                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 05-12497                   DEC 13, 2006
                            Non-Argument Calendar            THOMAS K. KAHN
                          ________________________               CLERK


                     D. C. Docket No. 01-00003-CR-3-LAC

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

ERIC WATKINS,

                                                           Defendant-Appellant.
                          ________________________

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

                              (December 13, 2006)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      This is Eric Watkins’s second appearance before this Court. We previously

affirmed his conviction and 121-month sentence for conspiracy to possess with

intent to distribute cocaine, in violation of 21 U.S.C. § 841 and 846. See United
States v. Watkins, No. 01-14357 (11th Cir. Jun. 10, 2002) (unpublished) (“Watkins

I”). Watkins now appeals the district court’s denial of his motion, filed pursuant to

Fed. R. Crim. P. 41(g), to return property seized during criminal forfeiture

proceedings that took place after his sentencing hearing.        At the sentencing

hearing, the government noted that it intended to submit a forfeiture order and the

district court, which had already entered a preliminary forfeiture order (“PFO”),

found that forfeiture was “appropriate.” The government subsequently moved for,

and the district court entered, a final forfeiture order (“FFO”) after Watkins had

filed his appeal in Watkins I. On appeal, Watkins argues that the district court

erred by not issuing an FFO at his sentencing hearing as part of his “sentencing

package” and by not including the forfeiture in its final written judgment. Because

Watkins never filed a notice of appeal from the underlying FFO, we lack

jurisdiction to review it. After careful review, we discern no abuse of discretion in

the district court’s denial of Watkins’s Rule 41(g) motion and accordingly affirm.

      When reviewing a district court’s denial of a motion for the return of seized

property, we review questions of law de novo and factual findings for clear error.

United States v. Howell, 425 F.3d 971, 973 (11th Cir. 2005).         We review the

district court’s application of Fed. R. Crim. P. 36 de novo.       United States v.

Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004).



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      The procedural history is as follows.      After a jury trial, in May 2001,

Watkins was convicted of conspiracy to possess with intent to distribute cocaine, in

violation of 21 U.S.C. §§ 841 and 846. The jury also returned a special verdict,

pursuant to 21 U.S.C. § 853(a)(1) and (2), finding that Watkins should forfeit

$100,000. On May 24, 2001, the government moved for a PFO of the properties

identified in the jury’s special verdict.    From our review of the record, the

foregoing motion was served on Watkins, but he did not file a response. On May

29, 2001, the district court granted the government’s motion and entered a PFO

ordering Watkins to forfeit $100,000.

      At the sentencing hearing, on July 24, 2001, after pronouncing Watkins’s

121-month sentence, the district court asked if there were “forfeiture items” that

needed to be addressed, to which the government responded that it intended to

submit a draft FFO, but that the court was required to make a finding, on the record

at the sentencing hearing, as to whether forfeiture was appropriate.     The court

found that forfeiture was “appropriate,” and the probation officer recommended

that the court should include language from United States v. Gilbert, 244 F.3d 888

(11th Cir. 2001). The district court then reiterated that forfeiture was appropriate

“[i]n accordance with U.S. v. Gilbert.” There were no objections to the foregoing

procedure.



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      On July 31, 2001, the court entered a written criminal judgment, which did

not include any mention of forfeiture, and Watkins filed his notice of appeal in

Watkins I. The following day, the government filed its motion for an FFO, noting

that the trial court had included forfeiture in its oral pronouncement of sentence.

Watkins did not file any objections or otherwise respond. On August 3, 2001,

three days after the criminal judgment was entered and eight business days after

sentencing, the district court entered an FFO. At no point did Watkins appeal from

the FFO.

      On August 31, 2001, the government filed a “Motion and Memorandum to

Forfeit Substitute Property,” pursuant to 21 U.S.C. § 853(p), seeking the forfeiture

of $68,380 in cash, which previously had been seized from Watkins’s property.

Watkins filed a response to the Motion, but he did not challenge the underlying

forfeiture and instead argued that the identified $68,380 was not related to his

conviction.   The district court granted the government’s motion, finding that

Watkins already had disposed of the $100,000 specified in the original forfeiture

order. Thereafter, on November 14, 2001, the government filed a motion to amend

the FFO, which the district court granted in an order reflecting that forfeiture of the

$68,380 was in partial satisfaction of the original $100,000 forfeiture amount.




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      Watkins then filed a “Motion to Modify or Set [Aside] Order Forfeiting

Substitute Property,” arguing that the government’s Motion to Substitute Forfeiture

Property had not been addressed in open court, and that he had not disposed of the

$100,000 in forfeited proceeds, such that the substitution of forfeiture property was

improper. Watkins also attempted to appeal the district court’s order granting the

government’s Motion to Substitute Forfeiture Property, but we dismissed the

appeal as untimely. Watkins then filed a “Second Motion For Final Judgement on

Defendant[‘s] Motion to Modify or Set Aside Order Forfeiting Substitute

Property.”

      The district court denied Watkins’s motion for modification of the

substitute-property order and granted his motion for final judgment. Watkins then

filed another appeal in this Court, this time from the order denying his motion to

modify or set aside judgment, but we dismissed the appeal for lack of jurisdiction,

because the appeal was untimely.

      On November 25, 2003, Watkins, now proceeding pro se, filed a “Motion

for Return of Property,” pursuant to Fed. R. Crim. P. 41(e), seeking return of the

$68,380. He argued that the issue of forfeiture was not addressed at sentencing or

made a part of the criminal judgment, and that the FFO was insufficient as it was

entered after the written criminal judgment. The government responded that the



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FFO entered three days after the final judgment was properly made a part of the

final judgment, as it had been discussed and forfeiture was ordered as part of the

oral pronouncement at sentencing. The government noted that the circuits were

split as to whether a court may amend a judgment to include an order of forfeiture

more than seven days after the entry of judgment, pursuant to Fed. R. Crim. P. 36.

      The magistrate judge denied Watkins’s motion to return property, stating

that the relief was denied for “the reasons stated in the government’s response” and

based on this Court’s decision in United States v. Arevalo, No. 02-15388 (11th Cir.

May 13, 2004) (unpublished).       Over Watkins’s objections, the district court

adopted the magistrate judge’s order. This appeal followed.

      As a preliminary matter, we must address the scope of our jurisdiction.

United States v. Cartwright, 413 F.3d 1295, 1299 (11th Cir. 2005); Gilchrist v.

State Farm Mut. Auto. Ins. Co., 390 F.3d 1327, 1330 (11th Cir. 2004) (noting that

“we are required, even sua sponte, to initiate an inquiry into our subject-matter

jurisdiction whenever we become concerned that it may not exist.”). We recently

held that we lacked jurisdiction to review a district court’s entry of an FFO where

the defendant had not timely appealed the order. See United States v. Machado,

465 F.3d 1301, 2006 WL 2796474 (11th Cir. 2006). Indeed, in Machado, just like

here, the defendant filed no appeal from the FFO which he asked us to set aside.



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Id., 2006 WL 2796474 at *3. We held that because the filing of a timely notice of

appeal was jurisdictional, Machado’s failure to file one stripped us of jurisdiction

to review the FFO order. Id.

       Here, the FFO was entered on August 3, 2001. Under Rule 4 of the Federal

Rules of Appellate Procedure, in a criminal case, a defendant who takes an appeal

as of right must file his notice of appeal “within 10 days after the later of . . . the

entry of either the judgment or the order being appealed . . . .” Fed. R. App. P.

4(b)(1)(A)(i). The district court may extend the 10-day period by up to thirty days

if a party shows excusable neglect. See Fed. R. App. P. 4(b)(4). “Even if there is

excusable neglect the latest a defendant may wait before appealing a final order in

a criminal case is forty days after it was entered.” Machado, 2006 WL 2796474 at

*2 (emphasis added).

       The deadlines of Federal Rule of Appellate Procedure 4 have long since

passed and Watkins did not file a timely notice of appeal from the FFO. Instead,

he filed numerous post-judgment motions, including the Rule 41(g) motion to

return seized property that forms the basis of this appeal. In short, our recent

decision in Machado makes clear that we lack jurisdiction to review the underlying

FFO.




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      Although we cannot review the underlying FFO, we retain jurisdiction to

review the district court’s denial of Watkins’s motion for return of property

because Watkins filed a timely notice of appeal from that order. Id. at *5. We

review legal issues connected to the 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.” Id.

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

seizure of property or by the deprivation of property may move for the property’s

return. The motion must be filed in the district where the property was seized.”

Fed. R. Crim. P. 41(g). “The district court can exercise equitable jurisdiction over

a Rule 41(g) motion filed after criminal proceedings have ended.” Machado, 2006

WL 2796474 at *5.        Notably, for the district court to exercise its equitable

jurisdiction, “the owner of the properly must have clean hands.”       Id. (internal

quotation marks omitted).

      As in Machado, it would be inequitable to return to Watkins “the fruits of

his crime,” and the district court did not abuse its discretion by denying the Rule

41(g) motion. Id. Although the defendant in Machado voluntarily forfeited his

property as part of a plea agreement, while Watkins has always maintained that the

substitute property ($68,380 in cash) was from a legitimate business he operated,



                                         8
the equities still are not in his favor.      The district court expressly rejected

Watkins’s suggestion that the $68,380 was not related to his illegal activities.

After Watkins filed an untimely appeal of that ruling, we dismissed the case for

lack of jurisdiction. Accordingly, under the law-of-the-case doctrine, the district

court’s determination about the $63,380 -- that it came from Watkins’s criminal

activities -- may not be relitigated here. See United States v. Jordan, 429 F.3d

1032, 1035 (11th Cir. 2005) (explaining that “[t]he law of the case doctrine bars

the relitigation of issues that were decided, either explicitly or by necessary

implication, in an earlier appeal of the same case” (internal citations and quotations

omitted)). We discern no abuse of discretion in the district court’s order denying

Watkins’s Rule 41(g) motion for return of forfeited property, which is the only

determination properly before us in this appeal. Accordingly, we affirm.

      AFFIRMED.




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