Lasher v. United States of America

Filing 15

ORDER: Therefore, Lasher's motion is untimely. For the foregoing reasons, Lasher's motion is denied in its entirety and the Clerk of Court is respectfully directed to terminate the motion pending at ECF Entry No. 475. (Signed by Judge Naomi Reice Buchwald on 10/21/2019) Copies Mailed By Chambers. (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------X
UNITED STATES OF AMERICA,
- against -

MEMORANDUM AND ORDER

LENA LASHER
a/k/a Lena Congtang,

12 Cr. 868 (NRB)
17 Civ. 5925 (NRB)

Defendant.
----------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Before the Court is Lena Lasher’s motion dated August 26,
2019,

and

received

by

the

hearing

to

vacate

evidentiary

Court

on

the

August

27,

forfeiture

2019,

component

for

an

of

her

judgment of conviction entered on September 9, 2015, see ECF No.
273, and affirmed by the Second Circuit on September 2, 2016. See
ECF No. 318.

Lasher argues that the forfeiture order should be

vacated in light of the Second Circuit’s decision in United States
v. Fiumano, 721 F.App’x 45 (2d Cir. 2018).

Lasher’s reliance on

Fiumano is misplaced as it is a summary order without precedential
value

and

was

issued

in

the

context

of

a

predicated on a concession by the Government.

direct

appeal

and

Finally, nowhere in

the order does the Second Circuit suggest that it is extending
Honeycutt to a collateral challenge to a criminal judgment.
If we were to treat this motion as Lasher’s attempt to argue
that

her

Honeycutt,

forfeiture
this

motion

order
would

should
still

be
be

modified
denied.

in

light

of

The

Court

has

already

considered

challenge

was

and

rejected

previously

assistance by counsel.
5925, ECF No. 9.

this

packaged

as

challenge,
a

claim

of

though

the

ineffective

See Mem. and Order, Aug. 20, 2018, 17 Civ.

Lasher has appealed the Court’s Order of August

20, 2018, and the case is still pending before the Second Circuit.
See Notice of Appeal, 17 Civ. 5925, ECF No. 10.

In light of the

pending appeal, we lack jurisdiction to consider Lasher’s motion.
See Motorola Credit Corp. v. Uzan, 388 F.3d 39, 53 (2d Cir. 2004)
(“The filing of a notice of appeal is an event of jurisdictional
significance – it confers jurisdiction on the court of appeals and
divests the district court of its control over those aspects of
the case involved in the appeal.”).
Alternatively, assuming jurisdiction, even were we to treat
Lasher’s pending motion as a motion under Federal Rule of Civil
Procedure

60(b), relief would be denied as

untimely.

Lasher’s motion

is

In accordance with the Federal Rule of Civil Procedure

60(c), such a motion must be made “no more than a year after the
entry of” the order.

This one-year limitations period is strictly

enforced in this Circuit.

Warren v. Garvin, 219 F.3d 111, 114 (2d

Cir. 2000) (holding that the limitations period with respect to a
motion

for

reconsideration

“absolute.”).

under

Rule

60(b)(1)

through

(3)

is

Lasher filed this motion on August 26, 2019, which

2

is more than a year after the Court entered the Order of August
20,

2018.

Therefore, Lasher's motion is untimely.1

For the foregoing reasons,
entirety

and

the

Clerk

of

Lasher's motion is denied in its

Court

is

respectfully

directed

to

terminate the motion pending at ECF Entry No. 475.

SO ORDERED.

Dated:

New York, New York
October £,/, 20).9

UNITED STATES DISTRICT JUDGE

Nor could this motion be treated as a habeas petition under 28 U.S.C.
§2255 because a habeas petition "may not be used to bring collateral challenges
addressed solely to noncustodial punishments" such as forfeiture, which is the
only component of her judgment Lasher challenges in this motion.
United States
v. Rutigliano, 887 F.3d 98, 105 (2d Cir. 2018).

3

A copy of the foregoing Order has been sent via FedEx on this date
to the following:
Lena Lasher
16 Patton Street
High Bridge, NJ 08829

4