UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 20-2955 ____________

UNITED STATES OF AMERICA

v.

JOSEPH W. NOCITO

Nocito Enterprises, Inc.; Palace Development Company, Inc.; Jonolley Properties, Inc., Intervenors/Appellants pursuant to F.R.A.P. 12(a) ____________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2:18-cr-00035-001) District Court Judge: Honorable Joy Flowers Conti ____________

Argued June 21, 2022 ____________ BEFORE: McKEE,* RESTREPO and BIBAS, Circuit Judges

(Filed: April 3, 2023) ____________

OPINION OF THE COURT ____________

* The Honorable Theodore McKee assumed senior status on October 21, 2022. Phillip P. DiLucente Phil DiLucente & Associates 310 Grant Street Suite 1801 Grant Building Pittsburgh, PA 15219 Daniel Hartnett [ARGUED] Clark Hill 130 East Randolph Street Suite 3900 Chicago, IL 60601 Brandon J. Verdream Clark Hill 301 Grant Street One Oxford Centre, 14th Floor Pittsburgh, PA 15219 Counsel for Intervenors/Appellants Laura S. Irwin Matthew S. McHale [ARGUED] Office of United States Attorney 700 Grant Street Suite 4000 Pittsburgh, PA 15219 Counsel for the Appellee RESTREPO, Circuit Judge

Federal Rule of Criminal Procedure 41(g) allows persons deprived of property by the government to petition the courts to get it back. Here, the Rule 41(g) motion was not intended to recover property but to suppress evidence in the underlying prosecution. Because we conclude the Rule 41(g) motion was part of an ongoing criminal process, the District Court’s denial of appellants’ motion does not constitute a final order. We must therefore dismiss this appeal for lack of jurisdiction. I. Factual and Procedural Background

In November 2022, Joseph W. Nocito, president and CEO of Automated Health Systems, Inc. (AHS), pled guilty to

2 one count of a federal indictment charging him with tax fraud in violation of 18 U.S.C. § 371. Under the terms of the plea, Nocito accepted responsibility for the conduct charged in the indictment’s other nine counts and agreed to pay restitution in the amount of $15,824,056.00, pursuant to 18 U.S.C. § 3663A(3).

Count one of the indictment described Nocito’s long- standing conspiracy to use “business entities” he owned and controlled to commit tax fraud. Beginning in 2005 and continuing through 2013, Nocito characterized his personal expenses as deductible AHS business expenses and “shuffled” AHS’s untaxed profits between different companies he owned and controlled. These companies included the intervenors in this case, Nocito Enterprises, Inc., Palace Development Company, Inc., and Jonolley Properties, Inc. (collectively, the Intervenors). Count one stated the Intervenors “performed no significant business purpose, generated little to no independent revenue, and were funded primarily from payments from other Nocito companies.” JA2-49.

Nocito hid AHS’s profits in these shell companies by falsely characterizing millions of dollars as payments for business services, such as “‘loans,’ or as ‘management,’ ‘administrative’ and ‘consulting’ expense payments.” JA2-54. This concealment of the taxable corporate income enabled Nocito to avoid paying $11 million in corporate income tax. Nocito used the concealed profits stowed in the Intervenors to pay his personal expenses, such as construction costs for his 39,000 square foot home “Villa Noci,” the salaries of his personal butler and cook, exotic cars, and his grandchildren’s private school tuitions. JA2-50–53. Nocito filed fals