United States v. Bennett

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit

9-12-2005

USA v. Bennett
Precedential or Non-Precedential: Precedential

Docket No. 04-3650

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 04-3650

UNITED STATES OF AMERICA

v.

FRANK WIGGS BENNETT,

Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 00-cr-00456-3)
District Judge: Honorable Harvey Bartle, III

Submitted Under Third Circuit LAR 34.1(a)
July 11, 2005
Before: ALITO and BECKER, Circuit Judges, and SHADUR,
District Judge.*

(Filed: September 12, 2005)

PATRICK L. MEEHAN
United States Attorney
LAURIE MAGID
Deputy United States Attorney for Policy and Appeals

*
The Honorable Milton I. Shadur, United States District
Judge for the Northern District of Illinois, sitting by designation.
ROBERT A. ZAUZMER
Senior Appellate Counsel
JOSEPH T. LABRUM III
Assistant United States Attorney
KENYA S. MANN
United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Attorneys for Appellee

FRANK WIGGS BENNETT #34748-066
McKean FCI
P.O. Box 8000
Bradford, PA 16701
Appellant (Pro Se)
_____

OPINION OF THE COURT

BECKER, Circuit Judge.

Frank Wiggs Bennett appeals from an order of the District
Court amending his sentence to require him to forfeit $42,020 in
drug proceeds to the government. Although Bennett had clearly
stipulated, prior to sentencing, that this sum would be forfeited, and
the District Court had entered a preliminary order of forfeiture,
Bennett’s original sentence did not include a final order of
forfeiture. Bennett argues that the District Court lacked the power
to order forfeiture after sentencing.
The District Court erred in failing to include a final order of
forfeiture in Bennett’s sentence, but under the circumstances just
described, this was in effect a clerical error. It was permissible for
the District Court to correct the error under Rule 36 of the Federal
Rules of Criminal Procedure, which allows courts to correct
clerical errors in their judgments. We will therefore affirm.

I. Facts

Bennett and ten co-defendants were indicted for crimes

2
related to a large-scale conspiracy to distribute methamphetamine.
The indictment included a number of criminal forfeiture charges,
demanding that the defendants forfeit various sums of cash, bank
accounts, real estate, and vehicles that had been seized by the
government as alleged proceeds of the conspiracy. On March 15,
2001, a jury convicted Bennett of conspiracy, possession of
methamphetamine with intent to distribute, and use of a
communication facility in furtherance of a drug offense.
Immediately after the jury verdict was read, the government
read several forfeiture stipulations into the record, including the
following stipulation relating to Bennett:

As to Frank Wiss [sic] Bennett, there is a stipulation
that defendant Bennett will forfeit two amounts of
currency. Those amounts are set forth on page 38 of
the indictment, item seven, currency in the amount of
$35,020 taken from Frank Bennett’s Keystone
safe—Bank safe deposit box. And item eight on
page 38, excuse me, item six on page 38, currency in
the amount of $7,000 taken from 2620 East Somerset
Street, Philadelphia, Pennsylvania, the residence of
Frank Bennett and that would conclude the
agreement and the stipulated forfeiture with respect
to Frank Wiss [sic] Bennett, Your Honor, those two
sums.

This statement correctly recited paragraphs B-6 and B-7 of the
indictment, and Bennett’s trial attorney agreed that it accurately
expressed Bennett’s stipulation with the government.
On March 21, 2001, the government moved for a
preliminary order of forfeiture. On March 23, the District Court
granted the motion and entered a preliminary forfeiture order,
allowing the Attorney General to seize the $42,020 attributed to
Bennett. See Fed. R. Crim. P. 32.2(b)(1) & (3).
On August 28, 2001, the District Court sentenced Bennett
to 240 months’ imprisonment, ten years’ supervised release, and a
$500 special assessment. A written judgment and commitment
order was entered on August 30, 2001. However, neither the oral
sentence nor the written judgment included any forfeiture
provision; indeed, forfeiture was not mentioned at the sentencing

3
hearing. The written judgment included a form “Schedule of
Payments” with a space for forfeiture that was left blank.
On August 31, 2001, Bennett filed an appeal from his
conviction and sentence, which this Court rejected in 2003. United
States v. Bennett, No. 01-3412, 74 Fed. Appx. 201 (3d Cir. Aug.
29, 2003) (not precedential opinion). On October 9, 2001, the
government filed a motion for a final forfeiture order. This motion
was unopposed, and on October 16, 2001, the District Court issued
a final forfeiture order, authorizing the forfeiture of $42,020 in
currency seized from Bennett.
On June 22, 2004, Bennett filed a pro se motion for return
of property pursuant to Rule 41(g) of the Federal Rules of Criminal
Procedure. On August 9, 2004, the government filed a response to
the motion, accompanied by its own motion to amend the judgment
of sentence to include a forfeiture order. On August 30, 2004, the
District Court denied Bennett’s motion and granted the
government’s motion in a one-page order. The court thereby
amended the August 30, 2001, judgment of sentence to include the
stipulated forfeiture order. The amended judgment included the
same “Schedule of Payments” form as the initial judgment; this
time, however, the $42,020 forfeiture amount was included in the
forfeiture blank. Bennett, still proceeding pro se, filed a timely
notice of appeal.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction over Bennett’s criminal
case under 18 U.S.C. § 3231, and over his motion for return of
property under Fed. R. Crim. P. 41(g). See United States v.
Chambers, 192 F.3d 374, 376 (3d Cir. 1999). This Court has
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
In most Rule 41(g) cases demanding return of forfeited
property, “[w]e review the District Court’s decision to exercise its
equitable jurisdiction for abuse of discretion.” Chambers, 192 F.3d
at 376. Here, however, our review is plenary. In a typical case
under Rule 41(g), a district court exercises its equitable powers,
and our review of that exercise looks only for abuse of discretion.
In this case, however, Bennett’s Rule 41(g) motion contends that
the District Court lacked jurisdiction to amend its original sentence
to include a forfeiture order. The legal question of whether the

4
District Court had the authority to amend its sentence is subject to
plenary review. See United States v. Portillo, 363 F.3d 1161, 1164
(11th Cir. 2004) (per curiam).

III. The Requirement That Forfeiture Be a Part of the Sentence

The District Court entered two purportedly final orders that
were intended to trigger forfeiture of Bennett’s property. First, on
October 16, 2001, the court issued a “final order of forfeiture,”
which we analyze in this Part. Almost three years later, on August
30, 2004, the court amended the original sentence to include a
forfeiture; we consider that amendment in Part IV, infra.

A.

Bennett was convicted of violations of 21 U.S.C. §§ 843(b)
and 846, consisting of conspiracy to distribute methamphetamine
and use of a “communication facility” in furtherance of a drug
crime. The relevant statute provides that anyone convicted of a
drug violation under U.S. Code title 21, chapter 13, subchapter I or
II (including Bennett’s crimes) “shall forfeit to the United States
. . . any property constituting, or derived from, any proceeds the
person obtained, directly or indirectly, as the result of such
violation.” 21 U.S.C. § 853(a)(1). The $42,020 at issue here
allegedly constitutes proceeds of Bennett’s drug crimes, and
therefore falls within the purview of § 853(a)(1).
The process for imposing forfeiture upon a defendant
convicted of a drug crime is set out in the statute and in the Federal
Rules of Criminal Procedure. Forfeiture is charged in the
indictment, and the government may seize the property prior to
conviction if there is probable cause to believe that it is subject to
forfeiture. See 21 U.S.C. § 853(f).
“As soon as practicable after” the defendant has been
convicted, the government may apply for a preliminary order of
forfeiture. Fed. R. Crim. P. 32.2(b)(1). The district court
determines what property is subject to forfeiture; if the forfeiture
is contested, the court must make this determination based on
evidence presented by the parties at a post-conviction forfeiture
hearing. Id. Upon making this determination, the court enters a
preliminary order of forfeiture specifying the property that will be

5
forfeited. Id. R. 32.2(b)(2). This preliminary order authorizes the
Attorney General to seize the forfeited property, id. R. 32.2(b)(3),
although in many cases he will already have done so pursuant to 21
U.S.C. § 853(f).
In the case at bar, the forfeiture procedures up to this point
were followed to the letter. The government appears to have seized
the property at issue when it arrested Bennett. It charged forfeiture
in the indictment, and moved for and was granted a preliminary
order of forfeiture shortly after the jury verdict in March of 2001
.
B.

As its name implies, however, the preliminary order of
forfeiture is not the last step in the forfeiture process. Instead, the
statute and rules require that the district court include a final order
of forfeiture in its sentence. “The court, in imposing sentence on
such person, shall order, in addition to any other sentence imposed
. . . that the person forfeit to the United States all property
described in this subsection.” 21 U.S.C. § 853(a). The Federal
Rules of Criminal Procedure spell out the process in somewhat
more detail: “At sentencing—or at any time before sentencing if
the defendant consents—the order of forfeiture becomes final as to
the defendant and must be made a part of the sentence and be
included in the judgment.” Fed. R. Crim. P. 32.2(b)(3).1
From this language, it is clear that the final order of
forfeiture can be imposed only as part of the sentence, unless the
defendant consents to entry of a final order prior to sentencing. In
this case, however, the District Court attempted to impose a “final
order of forfeiture” on October 16, 2001—seven weeks after

1
While these provisions make it clear that the final order of
forfeiture is normally part of the sentence, there is also a second
kind of “final order of forfeiture.” Forfeiture may involve ancillary
proceedings in which the rights of third parties to the forfeited
property are adjudicated; when the ancillary proceedings are
concluded, then the court enters a “final order of forfeiture by
amending the preliminary order as necessary to account for any
third-party rights.” Fed. R. Crim. P. 32.2(c)(2). No ancillary
proceedings were involved in Bennett’s case.

6
Bennett’s August 28, 2001, sentencing.
While few reported decisions have addressed the issue, we
think that such a freestanding “final order of forfeiture” has no
legal effect. Criminal forfeiture is a criminal punishment, Libretti
v. United States, 516 U.S. 29, 39-41 (1995), and, as with any
punishment, there are procedural safeguards on its use. For
example, a district court could not issue a freestanding “final order
of imprisonment” or “final order of fine” months after sentencing
a defendant.
The decisions of other Courts of Appeals bear out this
proposition. The most thorough analysis is that of the Eleventh
Circuit, which has held that “[t]he United States cannot acquire a
convicted defendant’s interest in property forfeited under 21 U.S.C.
§ 853(a) unless and until the district court orders the interest
forfeited as part of its judgment in the defendant’s case.” United
States v. Pease, 331 F.3d 809, 813 (11th Cir. 2003). Relying on the
provisions of § 853(a) and of Rule 32.2, the court found it
mandatory that a district court include the order of forfeiture in the
sentence. See Pease, 331 F.3d at 813-15.
Another Eleventh Circuit decision found that a district court
lacked jurisdiction to enter a preliminary order of forfeiture six
months after imposing sentence. United States v. Petrie, 302 F.3d
1280, 1284-85 (11th Cir. 2002). The court’s reasoning in Petrie
was similar to that in Pease:

[T]he forfeiture scheme prescribed in Rule 32.2 is
detailed and comprehensive. Of special note is the
fact that the procedure contemplates final disposition
of forfeiture issues, as regards a defendant, at the
time of sentencing. Indeed, the rule requires that the
forfeiture order be made a part of the sentence and
included in the judgment. Thus, all post-sentencing
activities authorized by Rule 32.2 concern
third-party interests.

Id. at 1284.
The First Circuit has “assume[d], without deciding, the
correctness of the Eleventh Circuit’s rule that failure to make
forfeiture a part of the judgment provides grounds for vacating a
prior or subsequent order.” United States v. Ferrario-Pozzi, 368

7
F.3d 5, 8 (1st Cir. 2004) (citing Pease and Petrie). We have found
no decision to the contrary.2
We therefore hold, in accordance with the language of the
Federal Rules of Criminal Procedure, that the final order of
forfeiture must be included in the sentence and judgment imposed
on the defendant. Except in ancillary forfeiture proceedings, see
supra note 1, a “final order of forfeiture” that is not part of the
judgment of sentence has no effect. We thus conclude that the
October 16, 2001, “final order of forfeiture” was a nullity, and that
Bennett’s $42,020 was not forfeited at the time of that order.

IV. Correction of Sentence

In addition to issuing the October 2001 “final order of
forfeiture,” the District Court amended its original August 2001
order of sentence, in August 2004, to include a forfeiture provision.
The District Court justified this amendment as necessary to correct
a clerical error under Rule 36 of the Federal Rules of Criminal
Procedure. In general, we look with disfavor upon changes to a
judgment after the fact. “The principle of finality underlies the rule
that a court may not substantively alter a judgment without specific
authorization.” United States v. DeLeo, 644 F.2d 300, 301 (3d Cir.
1981) (per curiam). But the Federal Rules of Criminal Procedure
do provide two sources of “specific authorization” for a district
court to amend a sentence.

2
In United States v. Mitchell, 70 Fed. Appx. 707, 714 (4th
Cir. 2003) (unpublished opinion), a Fourth Circuit panel stated that
“[a]t sentencing, this preliminary order of forfeiture became a final
order pursuant to Rule 32.2(b)(3),” although forfeiture was not
actually mentioned at sentencing. This language might suggest that
the preliminary order became final automatically when sentence
was imposed. But the court decided the case on other grounds,
finding that “the failure to incorporate the forfeiture order into the
judgment of conviction and sentence was simply a ministerial
error” and was therefore harmless error. Id. at 715. We thus do not
read Mitchell to hold that a preliminary order of forfeiture becomes
final automatically at the time of sentencing.

8
 A.

The simpler method is that allowed by Rule 35(a).3 Under
this provision, “[w]ithin 7 days after sentencing, the court may
correct a sentence that resulted from arithmetical, technical, or
other clear error.” Fed. R. Crim. P. 35(a). The term “sentencing,”
as used in Rule 35, “means the oral announcement of the sentence.”
Fed. R. Crim. P. 35(c).
We assume that the failure to include forfeiture in Bennett’s
sentence was such “other clear error.” But the District Court here
did not enter any order modifying its original August 28, 2001,
sentence within seven days. On October 16, 2001, seven weeks
after imposing this sentence, the District Court issued the “final
order of forfeiture” discussed in Part III.B, supra. Even that order,
however, did not explicitly modify the original sentence: that
sentence was first modified on August 30, 2004, three full years
after it was imposed.
Thus Rule 35(a) cannot have any application here. See
Petrie, 302 F.3d at 1284-85 (“[N]othing in Rule 35 of the Federal
Rules of Criminal Procedure provides a basis for modifying the
judgment for the purpose of entering an order of forfeiture against
a defendant more than seven days after sentencing. We conclude,
therefore, that the district court lacked jurisdiction to enter the
[subsequent] preliminary forfeiture order.” (footnote omitted)).

B.

A district court may also correct a sentence under Rule 36
of the Federal Rules of Criminal Procedure. In this case, the
District Court’s August 2004 order relied exclusively on this
provision to correct Bennett’s original sentence. The Rule provides,
in its entirety:

3
A sentence may also be modified under Rule 35(b), which
allows a district court to reduce a sentence upon the government’s
motion if the defendant provides “substantial assistance in
investigating or prosecuting another person.” Fed. R. Crim. P.
35(b)(1)(A). That provision is not, of course, implicated in this
case.

9
 After giving any notice it considers appropriate, the
court may at any time correct a clerical error in a
judgment, order, or other part of the record, or
correct an error in the record arising from oversight
or omission.

Fed. R. Crim. P. 36.
A court’s authority under Rule 36 is limited to the correction
of clerical errors in the judgment.4 “A clerical error involves a
failure to accurately record a statement or action by the court or one
of the parties.” 26 James Wm. Moore et al., Moore’s Federal
Practice ¶ 636.02[2] (3d ed. filed through 2005); see also 3 Charles
Alan Wright et al., Federal Practice and Procedure: Criminal
§ 611, at 809-12 (3d ed. 2004).
Thus Rule 36 provides no basis to correct substantive errors
in the sentence, which are dealt with by other provisions:

Substantive corrections to the sentence are made
pursuant to Rule 35 and to 18 U.S.C. § 3742
[providing for appellate review]. . . . Rule 36 does
not authorize the sentencing court to correct a

4
The court is also empowered to correct “error[s] in the
record arising from oversight or omission.” Fed. R. Crim. P. 36
(emphasis added). “Errors arising from oversight or omission are
generally corrected to conform to the intention of the court or
parties at the time the error was made, which may not be reflected
in their recorded statements.” 26 James Wm. Moore et al., Moore’s
Federal Practice ¶ 636.02[3] (3d ed. filed through 2005).
While Rule 36 allows a court to correct clerical errors or
errors of oversight or omission “in the record,” it only allows
correction of clerical errors in the judgment or order. This
difference in language is important. While Rule 36 provides a
broad mandate to correct a variety of errors in ancillary parts of the
record—the dates of documents, the indictment, etc.—it provides
only a strictly limited authority to correct the court’s judgment or
order. The judgment of a court, unlike the rest of the court’s
record, has legal effect; substantive changes to the judgment may
normally be made only by appellate review or similar procedures.

10
 sentence imposed in violation of law, as a result of
an incorrect application of the sentencing guidelines,
or to otherwise substantively modify sentences.

26 Moore et al., supra, ¶ 636.03[1][a] (footnotes omitted). This
conclusion is compelled by the structure of the Rules: an
“arithmetical, technical, or other clear error” under Rule 35 may
only be corrected within seven days of imposing sentence. Fed. R.
Crim. P. 35; see supra Part IV.A. It would be anomalous if the
corrections allowed by Rule 36, which has no time limit, were
broader than those allowed by Rule 35, which has a strict and short
time limit. “The seven-day time limit of [Rule 35] complements the
system of determinate sentencing, which would become
meaningless if the courts were to turn every technical or
mechanical problem (properly dealt with under Rule 35) into a
‘clerical’ error under Rule 36 that could be corrected at any time.”
26 Moore et al., supra, ¶ 636.03[2] (footnotes omitted).
In most cases, an error made by the court in imposing its
oral sentence will not be a clerical error within the meaning of Rule
36. “Rule 36 does not provide jurisdiction to correct an alleged
error committed by a judge at sentencing, regardless of whether
that correction is designed to vindicate an unstated assumption of
the sentencing court.” 26 Moore et al., supra, ¶ 636.03[1][c]; see
also 3 Wright et al., supra, § 611, at 806-07 (“An error arising from
oversight or omission by the court, rather than through a clerical
mistake, is not within the purview of the rule.”). Rule 36 is
normally used to correct a written judgment of sentence to conform
to the oral sentence pronounced by the judge. 26 Moore et al.,
supra, ¶ 636.03[1][c].

We have noted this distinction:

As courts have held in the context of Rule 36’s twin,
Federal Rule of Civil Procedure 60(a), a clerical
error “must not be one of judgment or even of
misidentification, but merely of recitation, of the sort
that a clerk or amanuensis might commit, mechanical
in nature.” This definition of a clerical error is
equally applicable in the context of Rule 36. . . .
Because the . . . errors were made in the oral order

11
 itself, they arose from an oversight or omission by
the court, rather than through a clerical mistake, and
thus are not within the purview of Rule 36.

United States v. Guevremont, 829 F.2d 423, 426 (3d Cir. 1987)
(footnote and citation omitted). The other Courts of Appeals also
reject the use of Rule 36 to make substantive changes in a
defendant’s sentence. See, e.g., United States v. Penna, 319 F.3d
509, 513 (9th Cir. 2003) (“Rule 36 is a vehicle for correcting
clerical mistakes but it may not be used to correct judicial errors in
sentencing.”). Indeed, in United States v. Daddino, 5 F.3d 262,
264-65 (7th Cir. 1993), the Seventh Circuit, citing Guevremont and
other cases, reversed a district court’s Rule 36 order imposing costs
of incarceration and supervision. These costs were not included in
the original sentence, and because their omission “stem[med] from
an oversight of the district court itself,” they could not be added to
the sentence via Rule 36. Id. at 265.

C.

The courts and commentators are thus unanimous that Rule
36 may not be used to amend a sentence to include an additional
term of imprisonment, fine, or imposition of costs. In the area of
forfeiture, however, most courts that have reached the issue have
allowed Rule 36 amendment to add an obviously warranted order
of forfeiture.
United States v. Hatcher, 323 F.3d 666 (8th Cir. 2003),
which the District Court cited to support its procedure, is directly
on point. One of the defendants, Porrello, was convicted in March
2001. A preliminary forfeiture order was entered in August 2001
under Rule 32.2, and Porrello was sentenced in January 2002,
without any mention of forfeiture in the oral or written sentence.
The government immediately moved for correction of the
judgment, which was granted in April 2002, and Porrello appealed,
arguing that the District Court lacked jurisdiction to amend the
sentence. 323 F.3d at 673.
The Eighth Circuit held as follows:

Mr. Porrello argues that adding a forfeiture order
constitutes more than a correction of a clerical error.

12
 If the judge had never before addressed the forfeiture
issue, we might agree with Mr. Porrello. In light of
the Court’s earlier entry of a preliminary forfeiture
order, however, we conclude that the omission did
constitute a clerical error. Because the error was
clerical, the District Court retained jurisdiction to
correct it.

Id. at 673-74 (citation omitted) (citing United States v. Loe, 248
F.3d 449 (5th Cir. 2001)). While Loe suggests that the order of
forfeiture must be included in the oral sentence, and that “clerical
errors” are only those in which the written judgment differs from
the oral sentence, the court allowed the district court to modify its
sentence under Rule 36, relying on the facts that the district court
had “indicated orally at the sentencing hearing that the Florida
property would be forfeited,” and that it had issued a written
preliminary order of forfeiture. 248 F.3d at 464.
Similarly, in United States v. Ferrario-Pozzi, 368 F.3d 5, 9
(1st Cir. 2004), the First Circuit allowed a district judge to amend
a sentence under Rule 36 to include a forfeiture order not included
in the original oral sentence. Although the oral sentence had not
explicitly mentioned forfeiture, the court found that the district
court had clearly intended to impose forfeiture and that the
defendant was on notice of that intent:

At each step in the process, Ferrario-Pozzi was
aware that forfeiture of at least two million dollars
would be a component of his sentence. During the
plea conference, Ferrario-Pozzi’s counsel
acknowledged that, by virtue of the plea agreement,
Ferrario-Pozzi would be subject to forfeiture of at
least two million dollars. More importantly, at the
sentencing hearing the district court made a specific
finding, in the course of delivering the sentence, that
Ferrario-Pozzi would be held accountable “for
laundering more than two million dollars.” By the
terms of the second superseding indictment and the
plea agreement, this was a clear statement that at
least two million dollars— and probably
more—would be subject to forfeiture.

13
368 F.3d at 9.

Other Courts of Appeals have agreed with Hatcher and
Ferrario-Pozzi. For example, the Fourth Circuit, in an unpublished
opinion, approved the use of Rule 36 to add an order of forfeiture
where the indictment “provided [the defendant] with proper notice
of the forfeiture” and where the district court had entered a
preliminary order of forfeiture under Rule 32.2(b). United States v.
Mitchell, 70 Fed. Appx. 707, 714 (4th Cir. 2003) (unpublished per
curiam opinion). The court concluded:

Mitchell was clearly on notice of the pending
forfeiture through the indictment, the bill of
particulars, and the preliminary order of forfeiture.
However, at no point did Mitchell or his counsel
raise an objection or respond to the pending
forfeiture. Further, Mitchell did not raise the issue of
forfeiture during his sentencing hearing. While the
record indicates that the forfeiture was not made part
of the sentence and was not included in the
judgment, Mitchell was on notice and had ample
opportunity to challenge the forfeiture. Mitchell has
not put forth any evidence that would indicate that
the more than $2,000,000 in forfeited money and
property was anything other than proceeds derived
from illegal drug activity. Therefore, under the
specific facts of this case, the failure to incorporate
the forfeiture order into the judgment of conviction
and sentence was simply a ministerial error . . . .

Id. at 714-15. See also supra note 2.
The Eleventh Circuit, however, has not allowed district
courts to add forfeiture orders to their sentences under Rule 36. In
United States v. Pease, 331 F.3d 809 (11th Cir. 2003), the district
court entered a preliminary order of forfeiture against Pease but
failed to mention forfeiture in the sentence. Thereafter, an ancillary
forfeiture proceeding was commenced because Pease’s relatives
claimed an interest in the forfeited property. Pease appeared in the
ancillary proceeding, arguing that, because there was no final order
of forfeiture, there was no authority to hold an ancillary forfeiture

14
proceeding. See id. at 811-12. The district court used Rule 36 to
amend the sentence to include forfeiture, and denied the claims of
Pease and his relatives.
The Eleventh Circuit reversed, holding that the preliminary
order of forfeiture is not enough, and that forfeiture must be
included in the judgment of sentence in order to have effect. See
supra Part III.B. It then addressed the district court’s attempt to
amend the sentence using Rule 36. The court held that “Rule 36
can be used to correct ‘clerical’ errors; it cannot be used, as it was
here, to make a substantive alteration to a criminal sentence. . . . In
short, the district court misused Rule 36 to modify the defendant’s
sentence in a substantive way.” Id. at 816.5

D.

The facts of Hatcher, Ferrario-Pozzi, and Mitchell are in all
relevant respects identical to those involved here. Bennett was well

5
The government contends that Pease is undercut by the
Eleventh Circuit’s decision in United States v. Arevalo, No. 02-
15388, 67 Fed. Appx. 589 (11th Cir. 2003) (table), reh’g denied,
2004 WL 1253057 (11th Cir. 2004) (per curiam). Arevalo
concerned a similar forfeiture issue, and the court affirmed the
district court’s use of Rule 36 to amend the sentence to include
forfeiture. After Pease was published, Arevalo petitioned for
rehearing. In denying this petition, the court found no conflict
between the cases, distinguishing Pease based on the facts (1) that
Pease involved an ancillary proceeding; and (2) that the district
court had told Arevalo at sentencing that he would have to pay
forfeiture (though without including forfeiture in the actual
sentence). See 2004 WL 1253057, at *1.
Because the Arevalo panel, in denying rehearing in an
unpublished (and not precedential) opinion, distinguished Pease
without questioning its holding, we believe that the latter case
remains good law in the Eleventh Circuit. Moreover, despite the
fact that it involved ancillary proceedings, Pease is closer to our
case, in that its holding in no way relied on the ancillary
proceedings, and in that here, as in Pease but unlike in Arevalo,
forfeiture was never mentioned in any respect at sentencing.

15
aware, from the time of the indictment until the time of sentencing,
that the government expected him to forfeit the $42,020. Not only
did Bennett never object to this amount, but after he was convicted
his attorney actually stipulated to the forfeiture in open court. This
case involves no unfair surprise, no dispute about the dollar amount
of forfeiture, and no suggestion that anyone else is entitled to keep
the money.
Athough Pease is to the contrary, we are more persuaded by
the reasoning of Hatcher, Ferrario-Pozzi, and Mitchell. Bennett
had every opportunity to dispute the forfeiture order, and never did
so. The shared and clearly expressed intent of the prosecution, the
defense, and the District Court itself was to impose an order of
forfeiture in the amount of $42,020. There was more here than
mere notice to Bennett; there was an actual stipulation by Bennett
that the property should be forfeited. The key question, of course,
is whether the District Court’s failure to make forfeiture a part of
the sentence was an error that can be considered clerical. We think
that it can.
The error here was not simply an omission in sentencing;
rather, it was the failure to properly carry forward a forfeiture
stipulation and preliminary order of forfeiture into the final
judgment. This was a purely administrative matter, and the parties
clearly understood it as such. Indeed, the responsibility for
converting the preliminary order of forfeiture into a final order
probably rested as much on the District Court’s courtroom deputy
clerk as it did on the District Judge himself. The duties of a
courtroom deputy clerk to a United States District Judge are
variegated and demanding. They include the obligation to
memorialize and record the court’s decisions and to “[k]eep[] [the]
judge and immediate staff informed of case progress.”
Administrative Office of the United States Courts, Human
Resources Manual, Section 2 (Court Personnel System), Chapter
2.6 (Benchmarks) (Jan. 1998), available at
http://jnet.ao.dcn/Human_Resources/Human_Resources_Manual
.htm l#C ourtroom % 20D eputy% 20C lerk% 20benchmark. In
particular, “[t]he courtroom deputy may be responsible for the
preparation of an order or judgment.” Administrative Office of the
United States Courts, Guide to Judiciary Policies and Procedures
§ 14.05(h)(2), available at http://jnet.ao.dcn/Guide/Volume_4/
Chapter_14/Part_5.html.

16
 The District Court’s error can properly be regarded as
clerical because (1) the parties stipulated to the forfeiture; (2) a
preliminary order of forfeiture was issued; and (3) the omission of
the final order of forfeiture resulted from an organizational failure,
not a legal error. We have said that “Fed. R. Civ. P. 60(a) [the civil
analogue of Rule 36] . . . is limited to the correction of ‘clerical
mistakes’; it encompasses only errors ‘mechanical in nature,
apparent on the record, and not involving an error of substantive
judgment.” Pfizer Inc. v. Uprichard, No. 04-2527, slip. op. at 10
(3d Cir. Aug. 30, 2005)(quoting Mack Trucks, Inc. v. Int’l Union,
UAW, 856 F.2d 579, 594 n.16 (3d Cir. 1988)). We think that the
error here satisfies those conditions.
Our reasoning is buttressed by the language of Rule
32.2(b)(3), which states that, at sentencing, “the order of forfeiture
becomes final as to the defendant and must be made part of the
sentence.” Fed. R. Crim. P. 32.2(b)(3). While we do not read this
language to mean that the order becomes final automatically, see
note 2, supra, it certainly differentiates the forfeiture process from
typical criminal punishments. Once a preliminary order of
forfeiture has been issued, its metamorphosis into a final order is
almost an inevitability. A court’s failure to include the final order
in the sentence is thus far less substantive than a failure to include
other penalties, which do not typically stem from preliminary post-
conviction orders.
We thus decline to extend our analysis in Guevremont to the
specific facts of this case. Rule 36 generally may not be used to
correct the omissions of the district court itself, but where, as here,
there is no dispute about notice to the defendant, the court’s intent,
or the propriety of the result; where the defendant has in fact
stipulated to the forfeiture; and where the court has already
embodied its intent in an uncontested preliminary order of
forfeiture, its omission of forfeiture in the final sentence is for all
practical purposes tantamount to a mere clerical error.

V. Conclusion

We stress that we do not endorse the procedure followed by
the District Court in this case. Forfeiture, like other criminal
sanctions, should be included in the judge’s oral order of sentence,
and in the written judgment, and the District Courts are so

17
reminded. If district courts include forfeiture orders—even
stipulated ones—in their oral sentences, as well as in their written
judgments, they can avoid difficulties like those raised in this case.
Nonetheless, while the District Court’s procedure here is troubling,
we cannot say that the result runs afoul of Rule 36. The order of the
District Court modifying Bennett’s sentence to include a final order
of forfeiture will therefore be affirmed.

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