NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1848
___________
UNITED STATES OF AMERICA
v.
JEREMY NOYES,
Appellant
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 1-08-cr-00055-001)
District Judge: Honorable Sean J. McLaughlin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 3, 2014
Before: RENDELL, GREENAWAY, JR. and ALDISERT, Circuit Judges
(Opinion filed: February 04, 2014)
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OPINION
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PER CURIAM
Jeremy Noyes appeals pro se from an order of the United States District Court for
the Western District of Pennsylvania, which denied his motion that he characterized as a
motion to return property filed pursuant to Fed. R. Crim. P. 41(g). Noyes was convicted
of the transportation, receipt, and possession of material depicting the sexual exploitation
of a minor and the transportation of obscene matter, following a five-day jury trial at
which he represented himself. He was sentenced to forty-five years’ imprisonment, the
statutory maximum. Thereafter, the United States sought criminal forfeiture of two of
Noyes’ computers pursuant to 18 U.S.C. § 2253(a)(3). The jury found that Noyes had
used the two computers at issue to commit the offenses for which he had been found
guilty, and on April 13, 2011, the District Court issued a preliminary order of forfeiture.
On October 18, 2012, this Court affirmed Noyes’ conviction and sentence on
appeal. See United States v. Noyes, 501 F. App'x 168 (3d Cir. 2012), cert. denied, 133 S.
Ct. 1654 (2013). A final order of forfeiture was issued by the District Court on
December 19, 2012, ordering that the two computers be forfeited to the United States
“free and clear of all right, title and interest of any person or entity, including without
limitation Jeremy Noyes.” On February 11, 2013, Noyes filed a motion to stay
disposition of the forfeited computers, requesting that the Court have the government
return “all non-contraband data electronic files, and programs, contained on either of the
forfeited computers” and preserve a “mirror copy” of all storage devices until the
expiration of any appeals. By Order entered March 5, 2013, the District Court denied the
motion without explanation. This appeal followed.1
Initially we note that the Government argues that Noyes’ appeal should be
dismissed as untimely because Noyes’ motion was not a proper motion pursuant to Fed.
1
We have jurisdiction pursuant to 28 U.S.C. § 1291.
2
R. Crim. P. 41(g). Rather, the Government contends that Noyes’ motion was a direct
challenge to the final order of forfeiture, and because criminal forfeiture is part of a
defendant’s criminal case, see, e.g., United States v. Pelullo, 178 F.3d 196, 202 (3d Cir.
1999), Noyes’ appeal is subject to the fourteen-day time limit in Federal Rule of
Appellate Procedure 4(b). To the extent that Noyes’ motion was an attempt to directly
challenge the District Court’s forfeiture order, and not a motion to return property
pursuant to Fed. R. Crim. P. 41(g), we agree with the Government that the appeal was
untimely and should be dismissed for lack of jurisdiction. See, e.g., United States v.
Apampa, 179 F. 3d 555, 556 (7th Cir. 1999) (dismissing appeal of forfeiture order as
untimely under Fed. R. App. P. 4(b)). The District Court’s final order of forfeiture was
entered on December 19, 2012, but Noyes did not file his notice of appeal until March
20, 2013, well outside the time to appeal in a criminal matter. See Fed. R. App. P. 4(b).
To the extent that Noyes’ motion was a true motion to return property pursuant to
Fed. R. Crim. P. 41, we conclude that the District Court properly denied the motion. 2 “It
is well settled that the Government may seize evidence for use in investigation and trial,
but that it must return the property once the criminal proceedings have concluded, unless
2
If Noyes’ motion was a true Rule 41(g) motion, there is no issue regarding the
timeliness of the appeal. We have held that a Rule 41(g) motion is treated as a civil
complaint, and that the time for filing an appeal is thus governed by Rule 4(a) of the
Federal Rules of Appellate Procedure. United States v. Bein, 214 F.3d 408, 411 n.3 (3d
Cir. 2000). Noyes’ motion was denied by the District Court by order entered March 5,
2013, and he filed his notice of appeal on March 20, 2013, within the sixty-day limit of
Fed. R. App. P. 4(a)(1)(B).
3
it is contraband or subject to forfeiture.” Bein, 214 F.3d at 411 (emphasis added); see
also United States v. Chambers, 192 F.3d 374, 377 (3d Cir. 1999) (“a [former] Rule 41(e)
motion is properly denied if . . . the property is . . . subject to forfeiture.”) (quotation
marks omitted). Noyes requested the return of certain files and programs contained on
the forfeited computers, but the computers as a whole, including all of their files and
programs, were subject to the forfeiture order. Pursuant to the criminal forfeiture statute,
upon conviction of a federal child exploitation offense, the defendant shall forfeit to the
United States “any property, real or personal, used or intended to be used to commit or to
promote the commission of such offense or any property traceable to such property.” 18
U.S.C. § 2253(a)(3). There is nothing in the statute which indicates that only a portion of
the “property” can be forfeited. See, e.g., United States v. Hull, 606 F.3d 524, 528-29
(8th Cir. 2010) (upholding a forfeiture order of real property, which included the
defendant’s house, as well as nineteen acres of rural land, upon a conviction of two child
pornography offenses, and noting that “[o]nce it is established that the ‘property’ subject
to forfeiture consists of the entire acreage, nothing in the statute allows the court to order
forfeiture of less than this “property.”).
Based on these principles, Noyes’ motion did not seek return of property that was
not subject to the forfeiture order. Rather, it was essentially a challenge to the forfeiture
order itself, and “is best seen as an improper attempt to challenge a component of his
sentence.” Young v. United States, 489 F.3d 313, 315 (7th Cir. 2007). “[A] criminal
forfeiture is part of the defendant’s sentence and must be challenged on direct appeal or
4
not at all.” Id.; see also Pelullo, 178 F.3d at 202 (forfeiture order is final, appealable
order at sentencing as forfeiture order conclusively determines all of defendant’s interest
in forfeited property). Accordingly, Noyes was required to challenge the scope of the
forfeiture order on direct appeal, but he failed to do so. See Noyes, 501 F. App'x at 169.3
Moreover, the cases on which Noyes relies do not support his contention that Fed. R.
Crim. P. 41(g) provided the District Court with authority to return the forfeited computer
files and programs to him. See, e.g., United States v. Cardona-Sandoval, 518 F.3d 13, 15
(1st Cir. 2008) (Government conceded that the property defendant requested was not
subject to forfeiture); United States v. Juluke, 426 F.3d 323, 327-28 (5th Cir. 2005) (in a
case involving a direct appeal of a forfeiture order, not a Rule 41(g) motion, the Court
concluded that the Government failed to demonstrate a sufficient nexus between certain
assets and the drug offenses); United States v. Knellinger, 471 F. Supp. 2d 640, 649-50
(E.D. Va. 2007) (granting request for mirror image of computer hard-drive so that the
defendant could prepare a defense pre-trial).
Turning to Noyes’ request that a “mirror copy” of all storage devices be preserved
until the conclusion of all possible appeals, the Government has agreed to maintain the
computers until the completion of any habeas litigation. Accordingly, the District Court
properly denied this request as moot. 4
3
As explained supra, to the extent that Noyes is directly challenging the forfeiture order
here, his appeal is untimely.
4
Noyes presents several arguments related to discovery and non-disclosed evidence.
5
For the foregoing reasons, we will affirm the District Court judgment.
These discovery issues are not properly before this Court. Noyes did not raise them in
his Motion to Stay the Disposition of Forfeited Computers, which is the subject of this
appeal. Moreover, Noyes’ motions to compel discovery were ruled upon by the District
Court, and he did not pursue these issues on appeal. See Minute Entry for May 12, 2010;
Order entered November 19, 2010; Noyes, 501 F. App'x at 169. To the extent that Noyes
may wish to collaterally challenge his conviction or sentence, the appropriate remedy is
by a properly filed motion in the District Court pursuant to 28 U.S.C. § 2255. We
express no opinion about the merits of such a motion.
6