United States of America v. Christopher Close

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER CLOSE ,
Defendant,
and
LOST CREEK TRUST ,
Claimant-Appellant.
No. 18-30122
D.C. No.
2:03-cr-00069-
EJL-1
ORDER
Filed August 9, 2019
Before: Richard A. Paez and Carlos T. Bea, Circuit Judges,
and C. Ashley Royal,* District Judge.
* The Honorable C. Ashley Royal, United States District Judge for
the Middle District of Georgia, sitting by designation.

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2 UNITED STATES V. LOST CREEK TRUST
SUMMARY**
Fed. R. App. P. 40(a)
The panel filed an order granting a motion to reconsider
its denial of petitions for panel rehearing and rehearing en
banc as untimely, ordered the petitions filed, and withdrew
the mandate, in a case in which this court on May 13, 2019,
affirmed the district court’s final order in a third-party
proceeding ancillary to a criminal forfeiture action.
The panel held that an appeal from a third-party
proceeding ancillary to a criminal forfeiture action should be
treated as a civil appeal for purposes of determining the
deadline to file a petition for panel rehearing or rehearing en
banc under Fed. R. App. P. 40(a).
COUNSEL
Arthur M. Bistline, Bistline Law PLLC, Coeur d’Alene,
Idaho, for Claimant-Appellant.
William Humphries and Kevin T. Maloney, Assistant United
States Attorneys; Bart M. Davis, United States Attorney;
Office of the United States Attorney, Boise, Idaho; for
Plaintiff-Appellee.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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UNITED STATES V. LOST CREEK TRUST 3
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.

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