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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11833
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20468-JAL-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
versus
MICHAEL GARRETT CHAVOUS,
Defendant,
ELAINE CHAVOUS,
Interested Party-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 7, 2016)
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Before TJOFLAT, WILLIAM PRYOR and FAY, Circuit Judges.
PER CURIAM:
In November 2012, Michael Chavous was sentenced on a plea of guilty to
conspiracy to traffick cocaine. His sentence contained a provision forfeiting to the
United States $65,000 in U.S. currency. 1 In United States v. Chavous, 522
Fed.Appx. 799 (11th Cir. 2013), we affirmed his conviction and his sentence,
which the exception of the forfeiture provision which he did not challenge. In
January 2014, Chavous petitioned the District Court for an order setting aside the
forfeiture. The court denied the motion, and on appeal, we affirmed, treating
Chavous’ motion as a Federal Rule of Criminal Procedure 41(g) motion for the
return of seized property. United States v. Chavous, 589 Fed.Appx. 468, 469 (11th
Cir. 2014).
In January 2015, Chavous’ wife, Elaine Chavous, alleging ownership of the
forfeited $65,000, petitioned the District Court pursuant to 21 U.S.C. § 853(n) to
hold a hearing so that her right to the money could be determined. The court
referred the petition to a Magistrate Judge, who recommended that it be denied as
untimely. The District Court, adopting the recommendation, denied the requested
hearing and thus the petition. This appeal followed.
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A co-defendant, sentenced earlier, also forfeited to the United States the same $65,000.
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On appeal, Mrs. Chavous, appearing pro se, argues that: (1) the government
failed to meet the burden of proof necessary to acquire a forfeiture order; (2) the
forfeiture violated both her and Mr. Chavous’s due process rights; (3) Mr.
Chavous’s trial and appellate counsel were ineffective; and (4) the district court
should have considered her objections to the magistrate judge’s Report and
Recommendation (“R&R”). After review of the record and consideration of the
parties’ briefs, we affirm the District Court’s decision.
We review a district court’s legal conclusions regarding third-party claims to
criminally forfeited property de novo and its factual findings for clear error.
United States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009).
Criminal forfeiture proceedings are governed by 21 U.S.C. § 853 and Fed.
R. Crim. P. 32.2. See 21 U.S.C. § 853; Fed. R. Crim. P. 32.2. Any person
convicted of certain felony drug offenses must forfeit any property derived from
the violation. 21 U.S.C. § 853(a). If the court finds that property is subject to
forfeiture, it must promptly enter a preliminary order of forfeiture without regard to
any third party’s interest in the property. Fed. R. Crim. P. 32.2(b)(2). Following
the entry of an order of forfeiture, including a preliminary order, the government
must publish notice of its intent to dispose of the property and provide direct
written notice to any person known to have an alleged interest in the property to
the extent practicable. Marion, 562 F.3d at 1339; 21 U.S.C. § 853(n)(1); Fed. R.
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Crim. P. 32.2(b)(6). The preliminary order becomes final as to the defendant at
sentencing. Fed. R. Crim. P. 32.2(b)(4). A third party has 30 days after the final
publication of notice to petition the court for a hearing to adjudicate the validity of
her interest in the property. 21 U.S.C. § 853(n)(2). If a third party fails to file a
petition before the deadline, she forfeits her interest in the property. Marion, 562
F.3d at 1337. Following the court’s disposition of all petitions, or if no petitions
are timely filed, the United States receives clear title to the property. 21 U.S.C.
§ 853(n)(7).
If a third party files a petition asserting an interest in the property as
prescribed by statute, the court must conduct an ancillary proceeding. Fed. R.
Crim. P. 32.2(c)(1). If no third party files a timely petition, the preliminary order
becomes the final order of forfeiture if the court finds that the defendant, or any
combination of defendants convicted in the case, had an interest in the property
that is forfeitable. Fed. R. Crim. P. 32.2(c)(2). Neither the defendant nor a third
party may object to the final order on the ground that the third party had an interest
in the property. Id.
An ancillary proceeding constitutes the sole means by which a third party
can establish entitlement to the forfeited property. United States v. Davenport, 668
F.3d 1316, 1320 (11th Cir. 2010). Third parties are barred from intervening in a
trial or appeal of a criminal case involving the forfeiture of property, and are
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instead limited to participating in the ancillary proceeding. Id.; 21 U.S.C. § 853(k).
Third parties cannot relitigate the merits of the forfeitability of property, but can
only use the ancillary proceeding to determine if they have a legal interest in the
forfeited property. Davenport, 668 F.3d at 1321. The sole mechanism for
vindicating a third party’s purported interest in forfeited property is the ancillary
proceeding. Id. They lack standing to challenge the validity of the order of
forfeiture itself. Id.
The District Court properly determined that Mrs. Chavous’s third-party
petition in response to the criminal forfeiture was untimely because it was filed
over two years after the mandatory deadline. The government’s publication of
forfeiture provided sufficient notice under the circumstances because it had no
reason to believe that she had an interest in the property. Finally, Mrs. Chavous
lacks standing to raise her remaining arguments that the government failed to meet
its burden of proof in Mr. Chavous’s criminal trial and that Mr. Chavous’s trial and
appellate counsel were ineffective because these two arguments challenge the
validity of the preliminary order of forfeiture in the underlying criminal trial,
which only Mr. Chavous has standing to challenge.
AFFIRMED.
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