             Case: 11-14928     Date Filed: 11/08/2012   Page: 1 of 14

                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                           ________________________

                                 No. 11-14928
                             Non-Argument Calendar
                           ________________________

                     D. C. Docket No. 9:06-cr-80158-KLR-1


UNITED STATES OF AMERICA,
                                                          Plaintiff-Appellee,

                                       versus

ANTHONY R. MASILOTTI,

                                                          Defendant-Appellant.

                           ________________________

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

                                (November 8, 2012)

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Anthony Masilotti appeals the district court’s denial of his 2011 motion to

vacate the 2007 forfeiture of his property that was charged and ordered in his
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criminal proceedings. After review, we affirm.

                                 I. BACKGROUND

      To understand the issues in this appeal, we recount the protracted procedural

history of Masilotti’s criminal case.

A.    Information and Criminal Forfeiture

      On January 11, 2007, Anthony Masilotti, a former county commissioner for

Palm Beach County, Florida, pled guilty to an information charging him with a

dual-object conspiracy: (1) to commit mail and wire fraud by using mail and wire

communications to deprive another of honest services, in violation of 18 U.S.C.

§§ 1341 (general mail fraud), 1343 (general wire fraud), and 1346 (defining

“scheme or artifice to defraud” for purposes of the mail and wire fraud statutes to

include a scheme to deprive another of the right to honest services); and (2) to

impede the Internal Revenue Service in the collection of personal income taxes, in

violation of 26 U.S.C. § 7212 (impeding the IRS). See also 18 U.S.C. § 371

(conspiracy). The information charged, inter alia, that Masilotti used his position

as county commissioner to advance his undisclosed financial interest in certain real

estate transactions.

      The information also included a criminal forfeiture count that sought the

forfeiture of: (1) $9.5 million; (2) various parcels of real property; (3) all

Masilotti’s interests in two entities, Micco Eastern Holdings, LLC (“MEH”) and


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ARM Family Land Trust (the “ARM trust”); and (4) all Masilotti’s interests in a

bank account and several certificates of deposit. The information charged the

forfeiture pursuant to 28 U.S.C. § 2461, 18 U.S.C. § 981(a)(1)(C), and 21 U.S.C.

§ 853. Because this appeal involves only the forfeiture count, we outline how the

forfeiture occurred under these statutes in Masilotti’s case.

      First, 28 U.S.C. § 2461(c), cited in the information, makes “criminal

forfeiture available in every case that the criminal forfeiture statute [18 U.S.C.

§ 982] does not reach but for which civil forfeiture is legally authorized.” United

States v. Padron, 527 F.3d 1156, 1161-62 (11th Cir. 2008). Civil forfeiture is

legally authorized for Masilotti’s mail and wire fraud conspiracy offense because

(1) under 18 U.S.C. § 981(a)(1)(C), the government may seek civil forfeiture of

“[a]ny property, real or personal, which constitutes or is derived from proceeds

traceable to,” among other things, a conspiracy to commit “any offense

constituting ‘specified unlawful activity’” as defined by 18 U.S.C. § 1956(c)(7);

and (2) the offenses covered by 18 U.S.C. § 1956(c)(7) include the mail and wire

fraud offenses here. See 18 U.S.C. § 1956(c)(7)(A) (citing 18 U.S.C. § 1961(1)).

Accordingly, since civil forfeiture is legally authorized by 18 U.S.C.

§ 981(a)(1)(C), 28 U.S.C. § 2461(c) makes criminal forfeiture available for the

mail and wire fraud conspiracy in Masilotti’s criminal case.

B.    2007 Plea Agreement and Sentence

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       In his plea agreement, Masilotti consented to the forfeiture charged in this

case and waived any defenses and right to appeal. Specifically, Masilotti

acknowledged that he personally profited from his criminal conduct in an amount

between $7,000,000 and $20,000,000. He agreed to voluntarily forfeit $175,000 in

cash, parcels of real property in Brevard County and Martin County, Florida, and

all interests in MEH and the ARM trust. Notably too, in his plea agreement

Masilotti also waived “all constitutional, legal and equitable defenses to the

forfeiture of the assets in any judicial or administrative proceeding,” “any claim or

defense under the Eighth Amendment of the United States Constitution, including

any claim of excessive fine, to the forfeiture of these assets by the United States,”

and “any right to appeal any order of forfeiture entered by the Court pursuant to

this Plea Agreement.”

       On January 11, 2007, the district court conducted a plea hearing and

accepted Masilotti’s guilty plea. In accordance with Masilotti’s plea agreement

and Federal Rule of Criminal Procedure 32.2(b)(2), the district court also entered a

preliminary order of forfeiture in Masilotti’s criminal case on January 11, 2007.1

The district court’s order listed Masilotti’s interests in each of the above assets

explicitly referenced in the plea agreement.

       1
         Federal Rule of Criminal Procedure 32.2 outlines the procedure a district court must
follow to order a criminal forfeiture. After a guilty plea is entered and the district court
determines the property at issue is subject to forfeiture, the court must enter a preliminary order
of forfeiture. Fed. R. Crim. P. 32.2(b)(1)-(2).
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        On June 29, 2007, the district court sentenced Masilotti to 60 months’

imprisonment in accordance with the plea agreement. That same day, the district

court signed a “Final Order of Forfeiture” in the case, providing that the assets

listed in the plea agreement and the preliminary order of forfeiture were forfeited. 2

        On July 2, 2007, the district court entered a “Judgment in a Criminal Case”

in Case No. 06-80158 (the “Criminal Judgment”) against Masilotti. The Criminal

Judgment listed Masilotti’s sentence and also expressly incorporated the forfeiture

order, stating: “The defendant shall forfeit the defendant’s interest in the property

as stated in the plea agreement and preliminary order of forfeiture to the United

States.” See Fed. R. Crim. P. 32.2(b)(4)(B).

        Masilotti did not appeal his sentence or conviction.

C.      Masilotti’s 2009 Post-Conviction Motion for Reduction of Sentence

        Over two years later, on October 17, 2009, Masilotti filed a motion in the

criminal case to reduce his sentence. Masilotti argued that he was deprived of his

due process and equal protection rights because the United States had not filed a

motion to reduce his sentence based on his willingness to cooperate. Masilotti also

questioned the constitutionality of the honest services fraud statute, 18 U.S.C.

§ 1346, cited in his information and plea agreement.
        2
        At sentencing—or at any time before sentencing if the defendant consents—the
preliminary forfeiture order becomes final as to the defendant. Fed. R. Crim. P. 32.2(b)(4)(A).
The final order of forfeiture is final with respect to any third parties with interests in the forfeited
property. See id. at 32.2(c)(2).

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      The district court denied Masilotti’s motion on November 2, 2009. In its

order the district court noted that it was “of the opinion that the Honest Services

Statute is unconstitutional” and that the Supreme Court would soon rule on the

statute’s constitutionality.

D.    Masilotti’s 28 U.S.C. § 2255 Motion in 2009

      On November 13, 2009, Masilotti filed a 28 U.S.C. § 2255 motion

challenging the constitutionality of his conviction and sentence. Masilotti based

his § 2255 motion in large part on the district court’s above comments on the

honest services fraud statute’s constitutionality.

      The magistrate judge filed a report recommending that Masilotti’s § 2255

motion be denied as time-barred and because the district court’s comments

provided no basis for relief. The district court adopted the report and denied

Masilotti’s § 2255 motion. Masilotti’s motion for reconsideration was also

denied.

      Masilotti filed a notice of appeal from the denial of his § 2255 motion,

which the district court treated as an application for a certificate of appealability

(“COA”). On April 5, 2010, the district court denied the COA. Masilotti’s

motion for reconsideration was also denied.

      Masilotti then sought a COA from this Court. On June 24, 2010, while

Masilotti’s COA application was pending, the Supreme Court decided Skilling v.


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United States, 130 S. Ct. 2896 (2010), which held, in relevant part, that the honest

services fraud statute was not unconstitutionally vague so long as it was construed

to proscribe only bribery and kickback schemes. Id. at 2931.

      In an August 2, 2010 order, this Court denied Masilotti’s COA application,

concluding that the district court had properly denied his § 2255 motion as time-

barred and thus Masilotti had failed to demonstrate that reasonable jurists would

find debatable the denial of his § 2255 motion.

      Masilotti moved for reconsideration in light of Skilling. This Court denied

Masilotti’s motion on October 6, 2010.

E.    Masilotti’s 28 U.S.C. § 2241 Petition in 2010

      In 2010, Masilotti filed a petition under 28 U.S.C. § 2241 in the district

court. Masilotti again asked the district court to vacate the honest services fraud

portion of his conspiracy conviction. Masilotti argued that Skilling established that

he had been convicted of a “non-existent offense” because the stipulated facts in

his change-of-plea hearing did not show that he had received bribes or kickbacks.

Masilotti also asked the court to vacate the 2007 criminal forfeiture order included

in his sentence.

      The magistrate judge issued a report recommending denial of Masilotti’s

§ 2241 petition. The magistrate judge found that one of Masilotti’s fraudulent real

estate transactions—the “Aggregates transaction”—could no longer sustain an


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honest services fraud conspiracy conviction because there was no direct evidence

that Masilotti received bribes or kickbacks from that scheme. But the magistrate

judge found that another real estate transaction—the “Diocese transaction”—

supported Masilotti’s honest services fraud conspiracy conviction because the

admitted facts showed that Commissioner Masilotti’s receipt of $50,000 for

advocating the sale of certain property violated the honest services fraud statute.

The magistrate judge thus concluded that Masilotti was not convicted of a non-

existent offense. Additionally, the magistrate judge found that Masilotti was not

entitled to relief because (1) he pled guilty to a dual-object conspiracy, (2) the

second object of the conspiracy was to impede the IRS in the collection of personal

income taxes, and (3) the second object was not affected by Skilling.

      In a March 9, 2011 order, the district court adopted the report, rejected both

Masilotti’s and the government’s objections, and denied Masilotti’s § 2241

petition. In ruling on Masilotti’s objections, the district court recounted the factual

basis of Masilotti’s plea that showed Masilotti received a kickback or bribe as part

of the Diocese transaction and explained why his conviction survived Skilling as

follows:

      The factual basis for Mr. Masilotti’s guilty plea states that he “used
      his public office to advocate the sale of land to co-conspirator Daniel
      N. Miteff and Miteff’s partners, and solicited the Village Manager of
      Royal Palm Beach to send an official letter to Masilotti as county
      commissioner outlining the Village’s desire for the Diocese to assure
      it sold the land to a bidder that would provide a public park.” Mr.
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      Masilotti “made these requests without disclosing that he had a
      financial interest in the transaction and in the Diocese awarding the
      bid to Daniel Miteff, that is, he expected to be compensated—and
      later was in fact compensated—by Miteff for his efforts on Miteff’s
      behalf.” Based on these admissions and the remainder of the factual
      record, the Court must conclude that Mr. Masilotti acted knowingly
      and corruptly in return for being influenced in the performance of an
      official act. Mr. Masilotti had a hidden financial interest in the
      Diocese transaction. Mr. Masilotti, in his official role as a Palm
      Beach County commissioner, advocated for Mr. Miteff to the Village
      Manager of Royal Palm Beach.             Mr. Masilotti was secretly
      compensated for those efforts when Mr. Miteff paid him
      approximately $50,000 at the Atlantis Casino in the Bahamas. There
      is nothing in the record to support Mr. Masilotti’s assertion that the
      payment he received in the Bahamas was some sort of “commission”
      rather than a bribe or kickback. Mr. Masilotti’s conviction for his
      failure to disclose his hidden financial interest joined with the
      kickback or bribe he received from Mr. Miteff survives Skilling v.
      United States, 130 S. Ct. 2869 (2010). The objection is overruled.

District Court Order, Mar. 9, 2011, Case No. 9:10-cv-81137-KLR, ECF No. 16 at

2-3 (footnote and citations omitted). In any event, the district court noted,

Masilotti could not obtain relief from the forfeiture portion of his sentence through

a writ of habeas corpus under § 2241.

      Masilotti did not appeal the district court’s denial of his § 2241 petition.

F.    Masilotti’s Federal Rule of Civil Procedure 60(b) Motion in 2011

      This appeal involves only Masilotti’s 2011 motion to vacate the 2007 Final

Order of Forfeiture entered in his criminal case. Masilotti’s 2011 motion

referenced Federal Rule of Civil Procedure 60(b)(5) and (6) as the basis for his

motion. Yet Masilotti filed his motion within his criminal case, Case No. 06-


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80158.

      In his Rule 60(b) motion, Masilotti again argued that the Supreme Court’s

Skilling decision narrowed the scope of the honest services fraud statute in a way

that limited his criminal liability under that statute. He argued that the 2007 Final

Order of Forfeiture must be amended to reflect only the Diocese transaction and

that the forfeiture of amounts and property not involved in the Diocese transaction

constituted an excessive fine in violation of the Eighth Amendment to the United

States Constitution.

      The magistrate judge entered a report recommending denial of the Rule

60(b) motion because the district court lacked jurisdiction to modify a criminal

order of forfeiture pursuant to a civil motion. In an October 3, 2011 order, the

district court adopted the report, rejected Masilotti’s objections, and denied

Masilotti’s Rule 60(b) motion.

      On October 18, 2011, 15 days after the district court’s October 3rd order was

entered, Masilotti filed a notice of appeal.

                                  II. DISCUSSION

A.    The Timeliness of Masilotti’s Appeal

      The government contends that Masilotti’s appeal is untimely under the rules

applicable to criminal cases. Masilotti responds that his appeal is timely pursuant

to the appellate rule governing civil appeals. Although we agree with the


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government that the criminal rules apply here, we conclude Masilotti’s appeal was

timely and explain why.

      Ordinarily, a criminal defendant must file a notice of appeal within 14 days

of the final judgment, as prescribed by Rule 4(b) of the Federal Rules of Appellate

Procedure. Fed. R. App. P. 4(b)(1)(A). In contrast, in a civil case in which the

United States is a party, Rule 4(a) requires the notice of appeal to be filed within

60 days of the final judgment. Fed. R. App. P. 4(a)(1)(B).

      The criminal appeal rule applies because the forfeiture at issue was made a

part of Masilotti’s criminal sentence and was entered in his criminal case.

Pursuant to 28 U.S.C. § 2461(c), described above, it was a criminal forfeiture.

Although Masilotti’s motion referenced and was thus brought under the civil rules,

he filed it in his criminal case, and it challenged a criminal forfeiture order in his

criminal case. Masilotti’s appeal—despite being an appeal of the district court’s

denial of a Rule 60(b) motion—is a continuation of his criminal case. See Fed. R.

Crim. P. 1 (stating that the Federal Rules of Criminal Procedure “govern . . . in all

criminal proceedings”). Accordingly, we use Rule 4(b) to determine the timeliness

of Masilotti’s appeal.

      Under Rule 4(b)’s 14-day period, Masilotti’s notice of appeal from the

October 3rd order, filed on October 18, 2011, is not timely but was one day late. 3


      3
          Although the time limit in Rule 4(b) is not jurisdictional as to criminal appeals, if the
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But this does not resolve the matter because in criminal cases, this Court (1) may

treat a notice of appeal filed fewer than 30 days late as a motion for extension of

time to appeal under Rule 4(b)(4), and (2) may remand to the district court for a

determination of whether good cause or excusable neglect exists to justify an

extension. See United States v. Ward, 696 F.2d 1315, 1317-18 (11th Cir. 1983);

see also, e.g., United States v. Frandsen, 212 F.3d 1231, 1234 (11th Cir. 2000).

       Moreover, while this appeal was pending, Masilotti filed with the district

court a nunc pro tunc motion for an extension of time to file his notice of appeal,

pursuant to Federal Rule of Appellate Procedure 4(b)(4), based on his counsel’s

excusable neglect and the existence of good cause. The district court granted the

motion over the government’s objections. Therefore, we need not remand because

we already know the answer. The district court has indicated it would grant the

needed one-day extension. Thus, we deny the government’s request to dismiss

Masilotti’s appeal as untimely and turn to the merits of his appeal. 4

B.     The Merits of Masilotti’s Appeal

       The district court denied Masilotti’s Rule 60(b) motion on the basis that

Masilotti cannot challenge the forfeiture entered in his criminal case through, or

based on, a civil motion under the Federal Rules of Civil Procedure. We agree.


government raises the issue of timeliness, as it has done here, this Court “must apply the time
limits of Rule 4(b).” United States v. Lopez, 562 F.3d 1309, 1313-14 (11th Cir. 2009).
        4
          Accordingly, the government’s separate motion to dismiss the appeal or, in the
alternative, remand the case to the district court is DENIED.
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See United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (per curiam).

As this Court said in Mosavi,

      [t]he judgment and the order that the defendant contests were entered,
      not in a civil case, but in a criminal case, and a proper appeal of the
      forfeitures should have been raised in the defendant’s criminal appeal
      of his conviction and sentence. Rule 60(b) simply does not provide
      for relief from judgment in a criminal case, and as such the defendant
      cannot challenge the criminal forfeitures at issue under Fed. R. Civ. P.
      60(b).

Id. (emphasis added). The district court correctly denied Rule 60(b) relief.

      Masilotti contends that Mosavi is distinguishable because it involved a

forfeiture under 18 U.S.C. § 982, which specifically applies to criminal forfeiture,

while his forfeiture order was under 18 U.S.C. § 981, which governs civil

forfeiture. Masilotti is wrong because his forfeiture was not a civil forfeiture under

§ 981. The forfeiture order here was entered in Masilotti’s criminal case pursuant

to the Federal Rules of Criminal Procedure and made part of his criminal sentence

as explicitly permitted under 28 U.S.C. § 2461(c). The forfeiture of Masilotti’s

property was a criminal forfeiture proceeding, not a civil proceeding.

      Alternatively, Masilotti argues that the district court should have exercised

its inherent equitable jurisdiction to grant him a writ of error coram nobis. Here

Masilotti did not file a petition for a writ of error coram nobis. Rather, in response

to the government’s memorandum opposing his motion to vacate, Masilotti

referenced the district court’s inherent equitable powers as an alternative basis of


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relief. The magistrate judge’s report, which the district court adopted, rejected

Masilotti’s equitable-jurisdiction argument. We do too. We need not decide if a

writ of error coram nobis would ever pertain here because on the particular record

before us, Masilotti fails to carry his burden of demonstrating that the district court

erred in declining to exercise its inherent equitable jurisdiction. 5

                                     III. CONCLUSION

       For the foregoing reasons, we affirm the district court’s denial of Masilotti’s

Rule 60(b) motion.

       AFFIRMED.




       5
         We note that Masilotti, in his plea agreement, expressly waived his right to challenge the
forfeiture here. His waiver explicitly encompassed all “constitutional, legal and equitable
defenses” to the forfeiture, including any challenges on Eighth Amendment grounds. Masilotti
does not contend that his waiver was not knowing or involuntary and thus unenforceable. See
United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993) (holding that a sentence appeal
waiver will be enforced if it was made knowingly and voluntarily).

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