United States v. Tiras — Opinion, Court of Appeals for the Fifth Circuit, No. 23-20475 (May 16, 2025)
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Opinion of the United States Court of Appeals for the Fifth Circuit, No. 23-20475 consolidated with No. 24-20039, filed May 16, 2025, in United States of America v. Scott Jackson Davis, with E. Alan Tiras and E. Alan Tiras, P.C. as movants-appellees and Gravity Funding, L.L.C. and Gravity Capital, L.L.C. as movants-appellants. Circuit Judge Ho writes for a panel of Ho, Engelhardt and Douglas. The opinion states that Davis agreed to forfeiture of the Tomball property as part of a plea to wire fraud, and that the Gravity petition seeking an interest in it was signed on behalf of Gravity Funding rather than Gravity Capital. Citing 21 U.S.C. § 853(n)(3), the court affirms.
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“United States v. Tiras — Opinion, Court of Appeals for the Fifth Circuit, No. 23-20475 (May 16, 2025).”
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Case: 23-20475 Document: 149-1 Page: 1 Date Filed: 05/16/2025
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-20475
FILED
May 16, 2025
____________
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Scott Jackson Davis,
Defendant,
and
E. Alan Tiras; E. Alan Tiras, P.C.,
Movants—Appellees,
versus
Gravity Funding, L.L.C.; Gravity Capital, L.L.C.,
Movants—Appellants,
consolidated with
_____________
No. 24-20039
_____________
United States of America,
Case: 23-20475 Document: 149-1 Page: 2 Date Filed: 05/16/2025
Plaintiff,
versus
Scott Jackson Davis,
Defendant,
and
E. Alan Tiras; E. Alan Tiras, P.C.,
Movants—Appellees,
versus
Gravity Funding, L.L.C.; Gravity Capital, L.L.C.,
Movants—Appellants.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. 4:21-CR-577-1,
4:21-CR-577-1
______________________________
Before Ho, Engelhardt, and Douglas, Circuit Judges.
James C. Ho, Circuit Judge:
Lawyers’ work is careful work. Attention to detail is critical. A
mistake that might be immaterial in other professions can be devastating for
attorneys and their clients. See, e.g., Bowles v. Russell, 551 U.S. 205, 212 n.4
(2007) (noting that the Supreme Court “refused to accept a petition for
certiorari submitted by Ryan Heath Dickson because it had been filed one day
late,” so he was “executed on April 26, 2007, without any Member of this
Court having even seen his petition for certiorari”); Northwest Airlines, Inc.
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c/w No. 24-20039
v. Spirit Airlines, Inc., 549 U.S. 805 (2006) (missing deadline by a few days
precluded certiorari in multi-million dollar dispute); Lyle Denniston, A move
to salvage a big antitrust case, SCOTUSblog.com, July 31, 2006 (same);
Josh Barbanel, Attack of the Fine Print, N.Y. Times, July 24, 2009 (“an error
of a single digit in an arcane document—the densely worded 732-page
offering plan—could . . . cost the sponsors . . . tens of millions of dollars in
lost revenue”).
So too here. Gravity Capital may well have an interest in property
subject to criminal forfeiture. But their petition was signed on behalf of the
wrong entity—Gravity Funding, not Gravity Capital. The consequence of
this drafting error is that the petition fails, and any asserted property interest
is forfeited. That’s what the district court held, and today, we affirm.
I.
Scott Davis purchased property in Tomball, Texas. He paid for the
Tomball property with loan proceeds that he fraudulently obtained from the
Paycheck Protection Program, established in the wake of the COVID-19
pandemic under the CARES Act. He then used that property as collateral to
secure a subsequent loan of approximately $360,000 from Gravity Capital.
Davis later pleaded guilty to wire fraud. As part of his plea deal, he
agreed to forfeiture of the Tomball property.
The district court issued a preliminary order of forfeiture. The
Government then took steps to notify interested parties of that order, as
required by 21 U.S.C. § 853(n).
Two parties filed ancillary petitions claiming an interest in the
property: E. Alan Tiras and Gravity Funding.
The district court granted the Tiras petition. The court agreed that
Tiras had previously obtained a civil judgment against Davis that gave Tiras
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c/w No. 24-20039
an interest in the Tomball property. So the court amended the order of
forfeiture to require that “[t]he United States shall pay Tiras . . . the Net
Proceeds of the sale . . . up to the amount of Tiras’ lien.”
But the court denied the Gravity Funding petition due to a drafting
error by counsel: The petition was premised on a $360,000 loan to Davis
from Gravity Capital—not Gravity Funding. As counsel later explained dur-
ing oral argument before our court, “the attorney who had been working on
the case worked on another Gravity Funding matter and used a similar plead-
ing.”
The district court determined that this was a fatal drafting error, be-
cause Gravity Funding had no interest in any loan issued to Davis—and
Gravity Capital was not a party to the petition. So the court concluded that
it had no choice but to deny the Gravity Funding petition.
Gravity Funding and Gravity Capital filed this appeal. “We review
the district court’s findings of fact under the clearly erroneous standard of
review, and the question of whether those facts constitute legally proper for-
feiture de novo.” United States v. Reed, 908 F.3d 102, 125 (5th Cir. 2018)
(cleaned up).
II.
Federal law authorizes the forfeiture of property owned by individuals
convicted of certain crimes. It also authorizes innocent third parties to assert
an interest in property subject to a preliminary order of forfeiture. See 21
U.S.C. § 853; Fed. R. Crim. P. 32.2. To preserve their rights in forfeited
property, third parties must file a petition stating their interest. See 21 U.S.C.
§ 853(n). Most relevant here, the petition must be “signed by the petitioner
under penalty of perjury.” 21 U.S.C. § 853(n)(3).
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“Courts strictly construe Section 853’s statutory requirements.”
United States v. Zelaya Rojas, 364 F. Supp. 3d 626, 630 (E.D. La. 2019).
Noncompliance with these requirements is fatal to the petition. See, e.g., id.
at 630–31 (“unsworn or untimely petitions—or petitions that do not provide
sufficient detail regarding the nature of the petitioner’s interest—may be
dismissed for failure to comply with the statute’s filing requirements”);
United States v. Ginn, 799 F. Supp. 2d 645, 647 (E.D. La. 2010) (collecting
cases dismissing unsigned § 853(n) petitions).
Gravity Funding, not Gravity Capital, signed the petition. So the
district court correctly determined that Gravity Capital failed to comply with
§ 853(n), and that Gravity Funding lacks any interest in the Tomball
property.
The parties respond that they sought to amend the petition to add
Gravity Capital. But even assuming such an amendment were ordinarily
allowed, the proposed amendment here is untimely: Gravity Capital did not
attempt to amend the petition until at least eleven months after the deadline
set forth in § 853(n)(2). See 21 U.S.C. § 853(n)(2) (“Any person, other than
the defendant, asserting a legal interest in property which has been ordered
forfeited to the United States pursuant to this section may, within thirty days
of the final publication of notice or his receipt of notice under paragraph (1),
whichever is earlier, petition the court for a hearing to adjudicate the validity
of his alleged interest in the property.”). See also, e.g., Zelaya Rojas, 364 F.
Supp. 3d at 631–32 (denying proposed amendment and dismissing petition
for failure to meet § 853(n)(2) deadline).
The failure to assert a valid interest under § 853(n) also dooms Gravity
Capital’s challenge to the Tiras petition. “Congress has determined that §
853(n) . . . provides the means by which third-party rights must be
vindicated.” Libretti v. United States, 516 U.S. 29, 44 (1995). See also 21
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U.S.C. § 853(k) (“Except as provided in subsection (n), no party claiming an
interest in property subject to forfeiture under this section may—(1)
intervene in a trial or appeal of a criminal case involving the forfeiture of such
property under this section; or (2) commence an action at law or equity
against the United States concerning the validity of his alleged interest in the
property subsequent to the filing of an indictment or information alleging that
the property is subject to forfeiture under this section.”). So “a third party
who fails to file a timely petition may not object when the preliminary order
of forfeiture becomes the final order of forfeiture.” United States v. Marion,
562 F.3d 1330, 1336–37 (11th Cir. 2009) (citing Fed. R. Crim. P.
32.2(c)(2)).
***
“There but for the grace of God go I.” That’s what amici observed
in urging the Supreme Court to excuse the missed deadline in Northwest Air-
lines. 1 That same sentiment applies here. But it also leads to the same result.
We affirm.
_____________________
1
Brief of Charles Fried and Seth P. Waxman as Amici Curiae in Support of Motion
to Direct the Clerk to File a Petition for a Writ of Certiorari Out of Time, at 1, Northwest
Airlines, Inc. v. Spirit Airlines, Inc., 549 U.S. 805 (2006).
6
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