NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

No. 06-1618

U N I T E D STATES OF AMERICA

v. W IL L IA M J. NEIDIG; CHARLES NEIDIG, JR.

C h a rle s Neidig, Jr.,

Appellant.

O n Appeal From the United States District Court

F o r the Middle District of Pennsylvania

(M .D . Pa. Crim. No. 04-cr-00271)

D istrict Judge: Hon. James F. McClure, Jr.

S u b m itte d under Third Circuit LAR 34.1(a)

J u n e 5, 2007

B e f o re : BARRY, CHAGARES, and ROTH, Circuit Judges

(O p in io n filed November 7, 2007)

OPINION

P E R CURIAM C h a rle s Neidig, Jr., appeals pro se from the District Court's order denying his motion s e e k in g the return of property forfeited to the government. For the reasons that follow, we w ill vacate the order and remand for further proceedings.

I.

N e id ig has been a federal inmate since 2002. In 2004, his son, William J. Neidig, was in d ic te d for conspiracy to distribute controlled substances in violation of 21U.S.C. § 846.1 L a te r that year, William pleaded guilty and agreed to forfeit a house and real property located in Northumberland County, Pennsylvania, the deed to which is in his name. The government th e n instituted criminal forfeiture proceedings under 21U.S.C. § 853. Pursuant to that s ta tu te , the District Court entered a preliminary order of forfeiture directing the government to provide public notice. The government did so by publication in what it characterizes as a newspaper of general circulation in Northumberland County. Under the statute and notice, a n y claims to the property were to be filed with the District Court by May 13, 2005. On D e c em b e r 19, 2005, having received no such claims, the District Court entered a final order o f forfeiture.

O n January 31, 2006, Neidig filed what he captioned as a "Motion for the Return of S e iz e d Property" claiming an interest in the property. According to Neidig, he had conveyed 1 For the sake of clarity, we will refer to the appellant Charles Neidig as "Neidig" and to h is son as "William." the property to William in 2001 pursuant to an oral agreement under which William would (1 ) pay $1.00 in consideration, (2) rent out the property while Neidig was in prison and d e p o sit the proceeds into Neidig's account, then (3) reconvey the property to Neidig upon N e id ig 's release from prison. Neidig further alleged that William never paid the c o n sid e ra tio n and breached the agreement by moving into the property himself instead of re n tin g it out. Neidig supplied a notarized affidavit from William affirming the foregoing c ir c u m s ta n c e s .2 The District Court denied the motion, and Neidig appeals.3 II.

Inf o rm in g the following discussion are Neidig's status as a prisoner proceeding pro s e and the "hoary maxim that `the law abhors a forfeiture.'" United States v. Lavin, 942 F.2d 1 7 7 , 182 (3d Cir. 1991) (citation omitted). Our first task is to ascertain the nature of Neidig's m o tio n . Generally, a third party wishing to claim an interest in property subject to criminal f o rf e itu re proceedings must file a timely petition under 21U.S.C. § 853(n). An untimely p e titio n filed after a final order of forfeiture has been entered should be treated as a motion s e e k in g relief from the judgment under Rule 60(b) of the Federal Rules of Civil Procedure, th e denial of which we review for abuse of discretion. See United States v. RodriguezA g u irre, 414 F.3d 1177, 1182 (10th Cir. 2005); United States v. Puig, 419 F.3d 700, 702 (8 th 2 The government argues that William's affidavit contradicts representations in his plea a g re e m e n t, but those representations are not conclusive as against Neidig in this proceeding.

S e e United States v. Nava, 404 F.3d 1119, 1133 (9th Cir. 2005).

3 We have jurisdiction pursuant to 28U.S.C. § 1291.

Cir. 2005); Estevez, 845 F.2d at 1411. The District Court declined to entertain Neidig's c la im because it believed that he had not shown excusable neglect and that the claim lacks m e rit. We do not believe that the District Court should have made either determination on th e record before it.

F ir s t, it is true that Neidig's motion did not set forth any basis for a finding of e x c u sa b le neglect, as the government argued in its response. On appeal, however, he raises s e v e ra l arguments that might conceivably demonstrate excusable neglect, and has provided s o m e documentary support.4 Neidig further argues that he was preparing to reply on these is s u e s and that the District Court acted too hastily in denying his motion before he could do s o . We agree. The government filed its response on February 3, 2006. Under the local rules, N eidig was permitted to file a reply brief within ten business days thereafter, and a February 1 7 due-date for such a reply is reflected on the District Court docket. See M.D. Pa. R. 7.7, 7 .3 2 ; M.D. Pa. Crim. No. 04-cr-00271 Docket No. 487.5 The District Court, however, denied N e id ig 's motion on February 7. Accordingly, we will remand for the District Court to c o n sid e r Neidig's arguments in the first instance. See United States v. Mosquera, 845 F.2d 1 1 2 2 , 1125-26 (1st Cir. 1988) (holding that district court should not have dismissed pro se 4 Neidig argues, for example, that he did not receive notice of the forfeiture because his p ris o n does not subscribe to the newspaper in which notice was published and that he d ilig e n tly tried to protect his interests by attempting to file a lien against the property well b e f o re the District Court entered its final order of forfeiture.

5 The docket incorrectly identifies the government's response as a response to William's m o tio n , but the docketed response was to Neidig's motion. prisoner's motion for return of forfeited property before he had a "reasonable chance" to re p ly to government's response where issues of adequate notice required "further d e v e lo p m e n t" ).

Second, we do not agree that Neidig's claim conclusively lacks merit on its face. The D is tric t Court concluded that Neidig voluntarily transferred the property to his son and thus " la c k s standing to assert the innocent owner defense." (Feb. 7, 2006 Order at 3.) The D is tric t Court's reference to the "innocent owner defense" appears to be a reference to a d e f en s e available under the civil forfeiture statute, and the government expressly invokes that s ta tu te on appeal. See 18U.S.C. § 983(d). This case, however, is governed by the criminal f o rf e itu re statute. See 21U.S.C. § 853. Under the criminal statute, Neidig can prevail if he d e m o n s tra t e s that, at the time of the crimes that gave rise to the forfeiture, he had a "legal rig h t, title, or interest in the property" superior to that of his son. Id. § 853(n)(6)(A); Lavin, 9 4 2 F.2d at 185. The existence and nature of a claimant's interest is governed by state law (h e re , Pennsylvania) and the effect of that interest is governed by federal law. See Nava, 404 F .3 d at 1127; United States v. Stazola, 893 F.2d 34, 38 (3d Cir. 1990).

Under the circumstances Neidig alleges, his voluntary conveyance to William, by its e lf , might not preclude him from demonstrating a "right, title or interest" under P e n n s ylv a n ia law sufficient for relief under § 853(n). See, e.g., Nava, 404 F.3d at 1129-31 claim has merit; we say only that his voluntary conveyance of legal title might not be d isp o sitiv e .6 If the District Court concludes that Neidig has demonstrated excusable neglect, it should address Neidig's arguments regarding William's alleged breach of agreement and W illia m ' s alleged promise to reconvey the property to Neidig, as well as any other a p p r o p r ia te issues.

(ap p lying Wisconsin law). On the record before us, we cannot determine whether Neidig's 6 The government relies on United States v. BCCI Holdings (Luxembourg), S.A., 69 F. S u p p . 2d 36, 61 (D.D.C. 1999), for the proposition that a voluntary conveyance renders one a n unsecured creditor without standing to contest a forfeiture. That case, however, in a d d itio n to being otherwise factually distinct, did not address the effect of a real property c o n v e ya n c e under Pennsylvania law or § 853(n). We express no opinion on whether any p a rtic u la r theory is available to Neidig under Pennsylvania law, but we note that P e n n s ylv a n ia recognizes certain theories that are potentially implicated by his allegations. S e e , e.g., Brentwater Homes, Inc. v. Weibley, 369 A.2d 1172, 1175 (Pa. 1977); Silver v. S ilv e r, 219 A.2d 659, 661-62 (Pa. 1966); Godzieba v. Godzieba, 143 A.2d 344, 347 (Pa.

1 9 5 8 ). Given the technical nature of state property law, the District Court may want to c o n sid e r appointing counsel for Neidig before any ruling on the merits of his claim. See T a b ro n v. Grace, 6 F.3d 147, 155-58 (3d Cir. 1993).