 7, 2012,

is untimely, however, as it was filed more than a year after the district court’s judgment, dated

January 29, 2010, and Moon has not otherwise demonstrated extraordinary circumstances. D. Ct.


                                                   3
No. 12-5994
United States v. Young Moon


Case No. 05-cr-00003, R. 415 (Rule 60(b) Mot.) (Page ID #4518); District Court Case No. 09-cv-

00060, R. 35 (D. Ct. Order at 1) (Page ID #531); see FED . R. CIV . P. 60(c)(1). The Brady material

in question involved information from “Amgen litigation” about how much overfill was contained

in a vial of Procrit, a drug involved in Moon’s underlying conviction. As the government points out,

this court has previously rejected this argument when Moon raised it in her petition for rehearing en

banc in her § 2255 case. Sixth Circuit Case No. 10-5116, Pet. for Rehr’g En Banc at 7 n.1; Sixth

Circuit Case No. 10-5116, 01/25/2012 Order. Furthermore, also noted by the government, the

material in question primarily involves another drug, Aranesp, not Procrit, and is not otherwise

favorable to Moon. Finally, the Amgen litigation evidence surrounding Procrit has no effect on the

larger fraud allegations for which Moon was convicted that involved the drugs Taxol and Camptosar.

These facts do not demonstrate extraordinary circumstances, nor would they be a basis for relief

under Rule 60(b) if Moon’s motion were timely. For these reasons, we AFFIRM the denial of relief

under Rule 60(b) with regard to Moon’s § 2255 case.

       Reading Moon’s Rule 60(b) motion and her brief on appeal as a request to file a second or

successive § 2255 petition, we conclude that Moon has failed to show that this court should

authorize her to file a second or successive § 2255 motion. In order to obtain authorization, Moon

must show:

       (1) newly discovered evidence that, if proven and viewed in light of the evidence
       as a whole, would be sufficient to establish by clear and convincing evidence that no
       reasonable factfinder would have found the movant guilty of the offense; or

       (2) a new rule of constitutional law, made retroactive to cases on collateral review
       by the Supreme Court, that was previously unavailable.

                                                 4
No. 12-5994
United States v. Young Moon


28 U.S.C. § 2255(h). Moon’s Brady argument attempts to comport with the first category in

§ 2255(h); however, as discussed in the preceding paragraph, the overfill information from the

Amgen litigation is not the type “that, if proven and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would

have found the movant guilty of the offense.” Id. For these reasons, we DENY Moon’s request to

file a second or successive § 2255 motion.

       For all of the reasons stated above, we AFFIRM the judgment of the district court.




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