             Case: 17-13092    Date Filed: 08/01/2019   Page: 1 of 11


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-13092
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:11-cr-20474-UU-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

RODGER GONZALEZ, JR.,
a.k.a. Roger Gonzalez, Jr.,
a.k.a. Roger Gonzalez Valdez, Jr.,

                                                            Defendant-Appellant.

                          ________________________

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

                                 (August 1, 2019)

Before JILL PRYOR, BRANCH and ANDERSON, Circuit Judges.

PER CURIAM:
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      Roger Gonzalez, Jr., proceeding pro se, appeals several district court orders

denying his motion for return of property, motion for retention of property, and

emergency motion for reconsideration. For the reasons that follow, we affirm the

denial of each of Gonzalez’s motions.

                                 I.   BACKGROUND

      In 2011, pursuant to a written plea agreement, Gonzalez pleaded guilty to

one count of knowingly carrying a firearm during and in relation to a crime of

violence and a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)

and (2), respectively. Gonzalez admitted to participating in the robberies

referenced in the indictment and agreed to pay any restitution owed the victims of

those crimes. Specifically, he agreed to the entry of an Order of Restitution in the

sum of $148,110.63. The district court then ordered Gonzalez to pay restitution in

the amount of $148,110.63 and noted that Gonzalez’s scheduled payments over

time “do not preclude the government from using other assets or income of the

defendant to satisfy the restitution obligations.”

      On June 27, 2012, Gonzalez was sentenced. Gonzalez did not appeal his

conviction, sentence, or restitution order.

      More than four years post-conviction, in January 2017, Gonzalez filed a pro

se Motion for Return of Property, pursuant to Rule 41(g) of the Federal Rules of




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Criminal Procedure,1 and requested that the government return any items that

might have been held because they were seized during the investigation that

resulted in his conviction. In his motion, Gonzalez asserted that he was the

“rightful owner” of the items.

       The government responded on February 3, 2017, and provided a list of

items, identified as (a)–(l), that were seized as evidence pursuant to the

investigation and had been taken from Gonzalez’s person or vehicle, and agreed to

return items (a)–(k), including a box of five cellular phones. The government

declined to return item (l), which was listed as “$680 in US Currency.” The

government opposed the return of $680 because Gonzalez owed $148,110.63 in

restitution; it reasoned that the $680 should therefore be applied to his outstanding

restitution obligation. 2

       On February 20, 2017, the district court found that Gonzalez’s motion was

moot as to items (a)–(k) because the government had agreed to return those items.

Regarding the remaining item—the $680 in US currency—the court found that the

government had properly identified the money as subject to the restitution order.

The district court thus ordered that it be transferred to the Clerk of Court in the


1
  “A person aggrieved by an unlawful search and seizure of property or by the deprivation of
property may move for the property’s return.” Fed. R. Crim. P. 41(g)
2
  We need not reach the issue of whether the Mandatory Victim’s Restitution Act (“MVRA”), 18
U.S.C. § 3663A, imposes a lien in favor of the United States on all property and rights to
property of Gonzalez. As discussed herein, Gonzalez is not entitled to the return of the $600. As
to the $80, Gonzalez concedes that the $80 should be applied to his restitution amount.
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U.S. District Court for the Southern District of Florida’s Financial Section to be

applied to the outstanding restitution, in accordance with 18 U.S.C. § 3612.

      After the district court issued its February 20 Order, the government filed a

supplemental response to Gonzalez’s original motion to return property indicating

that the government had learned that there were additional items in its possession.

In this supplemental response, filed on March 7, 2017, the government identified

three categories of items: Group 1: additional items to be returned; Group 2: items

to be destroyed; and Group 3: women’s jewelry. As to the Group 3 items, the

government stated that Gonzalez would have 60 days to make a claim by

demonstrating that the jewelry was his, either by receipt or affidavit. The

government would then auction the jewelry that he proved ownership of and apply

the proceeds toward the restitution amount he still owed.

      Gonzalez then filed a Motion for Reconsideration of the district court’s

February 20 order, arguing that the court entered the order prematurely because

$600 of the $680 belonged to his mother and should not have been applied to his

restitution. Gonzalez also stated that he would submit an affidavit by his mother in

support of his newly-raised argument that $600 of the $680 belonged to her. He

requested that the court return the $600 or treat her affidavit as a third party claim

pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure. He asked the

court to reconsider its order denying as moot his return of property and grant him


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an extension of time for him to file a notice of appeal while his motion for

reconsideration was pending.

      Gonzalez concurrently filed a Motion for Retention of Property, asking the

court to order that all property seized from him during the course of the

investigation be held until his motion for reconsideration had been resolved or he

appealed.

      On March 13, 2017, Gonzalez’s mother, Maria Ortega, filed an affidavit

stating that $600 of the $680 that was seized belonged to her. In response, the

government argued that Gonzalez did not have standing to assert a claim against

the $600 and, regardless, such a claim would be moot because the money had been

transferred to the clerk per the district court’s prior order.

      On March 22, 2017, the court ordered Gonzalez to file any and all objections

to the government’s supplemental response by March 31, 2017. The court then

granted Gonzalez’s motion for an extension of time to file a consolidated response

to the government’s initial response and supplemental response. This extension set

April 27, 2017 as the new deadline for Gonzalez to respond.

      On May 5, 2017, the district court granted Gonzalez’s motion for

reconsideration in part, explaining that it had reconsidered his motion for return of

property but decided to deny it. The court noted that Gonzalez had failed to file a

response or objections to the government’s initial response or supplemental


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response despite being granted an extension to do so through and including April

27, 2017. The court reasoned that, therefore, Gonzalez’s argument that he did not

have an opportunity to respond to the government’s initial response was moot. 3

The court found Gonzalez’s claim regarding his cellular phones moot because the

government had returned or offered to return a box containing five cellular phones.

Notably, the court also found it troubling that Gonzalez now claimed that $600 of

the seized money belonged to his mother—a third party—but did not make that

claim initially in his Motion for Return of Property. The district court concluded

that Gonzalez had no standing to request the return of money belonging to a third

party, and thus his claim was moot. The court also denied Gonzalez’s motion for

retention of property.

       On May 8, 2017, Gonzalez’s “Consolidated Reply in Opposition to the

United States Response to his Pending Motion for Return of Property” was

docketed. Gonzalez had signed the document on April 26, 2017, stating under

penalty of perjury that he had deposited it into the internal mail system for

processing by prison officials on that same date.




       3
         Gonzalez also claimed that he had not received a property invoice from the government.
However, the court found Gonzalez’s claim to be moot because the government had provided a
copy of the invoice to Gonzalez and his representatives on multiple occasions and had attached a
copy of it as an exhibit to previous filings that were sent to Gonzalez.
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      On May 8, presumably without knowledge of Gonzalez’s consolidated reply,

the district court issued an order substantively identical to its May 5 order denying

his motion for return of property. The court again denied his motion for retention

of property.

      Gonzalez then filed an “Emergency Motion for Reconsideration of the

Court’s Adjudication of the Motion for Return of Property,” which asked the

district court to reconsider the four orders it had issued on May 5 and May 8. In

his Motion for Reconsideration, Gonzalez specifically mentioned that his

consolidated reply was timely filed. The district court denied Gonzalez’s Motion

for Reconsideration on June 20, 2017. In doing so, the district court noted that it

had “reviewed the Motion” and was “fully advised in the premises.”

      Gonzalez filed a notice of appeal as to the district court’s orders of May 5,

May 8, and June 20. Gonzalez also filed a motion for retention of property, asking

this Court to order the government to retain all disputed property pending the

outcome of his appeal, which motion this Court denied.

                    II.   MOTION FOR RECONSIDERATION

      Gonzalez alleges the district court abused its discretion in denying his

Motion for Reconsideration because it failed to take into account his timely-filed

consolidated reply. We review the denial of a motion for reconsideration for abuse

of discretion. Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010).


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      Simply because the district court denied Gonzalez’s motion for

reconsideration does not mean that the district court did not consider Gonzalez’s

consolidated reply. To the contrary: the May 18 motion for reconsideration

specifically noted the timeliness of his consolidated reply and the district court’s

June 20 order explicitly stated that the court had “reviewed the Motion [for

Reconsideration]” and was “fully advised in the premises.” Gonzalez’s argument

is refuted by the plain language of the order, which assures us that the district court

did, in fact, consider the motion for reconsideration and underlying pleadings

before it. Because the district court reviewed his motion for reconsideration which

included his consolidated reply, Gonzalez’s argument that the district court abused

its discretion for not considering his consolidated response fails.

      III.   MOTIONS FOR RETURN AND RETENTION OF PROPERTY

      Gonzalez also challenges on appeal the district court’s denial of his motions

for return and motion for retention of property, arguing that the $600 purportedly

belonging to his mother was improperly applied to his restitution. Gonzalez

initially claimed the $680 belonged to him before changing his position and

asserting that $600 belonged to his mother. The district court found such a change

in argument to be “troubling” and denied Gonzalez’s motions because it

determined Gonzalez lacked standing to bring such claim and that such a claim

was moot. The government agrees with the district court’s determination that the


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entire $680 was subject to the 2012 Restitution Order and argues that the district

court correctly denied Gonzalez’s motion because, if the money belongs to

Gonzalez’s mother, Gonzalez lacks “standing to seek the return of property

belonging to a third party.”

      “Rule 41(g) rulings are based on a balancing of the equities and are reviewed

under the abuse of discretion standard. Balancing the equities is a matter for the

district court in the first instance.” United States v. De La Mata, 535 F.3d 1267,

1279 (11th Cir. 2008) (citing United States v. Machado, 465 F.3d 1301, 1307 (11th

Cir. 2006)). We may affirm on any ground supported by the record. Trotter v.

Sec’y, Dep’t of Corr., 535 F.3d 1286, 1291 (11th Cir. 2008) (quoting Welding

Servs., Inc. v. Forman, 509 F.3d 1351, 1356 (11th Cir. 2007) (internal quotations

omitted)).

      “A person aggrieved by an unlawful search and seizure of property or by the

deprivation of property may move for the property’s return.” Fed. R. Crim. P.

41(g). “A motion to return seized property under Fed.R.Crim.P. 41(g), is a motion

in equity, in which courts will determine all the equitable considerations in order to

make a fair and just decision.” United States v. Howell, 425 F.3d 971, 974 (11th

Cir. 2005). “In order for an owner of property to invoke Rule 41(g), he must show

that he had a possessory interest in the property seized by the government.” Id.




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      As a threshold matter, it was squarely within the district court’s discretion to

view Gonzalez’s shifting ownership arguments with skepticism. Young v City of

Palm Bay, 358 F.d 859, 863–64 (11th Cir. 2004). The district court’s “range of

options [] included refusing to consider untimely filings,” and the district court was

not required to consider Gonzalez’s untimely arguments about the ownership of the

$600. Id. at 864.

      To the extent that Gonzalez has any possessory or ownership interest in the

$600, the money is subject to the restitution order. Although “the person from

whom the property was seized is presumed to have a right to its return,” the

government may rebut the owner’s allegations with evidence “that it has a

legitimate reason to retain the property.” United States v. Potes Ramirez, 260 F.3d

1310, 1314 (11th Cir. 2001) (quoting United States v. Chambers, 192 F.3d 374,

377 (3d Cir. 1999)). Here, the government has done so by providing evidence that

Gonzalez’s unsatisfied restitution order created liens against the property in the

government’s possession. Because the restitution lien could be enforced and the

$600 applied to Gonzalez’s restitution, the government demonstrated a legitimate

reason to retain the property. The restitution evidence also effectively mooted

Gonzalez’s motions because, having shown that the money would be applied to

restitution, it no longer mattered whether Gonzalez had a possessory interest in the

funds. Even if we assume Gonzalez had a possessory interest in the $600


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sufficient to invoke Rule 41(g), the district court would have denied Gonzalez’s

motions and applied the $600 to his unsatisfied restitution. Thus, the district court

did not abuse it discretion in denying Gonzalez’s motions as moot.

       We also consider Gonzalez’s argument that his motions for return and

motion for retention of property should prevail because the $600 belongs to his

mother. Generally, however, “a party may not appeal to protect the rights of

others.” 15A C. Wright, A. Miller, & H. Cooper, Federal Practice and Procedure

§ 3902, at 68. Thus, Gonzalez cannot appeal the district court’s order to the extent

that the $600 belongs to his mother.4

       Accordingly, the district court did not err in denying Gonzalez’s motions for

return of property. Therefore, we affirm.

       AFFIRMED.




4
 At this time, no third party claim has been submitted for the currency at issue. Accordingly, we
do not opine whether any other processes remain available to Gonzalez’s mother (the purported
owner of the $600) to seek the return of the property on her own behalf.
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