              Case: 13-13960     Date Filed: 09/22/2014   Page: 1 of 11


                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                           Nos. 13-13960, No. 13-14542
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:11-cr-20684-PAS-1


UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                        versus

LAZARO PRAT,

                                                                Defendant-Appellant.
                           ________________________

                   Appeals from the United States District Court
                       for the Southern District of Florida
                          ________________________
                              (September 22, 2014)

Before HULL, WILLIAM PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      In this consolidated appeal, Lazaro Prat, a pro se federal prisoner, appeals:

(1) the district court’s denial of his motion for return of property under Federal

Rule of Criminal Procedure 41(g); and (2) its final order of forfeiture entered after
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ancillary proceedings to resolve third-party claims to properties Prat previously

forfeited (pursuant to his guilty plea in his criminal proceedings). After review, we

affirm the district court’s denial of Prat’s Rule 41(g) motion and dismiss Prat’s

appeal of the final forfeiture order for lack of subject matter jurisdiction.

                                     I. BACKGROUND

A.     Prat’s Guilty Plea and Agreement to Forfeit Property

       Pursuant to a written plea agreement, Prat pled guilty to conspiracies to

commit healthcare fraud and money laundering. In the plea agreement, Prat also

agreed (1) to forfeit to the United States all of his rights, title, and interest in a list

of properties, including amounts in certain bank accounts, real property, and two

vehicles, and (2) that all the listed properties were involved in or traceable to his

offenses, pursuant to 18 U.S.C. § 982(a)(1).

       In his plea agreement, Prat further agreed to waive various defenses to the

forfeiture, to waive his right to appeal the forfeiture, and to waive his right to

appeal his sentence, with limited exceptions not relevant to this appeal. 1 Prat also

signed a factual proffer stating, inter alia, that he had used funds from his




       1
         Prior to briefing, the government filed a motion to dismiss Prat’s appeal as barred by his
appeal waivers in his plea agreement. This Court denied the government’s motion without
prejudice to raise the issue again in its merits brief. The government, however, has not raised the
appeal-waiver issue in its merits brief. Therefore, we assume arguendo that the provisions of
Prat’s plea agreement waiving his rights to appeal do not preclude his appeal of the district
court’s denial of his Rule 41(g) motion.
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fraudulent scheme to purchase the real and personal property that he had agreed to

forfeit in his plea agreement.

      During Prat’s plea hearing, the district court engaged in a lengthy discussion

with the parties concerning the forfeiture. At the end of that discussion, Prat

affirmed that he understood he was relinquishing any interest he might have in the

properties listed as subject to forfeiture in his plea agreement. The district court

accepted Prat’s guilty plea, finding that it was knowing, voluntary, and adequately

supported by a factual basis.

B.    Preliminary Forfeiture Orders

      In September 2012, upon the government’s motion, the district court entered

a preliminary forfeiture order covering all the properties listed as subject to

forfeiture in Prat’s plea agreement. The order indicated the preliminary forfeiture

would become final at sentencing, would become part of Prat’s sentence, and

would be included in the judgment and commitment order.

      In November 2012, the government, with Prat’s consent, filed a motion for a

second preliminary forfeiture order adding two more pieces of real property. The

district court granted the motion and entered a second preliminary forfeiture order

covering those two properties.

C.    Sentencing




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      At Prat’s December 19, 2012 sentencing hearing, the district court calculated

an advisory guidelines range of 135 to 168 months’ imprisonment and imposed a

total sentence of 135 months. The government asked the court to incorporate the

preliminary forfeiture orders into the judgment, and the court agreed without

objection from Prat.

      Two days later, on December 21, 2012, the district court entered a judgment

against Prat. Concerning the forfeiture, the judgment stated that Prat shall forfeit

to the United States the properties listed in the preliminary forfeiture order entered

in September 2012 and incorporated that order by reference. On December 26,

2012, the district court entered an amended judgment against Prat that altered the

forfeiture language to incorporate by reference the November 2012 preliminary

forfeiture order as well.

      Prat did not appeal his convictions, sentences, or the forfeiture orders.

D.    Rule 41(g) Motion

      In January 2013, the district court began an ancillary proceeding to resolve

the claims of several third parties who asserted interests in some of the properties

identified in the preliminary forfeiture orders. See 18 U.S.C. § 982(b)(1)

(providing that forfeiture under the statute is governed by the provisions of 21

U.S.C. § 853); 21 U.S.C. § 853(n)(2) (providing for third-party petitions for a

hearing to adjudicate the validity of third-party interests in forfeited property); see


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generally United States v. Davenport, 668 F.3d 1316 (11th Cir. 2012) (describing

the ancillary proceedings in § 853(n) to adjudicate third-party claims).

       On August 15, 2013, during the pendency of the ancillary proceeding, Prat

filed a pro se motion for the return of property pursuant to Rule 41(g) and to

dismiss the ancillary proceeding. Prat argued that his interest in the properties

listed in his plea agreement was never forfeited because the district court failed to

enter a forfeiture order “during the oral pronouncement of sentencing” or “as part

of the written judgment.” Therefore, Prat contended, the government’s continued

seizure of his properties was unlawful.

       The government responded, stressing (1) that Prat consented to the forfeiture

as part of his guilty plea; (2) the district court expressly pronounced the forfeiture

at sentencing; and (3) the district court incorporated both preliminary forfeiture

orders in its amended judgment. On August 19, 2013, the district court denied

Prat’s motion for the reasons given by the government.

       After entering into a stipulated settlement agreement with the third-party

claimants, the government moved the district court for entry of a final order of

forfeiture. On September 17, 2013, the district court entered a final order of

forfeiture resolving the third parties’ interests. 2 Prat appealed the district court’s



       2
         Pursuant to these approved settlement agreements, the United States released two pieces
of real property for lack of equity and a third piece of real property was dismissed from the
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August 19, 2013 order denying his Rule 41(g) motion and its September 17, 2013

final forfeiture order.

                                     II. DISCUSSION

A.     District Court’s Forfeiture Orders as to Prat

       On appeal, Prat primarily argues that the properties listed in his plea

agreement were never lawfully forfeited because the district court’s oral

pronouncement of Prat’s sentence at the sentencing hearing failed to include the

forfeiture of his properties. In response, the government points out that the record

belies Prat’s claim because at sentencing the district court agreed to the

government’s request that the preliminary orders of forfeiture be incorporated into

the judgment. In any event, to the extent Prat attacks the propriety or legality of

the forfeiture of his properties, his appeal is untimely under Federal Rule of

Criminal Procedure 4(a).

       “[C]riminal forfeiture is part of a defendant’s sentence.” United States v.

Gilbert, 244 F.3d 888, 924 (11th Cir. 2001). With respect to the defendant (as

opposed to third-party claimants), the district court’s preliminary forfeiture orders

become final at his sentencing. See Fed. R. Crim. P. 32.2(b)(4)(A); United States

v. Petrie, 302 F.3d 1280, 1284 (11th Cir. 2002) (“At sentencing, the order of




November preliminary forfeiture order, but the remaining properties were forfeited to the United
States.
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forfeiture becomes final as to the defendant and is made a part of the sentence and

included in the judgment.” (quotation marks omitted)).

      A defendant’s time to file an appeal from a criminal forfeiture order begins

to run when the judgment is entered. Fed. R. Crim. P. 32.2(b)(4)(C). Therefore,

Prat had fourteen days from December 26, 2012—the date the district court entered

the amended judgment on the docket—or until January 9, 2013, to file a timely

appeal of the forfeiture orders. See Fed. R. App. P. 4(b)(1)(A)(i). Prat, however,

did not appeal his convictions or sentences, including the district court’s forfeiture

orders.

      Instead, on August 13, 2013, Prat filed a Rule 41(g) motion and then filed a

notice of appeal of the denial of his Rule 41(g) motion on August 27, 2013. Thus,

as the government contends in its appeal brief, Prat’s attempt to attack the

forfeiture orders in this appeal is untimely. See United States v. Lopez, 562 F.3d

1309, 1313-14 (11th Cir. 2009) (explaining that, although Rule 4(b)’s ninety-day

filing deadline is not jurisdictional, we must apply Rule 4(b)’s time limits upon

objection by the government, which may be raised for the first time in its brief on

appeal). Accordingly, to the extent Prat seeks review of the district court’s

forfeiture orders, we dismiss his appeal.

B.    District Court Denial of Prat’s Rule 41(g) Motion




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       Under Rule 41(g), “[a] person aggrieved by an unlawful search and seizure

of property . . . may move for the property’s return.” Fed. R. Crim. P. 41(g).

When the property owner “invokes Rule 41(g) after the close of all criminal

proceedings, the court treats the motion for return of property as a civil action in

equity.” 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,” and that he has

“clean hands” with respect to the property. Id. 3

       Here, the district court properly denied Prat’s Rule 41(g) motion. The

undisputed facts in the record demonstrate that, at the time of his Rule 41(g)

motion, Prat no longer had a possessory interest in the forfeited properties. As part

of his plea agreement, Prat agreed that the listed properties were subject to

forfeiture and agreed to give up all interest in them. At his plea hearing, Prat

voluntarily pled guilty and explicitly affirmed that he was relinquishing any

interest in the properties. And, finally, Prat did not appeal his sentence and raise a

challenge to the forfeiture. Given that Prat already had voluntarily forfeited the

properties at the time of this Rule 41(g) motion, he no longer had a possessory

interest.

       3
         We review questions of law relating to a Rule 41(g) motion de novo, but review “the
equitable equation of the district court’s decision to deny a Rule 41(g) motion only for abuse of
discretion.” United States v. Machado, 465 F.3d 1301, 1307 (11th Cir. 2006), abrogated on other
grounds by Bowles v. Russell, 551 U.S. 205, 208-13, 127 S. Ct. 2360, 2363-66 (2007).
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         In addition, Prat undisputedly had “unclean hands.” As part of his guilty

plea, Pratt admitted that he had used funds obtained from his fraud scheme to

purchase the property he had agreed to forfeit. Given these undisputed facts, the

district court did not abuse its discretion in denying him equitable relief under Rule

41(g).

         Furthermore, because the undisputed facts showed that Prat was not entitled

to relief under Rule 41(g), the district court was not required to hold an evidentiary

hearing before denying his Rule 41(g) motion. See Fed. R. Crim. P. 41(g)

(requiring the district court to “receive evidence on any factual issue necessary to

decide the motion”); see also Howell, 425 F.3d at 974 (concluding that the

“uncontradicted facts” showed the defendant did not have a possessory interest in

the $140,000 the government gave a cooperating source to purchase cocaine from

the defendant). For these reasons, Prat has shown no error in the district court’s

denial of his Rule 41(g) motion.

C.       District Court’s Final Order of Forfeiture as to Third Party Claimants

         When the district court enters a preliminary order of forfeiture against the

defendant, it does so “without regard to any third party’s interest in the property,”

and “[d]etermining whether a third party has such an interest” is deferred until the

third party “files a claim in an ancillary proceeding . . . .” Fed. R. Crim. P.

32.2(b)(2)(A). As such, the preliminary forfeiture order “remains preliminary as to


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third parties until the ancillary proceeding is concluded.” Fed. R. Crim. P.

32.2(b)(4)(A).

      After entry of the criminal forfeiture order against the defendant, “[a]ny

person, other than the defendant, asserting a legal interest” in the forfeited property

may “petition the court for a hearing to adjudicate the validity of his alleged

interest in the property.” 21 U.S.C. § 853(n)(2) (emphasis added); see also Fed. R.

Crim. P. 32.2(c)(1) (“If, as prescribed by statute, a third party files a petition

asserting an interest in the property to be forfeited, the court must conduct an

ancillary proceeding . . . .”). After the ancillary proceeding has ended, “the court

must enter a final order of forfeiture by amending the preliminary order as

necessary to account for any third-party rights.” Fed. R. Crim. P. 32.2(c)(2).

“Because the final order of forfeiture has no bearing on the defendant’s rights, the

defendant has no right to appeal that order.” United States v. Flanders, 752 F.3d

1317, 1343 (11th Cir. 2014) (dismissing defendant’s appeal of a post-ancillary

proceeding final order of forfeiture for lack of standing).

      Here, as already discussed, the preliminary orders of forfeiture became final

as to Prat at his sentencing. See Fed. R. Crim. P. 32.2(b)(4)(A). Thus, Prat no

longer had any interest in the properties at issue in the ancillary proceeding. The

district court’s final order of forfeiture determining third-party rights to the

forfeited properties “ha[d] no bearing on” Prat’s rights, and Prat lacked standing to


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appeal that order. See Flanders 752 F.3d at 1343. Accordingly, we dismiss Prat’s

appeal for lack of jurisdiction to the extent he challenges the district court’s

September 17, 2013 final order of forfeiture regarding the third-party claimants.

      AFFIRMED IN PART; DISMISSED IN PART.




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