Filed: Nov. 08, 2012
Latest Update: Feb. 12, 2020
Summary: Case: 11-14928 Date Filed: 11/08/2012 Page: 1 of 14 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 11-14928 Non-Argument Calendar _ D. C. Docket No. 9:06-cr-80158-KLR-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTHONY R. MASILOTTI, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (November 8, 2012) Before CARNES, HULL and WILSON, Circuit Judges. PER CURIAM: Anthony Masilotti appeals the d
Summary: Case: 11-14928 Date Filed: 11/08/2012 Page: 1 of 14 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 11-14928 Non-Argument Calendar _ D. C. Docket No. 9:06-cr-80158-KLR-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTHONY R. MASILOTTI, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (November 8, 2012) Before CARNES, HULL and WILSON, Circuit Judges. PER CURIAM: Anthony Masilotti appeals the di..
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Case: 11-14928 Date Filed: 11/08/2012 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14928
Non-Argument Calendar
________________________
D. C. Docket No. 9:06-cr-80158-KLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY R. MASILOTTI,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 8, 2012)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
Anthony Masilotti appeals the district court’s denial of his 2011 motion to
vacate the 2007 forfeiture of his property that was charged and ordered in his
Case: 11-14928 Date Filed: 11/08/2012 Page: 2 of 14
criminal proceedings. After review, we affirm.
I. BACKGROUND
To understand the issues in this appeal, we recount the protracted procedural
history of Masilotti’s criminal case.
A. Information and Criminal Forfeiture
On January 11, 2007, Anthony Masilotti, a former county commissioner for
Palm Beach County, Florida, pled guilty to an information charging him with a
dual-object conspiracy: (1) to commit mail and wire fraud by using mail and wire
communications to deprive another of honest services, in violation of 18 U.S.C.
§§ 1341 (general mail fraud), 1343 (general wire fraud), and 1346 (defining
“scheme or artifice to defraud” for purposes of the mail and wire fraud statutes to
include a scheme to deprive another of the right to honest services); and (2) to
impede the Internal Revenue Service in the collection of personal income taxes, in
violation of 26 U.S.C. § 7212 (impeding the IRS). See also 18 U.S.C. § 371
(conspiracy). The information charged, inter alia, that Masilotti used his position
as county commissioner to advance his undisclosed financial interest in certain real
estate transactions.
The information also included a criminal forfeiture count that sought the
forfeiture of: (1) $9.5 million; (2) various parcels of real property; (3) all
Masilotti’s interests in two entities, Micco Eastern Holdings, LLC (“MEH”) and
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ARM Family Land Trust (the “ARM trust”); and (4) all Masilotti’s interests in a
bank account and several certificates of deposit. The information charged the
forfeiture pursuant to 28 U.S.C. § 2461, 18 U.S.C. § 981(a)(1)(C), and 21 U.S.C.
§ 853. Because this appeal involves only the forfeiture count, we outline how the
forfeiture occurred under these statutes in Masilotti’s case.
First, 28 U.S.C. § 2461(c), cited in the information, makes “criminal
forfeiture available in every case that the criminal forfeiture statute [18 U.S.C.
§ 982] does not reach but for which civil forfeiture is legally authorized.” United
States v. Padron, 527 F.3d 1156, 1161-62 (11th Cir. 2008). Civil forfeiture is
legally authorized for Masilotti’s mail and wire fraud conspiracy offense because
(1) under 18 U.S.C. § 981(a)(1)(C), the government may seek civil forfeiture of
“[a]ny property, real or personal, which constitutes or is derived from proceeds
traceable to,” among other things, a conspiracy to commit “any offense
constituting ‘specified unlawful activity’” as defined by 18 U.S.C. § 1956(c)(7);
and (2) the offenses covered by 18 U.S.C. § 1956(c)(7) include the mail and wire
fraud offenses here. See 18 U.S.C. § 1956(c)(7)(A) (citing 18 U.S.C. § 1961(1)).
Accordingly, since civil forfeiture is legally authorized by 18 U.S.C.
§ 981(a)(1)(C), 28 U.S.C. § 2461(c) makes criminal forfeiture available for the
mail and wire fraud conspiracy in Masilotti’s criminal case.
B. 2007 Plea Agreement and Sentence
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In his plea agreement, Masilotti consented to the forfeiture charged in this
case and waived any defenses and right to appeal. Specifically, Masilotti
acknowledged that he personally profited from his criminal conduct in an amount
between $7,000,000 and $20,000,000. He agreed to voluntarily forfeit $175,000 in
cash, parcels of real property in Brevard County and Martin County, Florida, and
all interests in MEH and the ARM trust. Notably too, in his plea agreement
Masilotti also waived “all constitutional, legal and equitable defenses to the
forfeiture of the assets in any judicial or administrative proceeding,” “any claim or
defense under the Eighth Amendment of the United States Constitution, including
any claim of excessive fine, to the forfeiture of these assets by the United States,”
and “any right to appeal any order of forfeiture entered by the Court pursuant to
this Plea Agreement.”
On January 11, 2007, the district court conducted a plea hearing and
accepted Masilotti’s guilty plea. In accordance with Masilotti’s plea agreement
and Federal Rule of Criminal Procedure 32.2(b)(2), the district court also entered a
preliminary order of forfeiture in Masilotti’s criminal case on January 11, 2007.1
The district court’s order listed Masilotti’s interests in each of the above assets
explicitly referenced in the plea agreement.
1
Federal Rule of Criminal Procedure 32.2 outlines the procedure a district court must
follow to order a criminal forfeiture. After a guilty plea is entered and the district court
determines the property at issue is subject to forfeiture, the court must enter a preliminary order
of forfeiture. Fed. R. Crim. P. 32.2(b)(1)-(2).
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On June 29, 2007, the district court sentenced Masilotti to 60 months’
imprisonment in accordance with the plea agreement. That same day, the district
court signed a “Final Order of Forfeiture” in the case, providing that the assets
listed in the plea agreement and the preliminary order of forfeiture were forfeited. 2
On July 2, 2007, the district court entered a “Judgment in a Criminal Case”
in Case No. 06-80158 (the “Criminal Judgment”) against Masilotti. The Criminal
Judgment listed Masilotti’s sentence and also expressly incorporated the forfeiture
order, stating: “The defendant shall forfeit the defendant’s interest in the property
as stated in the plea agreement and preliminary order of forfeiture to the United
States.” See Fed. R. Crim. P. 32.2(b)(4)(B).
Masilotti did not appeal his sentence or conviction.
C. Masilotti’s 2009 Post-Conviction Motion for Reduction of Sentence
Over two years later, on October 17, 2009, Masilotti filed a motion in the
criminal case to reduce his sentence. Masilotti argued that he was deprived of his
due process and equal protection rights because the United States had not filed a
motion to reduce his sentence based on his willingness to cooperate. Masilotti also
questioned the constitutionality of the honest services fraud statute, 18 U.S.C.
§ 1346, cited in his information and plea agreement.
2
At sentencing—or at any time before sentencing if the defendant consents—the
preliminary forfeiture order becomes final as to the defendant. Fed. R. Crim. P. 32.2(b)(4)(A).
The final order of forfeiture is final with respect to any third parties with interests in the forfeited
property. See id. at 32.2(c)(2).
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The district court denied Masilotti’s motion on November 2, 2009. In its
order the district court noted that it was “of the opinion that the Honest Services
Statute is unconstitutional” and that the Supreme Court would soon rule on the
statute’s constitutionality.
D. Masilotti’s 28 U.S.C. § 2255 Motion in 2009
On November 13, 2009, Masilotti filed a 28 U.S.C. § 2255 motion
challenging the constitutionality of his conviction and sentence. Masilotti based
his § 2255 motion in large part on the district court’s above comments on the
honest services fraud statute’s constitutionality.
The magistrate judge filed a report recommending that Masilotti’s § 2255
motion be denied as time-barred and because the district court’s comments
provided no basis for relief. The district court adopted the report and denied
Masilotti’s § 2255 motion. Masilotti’s motion for reconsideration was also
denied.
Masilotti filed a notice of appeal from the denial of his § 2255 motion,
which the district court treated as an application for a certificate of appealability
(“COA”). On April 5, 2010, the district court denied the COA. Masilotti’s
motion for reconsideration was also denied.
Masilotti then sought a COA from this Court. On June 24, 2010, while
Masilotti’s COA application was pending, the Supreme Court decided Skilling v.
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United States, 130 S. Ct. 2896 (2010), which held, in relevant part, that the honest
services fraud statute was not unconstitutionally vague so long as it was construed
to proscribe only bribery and kickback schemes.
Id. at 2931.
In an August 2, 2010 order, this Court denied Masilotti’s COA application,
concluding that the district court had properly denied his § 2255 motion as time-
barred and thus Masilotti had failed to demonstrate that reasonable jurists would
find debatable the denial of his § 2255 motion.
Masilotti moved for reconsideration in light of Skilling. This Court denied
Masilotti’s motion on October 6, 2010.
E. Masilotti’s 28 U.S.C. § 2241 Petition in 2010
In 2010, Masilotti filed a petition under 28 U.S.C. § 2241 in the district
court. Masilotti again asked the district court to vacate the honest services fraud
portion of his conspiracy conviction. Masilotti argued that Skilling established that
he had been convicted of a “non-existent offense” because the stipulated facts in
his change-of-plea hearing did not show that he had received bribes or kickbacks.
Masilotti also asked the court to vacate the 2007 criminal forfeiture order included
in his sentence.
The magistrate judge issued a report recommending denial of Masilotti’s
§ 2241 petition. The magistrate judge found that one of Masilotti’s fraudulent real
estate transactions—the “Aggregates transaction”—could no longer sustain an
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honest services fraud conspiracy conviction because there was no direct evidence
that Masilotti received bribes or kickbacks from that scheme. But the magistrate
judge found that another real estate transaction—the “Diocese transaction”—
supported Masilotti’s honest services fraud conspiracy conviction because the
admitted facts showed that Commissioner Masilotti’s receipt of $50,000 for
advocating the sale of certain property violated the honest services fraud statute.
The magistrate judge thus concluded that Masilotti was not convicted of a non-
existent offense. Additionally, the magistrate judge found that Masilotti was not
entitled to relief because (1) he pled guilty to a dual-object conspiracy, (2) the
second object of the conspiracy was to impede the IRS in the collection of personal
income taxes, and (3) the second object was not affected by Skilling.
In a March 9, 2011 order, the district court adopted the report, rejected both
Masilotti’s and the government’s objections, and denied Masilotti’s § 2241
petition. In ruling on Masilotti’s objections, the district court recounted the factual
basis of Masilotti’s plea that showed Masilotti received a kickback or bribe as part
of the Diocese transaction and explained why his conviction survived Skilling as
follows:
The factual basis for Mr. Masilotti’s guilty plea states that he “used
his public office to advocate the sale of land to co-conspirator Daniel
N. Miteff and Miteff’s partners, and solicited the Village Manager of
Royal Palm Beach to send an official letter to Masilotti as county
commissioner outlining the Village’s desire for the Diocese to assure
it sold the land to a bidder that would provide a public park.” Mr.
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Masilotti “made these requests without disclosing that he had a
financial interest in the transaction and in the Diocese awarding the
bid to Daniel Miteff, that is, he expected to be compensated—and
later was in fact compensated—by Miteff for his efforts on Miteff’s
behalf.” Based on these admissions and the remainder of the factual
record, the Court must conclude that Mr. Masilotti acted knowingly
and corruptly in return for being influenced in the performance of an
official act. Mr. Masilotti had a hidden financial interest in the
Diocese transaction. Mr. Masilotti, in his official role as a Palm
Beach County commissioner, advocated for Mr. Miteff to the Village
Manager of Royal Palm Beach. Mr. Masilotti was secretly
compensated for those efforts when Mr. Miteff paid him
approximately $50,000 at the Atlantis Casino in the Bahamas. There
is nothing in the record to support Mr. Masilotti’s assertion that the
payment he received in the Bahamas was some sort of “commission”
rather than a bribe or kickback. Mr. Masilotti’s conviction for his
failure to disclose his hidden financial interest joined with the
kickback or bribe he received from Mr. Miteff survives Skilling v.
United States, 130 S. Ct. 2869 (2010). The objection is overruled.
District Court Order, Mar. 9, 2011, Case No. 9:10-cv-81137-KLR, ECF No. 16 at
2-3 (footnote and citations omitted). In any event, the district court noted,
Masilotti could not obtain relief from the forfeiture portion of his sentence through
a writ of habeas corpus under § 2241.
Masilotti did not appeal the district court’s denial of his § 2241 petition.
F. Masilotti’s Federal Rule of Civil Procedure 60(b) Motion in 2011
This appeal involves only Masilotti’s 2011 motion to vacate the 2007 Final
Order of Forfeiture entered in his criminal case. Masilotti’s 2011 motion
referenced Federal Rule of Civil Procedure 60(b)(5) and (6) as the basis for his
motion. Yet Masilotti filed his motion within his criminal case, Case No. 06-
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80158.
In his Rule 60(b) motion, Masilotti again argued that the Supreme Court’s
Skilling decision narrowed the scope of the honest services fraud statute in a way
that limited his criminal liability under that statute. He argued that the 2007 Final
Order of Forfeiture must be amended to reflect only the Diocese transaction and
that the forfeiture of amounts and property not involved in the Diocese transaction
constituted an excessive fine in violation of the Eighth Amendment to the United
States Constitution.
The magistrate judge entered a report recommending denial of the Rule
60(b) motion because the district court lacked jurisdiction to modify a criminal
order of forfeiture pursuant to a civil motion. In an October 3, 2011 order, the
district court adopted the report, rejected Masilotti’s objections, and denied
Masilotti’s Rule 60(b) motion.
On October 18, 2011, 15 days after the district court’s October 3rd order was
entered, Masilotti filed a notice of appeal.
II. DISCUSSION
A. The Timeliness of Masilotti’s Appeal
The government contends that Masilotti’s appeal is untimely under the rules
applicable to criminal cases. Masilotti responds that his appeal is timely pursuant
to the appellate rule governing civil appeals. Although we agree with the
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government that the criminal rules apply here, we conclude Masilotti’s appeal was
timely and explain why.
Ordinarily, a criminal defendant must file a notice of appeal within 14 days
of the final judgment, as prescribed by Rule 4(b) of the Federal Rules of Appellate
Procedure. Fed. R. App. P. 4(b)(1)(A). In contrast, in a civil case in which the
United States is a party, Rule 4(a) requires the notice of appeal to be filed within
60 days of the final judgment. Fed. R. App. P. 4(a)(1)(B).
The criminal appeal rule applies because the forfeiture at issue was made a
part of Masilotti’s criminal sentence and was entered in his criminal case.
Pursuant to 28 U.S.C. § 2461(c), described above, it was a criminal forfeiture.
Although Masilotti’s motion referenced and was thus brought under the civil rules,
he filed it in his criminal case, and it challenged a criminal forfeiture order in his
criminal case. Masilotti’s appeal—despite being an appeal of the district court’s
denial of a Rule 60(b) motion—is a continuation of his criminal case. See Fed. R.
Crim. P. 1 (stating that the Federal Rules of Criminal Procedure “govern . . . in all
criminal proceedings”). Accordingly, we use Rule 4(b) to determine the timeliness
of Masilotti’s appeal.
Under Rule 4(b)’s 14-day period, Masilotti’s notice of appeal from the
October 3rd order, filed on October 18, 2011, is not timely but was one day late. 3
3
Although the time limit in Rule 4(b) is not jurisdictional as to criminal appeals, if the
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But this does not resolve the matter because in criminal cases, this Court (1) may
treat a notice of appeal filed fewer than 30 days late as a motion for extension of
time to appeal under Rule 4(b)(4), and (2) may remand to the district court for a
determination of whether good cause or excusable neglect exists to justify an
extension. See United States v. Ward, 696 F.2d 1315, 1317-18 (11th Cir. 1983);
see also, e.g., United States v. Frandsen,
212 F.3d 1231, 1234 (11th Cir. 2000).
Moreover, while this appeal was pending, Masilotti filed with the district
court a nunc pro tunc motion for an extension of time to file his notice of appeal,
pursuant to Federal Rule of Appellate Procedure 4(b)(4), based on his counsel’s
excusable neglect and the existence of good cause. The district court granted the
motion over the government’s objections. Therefore, we need not remand because
we already know the answer. The district court has indicated it would grant the
needed one-day extension. Thus, we deny the government’s request to dismiss
Masilotti’s appeal as untimely and turn to the merits of his appeal. 4
B. The Merits of Masilotti’s Appeal
The district court denied Masilotti’s Rule 60(b) motion on the basis that
Masilotti cannot challenge the forfeiture entered in his criminal case through, or
based on, a civil motion under the Federal Rules of Civil Procedure. We agree.
government raises the issue of timeliness, as it has done here, this Court “must apply the time
limits of Rule 4(b).” United States v. Lopez, 562 F.3d 1309, 1313-14 (11th Cir. 2009).
4
Accordingly, the government’s separate motion to dismiss the appeal or, in the
alternative, remand the case to the district court is DENIED.
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See United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (per curiam).
As this Court said in Mosavi,
[t]he judgment and the order that the defendant contests were entered,
not in a civil case, but in a criminal case, and a proper appeal of the
forfeitures should have been raised in the defendant’s criminal appeal
of his conviction and sentence. Rule 60(b) simply does not provide
for relief from judgment in a criminal case, and as such the defendant
cannot challenge the criminal forfeitures at issue under Fed. R. Civ. P.
60(b).
Id. (emphasis added). The district court correctly denied Rule 60(b) relief.
Masilotti contends that Mosavi is distinguishable because it involved a
forfeiture under 18 U.S.C. § 982, which specifically applies to criminal forfeiture,
while his forfeiture order was under 18 U.S.C. § 981, which governs civil
forfeiture. Masilotti is wrong because his forfeiture was not a civil forfeiture under
§ 981. The forfeiture order here was entered in Masilotti’s criminal case pursuant
to the Federal Rules of Criminal Procedure and made part of his criminal sentence
as explicitly permitted under 28 U.S.C. § 2461(c). The forfeiture of Masilotti’s
property was a criminal forfeiture proceeding, not a civil proceeding.
Alternatively, Masilotti argues that the district court should have exercised
its inherent equitable jurisdiction to grant him a writ of error coram nobis. Here
Masilotti did not file a petition for a writ of error coram nobis. Rather, in response
to the government’s memorandum opposing his motion to vacate, Masilotti
referenced the district court’s inherent equitable powers as an alternative basis of
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relief. The magistrate judge’s report, which the district court adopted, rejected
Masilotti’s equitable-jurisdiction argument. We do too. We need not decide if a
writ of error coram nobis would ever pertain here because on the particular record
before us, Masilotti fails to carry his burden of demonstrating that the district court
erred in declining to exercise its inherent equitable jurisdiction. 5
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of Masilotti’s
Rule 60(b) motion.
AFFIRMED.
5
We note that Masilotti, in his plea agreement, expressly waived his right to challenge the
forfeiture here. His waiver explicitly encompassed all “constitutional, legal and equitable
defenses” to the forfeiture, including any challenges on Eighth Amendment grounds. Masilotti
does not contend that his waiver was not knowing or involuntary and thus unenforceable. See
United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993) (holding that a sentence appeal
waiver will be enforced if it was made knowingly and voluntarily).
14
