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U.S. v Martin

Case No. 10-5301 (C.A. 4, Nov. 30, 2011)

A jury convicted Paulette Martin, Learley Goodwin, Derrek Bynum, and Lavon Dobie (collectively "Appellants") of various drug related offenses. As part of their sentences, the district court ordered Appellants to forfeit assets connected to their drug crimes pursuant to 21 U.S.C. § 853. On appeal, Appellants seek vacature of the district court’s orders of forfeiture. For the reasons that follow, we affirm.

I.



A.



This case involves a large drug trafficking operation that supplied drugs throughout the District of Columbia, Maryland, and Virginia. On May 5, 2004, a grand jury indicted Appellants on numerous charges relating to their participation in the drug trafficking operation. Authorities arrested Appellants on June 1, 2004. Upon, and subsequent to, the arrests, the government seized various assets belonging to Appellants pursuant to civil forfeiture warrants issued under 18 U.S.C. § 981 and initiated civil forfeiture proceedings.

On January 19, 2005, a grand jury handed down a fourth superseding indictment against Appellants that included criminal forfeiture allegations against Appellants’ assets. Thus, by January 2005, the government was pursuing both civil and criminal forfeiture of the same property.








 

 

Judge(s): Allyson Duncan
Jurisdiction: U.S. Court of Appeals, Fourth Circuit
Related Categories: Criminal Justice
 
Circuit Court Judge(s)
Allyson Duncan
Roger Gregory
Diana Motz

 
Trial Court Judge(s)
Roger Titus

 
Appellant Lawyer(s) Appellant Law Firm(s)
Anthony Martin Anthony D Martin PC
Timothy Mitchell Law Office of Timothy S Mitchell
Michael Montemarano Michael D Montemarano PA
Robert Biddle Nathans & Biddle LLP

 
Appellee Lawyer(s) Appellee Law Firm(s)
Greg Andres U.S. Department of Justice
Lanny Breuer U.S. Department of Justice
Stefan Cassella U.S. Department of Justice
Steven Goodman U.S. Department of Justice
Bonnie Greenberg U.S. Department of Justice
Deborah Johnston U.S. Department of Justice
Rod Rosenstein U.S. Department of Justice
Anthony Vitarelli U.S. Department of Justice

 

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the penalty that was left open. the difference between not of a sentence. the federal rules of criminal procedure pro- amendments to rule 32.2 make clear that a district court may because, unlike in dolan, this case presents not only the missing of a stat- strated by dolan, the court has previously interpreted similar the victim's losses, not to exceed 90 days after sentencing." trict court ordered appellants to forfeit assets connected to to their participation in the drug trafficking operation. subse- bynum, and lavon dobie (collectively "appellants") of vari- in kind, not degree. it is true, as the majority notes, the appel- that it plans to order forfeiture. their written judgments, the majority relies heavily on dolan court erred both in holding that her claim was untimely and tin, anthony d. martin, pc, greenbelt, maryland, for not be extended." id. at 189. that a defendant is on notice of a penalty of forfeiture. it, how- amount of their liability." id. fourth, "depriving the sentenc- days notwithstanding and despite the supreme court's clear cumstances to determine the consequence of missed deadlines. see 130 s. ered its modified order for preliminary forfeiture to the dis- ment "at any time" through the use of rule 36. see fed. r. ented in that case as it is here. tion was only ancillary. lished a time-related directive.13 committee's note). rule 32.2(b) aligns the incentives of the 4 united states v. martin existed, is most persuasively understood as a time-related instant case despite the fact that this isn't a "fill in the blank" ports our conclusion that this deadline is not a jurisdictional undermines our adversarial system by forcing a defense attor- martin challenges the validity of these criminal seizure warrants, which the oral sentence nor in the written judgment for any of the feiture orders. the district court denied appellants' motion had no authority to enter a preliminary order of forfeiture after published forfeiture orders and to return all forfeited property. appel- 2540 ("[t]he statute seeks speed primarily to help the victims this section may not be sufficient to assure the availability of the property criminal forfeiture of the same property. ings on forfeiture, in which both the fact of liability and the trict court entered the preliminary order of forfeiture, i would 35 for the district court here to make an almost identical mistake, missing defendants to object at their sentencing on the grounds that a expiration of that period, the government must do one of three victim of his crime. id. at 2537. the governing statute pro- sentencing while delaying the restitution order for 90 days. 18 requiring the forfeiture order to be made part of the sentence dolan established three categories in which to consider hearing, the district court sentenced appellants. although the united states v. ereme, 339 f.app'x 340 (4th cir. 2009) (no. court extend that deadline for equitable reasons." id. at 2538. tion, see the opinion in case no. 07-4059 and united states v. johnson, after the second hearing on december 19, 2006, the district parties, provided that the preliminary order of forfeiture despite the majority's reliance on dolan's policy factors, dolan's sentence and order of judgment state that he was ance of such warrants if, inter alia, "the court determines that there is prob- limit for determining the amount of restitution imposed by 18 a part of the sentence and be included in the judgment." fed. zure, martin seeks the vacature of the subsequent criminal substantive alteration to a criminal sentence.") (citing united customs and border protection. the civil asset forfeiture them in a final judgment, it did not set forth the consequences the third category of deadline, a "time-related directive," is martin argues, the property also should have been excluded as evidence several liability. the district court then told the government see id. at 2539 (finding that the lack of a specified conse- united states attorney, baltimore, maryland; was sufficient to justify the criminal forfeiture. we therefore we first consider martin's argument that the government's missing this type of deadline "[u]nless a party points out to ing rules 35 and 36).) crucially, "the government . . . raised montemarano, michael d. montemarano, pa, turn the property." 18 u.s.c. 983(a)(3)(b) (emphasis purpose of forfeiture is to punish and deter criminals, not may amend a sentence" under rule 35. post, at 16-17. we believe this a u.s.c. 3664(d)(5), we are faced here with the passing of not seeks to benefit." id. at 2540. fifth, the court had "previously designed to help victims of crime secure prompt restitution arguments of counsel [and] i conclude that the gov- vitarelli, united states department of justice, full compensation of victims in restitution cases. 130 s. ct. at appellants collectively argue that the district court was with- the dissent argues that this case is distinguishable from dolan p. 41(g). on january 19, 2005, a grand jury handed down a fourth amendment. as a result, in addition to not being subject to forfeiture, larly. this merely assumes the answer to the very question ize forfeiture as set forth in federal rule of criminal states v. addonizio, 442 u.s. 178, 189 (1979). before rule 35 dollars representing drug proceeds. derrek lewis bynum, a/k/a bo, for damages pursuant to the federal tort claims act. see 28 u.s.c. rather than to provide defendants with certainty as to the guard. the district court held multiple, comprehensive hear- sion on joint and several liability, a change to which appellants consented. the judgment both state that the defendant is subject to a cer- v. ii. makes sense against a background rule that trial courts cannot v. no. 10-5304 determine the amount of a penalty after the relevant statutory allowance cannot trump rule 35's seven-day window to cor- greater in cases in which there is no indication in the sentence [joint and several liability], i will be glad to enter the order. district court is required to do at sentencing. . . ." fed. r. judgment some four years later via rule 36's "at any time" able cause to believe . . . that [a protective order] under subsection (e) of as to the forfeiture orders. see dolan, 130 s. ct. at 2541. flexibility to "essentially fill in an amount-related blank in a district court of jurisdiction to enter orders of criminal forfei- feiture. this appeal followed. in addition, the district court denied martin's rule 41(g) motion, holding it is therefore not the violation of rule 32.2's command forfeiture of her property.9 cedure used to effect criminal forfeiture is set forth in rule 9 [ose] from nonrecurring and attenuated negligence [and] is thus far 8 tx. eth. op. 504 (defense counsel has no duty to correct mis- 2 goodie, a/k/a lonnie ross, ing court of the power to order restitution would harm interpretations de novo. united states v. morgan, 224 f.3d action, martin filed a motion with the district court for even assuming, without deciding, that the government the most forgiving. a time-related directive keeps a process of their illegal enterprises--certainly not anymore than they before rule 32.2(b) was that "third parties who might have an join in this appeal. we dispose of all challenges to the criminal forfeiture expiration that it would order restitution, leaving open (for 10 (2007). property has no incentive, at trial, to dispute the government's for forfeiture." martin asserts that the district court erred in finding that a provided that, "[a]t sentencing . . . the order of in the drug trafficking operation. authorities arrested appel- 12 cally mooted by 3664(d)(5)'s 90-day allowance to enter the vided in the applicable criminal forfeiture statute," or (3) "re- tinued possession of her property despite its failure to act vio- criminals of the fruits of their illegal acts and deter future lawyer, "[i]f you will prepare a modified order that addresses although the attempted civil forfeiture of martin's property plays a discussed at the hearing, demonstrating the defendant's erty after their sentencings and the entry of judgments. in case. at the same time, a defendant who has no interest in preserve its right to maintain custody of the property as pro- 8:04-cr-00235-rwt-3) these correctives. as such, i would find that the district court two forfeiture hearings, taking evidence regarding the connec- statute." the government had also failed to file a complaint for forfeiture filed a motion in the district court to vacate the prior criminal orders and amended judgments should be vacated. 08-5094), 2009 wl 958911 at *19 (defense acknowledged at orders in this opinion. be waived because of that undeniably important goal. it was include the forfeiture when orally announcing the sentence or advisory committee notes, the change in the rule was not one dy--the vacature of the property's later criminal forfei- ration of rule 35's timeline, is determinative. rule 35 "only joined appeal of the criminal forfeiture orders, whereas she does not so they failed to do so. significant differences between rule 32.2 and dolan's restitu- january 2005, the government was pursuing both civil and knowing the amount of a punishment, as in dolan, and not 11united states v. martin or omission." fed. r. crim. p. 36 (2010). actually been imposed. apart from the oddity of requiring a was not error under rule 35 for the district court in dolan to miss the stat- 18 united states v. martin ("rule 36 is not a vehicle for the vindication of the court's learley reed goodwin, a/k/a vide for the correction of oversights in sentencing and in judg- the deadline governing forfeiture. accordingly, we believe dolan is forfeiture until months later. appellants argue that by missing proceeding). here, martin does not dispute that the evidence case and grasso and ereme. in the latter cases, forfeiture was ture so long as the sentencing court makes clear prior to sen- added). if the government fails to complete one of these three nexus between the property for which it is seeking forfeiture f.app'x 166, 167 n.1 (3rd cir. 2010); brief of appellee at 19, by the forfeiture scheme, their rights are injured by the major- only rule 32.2's requirement, but also the elapsing of the ated by the restitution statute in concluding that it is a "time- majority is that similar statutes have been interpreted simi- in order to reach its conclusion that the appellants must for- dealers of their economic power."). third, there is no indica- plaintiff-appellee, i have considered the testimony . . . as well as the for victims does not explicitly appear in the criminal forfei- (emphasis added). there is nothing in the record that demon- agreed to a minor change in that order concerning joint and defendant's sentence. as already mentioned, rule 35 is one majority are the purpose of the statutory scheme. the primary the availability of her property. we have considered this argument and ii. timeframe in which a court may amend a sentence. there are ing efficient use of the court's time while not sacrificing the ture order before it becomes final in order to dispute, say, martin does not seek monetary damages. a person whose property has of crime and only secondarily to help the defendant."). in (8:04-cr-00235-rwt-1; 8:04-cr-00235-rwt-7; orders. first, dolan was narrowly conscribed to cover only argued: robert whelen biddle, nathans & biddle, the step by "tak[ing] the steps necessary to preserve its right to maintain orah a. johnston, assistant united states attorney, bonnie s. tences became final for purposes of rule 32.2 before the dis- statutes similarly. finally, appellants could have mitigated is not just to sanction illegal conduct, but also to strip drug a final order of forfeiture but did not amend the judgments to to complete any of the three actions listed in 983(a)(3)(b) by which a claimant can challenge the civil forfeiture of assets interest in the finality of his sentence was not squarely pres- include the orders of forfeiture. were issued pursuant to 21 u.s.c. 853(f). section 853(f) allows the issu- ture.2 andres, acting deputy assistant attorney general, daniel this type of deadline is unlikely to be inferred when a statute these assets included over $400,000 in currency from accounts held by crim. p. 32.2 advisory committee's notes (2009 amendment). a jury convicted paulette martin, learley goodwin, derrek forfeiture allegations." fed. r. crim. p. 32.2 (2000 advisory 21united states v. martin feiture context or they favor the appellants in this case. even martin contended that the government's con- stantive purpose of criminal forfeiture is . . . to deprive is not to create a coercive sanction, but to ensure that a defen- compliance." id. at 2539 (internal quotations omitted). sec- here. there is no dispute that appellants were fully aware of both decided: november 30, 2011 text.12 10 dered invalid its later criminal forfeiture.7 things: (1) "file a [civil] complaint for forfeiture," (2) "obtain feiture for lack of authority. see, e.g., united states v. yeje- timothy s. mitchell, greenbelt, maryland, for appel- years after its initial entry when it discovered its error through congress surely did not want criminals to retain the profit lated 983(a)(3)(b). dolan, the exact amount. notably, appellants themselves do opinion rowly frame its decision in dolan around the issue of restitution. instead, cabrera, 430 f.3d 1, 6, 14, 16 (1st cir. 2005); united states greenberg, assistant united states attorney, stefan d. cas- sionary] rule in the first place." id. i. i agree with the consensus view that a violation of rule vised release." dolan, 130 s. ct. at 2548 (roberts, c.j., a criminal proceeding, the unlawful seizure of property does iii. b. that would flow from missing that deadline. the supreme 5united states v. martin not result in the suppression of that property in a forfeiture in dolan v. united states, 130 s. ct. 2533 (2010), the ture of the property invalid. martin argues that the district defendants. id. third, the statute's deadline "is primarily an example of a claims-processing rule is the deadline for fil- that a missed deadline might cause." id. at 2541. ity of criminal sentences. see united states v. pease, 331 f.3d dant at sentencing is in stark contrast to the restitution frame- in a separately filed appeal under case no. 07-4059. the only difference district court did not mention forfeiture in handing down each ture statutes. to the extent that third parties are contemplated united states court of appeals solve a very particular problem of court management: ensur- duncan, circuit judge: first, the dolan court relied heavily on the importance of victims of crime,14 forfeiture. the relevant language of the current rule 32.2 further sup- martin argued that, although the government had obtained an indict- closely analogous to these circumstances and thus compels our decision tion than cases like dolan in which the sentencing court and immunize that property from forfeiture as long as the govern- furthermore, the changes wrought by the 2009 amend- the defendant, as part of his sentence, to pay restitution to the the rights of third parties--victims of defendants--that the at 2544. the significant difference in the appellants' cases is 23united states v. martin individual sentence, no one objected to the district court's on appeal, appellants challenge the criminal forfeiture of ty's holding, it seems that after a defendant "has served his the preponderance standard is set forth in case law, not the statute. tively, that the government's obtaining criminal seizure war- roger w. titus, district judge. rules of criminal procedure. because the appellants' sen- ment, a defendant can still be subject to that punishment if she . . . the sentencing court made clear prior to the deadline's on that same day, immediately following the forfeiture errors made by the court itself.") (internal quotation marks united states v. werber, 51 f.3d 342, 347 (2d cir. 1995) replied in the negative. j.a. 586 (martin); j.a. 688 (bynum); plaintiff-appellee, the dolan court focused on six aspects of the deadline cre- victims of crime, rather than provide some protection for ture--that she seeks. the illegal seizure of property does not and rule 35 similar enough to the restitution framework to findings of fact for clear error and the district court's legal lants on june 1, 2004. upon, and subsequent to, the arrests, of appellants' assets. filing appeals. see, e.g., bowles v. russell, 551 u.s. 205, 209- likely bear no responsibility for the deadline's being missed a. essary if we so broadly read rule 36's corrective power. to appellants correctly note that the district court neither ref- related directive." first, the deadline, even though it contains removed from the core concerns that led [the court] to adopt the [exclu- the government seized various assets belonging to appellants and amended the judgments to include the final order of for- inal forfeiture allegations against appellants' assets. thus, by after it entered judgments and did not enter a final order of might still order additional imprisonment, additional restitu- supplied drugs throughout the district of columbia, mary- it is undisputed that the district court did not enter a prelim- purpose, as evidenced by the statute or rule's language and con- zure warrants mooted her challenge to its unlawful possession the court in dolan set forth broad guidance for courts faced with these cir- entire sentence--and who knows how long after?--a court 2006, a jury convicted appellants on various charges related a claim is made, a 90-day clock begins to run. before the 5 or rule fails to specify any consequence for noncompliance. orders and amended judgments. on may 5, 2004, a grand jury indicted dence. see, e.g., united states v. pierre, 484 f.3d 75, 87 (1st many of those factors actually have little relevance in the for- first, like 3664(d)(5), the land, and virginia.3 federal rules of criminal procedure and undermine the final- late[s] the timing of motions or claims brought before the rule, most courts hold that the provision in rule 32.2(b)(3) v. bennett, 423 f.3d 271, 272 (3d cir. 2005). two avenues 32.2 without more does not necessarily void an order of for- seized martin's property illegally, we cannot grant the reme- the word "shall," does "not specify a consequence for non- careful parsing of dolan and the precedent in the asset- between the forfeiture and restitution schemes command ment with forfeiture allegations before the deadline, it had not completed ing that the district court would enter forfeiture orders, we those--the victims of crime--who likely bear no responsibil- ies given to appellants--and the beginning of the individual sentencings amendments support the view that the present facts are ity's conclusion that there is no force behind rule 32.2's or return the property. knew of forfeiture. the rule does not say that notice from . . . i see no reason why not to proceed to the execution of a certainly could have been written so that it would be sufficient becomes final as to the defendant at a specific time--at sen- ments. the district court here did not timely avail itself of ments to the federal rules of criminal procedure do not sup- ture. see supra at 10. but being sentenced with judgment 3 intended to enter the forfeiture order. appellants lack of sur- cir. 2007); see also ins v. lopez mendoza, 468 u.s. 1032, opinion rejecting appellant's requested remedy of suppres- procedure 32.2, and therefore lost jurisdiction to enter the for- the third dolan ground the majority discusses is the fact the court that another litigant has missed such a deadline." id. there are two differences between the present case and awaited, it was the very fact of forfeiture that was left open inary order of forfeiture before sentencing and judgment. nor course, the issue isn't whether rule 32.2's purpose is to pro- sions to rule 32.2, "[w]hile it is not expressly stated in the ing on a prompt date for the preliminary order protects third- takes made by prosecutor in court about prior convictions of although i concur in parts i and ii.a of judge duncan's 368 f. supp. 2d 509 (d.s.c. 2005). the king court found it ("[m]issing the deadline set in rule 32.2 does not deprive a criminal seizure warrants6 sentencing when forfeiture had not been raised at sentencing amount of the liability." supra at 12 (emphasis added). of penalty. the majority takes dolan out of its context and gives that we are trying to answer today: are the forfeiture statute subject to forfeiture. see, e.g., united states v. grasso, 376 `clerical' errors; it cannot be used, as it was here, to make a such path. and rule 36 provides another: "[a]fter giving any tion that the purpose of the deadline set in rule 32.2 is to pro- long as the defendant has notice that a penalty would be 18 u.s.c. 3664(d)(5). it was undisputed both that the defen- correct its failure to include the forfeiture order in the judg- order of forfeiture becomes final as to the defendant at the the exceptions that congress has explicitly permitted. united property. rect a clerical error in a judgment, order, or other part of the to provide protection for defendants but to deprive criminals because the dolan district judge was merely filling in an u.s.c. 3664(d)(5) (2010). this difference puts rule 35 time limits, even if they don't apply to the "filling in the defendant-appellant. include that order. almost three years later, on april 15, 2010, appellants not--and indeed could not--argue that they were caught off- pre-trial actions with respect to her property violated the civil hibition is absolute. the parties cannot waive it, nor can a 32.2(a). after conviction, the government must establish a unexpressed sentencing expectations, or for the correction of court." dolan, 130 s. ct. at 2538. no sanction is applied for filling in "amount-related blank" and issuing a punishment. their sentencing hearings and no inclusion of forfeiture in tion statute, which i address in part ii, infra. more troubling, dant is on notice as to all aspects of his sentence, including prise is further evidenced by the fact that they did not chal- for district court to do in dolan was to fill in the amount of restitution, this we review the district court's was approximately 32 minutes. see j.a. 532, 533, 543. eral deterrence and the punishment of wrongs, such promo- the order that day. on june 14, 2007, the district court issued erty is subject to forfeiture[ ] and take the steps necessary to we conclude that rule 32.2(b)(3), as it then existed, estab- dolan decision sought to protect; if it sought to promote gen- 6 considerations of dolan compel vacatur of the forfeiture court to finalize forfeiture orders at sentencing and include forfeiture. contrary to the dolan dissent's view, a defendant's see 21 u.s.c. 853(i) ("with respect to property ordered forfeited affirmed 19united states v. martin strates that the sentencing court ensured that the defendants alone that compels vacatur. that violation, coupled with expi- for the reasons that follow, we affirm. second, the substantive purpose of criminal forfeiture is not martin's, that is ultimately forfeited. id. at 2680(c)(2). between this appeal and the appeal in 07-4059 is that in 07-4059, dobie appeals from the united states district court to meet the rule 32.2 deadline would often harm those who at sentencing, nor made part of the oral sentence, nor included change sentences at will." dolan, 130 s. ct. at 2548 (roberts, error to correct in the sentence. dolan, 130 s. ct. at 2544. c.j., dissenting). an imposed sentence is final subject only to lant bynum. rod j. rosenstein, united states attorney, deb- v. united states, 130 s. ct. 2533 (2010). that case held that see, e.g., united states v. smith, 966 f.2d 1045, 1050-53 (6th cir. 1992). command that rule 35's time limit is "jurisdictional and may ing the deadline set in rule 32.2 does not deprive a district that "there is no indication that the purpose of the deadline set penalty after the relevant statutory deadline. see supra at 9-10 ond, the substantive purpose of the restitution statute is to aid accuracy of its punishments. the dolan court tells us that its defendant's sentence. id. at 512; see infra part i.b. (discuss- forfeiture when orally announcing the sentence or must other- dolan, victims of the crime would be prejudiced if the court sion, i am compelled to dissent from parts ii.b and iii. a defendant's interest in the finality of his sentence is accordingly, because the rule 32.2 deadline, as it then entering the forfeiture order. this clarification emphasizes that the purpose of the deadline out jurisdiction to order the criminal forfeiture of their prop- omission. appellants seek vacature of the district court's orders of forfei- reform act, 18 u.s.c. 983 ("cafra"), creates a process ture context or actually support the appellants' case. even if directive rather than a jurisdictional condition, and because the rule was redrafted in 2009. forfeiture context reveals that these decisions are all meant to crimes." supra at 12. but the same, of course, could be said the second and fourth dolan grounds discussed by the 32.2, when read with rule 35, is intended to provide certainty presented to me at the prior proceeding on forfeiture become final. by modifying its judgments four years after ruary 22, 2005, by filing a claim with the u.s. department of entered its judgments as to appellants. the government deliv- 144 (2009). in contrast, the government's error in this instance, if any, "ar- court, however, has recently provided guidance in an analo- contrary to the dissent's suggestion, post at 15, the court did not nar- of the fruits of their illegal acts and deter future crimes. cf. i were to conclude that these facts present a dolan issue with argued: september 20, 2011 for a more thorough treatment of the facts surrounding this drug opera- preliminary and final orders of forfeiture in 2007 and the recurring or systemic negligence." herring v. united states, 555 u.s. 135, j.a. 504, 518, 520, 532. likewise, assuming the dissent is correct that it in rule 32.2 is to provide defendants with certainty as to the although it is not addressed by the majority. see fed. r. crim. entered against you is likewise fundamentally different from action to protect the rights of innocent persons which is in the interest of court entered the final order of forfeiture. rule 35 out of the federal rules of criminal procedure. of a forfeiture order for $367,500, which will indeed bankrupt amend sentences at any time--the clear textual limit of seven within 90 days.5 not result in the suppression of the "body" of the defendant in the judgment, must surely apply in force to the simple fact of sentence is orally announced." stefan d. cassella, asset for- previous hearings suffices. furthermore, the amended rule, respect to rule 32.2 alone, i would find the differences superseding indictment against appellants that included crim- "must"--did not specify a consequence for noncompliance. in this case. lenge the forfeiture until almost three years after the district erate, reckless, or grossly negligent conduct, or in some circumstances dolan that i believe warrant vacatur of the district court's while the only timing rule at stake in dolan was the 90-day by the sentencing judge. yet congress also values the finality id. at 2538-39. the first, a "jurisdictional condition," tional' deadline prevents the court from permitting or taking defendant's judgment. dolan, 130 s. ct. at 2538. if i were to conclude that dolan's framework covered the lants were on notice that their sentences would include forfei- and the property for which the government sought forfeiture. deadline. the forfeiture rule provides that the preliminary ment can sustain the forfeiture claim with independent evi- of their property after sentencing and the entry of judgments. aware at sentencing that the defendant will be subject to that 14 united states v. martin llp, baltimore, maryland, for appellants. anthony william ment at all. been improperly held by the government generally can sue the government murphy, a/k/a paulette akuffo, cal, or other clear error."). that rule 35 is so squarely pre- 587 f.3d 625 (4th cir. 2009). compensate injured third parties, as is the goal of the restitu- court examined a statute that set forth a deadline without 981 and initiated civil forfeiture proceedings. more than 90 days) only the amount," id. at 2537. dolan, deadline when the sentencing court makes the defendant ity for the deadline's being missed and whom the statute also inal procedure 41(g)."4 mitted by the government and noted that the parties had misreading of dolan. although the dissent is correct that all that was left custody of the property as provided in the applicable criminal forfeiture 14 ing--a mere minutes15 ordered, the sentencing court retains authority to impose such being subject to a punishment at all, as here, is a difference steven goodman, united states department of amount of a fine, or a special condition of supervised release." and structures. i deal with each in turn. feiture, our review is limited to the ultimate criminal forfeiture of her counsel means is that thereafter a third party may challenge the forfei- 2004 version of rule 32.2(b)(3)--although it used the word tion statute. the majority is right when it argues that "the sub- fact of the penalty itself--was left blank. second, the restitu- considering the facts before us through the lens of dolan, in holding that the government's attainment of criminal sei- blanks" of a restitution order included in the sentence and in feit their property despite no discussion about forfeiture at in the forfeiture context for its holding. in all other cases on record, or correct an error in the record arising from oversight ture at sentencing." fed. r. crim. p. 32.2(b)(4)(b) (2010) tion and forfeiture statutory schemes have different purposes squarely in play in the forfeiture context, whereas it is practi- tion in the indictment against the defendant. fed. r. crim. p. would read rule 35 to say that trial courts have authority to appellants were indisputably on notice at the time of sentenc- tual scenarios, there is at least a discussion at the sentencing however, does not stand for the majority's contention that as court of the power to order restitution," id. at 2539, "where 32.2(b)(2). rule 32.2, as it existed at the time of appellants' amended judgments in 2010, and therefore the district court's court stated: the sixth ground of dolan cited by today's majority is that determinative in dolan either have little import in the forfei- ney to alert the court of the prosecutor's oversights. see, e.g., record below makes it clear that forfeiture was not mentioned ing a motion for a new trial in a criminal case. see, e.g., eber- no. 10-5306 has the strictest consequence: "the expiration of a `jurisdic- knowledge that forfeiture was going to be imposed. the rule particular punishment they thought might be imposed has not ernment's preliminary forfeiture order is fully sup- id. at 2543. what's needed in such cases is to give judges the ion, in which judge motz joined. judge gregory wrote an 7 tencing." rule 32.2(b)(4)(b) (emphasis added). as the justice, washington, d.c., for appellee. no. 10-5301paulette martin, a/k/a paulette gregory, circuit judge, concurring in part and dissenting 24 united states v. martin a criminal indictment containing an allegation that the prop- 32.2's structure that compels the conclusion that the orders 9united states v. martin no issue regarding forfeiture at sentencing." id. at 512-13. the justice. . . ."). party interests and promotes judicial efficiency. the problem or entered in the judgment. (the court went further to con- government did not use appeal under 3742). to insist a hart v. united states, 546 u.s. 12, 19 (2005) (per curiam). ("[t]he purpose behind criminal forfeiture under section 853 appellants, a mercedes automobile owned by martin, and several million of her property. as a remedy for the government's illegal sei- deprivation of property may move for the property's return." fed. r. crim. 1 notice it considers appropriate, the court may at any time cor- want criminals to serve a shorter sentence than was intended being on notice that you may be sentenced. under the majori- 32.2(b)(1)(a).10 ported by the evidence at trial and . . . the evidence port the majority's position, as it contests, see supra at 13; the forfeiture becomes final as to the defendant and must be made i. was adopted, "trial courts had no . . . authority" to modify 16 united states v. martin from her trial. we disagree. "[t]he exclusionary rule serves to deter delib- tion, an additional fine, or an additional condition of super- objecting at their respective sentencings to the lack of finality forfeiture is not discussed at sentencing or ordered in judg- for any criminal punishment for crimes involving illicit gains. not a single case, published or unpublished, has done what 36 indeed states explicitly, "at any time," and the 2009 were proper remedial actions, such as amendment of the sen- before motz, gregory, and duncan, circuit judges. for the district of maryland, at greenbelt. imposed sentences. id. at 189 n.16. yet today's majority 3742 appeal, but it chose not to. see pease, 331 f.3d at 811- between january 5, 2007, and january 16, 2007, the court 35 that mandates such an outcome. going to be subject to restitution; it was only the amount of lights the important factual difference between the present the defendant if it's permitted"). for the fourth circuit concerns the remedy for missing a statutory deadline"). claim on february 22, 2005, and that the government failed it is telling that the majority does not cite to any precedent as part of this argument, martin claims that the unlawful possession of substance, but was instead intended "to clarify what the tion between the crimes for which appellants were convicted amendment of judgment, the seven-day window to amend the role in our analysis, because the government never completed the civil for- erenced forfeiture in sentencing appellants, nor included final restitution and failed to include an order of restitution in the tion and that the district court missed the deadline to order modified order." j.a. 532. no one objected to this delay in ings took place. correcting a sentence that did not mention forfeiture when feiture law in the united states 600 (2007). by the sentencing hearing and the judgment. their sentences' "lack of finality as to the forfeiture orders." if the government satisfies its burden, the dis- for the foregoing reasons, we affirm the criminal forfeiture in which she has an interest. cafra provides that when such 6 united states v. martin is missed." dolan, 130 s. ct. at 2538. 15 here, the district court did amend its judgment some four does not deprive a judge or other public official of the power this case involves a large drug trafficking operation that 2 united states v. martin judgment that made clear that restitution was applicable." id. liability. fourth, because proceeds from forfeiture may go to j.a. 530. the district court referred to the proposed order sub- tencing. for martin's assets based on the gous context. following this guidance, we conclude that miss- amended judgments and orders of forfeiture. 7united states v. martin 339, 342 (4th cir. 2000). we consider each challenge in turn. tence pursuant to rule 35, timely pursued under the federal although rule 32.2, as it existed in 2004, required a district dissenting). after waiting several months for the government to take trict court on january 19, 2007, and the district court entered as she expected violates the principle of zealous advocacy pened in this case. indeed, here the only blank left to be filled was a provi- their property. martin individually argues that the govern- 12 (government could not use rule 36 to amend the judgment in response to martin's motion, the government obtained in the judgment of the court. indeed, under the pre-2010 revi- court failed to enter the preliminary order of forfeiture until 3united states v. martin "prompt return of property pursuant to federal rule of crim- sentencings,11 forfeiture statute, thereby rendering the later criminal forfei- plaintiff-appellee, utory deadline, "but also the elapsing of the timeframe in which a court sented here highlights the legal difference between merely amount were determined. see j.a. 364-461, 480-532. the dis- specifying a consequence, and provided an analytical con- interest in the forfeited property are not parties to the criminal time of sentencing. fed. r. crim. p. 32.2(b)(4)(a). what this and the crime by a preponderance of the evidence. id. at 15united states v. martin j.a. 788-89 (goodwin). the government also had an opportu- lacking sufficient information) wishes to leave open, say, the pursuant to civil forfeiture warrants issued under 18 u.s.c. rule 41(g) states in relevant part: "a person aggrieved . . . by the oral sentences had closed, and the appellants' sentences had dant was on notice that the district court would order restitu- that the order of forfeiture becomes final as to the defen- work, which allows the trial court to go forward with the appellants' motion to vacate the orders of forfeiture. rule to take the action to which the deadline applies if the deadline amount of the victim's losses. again, it is not solely rule clude that rule 36 cannot be used to substantively alter a to enter orders of forfeiture and to amend the judgments to release the property." id. had vacated the untimely restitution order. the same concern appellant goodwin; timothy s. mitchell, law office of not a "fill in the blank" case like dolan--it is whether rule defendant-appellant. restitution cases in which the amount of the penalty--not the martin asserted that she timely filed a decision covers the case in which "a judge who (currently 22 united states v. martin a. martin challenged the civil forfeiture of her assets on feb- elkridge, maryland, for appellant martin; anthony d. mar- under this section, the attorney general is authorized to . . . take any other washington, d.c., for appellee. on brief: michael d. a/k/a paula murphy, a/k/a auntie, issue its final order of forfeiture. i would therefore vacate the 13 from the record, it appears the time between the district court refuse to vacate the district court's tardy forfeiture orders. hearing in which the court confirms that the defendant will be vacatur of the district court's orders. utory deadline governing restitution, it was similarly not error under rule tencing that it plans to order forfeiture."). the dolan decision "fill in the blank" is no less an amendment of a sentence than what hap- affirmed by published opinion. judge duncan wrote the opin- that martin's february 22 claim was untimely and, alterna- 809, 816 (11th cir. 2003) ("rule 36 can be used to correct had no authority to enter the preliminary order of forfeiture p. 35(a) (2008) ("within 7 days after sentencing, the court required by our adversarial system. court was without jurisdiction to order the criminal forfeiture appellants' trial began on june 6, 2006. on august 31, ct. at 2357 (broadly noting, in the first sentence of the opinion, "this case ment's pre-trial violation of the civil forfeiture statute ren- critically, rule 35 is squarely at issue on these facts, quent to appellants' convictions, post-trial forfeiture proceed- lants argued that the district court missed the deadline to final- sweep rule 35 under the rug. the fact that the court modified in part: long as the sentencing court makes clear prior to sentencing a statutory deadline to order restitution "does not deprive the on appeal, opinion concurring in part and dissenting in part. orders of forfeiture in their judgments. in fact, the district ples of jurisdictional conditions include the deadlines for 1039-40 (1984) (noting that, just as an unlawful arrest does of restitution, "the defendant normally can mitigate any harm iii. united states of america, their drug crimes pursuant to 21 u.s.c. 853.1 rants mooted her motion. sella, assistant united states attorney, office of the preventing forfeiture based on the failure vide defendants with certainty as to the amount of their is much narrower: the sentencing court retains authority to means that the court must mention the forfeiture when the trict court enters a preliminary order of forfeiture. id. 2680(c). such a remedy is unavailable, however, as to property, like to the defendant as to whether she is subject to that punish- united states of america, ous drug related offenses. as part of their sentences, the dis- the deadline set in rule 32.2, the district court lost jurisdiction criminal forfeiture proceedings,8 united states of america, tain sanction in an amount to be determined later. rule 35's united states v. ben-hur, 20 f.3d 313, 319 (7th cir.1994) omitted). steps before the 90 days expires, it is required to "promptly condition. it now provides that, "[t]he court must include the r. crim. pro. 32.2(b)(3) (2004 version) (emphasis added). of the property amounted to an illegal seizure in violation of the fourth unequivocally stating that it intended to enter--after a minor change--the its narrow holding breadth in a qualitatively different area of beyond the pale. the amended rule states, "the court must rect a "clear error" in sentencing. rule 35 would never be nec- reject martin's challenge. the action to which the statute attached the deadline. the pro- the second category of deadline, a "claims-processing 20 united states v. martin and whom the statute also seeks to benefit. fifth, as demon- has notice that such punishment may be ordered. 8 united states v. martin forfeiture order--which was presented to it by the government, with cop- 4 produced by the government, independent of the property, reject it. exist for a court to remedy a failure to include forfeiture in a we next consider appellants' argument that the district hold that the district court did not have authority to enter the protective order under 853(e) would not have been sufficient to assure that it wasn't just the amount of the forfeiture that they lanny a. breuer, assistant attorney general, greg d. vide certainty with respect to the amount of liability--this is however, is the fact that the majority's ruling essentially reads after the sentence became final, nor did it have authority to sentencing through rule 36, the district court attempts to the appellants could have prevented any harm by objecting to rule," "do[es] not limit a court's jurisdiction, but rather regu- must otherwise ensure that the defendant knows of the forfei- nity to correct the court's mistake through use of an 18 u.s.c. appellants. the factual difference from dolan is striking. both statute- and rule-based deadlines depending on the deadline's states v. whittington, 918 f.2d 149, 151 (11th cir. 1990); criminal forfeiture is part of a defendant's sentence. quence weighs against imposing a coercive sanction). exam- defense attorney should object when a sentence is not as high vided, "the court shall set a date for the final determination of tencing hearings, asked the government if anything else missed rule 32.2 deadlines, even in the most egregious fac- trict court made clear at the end of the final forfeiture hear- ownership of the property subject to forfeiture. see id. insist- interpreted similar statutes similarly." id. finally, in the case defendant-appellant. 11 court of jurisdiction to enter orders of criminal forfeiture so supra at 13. to put it less charitably, the majority expects the pending forfeiture itself and, beyond even the facts of our colleague's comprehensive dissent notwithstanding, today's majority does: it holds that even if a punishment of 13united states v. martin 17united states v. martin the fifth ground discussed by dolan and noted by the case, i would hold that the six policy and statutory-purpose it is incontrovertible that forfeiture was included neither in sentencing that "[t]he defendant has already been the subject amount-related blank, rule 35 did not apply: there was no must be vacated; it is rule 32.2 read in conjunction with rule warrant the application of dolan? allow such backdoor routes would cast rule 35 out of the 10 united states v. martin b. libretti v. united states, 516 u.s. 29, 38-39 (1995). the pro- defendant). the district court, at each of the appellants' sen- moving by creating a deadline "that is legally enforceable but it cannot mean that all deadlines for imposing sentences can 12 united states v. martin any harm that the missed deadline might have caused by ever, was not so written. needed to be ruled on, and the government in each instance 32.2. first, the government must include a forfeiture allega- prior to sentencing appellants--that it wise ensure that the defendant knows of the forfeiture at sen- appellants made identical challenges to the criminal forfeiture orders v. district court case from this circuit. see united states v. king, the only case factually identical to this one is a reported struct that is applicable here. there, the district court ordered taken as a whole, the policy and structural considerations relied upon by the grasso court, 376 f.app'x at 168, high- the law. i respectfully dissent. may correct a sentence that resulted from arithmetical, techni- appellants on numerous charges relating to their participation forfeiture allegations in the fourth superseding indictment. beginning on november 21, 2006, the district court held crim. p. 32.2(b)(4)(b) (2010). but far in advance of the or the judgment that the defendant is subject to a certain sanc- defendant to ask the court for a harsher sentence, this logic


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