UNITED STATES v. Lost Creek Trust, Claimant-Appellant. (2019)

ORDER

We are presented with the issue whether an appeal of a third-party proceeding ancillary to a criminal forfeiture action should be treated as a “civil” or “criminal” case for purposes of determining the deadline to file a petition for panel rehearing or rehearing en banc under Federal Rule of Appellate Procedure 40(a). In a similar context, we have held that for purposes of determining the timeliness of an appeal related to a third-party petition to amend a criminal forfeiture order, the third-party proceeding will be considered “civil in nature.” United States v. Alcaraz-Garcia, 79 F.3d 769, 772 n.4 (9th Cir. 1996). We see no reason to depart from that approach in this context. We therefore hold that an appeal from a third-party proceeding ancillary to a criminal forfeiture action should be treated as a civil appeal for purposes of applying Rule 40(a).

Accordingly, Appellant Lost Creek Trust’s motion to reconsider (Dkt. No. 34) is GRANTED. The mandate is withdrawn. Appellant Lost Creek Trust’s petitions for panel rehearing and rehearing en banc (Dkt. No. 30) are ordered filed. The clerk shall circulate the petition for rehearing en banc to the whole court.