United States v. Lost Creek Trust, No. 18-30122 (9th Cir. 2019)

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In this court order, the Ninth Circuit held that an appeal from a third-party proceeding ancillary to a criminal forfeiture action should be treated as a civil appeal for purposes of applying Federal Rule of Appellate Procedure 40(a). Therefore, the panel granted Lost Creek Trust's motion to reconsider and withdrew the mandate. Lost Creek Trust's petitions for panel rehearing and rehearing en banc are ordered filed and the clerk shall circulate the petition for rehearing en banc to the whole court.

Court Description: Fed. R. App. P. 40(a). The panel filed an order granting a motion to reconsider its denial of petitions for panel rehearing and rehearing en banc as untimely, ordered the petitions filed, and withdrew the mandate, in a case in which this court on May 13, 2019, affirmed the district court’s final order in a third-party proceeding ancillary to a criminal forfeiture action. The panel held that an appeal from a third-party proceeding ancillary to a criminal forfeiture action should be treated as a civil appeal for purposes of determining the deadline to file a petition for panel rehearing or rehearing en banc under Fed. R. App. P. 40(a).

This opinion or order relates to an opinion or order originally issued on May 13, 2019.

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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 18-30122 D.C. No. 2:03-cr-00069EJL-1 v. CHRISTOPHER CLOSE, Defendant, ORDER and LOST CREEK TRUST, Claimant-Appellant. Filed August 9, 2019 Before: Richard A. Paez and Carlos T. Bea, Circuit Judges, and C. Ashley Royal, * District Judge. * The Honorable C. Ashley Royal, United States District Judge for the Middle District of Georgia, sitting by designation. 2 UNITED STATES V. LOST CREEK TRUST SUMMARY ** Fed. R. App. P. 40(a) The panel filed an order granting a motion to reconsider its denial of petitions for panel rehearing and rehearing en banc as untimely, ordered the petitions filed, and withdrew the mandate, in a case in which this court on May 13, 2019, affirmed the district court’s final order in a third-party proceeding ancillary to a criminal forfeiture action. The panel held that an appeal from a third-party proceeding ancillary to a criminal forfeiture action should be treated as a civil appeal for purposes of determining the deadline to file a petition for panel rehearing or rehearing en banc under Fed. R. App. P. 40(a). COUNSEL Arthur M. Bistline, Bistline Law PLLC, Coeur d’Alene, Idaho, for Claimant-Appellant. William Humphries and Kevin T. Maloney, Assistant United States Attorneys; Bart M. Davis, United States Attorney; Office of the United States Attorney, Boise, Idaho; for Plaintiff-Appellee. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. LOST CREEK TRUST 3 ORDER We are presented with the issue whether an appeal of a third-party proceeding ancillary to a criminal forfeiture action should be treated as a “civil” or “criminal” case for purposes of determining the deadline to file a petition for panel rehearing or rehearing en banc under Federal Rule of Appellate Procedure 40(a). In a similar context, we have held that for purposes of determining the timeliness of an appeal related to a third-party petition to amend a criminal forfeiture order, the third-party proceeding will be considered “civil in nature.” United States v. AlcarazGarcia, 79 F.3d 769, 772 n.4 (9th Cir. 1996). We see no reason to depart from that approach in this context. We therefore hold that an appeal from a third-party proceeding ancillary to a criminal forfeiture action should be treated as a civil appeal for purposes of applying Rule 40(a). Accordingly, Appellant Lost Creek Trust’s motion to reconsider (Dkt. No. 34) is GRANTED. The mandate is withdrawn. Appellant Lost Creek Trust’s petitions for panel rehearing and rehearing en banc (Dkt. No. 30) are ordered filed. The clerk shall circulate the petition for rehearing en banc to the whole court.

Primary Holding

An appeal from a third-party proceeding ancillary to a criminal forfeiture action should be treated as a civil appeal for purposes of applying Federal Rule of Appellate Procedure 40(a).

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