CLD-252                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 12-1638
                                       ___________

                              GEORGE A. WINKELMAN,
                                               Appellant

                                             v.

                           UNITED STATES OF AMERICA
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civ. No. 4-11-cv-01248)
                      District Judge: Honorable Robert D. Mariani
                      ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.66
                                   August 9, 2012

            Before: RENDELL, HARDIMAN AND COWEN, Circuit Judges

                             (Opinion filed: August 28, 2012)
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       George A. Winkelman appeals pro se from the order of the District Court denying

his motion for the return of property forfeited to the United States. He also has filed a

                                             1
motion for review of the Clerk’s order of March 29, 2012, which granted him leave to

proceed in forma pauper (“IFP”) on appeal and required assessment of the filing and

docketing fee under the Prison Litigation Reform Act (“PLRA”). We will affirm the

judgment of the District Court. We will also grant Winkelman’s motion to vacate the IFP

order to the extent that it requires payment of the filing fee under the PLRA.

                                             I.

       In 2001, the Government indicted Winkelman on charges arising from his

participation in a cocaine distribution ring and other criminal activity. The third

superseding indictment included a charge of criminal forfeiture under 21 U.S.C. § 853.

During the criminal proceeding, the Government sought and the District Court granted a

temporary restraining order freezing a Sovereign Bank account that Winkelman held with

his brother and co-defendant under the name Winkelman, Inc. In 2003, a jury found

Winkelman guilty of narcotics and firearms offenses and found him liable for $2 million

on the forfeiture count. The District Court sentenced him to 720 months of

imprisonment. We affirmed Winkelman’s convictions but remanded for resentencing in

light of United States v. Booker, 

 (2005). See United States v. Winkelman,

180 F. App’x 397, 402-03 (3d Cir. 2006). Winkelman raised no issue regarding

forfeiture on appeal. 1


1
 While that appeal was pending, Winkelman filed a motion under Rule 41(g) of the
Federal Rules of Criminal Procedure for the return of $5,499 that the Government seized
at the time of his arrest and as to which it had sought a preliminary order of forfeiture.
The District Court denied that motion in 2005, and we ultimately affirmed on the ground
                                              2
       On remand, the Government filed a motion for a preliminary order of forfeiture

against Winkelman’s interest in the bank account to satisfy the jury’s verdict. The

District Court granted the motion on October 10, 2006. On October 17, 2006, the District

Court sentenced Winkelman to 480 months of imprisonment, and its written judgment

attached the preliminary order of forfeiture, which then became final. 2

       Winkelman appealed from this new judgment, but we granted him leave to

withdraw the appeal. See Winkelman, 242 F. App’x at 822. Winkelman also filed a

motion under 28 U.S.C. § 2255 claiming, inter alia, that the forfeiture count was

erroneously presented to the jury. The District Court denied that motion and we declined

to issue a certificate of appealability. (C.A. No. 08-1932, July 10, 2008.)

       Since then, Winkelman has unsuccessfully continued to challenge various aspects

of his criminal judgment through various procedural mechanisms, including habeas

petitions under 28 U.S.C. § 2241 and motions under Rule 60(b) of the Federal Rules of

Civil Procedure. See, e.g., Winkelman v. Longley, 462 F. App’x 181, 182 (3d Cir. 2012).

At issue here is another such attempt. In 2010, Winkelman filed another putative Rule

41(g) motion, this time seeking the return of his interest in the Sovereign Bank account



that the money was properly subject to criminal forfeiture as substitute assets. See
United States v. Winkelman, 242 F. App’x 821, 822-23 (3d Cir. 2007).
2
  The preliminary order had contemplated the possibility of future ancillary proceedings
involving claims to the property made by third parties, but there were no such claims in
this case. See United States v. Bennett, 

, 275 n.1 (3d Cir. 2005). Thus, the
order of forfeiture became final at the time of sentencing and became part of the criminal
judgment. See id. at 275; Fed. R. Crim. P. 32.2(b)(4).

                                             3
referenced above. Winkelman claimed that the Government committed various forms of

misconduct, and that his counsel rendered ineffective assistance, in connection with the

pre-trial temporary restraining order freezing that account.

       The District Court initially concluded that Rule 41(g) was not the proper vehicle to

challenge the forfeiture because it deemed the forfeiture civil in nature. It thus denied

Winkelman’s motion without prejudice to his ability to institute a civil action under 18

U.S.C. § 983(e) instead. Winkelman appealed, and we affirmed. See United States v.

Winkelman, 430 F. App’x 208 (3d Cir. 2011). We did not specifically endorse the

procedure that the District Court directed Winkelman to follow, but we explained that he

would not be prejudiced by it. See id. at 210.

       Winkelman then instituted the action at issue here by filing a motion under 18

U.S.C. § 983(e), once again seeking return of the Sovereign Bank account on the same

grounds. This time, the Magistrate Judge concluded that that statute does not apply

because it governs civil forfeiture proceedings, not criminal forfeiture proceedings like

those brought against Winkelman. 3 The Magistrate Judge then noted that 21 U.S.C. §


3
 We agree, though we acknowledge that the District Court initially characterized the
forfeiture at issue as civil or administrative. See Winkelman, 430 F. App’x at 209-10.
There is no doubt, however, that the forfeiture was criminal in nature. Winkelman was
convicted on a forfeiture count expressly charged under 21 U.S.C. § 853, which is
entitled “criminal forfeitures.” The provisions governing civil forfeiture, by contrast,
apply to “declaration[s] of forfeiture under a civil forfeiture statute,” 18 U.S.C. §
983(e)(5), which is defined as “any provision of Federal law providing for the forfeiture
of property other than as a sentence imposed upon conviction of a criminal offense,” 18
U.S.C. § 983(i)(1). For this reason, the body of case law addressing challenges under
Rule 41(g) or by independent action in equity to civil and administrative forfeitures is
                                             4
853(n) provides the exclusive means for asserting an interest in property ordered forfeited

to the United States in a criminal case. That statute does not authorize a defendant’s own

post-conviction challenge to a forfeiture, however, and the Magistrate Judge did not state

otherwise. See 21 U.S.C. § 853(n)(2) (permitting petition by “[a]ny person, other than

the defendant”). Instead, the Magistrate Judge liberally construed Winkelman’s motion

and concluded that he is not entitled to relief on the merits, in large part because he did

not avail himself of prior opportunities to challenge the forfeiture. The District Court

adopted the Magistrate Judge’s recommendation and denied Winkelman’s motion by

order entered February 24, 2012. Winkelman appeals pro se. We have jurisdiction under

28 U.S.C. § 1291.

                                              II.

       The sole relief that Winkelman seeks is the return of his interest in the Sovereign

Bank account that was forfeited to the United States as part of his criminal judgment. We

agree with the District Court that he is not entitled to that relief, though we find it

necessary to clarify what seems implicit in the Magistrate Judge’s reasoning. Winkelman

challenges the Government’s and his counsel’s conduct in connection with the pre-trial

restraint of his bank account. That account was later forfeited, however, and the

forfeiture is now part of Winkelman’s criminal judgment. Thus, to obtain return of his



inapplicable. See, e.g., United States v. McGlory, 

, 670 (3d Cir. 2000) (en
banc) (collecting cases under, inter alia, former Rule 41(e)). Those cases also address
challenges based on lack of notice, which Winkelman does not claim here.

                                               5
interest in the account, Winkelman must first succeed in invalidating his judgment.

       The usual way of seeking to do so is by pursuing a direct appeal, which

Winkelman chose to forgo. Winkelman argues that he has since learned facts requiring

the return of his interest in the account. In particular, he argues that the Government

committed various kinds of misconduct (including perjury) in obtaining the pre-trial

restraint of that account. He also argues that his trial counsel did nothing to attempt to lift

that improper restraint. We need not decide whether there is any procedural mechanism

for pursuing these arguments at this stage because, even if there is, they do not state a

basis for relief. These arguments are addressed solely to the pre-trial restraint of

Winkelman’s interest in the bank account and do not state a basis to invalidate his

subsequent criminal judgment. We will affirm the District Court’s judgment for that

reason. 4


4
 We nevertheless note that neither a Rule 41(g) motion nor a civil action under 18 U.S.C.
§ 983(e) is a proper vehicle for collaterally challenging a criminal judgment of forfeiture.
See United States v. Chambers, 

, 377 (3d Cir. 1999) (“a [former] Rule 41(e)
motion is properly denied if . . . the property is . . . subject to forfeiture”) (quotation
marks omitted); 18 U.S.C. § 983(e)(5) (“A motion filed under this subsection shall be the
exclusive remedy for seeking to set aside a declaration of forfeiture under a civil
forfeiture statute.”) (emphasis added). Defendants generally may collaterally attack their
sentences under § 2255, and to the extent that Winkelman may wish to invalidate his
conviction or sentence he must apply to this Court for leave to file a second or successive
§ 2255 motion and make the showing required by 28 U.S.C. §§ 2255(h), which his
current claims do not do. Winkelman has not sought to raise his claims under § 2255,
however, and courts have held that § 2255 authorizes challenges addressed only to
custody and not to fines, restitutionary orders and the like. See Kaminski v. United
States, 

, 87 (2d Cir. 2003); United States v. Thiele, 

, 401-02 &
402 n.3 (9th Cir. 2002). The same would appear to apply to criminal forfeitures as well.
Other courts also have suggested that a writ of error coram nobis might be available to
                                              6
       One final matter requires discussion. Winkelman filed a motion seeking leave to

proceed IFP on appeal. Because Winkelman is a prisoner, the PLRA requires him to pay

the full filing fee in installments when he “brings a civil action or files an appeal in forma

pauperis[.]” 28 U.S.C. § 1915(b)(1). In his IFP motion, Winkelman asserted that this

provision should not apply to him because he intended to challenge the criminal

forfeiture in his criminal case but then filed a separate civil action only because the

District Court directed him to do so, which the District Court now agrees it should not

have done. The Clerk granted Winkelman’s IFP motion but required the assessment of

fees under the PLRA. Winkelman has filed a motion for review of that order.

       The motion is granted. There is no basis for Winkelman to challenge the

forfeiture in his criminal case as he initially sought to do, and his repeated and meritless

filings have required the expenditure of Court resources at which the filing fee is

directed. See Porter v. Dep’t of Treasury, 

, 180 n.2 (3d Cir. 2009). The

relevant question for PLRA purposes, however, is whether Winkelman’s challenge

constitutes a “civil action” thereunder. See Santana v. United States, 

, 754-56

(3d Cir. 1996). The District Court did not expressly address whether it does, either on

Winkelman’s initial putative Rule 41(g) motion or in his subsequent action under §




defendants seeking to collaterally attack such sentencing provisions. See, e.g., Barnickel
v. United States, 

, 706 (7th Cir. 1997). Coram nobis, however, generally is
available only when the petitioner is not in custody and may not be used to circumvent
procedural barriers to filing a second or successive § 2255 motion. See United States v.
Baptiste, 

, 189-90 (3d Cir. 2000) (en banc). We need not and do not decide
                                              7
983(e), and we have not decided whether either type of proceeding triggers the PLRA.

Cf. United States v. Jones, 

, 469 (4th Cir. 2000) (holding that motions filed

under former criminal Rule 41(e) after the conclusion of criminal proceedings are “civil

actions” for PLRA purposes). We also did not address the issue in Winkelman’s prior

appeal, and instead held only that Winkelman would not be prejudiced by proceeding as

the District Court suggested. Winkelman’s challenge is not a true challenge under either

of those vehicles in any event, and the nature of his challenge does not lend itself to ready

characterization for PLRA purposes.

       We need not decide the issue in this case, however. We acknowledge that there

has been some confusion about both the nature of Winkelman’s forfeiture and whether he

has a vehicle to challenge it. That confusion, of course, has been partly the result of

Winkelman’s decision to seek relief where none is available. Winkelman, however,

might have been advised of that fact before pursuing the action that the District Court

suggested and that the District Court later concluded, without discussion, subjected him

to the PLRA. Under the circumstances, we conclude that Winkelman should not be

subject to the PLRA for filing this appeal. Although we grant Winkelman’s motion, he is

now on notice that any further actions or proceedings in this regard—and the present

record suggests that there should be none—will be subject to the PLRA if otherwise

appropriate.



these issues, however, because Winkelman’s motion states no basis for relief in any
event.
                                             8
       For these reasons, we will affirm the judgment of the District Court. Winkelman’s

motion for review of the Clerk’s IFP order of March 29, 2012, is granted, and that order

is vacated to the extent that it directs the Warden or his or her designee to assess, collect

and forward the $455.00 filing and docketing fee for this appeal in installments to the

District Court. The Clerk will notify the Warden of this ruling. 5




5
  After filing this appeal, Winkelman filed a similar motion in the District Court seeking
reconsideration of its PLRA assessment order on the same grounds. The District Court,
although it “sympathize[d]” with Winkelman’s situation, denied that motion on May 18,
2012, because it thought itself bound to do so by this Court’s precedent. We do not have
jurisdiction to review that ruling because Winkelman has not filed a notice of appeal
therefrom, and his time for doing so has now expired. See Fed. R. App. P. 4(a)(1)(B).
The District Court may nevertheless wish to revisit that issue sua sponte in light of our
ruling.
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