USA v. $644,860.00 in U.S. Currency, et al

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Daniel A. Manion, Circuit Judge; Michael S. Kanne, Circuit Judge and Ann Claire Williams, Circuit Judge. [6826789-1] [6826789] [16-2933]

Case: 16-2933

Document: 28
Filed: 03/17/2017
Pages: 4
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted March 17, 2017 *
Decided March 17, 2017
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 16-2933
UNITED STATES,
Plaintiff-Appellee,
v.
$94,600 IN U.S. CURRENCY, et al.,
Defendants.

Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 14-CV-394
Pamela Pepper,
Judge.

APPEAL OF:
TYRONE McMILLIAN, JR.
Claimant.

ORDER

Tyrone McMillian Jr. seeks to intervene in a forfeiture action brought by the
United States against money and property seized from his house. The district court
deemed McMillian’s proposed claim untimely and ruled that he thus did not have
standing to oppose forfeiture. The court then entered default in favor of the government
We have agreed to decide this case without oral argument because the issues
have been authoritatively decided. FED. R. APP. P. 34(a)(2)(B).
*

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and denied McMillian’s motion to reconsider. McMillian challenges these decisions, but
we conclude that the district court did not abuse its discretion and affirm.
Juries convicted McMillian of sex trafficking of children by force, 18 U.S.C.
§ 1591, coercing prostitution, id. § 2422(a), and possessing a firearm as a felon,
id. § 922(g)(1). Before his arrest, law enforcement had seized several items from his
home. These included about $94,600 in United States currency, a 2005 Bentley Coupe, a
diamond shield pendant, a diamond watch, and a yellow-gold diamond bracelet.
After federal agents learned that McMillian had obtained the seized items using
proceeds traceable to other crimes, the government filed a forfeiture complaint against
them, see 18 U.S.C. § 983(a)(3). The government notified McMillian that under
Rule G(5)(a)(ii) of the Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions, he must file a verified claim to the named properties by May 15 and
an answer within 21 days after filing the claim. A claim need only: (1) identify the
property being claimed; (2) identify the claimant and state the claimant’s interest in the
property; (3) be signed by the claimant under penalty of perjury; and (4) be served on
the government attorney designated under Rule G(4)(a)(ii)(C) or (b)(ii)(D). FED. R. CIV.
P. SUPP. R. G(5)(a).
McMillian sought a number of extensions to file his claim. He said that he was
being shuttled between prisons and did not have access to his “documents or
paperwork.” The court granted his first request and gave McMillian until June 15 to file
a claim. Shortly before that deadline, McMillian asked the court for another four
months; the government said that it did not object to one month, until July 15. Without
a ruling from the court, McMillian filed an unsworn answer, but no claim, on June 16.
The government advised the court and McMillian that he had not filed a verified claim
and that if he failed to do so by July 15, it intended to move for default judgment.
McMillian repeated his request for four more months, asserting that mail “is a problem”
in prison and he needed “proper documentation.”
The district court denied McMillian’s motions for extensions beyond July 15
because “any further delay in this case would [be] inimical to the interests of justice.” It
ignored letters McMillan later wrote asking for more time. In October the government
sought entry of default and partial default judgment on all items except the cash, which
the court addressed later. McMillian then filed a verified claim and asserted that he had
been waiting for the court to rule on his letter requests and that the government was not
prejudiced. The government moved to dismiss his claim as untimely.

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The district court granted the government’s motions. It concluded that McMillian
did not file a timely claim and therefore lacked statutory standing to oppose forfeiture.
Even if the court had granted his request for a 120-day extension from the deadline of
June 15, the court explained, that extension would have expired a week before he filed
his claim. McMillian asked the court to reconsider. Expanding on earlier assertions, he
argued that he thought he needed to file receipts and proof of ownership with the claim
and he had limited access to these materials while shuttled between prisons. The district
court denied McMillian’s motion.
On appeal McMillian challenges the district court’s rulings. He first argues that
his unsworn answer and requests for more time showed a timely interest in the
property, establishing standing. But McMillian does not dispute that he missed the
deadline in Rule G(5) to file a verified claim; and timely filing of a claim is needed to
acquire standing to oppose forfeiture. See United States v. Commodity Account No. 549
54930 at Saul Stone & Co., 219 F.3d 595, 597 (7th Cir. 2000) (discussing statutory standing
under the predecessor rule). Neither McMillian’s unsworn answer nor his requests for
more time fulfilled the claim requirements of Rule G(5) for standing. See United States v.
U.S. Currency in the Amount of $2,857.00, 754 F.2d 208, 213 (7th Cir. 1985); United States v.
$23,000 in U.S. Currency, 356 F.3d 157, 163 (1st Cir. 2004).
Next McMillian asserts that because his delay was caused by his status as a
pro se prisoner in transit, the district court abused its discretion when it dismissed his
late claim. The district court could have accepted McMillian’s late claim but did not
have to. See U.S. Currency in the Amount of $2,857.00, 754 F.2d at 215. And its decision to
reject the claim was reasonable. First McMillan gave no good reason for his delay. We
can assume that, as a prisoner in transit, he lacked access to his regular possessions. But
to file a claim he didn’t need these things. He needed only to describe the claimed
property, swear to his interest in it, and serve the government. FED. R. CIV. P. SUPP. R.
G(5)(a). This he could do. Second, he ignored the government’s warning that if he did
not file a verified claim by July 15 it would move for default. Third, the extra time that
he took was substantial: When he filed his claim, more than 90 days had elapsed from
the denial of his second request for an extension and more than 120 days elapsed from
the original extended deadline.
The district court also reasonably refused to reconsider the dismissal of his
untimely claim and the default. McMillian attributed his delay to his erroneous belief
that he needed receipts and legal materials, which were not available to him while in
transit, to file a claim. But this error does not justify his untimely claim. Mistakes of law

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(even by plaintiffs proceeding pro se) generally do not excuse compliance with
deadlines. See McNeil v. United States, 508 U.S. 106, 113 (1993); McMasters v.
United States, 260 F.3d 814, 818 (7th Cir. 2001). McMillan also argued that he delayed
because he was waiting for the court to address his letter requests for more time. But
when he wrote those letters, the district court had already decided that delays based on
excuses contained in those letters would be “inimical” to justice. Thus for the same
reasons the court’s initial decision was reasonable, so was its denial of McMillian’s
motion to reconsider.
We have considered McMillian’s remaining arguments, and none has merit.
AFFIRMED.