United States v. Elliott, Alfred

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
(Submitted August 31, 2005*)
Decided September 1, 2005
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Nos. 04-2282, 04-2463, 04-3384,
04-4208 & 04-4271
UNITED STATES OF AMERICA, Appeals from the United States
Plaintiff-Appellee, District Court for the
Northern District of Illinois,
v. Eastern Division.
ALFRED ELLIOTT, No. 88 CR 645
Defendant-Appellant.
Marvin E. Aspen, Judge.
ORDER
Before us is a set of consolidated appeals 15 years in the making. In June 1989
a federal jury in Chicago found attorney Alfred Elliott guilty on all counts of a 70-count
indictment charging him with racketeering, filing a false income tax return, and
multiple counts of wire fraud and securities fraud. On August 24 the district court
sentenced Elliott to a total of five years’ imprisonment to be followed by five years of
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, these appeals are submitted on the briefs and
the record. See Fed. R. App. P. 34(a)(2).
Nos. 04-2282, 04-2463, 04-3384, 04-4208 & 04-4271 Page 2
probation. The court also imposed a fine and special assessments totaling $334,800,
with the written judgment providing for “payments to be made during probation
period.” In addition, on August 23 the court entered a preliminary order of forfeiture
as to Elliott’s right, title, and interest in the amount of $352,581.93—the proceeds of
his racketeering activity—under the RICO forfeiture provision, 18 U.S.C. § 1963(a)(3).
United States v. Elliott, 727 F. Supp. 1126 (N.D. Ill. 1989). The court followed with a
final order of forfeiture in December 1989. Elliott filed a notice of appeal from the
judgment of conviction and the preliminary order of forfeiture, but we dismissed the
appeal in November 1989 after he absconded. Elliott was a fugitive for more than 14
years until he was arrested in March 2004 in Phoenix, Arizona, where he was living
and conducting business under an assumed name.
Upon Elliott’s capture, the government initiated three enforcement actions in
the Northern District of Illinois to collect the forfeited proceeds and fine. First, on
March 26, 2004, the government moved for a substitute order of forfeiture under 18
U.S.C. § 1963(m), which “allows the government to take other property of the defendant
when, for one reason or another, the illegally obtained property cannot be located.”
United States v. Infelise, 159 F.3d 300, 301 (7th Cir. 1998). The government sought
to substitute for the cash proceeds Elliott’s townhouse in Phoenix, among other assets.
Elliott asserts, and the government does not dispute, that he first learned about the
government’s motion at 4:00 p.m. on Friday, March 26, when he received a copy via fax
at the jail where he was being held in Arizona. The motion was scheduled for a hearing
the following Tuesday, March 30, and on that date the district court entered a
preliminary order under § 1963(m) forfeiting Elliott’s interest in the townhouse and
directing the marshals service to notify third parties likely to claim an interest in the
property. Elliott did not get notice that the court had ruled on the government’s motion
until he received a mailed copy of this preliminary order of forfeiture on April 14—the
eleventh business day after entry of the order.
On April 22, Elliott mailed from prison a motion to vacate the preliminary order
of forfeiture or, in the alternative, for an extension of time in which to appeal it. On
May 11, with no ruling from the district court and the 30-day limit for extensions about
to expire, see Fed. R. App. P. 4(b)(4), Elliott filed a notice of appeal as to the March 30
order. On May 28, the district court denied Elliott’s motion without explanation, and
Elliott filed another appeal. In August 2004 we remanded both appeals for the district
court to explain its ruling on Elliott’s request for an extension. The court responded
that Elliott’s delayed receipt of the March 30 order could not in itself justify an out-of-
time appeal because, in the court’s view, Elliott should have ascertained for himself the
status of the government’s motion. The court also declined to excuse Elliott’s failure
to appear at the March 30 hearing or to contact the court after learning of the
government’s motion because Elliott is an experienced lawyer with “knowledge of and
access to the legal process.”
Nos. 04-2282, 04-2463, 04-3384, 04-4208 & 04-4271 Page 3
After entry of the preliminary order of forfeiture, two lenders with mortgage
interests in the townhouse petitioned the district court to adjudicate their rights in the
property. See 18 U.S.C. § 1963(l). After the government agreed to compensate the
lenders, the district court entered a final order of forfeiture on December 1, 2004.
Elliott, by then imprisoned at a federal facility in Texas, mailed a timely notice of
appeal on December 15.
The government’s other two enforcement actions targeted the fine rather than
the forfeiture. The first was a garnishment action against two checking accounts,
which the government alleged were controlled by Elliott, in the name of Realty
Enterprises at Wells Fargo Bank. After receiving a response from Elliott and finding
that Realty Enterprises was an alias of Elliott’s, the court ordered Wells Fargo to
submit to the clerk of the court $9,007.10, representing Elliott’s nonexempt interest
in the accounts. The government also moved for entry of a turnover order after it
discovered in citation proceedings that Bank One had under its control $34,152.70 in
an account traced to Elliott. The court granted the motion on November 30, 2004, over
Elliott’s protestations that the money did not belong to him. Elliott timely appealed
both of these orders.
We begin by taking up Elliott’s challenges to the forfeiture of the townhouse as
a substitute asset. In appeal no. 04-4271, Elliott challenges the final order of forfeiture
entered on December 1, 2004. But his brief contains no argument concerning that
order. Moreover, as the government correctly points out, this order did not affect
Elliott’s rights. The March 30, 2004 preliminary order of forfeiture was conclusive as
to Elliott’s interest in the forfeited townhouse and thus was the final order in the
matter as to him. See United States v. Pellulo, 178 F.3d 196, 202 (3d Cir. 1999);
United States v. Christunas, 126 F.3d 765, 767 (6th Cir. 1997) (explaining that “[a]
preliminary forfeiture order terminates all issues presented by the defendant”). The
later order simply settled the claims of the intervening mortgagees, but Elliott’s
interest in the property had already been adjudicated, and he lacked standing to
participate in the ancillary proceedings. See Pellulo, 178 F.3d at 202. Because Elliott
had no stake in the further proceedings, he cannot appeal the final order of forfeiture.
We therefore dismiss appeal no. 04-4271.
Any recourse Elliott has must flow from his challenge to the preliminary order
of forfeiture as to substitute assets—the subject of appeal no. 04-2282. However,
Elliott’s notice of appeal was filed well beyond the 10-day period prescribed by Fed. R.
Crim. P. 4(b). See Infelise, 159 F.3d at 302 (explaining that forfeiture under § 1963 is
part of a criminal sentence); Christunas, 126 F.3d at 767 (holding that 10-day appeal
period of Fed. R. App. P. 4(b) applies to criminal forfeiture orders). Thus the appeal is
timely—and we will reach the merits—only if the district court abused its discretion
in denying Elliott’s motion for an extension of time in which to file a notice of appeal.
The district court had the authority to extend the time period because Elliott’s notice
Nos. 04-2282, 04-2463, 04-3384, 04-4208 & 04-4271 Page 4
of appeal was filed within the 30 extra days that Rule 4(b)(4) allows. Elliott filed a
separate but unnecessary notice of appeal, docketed as appeal no. 04-2463,1 to
challenge the denial of the motion.
We review the denial of the motion for an abuse of discretion. United States v.
Alvarez-Martinez, 286 F.3d 470, 472 (7th Cir. 2002). A district court may extend the
time for filing a notice of appeal in a criminal case upon a showing of good cause or
excusable neglect. Fed. R. App. P. 4(b)(4). The government focuses on excusable
neglect rather than good cause, which might be the more appropriate standard here.
See United State v. Hirsch, 207 F.3d 928, 929 (7th Cir. 2000) (suggesting that the
clerk’s failure to perform a “ministerial act whose omission could have serious
consequences for a criminal defendant” would be good cause for filing a late appeal); see
also Bishop v. Corsentino, 371 F.3d 1203, 1207 (10th Cir. 1004) (explaining that “good
cause” applies in situations where the need for the extension is occasioned by
something out of the movant’s control). But even focusing on excusable neglect, as the
government does, we think that standard is met.
We have applied the four-factor test for excusable neglect that the Supreme
Court enunciated in Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380(1993), dealing with Bankruptcy Rule 9006, to cases concerning Rule 4(b)(4). United
States v. Brown, 133 F.3d 993, 996 (7th Cir. 1998). In evaluating whether excusable
neglect exists, a court should look to (1) the danger of prejudice to the non-moving
party; (2) the length of the delay and its potential impact on judicial proceedings; (3)
the reason for the delay, including whether it was within the reasonable control of the
movant; and (4) whether the movant’s conduct was in good faith. Pioneer, 507 U.S. at
395; Brown, 133 F.3d at 996.
We see no evidence in the court’s statement of reasons that it considered any
of the factors articulated above. We note that the court relied almost entirely on pre-
Pioneer cases. See Robb v. Norfolk & Western Ry., 122 F.3d 354, 361 (7th Cir. 1997)
(stating that, since Pioneer, excusable neglect has “a new and broader meaning”). The
district court and now the government fault Elliott for failing to respond to the
government’s motion after receiving it on March 26. But it is unclear what action
Elliott could have taken from his Arizona jail cell between Friday at 4:00 p.m., when
he received the fax, and Tuesday at 10:30 a.m., when the motion was heard in Chicago.
1
This notice of appeal also alludes to Elliott’s alternative request that the
district court vacate the preliminary order of forfeiture, but because Elliott does not
further address the court’s ruling on that motion, we understand appeal no. 04-2463
to concern only the request for an extension of time. Because we address that
question in the context of appeal no. 04-2282, we dismiss appeal no. 04-2463 as
unnecessary.
Nos. 04-2282, 04-2463, 04-3384, 04-4208 & 04-4271 Page 5
The government suggests that Elliott could have objected, contacted the government,
sent an attorney to appear on his behalf, written to request a status of the motion, or
taken other action. But it seems rather draconian to condition a finding of excusable
neglect on the ability of a pro se inmate—even one with legal training—to accomplish
any of these steps over a weekend. And in any event, it is not Elliott’s failure to
respond to the motion that is at issue; rather, he seeks to excuse his failure to timely
appeal a judgment of which he was unaware until the time for taking an appeal had
run.
The government also faults Elliott for waiting a week to challenge the forfeiture
order after learning of it on April 14, suggesting that “Elliott was perhaps distracted
because during this time he was preparing a habeas corpus petition in the Arizona
district court.” Despite the government’s protestations, however, one week does not
seem an unreasonable amount of time in which to prepare a pro se motion in prison.
The district court too cited Elliott’s failure to contact the court “after the order had
been entered and prior to the expiration of the appeal period.” But it is uncontested
that Elliott did not know of the order until after the 10-day period had already expired.
Elliott’s failure to file a timely notice of appeal was largely out of his control given his
lack of notice. The government does not argue here, nor did it argue below, that it
would be prejudiced by an untimely appeal, and we do not see what prejudice could
have resulted from allowing Elliott extra time to file his notice of appeal. We hold that
the district court abused its discretion by denying Elliott’s motion for an extension of
time. Accordingly, we proceed to the merits of his challenge to the preliminary order
of forfeiture.
Elliott does not contend that the use of § 1963(m) to forfeit the townhouse as a
substitute asset was procedurally flawed or otherwise improper. Instead he argues
that the district court lacked jurisdiction to order the forfeiture of substitute assets
because, he says, there was never a valid forfeiture imposed as part of his sentence.
On this point Elliott is simply wrong; the district court issued a preliminary order of
forfeiture on August 23, 1989—one day before Elliott was sentenced. Elliott offers a
lengthy explanation for why he thinks the 1989 order is problematic, but he preferred
to go on the lam rather than see through his appeal of that order, and we cannot
entertain now the arguments he should have made then. Accordingly, although we
deem appeal no. 04-2282 to be timely, we also readily affirm the § 1963(m) order on the
merits.
We turn now to Elliott’s challenges to the proceedings to collect the fine imposed
as part of his sentence in 1989. In appeal no. 04-3384, Elliott seeks review of the
district court’s order directing Wells Fargo Bank as garnishee to remit $9,007.10 held
in checking accounts that the court determined to be under Elliott’s control. Elliott
argues that (1) the garnishment order is invalid because the judgment of conviction
Nos. 04-2282, 04-2463, 04-3384, 04-4208 & 04-4271 Page 6
specifies that his fine would become payable only after he entered his probationary
period; (2) the order improperly garnishes property belonging to Realty Enterprises;
and (3) he did not have proper notice of his right to seek a change of venue. We note
that Elliott presented only the latter two arguments in the district court, but all three
contentions—waiver aside—fail for the simple reason that Elliott has disclaimed any
interest in the garnished accounts.
The Federal Debt Collection Procedures Act (FDCPA), 28 U.S.C. §§ 3001-3308,
allows the government to collect a judgment owed to it by obtaining a garnishment
against “property . . . in which the debtor has a substantial nonexempt interest and
which is the possession, custody, or control of a person other than the debtor.” 28
U.S.C. § 3205(a). Elliott’s contention that the garnishment order is invalid because
“the proceedings dealt with Realty Enterprises Company . . . which was not indebted
to the United States” dooms all his arguments because he cannot litigate the rights of
a third party. If, as Elliott insists, the money in the Wells Fargo accounts did not
belong to him, then he had no personal stake in the proceedings and thus no right to
challenge the garnishment. See Christunas, 126 F.3d at 769; see also Massey v.
Helman, 196 F.3d 727, 739 (7th Cir. 1999) (explaining that only on “rare occasions”
may a litigant assert the legal rights of a third party). Thus we affirm the decision of
the district court as to the entry of the garnishment order.
That leaves only appeal no. 04-4208, which concerns the order directing Bank
One to turn over $34,152.70 from accounts that the court determined to be Elliott’s.
Elliott again premises his arguments on his assertion that money in the accounts was
not his, although in this instance he asserts that the funds belong to his deceased
uncle. By insisting that he has no interest in the money he seeks to protect, Elliott
essentially admits that he is not entitled to relief. See Christunas, 126 F.3d at 769.
For the reasons stated above, appeal no. 04-4271 and appeal no. 04-2463 are
DISMISSED . The orders of the district court in the remaining appeals are A FFIRMED.