PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PAULETTE MARTIN, a/k/a Paulette No. 10-5301
Murphy, a/k/a Paulette Akuffo,
a/k/a Paula Murphy, a/k/a Auntie,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-5304
DERREK LEWIS BYNUM, a/k/a Bo,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 10-5306
LEARLEY REED GOODWIN, a/k/a
Goodie, a/k/a Lonnie Ross,
Defendant-Appellant.
2 UNITED STATES v. MARTIN
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Roger W. Titus, District Judge.
(8:04-cr-00235-RWT-1; 8:04-cr-00235-RWT-7;
8:04-cr-00235-RWT-3)
Argued: September 20, 2011
Decided: November 30, 2011
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Motz joined. Judge Gregory wrote an
opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: Robert Whelen Biddle, NATHANS & BIDDLE,
LLP, Baltimore, Maryland, for Appellants. Anthony William
Vitarelli, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: Michael D.
Montemarano, MICHAEL D. MONTEMARANO, PA,
Elkridge, Maryland, for Appellant Martin; Anthony D. Mar-
tin, ANTHONY D. MARTIN, PC, Greenbelt, Maryland, for
Appellant Goodwin; Timothy S. Mitchell, LAW OFFICE OF
TIMOTHY S. MITCHELL, Greenbelt, Maryland, for Appel-
lant Bynum. Rod J. Rosenstein, United States Attorney, Deb-
orah A. Johnston, Assistant United States Attorney, Bonnie S.
Greenberg, Assistant United States Attorney, Stefan D. Cas-
sella, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland;
Lanny A. Breuer, Assistant Attorney General, Greg D.
Andres, Acting Deputy Assistant Attorney General, Daniel
UNITED STATES v. MARTIN 3
Steven Goodman, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
OPINION
DUNCAN, Circuit Judge:
A jury convicted Paulette Martin, Learley Goodwin, Derrek
Bynum, and Lavon Dobie (collectively "Appellants") of vari-
ous drug related offenses. As part of their sentences, the dis-
trict court ordered Appellants to forfeit assets connected to
their drug crimes pursuant to 21 U.S.C. § 853.1 On appeal,
Appellants seek vacature of the district court’s orders of forfei-
ture.2 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, Mary-
land, and Virginia.3 On May 5, 2004, a grand jury indicted
Appellants on numerous charges relating to their participation
in the drug trafficking operation. Authorities arrested Appel-
lants on June 1, 2004. Upon, and subsequent to, the arrests,
1
These assets included over $400,000 in currency from accounts held by
Appellants, a Mercedes automobile owned by Martin, and several million
dollars representing drug proceeds.
2
Appellants made identical challenges to the criminal forfeiture orders
in a separately filed appeal under Case No. 07-4059. The only difference
between this appeal and the appeal in 07-4059 is that in 07-4059, Dobie
joined appeal of the criminal forfeiture orders, whereas she does not so
join in this appeal. We dispose of all challenges to the criminal forfeiture
orders in this opinion.
3
For a more thorough treatment of the facts surrounding this drug opera-
tion, see the opinion in Case No. 07-4059 and United States v. Johnson,
587 F.3d 625 (4th Cir. 2009).
4 UNITED STATES v. MARTIN
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 crim-
inal forfeiture allegations against Appellants’ assets. Thus, by
January 2005, the government was pursuing both civil and
criminal forfeiture of the same property.
Martin challenged the civil forfeiture of her assets on Feb-
ruary 22, 2005, by filing a claim with the U.S. Department of
Customs and Border Protection. The Civil Asset Forfeiture
Reform Act, 18 U.S.C. § 983 ("CAFRA"), creates a process
by which a claimant can challenge the civil forfeiture of assets
in which she has an interest. CAFRA provides that when such
a claim is made, a 90-day clock begins to run. Before the
expiration of that period, the government must do one of three
things: (1) "file a [civil] complaint for forfeiture," (2) "obtain
a criminal indictment containing an allegation that the prop-
erty is subject to forfeiture[ ] and take the steps necessary to
preserve its right to maintain custody of the property as pro-
vided in the applicable criminal forfeiture statute," or (3) "re-
turn the property." 18 U.S.C. § 983(a)(3)(B) (emphasis
added). If the government fails to complete one of these three
steps before the 90 days expires, it is required to "promptly
release the property." Id.
After waiting several months for the government to take
action, Martin filed a motion with the district court for
"Prompt Return of Property Pursuant to Federal Rule of Crim-
inal Procedure 41(g)."4 Martin asserted that she timely filed a
claim on February 22, 2005, and that the government failed
to complete any of the three actions listed in § 983(a)(3)(B)
4
Rule 41(g) states in relevant part: "A person aggrieved . . . by the
deprivation of property may move for the property’s return." Fed. R. Crim.
P. 41(g).
UNITED STATES v. MARTIN 5
within 90 days.5 Martin contended that the government’s con-
tinued possession of her property despite its failure to act vio-
lated § 983(a)(3)(B).
In response to Martin’s motion, the government obtained
criminal seizure warrants6 for Martin’s assets based on the
forfeiture allegations in the fourth superseding indictment.
The district court denied Martin’s Rule 41(g) motion, holding
that Martin’s February 22 claim was untimely and, alterna-
tively, that the government’s obtaining criminal seizure war-
rants mooted her motion.
B.
Appellants’ trial began on June 6, 2006. On August 31,
2006, a jury convicted Appellants on various charges related
to their participation in the drug trafficking operation. Subse-
quent to Appellants’ convictions, post-trial forfeiture proceed-
ings took place.
Beginning on November 21, 2006, the district court held
two forfeiture hearings, taking evidence regarding the connec-
tion between the crimes for which Appellants were convicted
and the property for which the government sought forfeiture.
5
Martin argued that, although the government had obtained an indict-
ment with forfeiture allegations before the deadline, it had not completed
the step by "tak[ing] the steps necessary to preserve its right to maintain
custody of the property as provided in the applicable criminal forfeiture
statute." The government had also failed to file a complaint for forfeiture
or return the property.
6
Martin challenges the validity of these criminal seizure warrants, which
were issued pursuant to 21 U.S.C. § 853(f). Section 853(f) allows the issu-
ance of such warrants if, inter alia, "the court determines that there is prob-
able cause to believe . . . that [a protective order] under subsection (e) of
this section may not be sufficient to assure the availability of the property
for forfeiture." Martin asserts that the district court erred in finding that a
protective order under § 853(e) would not have been sufficient to assure
the availability of her property. We have considered this argument and
reject it.
6 UNITED STATES v. MARTIN
After the second hearing on December 19, 2006, the district
court stated:
I have considered the testimony . . . as well as the
arguments of counsel [and] I conclude that the gov-
ernment’s preliminary forfeiture order is fully sup-
ported by the evidence at trial and . . . the evidence
presented to me at the prior proceeding on forfeiture
in this case.
J.A. 530. The district court referred to the proposed order sub-
mitted by the government and noted that the parties had
agreed to a minor change in that order concerning joint and
several liability. The district court then told the government
lawyer, "[I]f you will prepare a modified order that addresses
[joint and several liability], I will be glad to enter the order.
. . . I see no reason why not to proceed to the execution of a
modified order." J.A. 532. No one objected to this delay in
entering the forfeiture order.
On that same day, immediately following the forfeiture
hearing, the district court sentenced Appellants. Although the
district court did not mention forfeiture in handing down each
individual sentence, no one objected to the district court’s
omission.
Between January 5, 2007, and January 16, 2007, the court
entered its judgments as to Appellants. The government deliv-
ered its modified order for preliminary forfeiture to the dis-
trict court on January 19, 2007, and the district court entered
the order that day. On June 14, 2007, the district court issued
a final order of forfeiture but did not amend the judgments to
include that order.
Almost three years later, on April 15, 2010, Appellants
filed a motion in the district court to vacate the prior criminal
forfeiture orders and to return all forfeited property. Appel-
lants argued that the district court missed the deadline to final-
UNITED STATES v. MARTIN 7
ize forfeiture as set forth in Federal Rule of Criminal
Procedure 32.2, and therefore lost jurisdiction to enter the for-
feiture orders. The district court denied Appellants’ motion
and amended the judgments to include the final order of for-
feiture. This appeal followed.
II.
On appeal, Appellants challenge the criminal forfeiture of
their property. Martin individually argues that the govern-
ment’s pre-trial violation of the civil forfeiture statute ren-
dered invalid its later criminal forfeiture.7 In addition,
Appellants collectively argue that the district court was with-
out jurisdiction to order the criminal forfeiture of their prop-
erty after their sentencings and the entry of judgments. In
criminal forfeiture proceedings,8 we review the district court’s
findings of fact for clear error and the district court’s legal
interpretations de novo. United States v. Morgan, 224 F.3d
339, 342 (4th Cir. 2000). We consider each challenge in turn.
A.
We first consider Martin’s argument that the government’s
pre-trial actions with respect to her property violated the civil
7
As part of this argument, Martin claims that the unlawful possession
of the property amounted to an illegal seizure in violation of the Fourth
Amendment. As a result, in addition to not being subject to forfeiture,
Martin argues, the property also should have been excluded as evidence
from her trial. We disagree. "[T]he exclusionary rule serves to deter delib-
erate, reckless, or grossly negligent conduct, or in some circumstances
recurring or systemic negligence." Herring v. United States, 555 U.S. 135,
144 (2009). In contrast, the government’s error in this instance, if any, "ar-
[ose] from nonrecurring and attenuated negligence [and] is thus far
removed from the core concerns that led [the Court] to adopt the [exclu-
sionary] rule in the first place." Id.
8
Although the attempted civil forfeiture of Martin’s property plays a
role in our analysis, because the government never completed the civil for-
feiture, our review is limited to the ultimate criminal forfeiture of her
property.
8 UNITED STATES v. MARTIN
forfeiture statute, thereby rendering the later criminal forfei-
ture of the property invalid. Martin argues that the district
court erred both in holding that her claim was untimely and
in holding that the government’s attainment of criminal sei-
zure warrants mooted her challenge to its unlawful possession
of her property. As a remedy for the government’s illegal sei-
zure, Martin seeks the vacature of the subsequent criminal
forfeiture of her property.9
Even assuming, without deciding, that the government
seized Martin’s property illegally, we cannot grant the reme-
dy—the vacature of the property’s later criminal forfei-
ture—that she seeks. The illegal seizure of property does not
immunize that property from forfeiture as long as the govern-
ment can sustain the forfeiture claim with independent evi-
dence. See, e.g., United States v. Pierre, 484 F.3d 75, 87 (1st
Cir. 2007); see also INS v. Lopez Mendoza, 468 U.S. 1032,
1039-40 (1984) (noting that, just as an unlawful arrest does
not result in the suppression of the "body" of the defendant in
a criminal proceeding, the unlawful seizure of property does
not result in the suppression of that property in a forfeiture
proceeding). Here, Martin does not dispute that the evidence
produced by the government, independent of the property,
was sufficient to justify the criminal forfeiture. We therefore
reject Martin’s challenge.
B.
We next consider Appellants’ argument that the district
court was without jurisdiction to order the criminal forfeiture
of their property after sentencing and the entry of judgments.
9
Martin does not seek monetary damages. A person whose property has
been improperly held by the government generally can sue the government
for damages pursuant to the Federal Tort Claims Act. See 28 U.S.C.
§ 2680(c). Such a remedy is unavailable, however, as to property, like
Martin’s, that is ultimately forfeited. Id. at § 2680(c)(2).
UNITED STATES v. MARTIN 9
Criminal forfeiture is part of a defendant’s sentence.
Libretti v. United States, 516 U.S. 29, 38-39 (1995). The pro-
cedure used to effect criminal forfeiture is set forth in Rule
32.2. First, the government must include a forfeiture allega-
tion in the indictment against the defendant. Fed. R. Crim. P.
32.2(a). After conviction, the government must establish a
nexus between the property for which it is seeking forfeiture
and the crime by a preponderance of the evidence. Id. at
32.2(b)(1)(A).10 If the government satisfies its burden, the dis-
trict court enters a preliminary order of forfeiture. Id.
32.2(b)(2). Rule 32.2, as it existed at the time of Appellants’
sentencings,11 provided that, "[a]t sentencing . . . 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. Pro. 32.2(b)(3) (2004 version) (emphasis added).
Appellants correctly note that the district court neither ref-
erenced forfeiture in sentencing Appellants, nor included final
orders of forfeiture in their judgments. In fact, the district
court failed to enter the preliminary order of forfeiture until
after it entered judgments and did not enter a final order of
forfeiture until months later. Appellants argue that by missing
the deadline set in Rule 32.2, the district court lost jurisdiction
to enter orders of forfeiture and to amend the judgments to
include the orders of forfeiture.
Although Rule 32.2, as it existed in 2004, required a district
court to finalize forfeiture orders at sentencing and include
them in a final judgment, it did not set forth the consequences
that would flow from missing that deadline. The Supreme
Court, however, has recently provided guidance in an analo-
gous context. Following this guidance, we conclude that miss-
ing the deadline set in Rule 32.2 does not deprive a district
court of jurisdiction to enter orders of criminal forfeiture so
10
The preponderance standard is set forth in case law, not the statute.
See, e.g., United States v. Smith, 966 F.2d 1045, 1050-53 (6th Cir. 1992).
11
The rule was redrafted in 2009.
10 UNITED STATES v. MARTIN
long as the sentencing court makes clear prior to sentencing
that it plans to order forfeiture.
In Dolan v. United States, 130 S. Ct. 2533 (2010), the
Court examined a statute that set forth a deadline without
specifying a consequence, and provided an analytical con-
struct that is applicable here. There, the district court ordered
the defendant, as part of his sentence, to pay restitution to the
victim of his crime. Id. at 2537. The governing statute pro-
vided, "the court shall set a date for the final determination of
the victim’s losses, not to exceed 90 days after sentencing."
18 U.S.C. § 3664(d)(5). It was undisputed both that the defen-
dant was on notice that the district court would order restitu-
tion and that the district court missed the deadline to order
restitution and failed to include an order of restitution in the
defendant’s judgment. Dolan, 130 S. Ct. at 2538.
Dolan established three categories in which to consider
statute- and rule-based deadlines depending on the deadline’s
purpose, as evidenced by the statute or rule’s language and con-
text.12 Id. at 2538-39. The first, a "jurisdictional condition,"
has the strictest consequence: "The expiration of a ‘jurisdic-
tional’ deadline prevents the court from permitting or taking
the action to which the statute attached the deadline. The pro-
hibition is absolute. The parties cannot waive it, nor can a
court extend that deadline for equitable reasons." Id. at 2538.
This type of deadline is unlikely to be inferred when a statute
or rule fails to specify any consequence for noncompliance.
See id. at 2539 (finding that the lack of a specified conse-
quence weighs against imposing a coercive sanction). Exam-
ples of jurisdictional conditions include the deadlines for
12
Contrary to the dissent’s suggestion, post at 15, the Court did not nar-
rowly frame its decision in Dolan around the issue of restitution. Instead,
the Court in Dolan set forth broad guidance for courts faced with these cir-
cumstances to determine the consequence of missed deadlines. See 130 S.
Ct. at 2357 (broadly noting, in the first sentence of the opinion, "This case
concerns the remedy for missing a statutory deadline").
UNITED STATES v. MARTIN 11
filing appeals. See, e.g., Bowles v. Russell, 551 U.S. 205, 209-
10 (2007).
The second category of deadline, a "claims-processing
rule," "do[es] not limit a court’s jurisdiction, but rather regu-
late[s] the timing of motions or claims brought before the
court." Dolan, 130 S. Ct. at 2538. No sanction is applied for
missing this type of deadline "[u]nless a party points out to
the court that another litigant has missed such a deadline." Id.
An example of a claims-processing rule is the deadline for fil-
ing a motion for a new trial in a criminal case. See, e.g., Eber-
hart v. United States, 546 U.S. 12, 19 (2005) (per curiam).
The third category of deadline, a "time-related directive," is
the most forgiving. A time-related directive keeps a process
moving by creating a deadline "that is legally enforceable but
does not deprive a judge or other public official of the power
to take the action to which the deadline applies if the deadline
is missed." Dolan, 130 S. Ct. at 2538.
The Dolan court focused on six aspects of the deadline cre-
ated by the restitution statute in concluding that it is a "time-
related directive." First, the deadline, even though it contains
the word "shall," does "not specify a consequence for non-
compliance." Id. at 2539 (internal quotations omitted). Sec-
ond, the substantive purpose of the restitution statute is to aid
victims of crime, rather than provide some protection for
defendants. Id. Third, the statute’s deadline "is primarily
designed to help victims of crime secure prompt restitution
rather than to provide defendants with certainty as to the
amount of their liability." Id. Fourth, "depriving the sentenc-
ing court of the power to order restitution would harm
those—the victims of crime—who likely bear no responsibil-
ity for the deadline’s being missed and whom the statute also
seeks to benefit." Id. at 2540. Fifth, the Court had "previously
interpreted similar statutes similarly." Id. Finally, in the case
of restitution, "the defendant normally can mitigate any harm
that a missed deadline might cause." Id. at 2541.
12 UNITED STATES v. MARTIN
Considering the facts before us through the lens of Dolan,
we conclude that Rule 32.2(b)(3), as it then existed, estab-
lished a time-related directive.13 First, like § 3664(d)(5), the
2004 version of Rule 32.2(b)(3)—although it used the word
"must"—did not specify a consequence for noncompliance.
Second, the substantive purpose of criminal forfeiture is not
to provide protection for defendants but to deprive criminals
of the fruits of their illegal acts and deter future crimes. Cf.
United States v. Ben-Hur, 20 F.3d 313, 319 (7th Cir.1994)
("[T]he purpose behind criminal forfeiture under section 853
is not just to sanction illegal conduct, but also to strip drug
dealers of their economic power."). Third, there is no indica-
tion that the purpose of the deadline set in Rule 32.2 is to pro-
vide defendants with certainty as to the amount of their
liability. Fourth, because proceeds from forfeiture may go to
victims of crime,14 preventing forfeiture based on the failure
to meet the Rule 32.2 deadline would often harm those who
likely bear no responsibility for the deadline’s being missed
and whom the statute also seeks to benefit. Fifth, as demon-
13
The dissent argues that this case is distinguishable from Dolan
because, unlike in Dolan, this case presents not only the missing of a stat-
utory deadline, "but also the elapsing of the timeframe in which a court
may amend a sentence" under Rule 35. Post, at 16-17. We believe this a
misreading of Dolan. Although the dissent is correct that all that was left
for district court to do in Dolan was to fill in the amount of restitution, this
"fill in the blank" is no less an amendment of a sentence than what hap-
pened in this case. Indeed, here the only blank left to be filled was a provi-
sion on joint and several liability, a change to which Appellants consented.
J.A. 504, 518, 520, 532. Likewise, assuming the dissent is correct that it
was not error under Rule 35 for the district court in Dolan to miss the stat-
utory deadline governing restitution, it was similarly not error under Rule
35 for the district court here to make an almost identical mistake, missing
the deadline governing forfeiture. Accordingly, we believe Dolan is
closely analogous to these circumstances and thus compels our decision
here.
14
See 21 U.S.C. § 853(i) ("With respect to property ordered forfeited
under this section, the Attorney General is authorized to . . . take any other
action to protect the rights of innocent persons which is in the interest of
justice. . . .").
UNITED STATES v. MARTIN 13
strated by Dolan, the Court has previously interpreted similar
statutes similarly. Finally, Appellants could have mitigated
any harm that the missed deadline might have caused by
objecting at their respective sentencings to the lack of finality
as to the forfeiture orders. See Dolan, 130 S. Ct. at 2541.
They failed to do so.
The relevant language of the current Rule 32.2 further sup-
ports our conclusion that this deadline is not a jurisdictional
condition. It now provides that, "[t]he court must include the
forfeiture when orally announcing the sentence or must other-
wise ensure that the defendant knows of the forfeiture at sen-
tencing." Rule 32.2(b)(4)(B) (emphasis added). As the
Advisory Committee notes, the change in the rule was not one
of substance, but was instead intended "to clarify what the
district court is required to do at sentencing. . . ." Fed. R.
Crim. P. 32.2 advisory committee’s notes (2009 amendment).
This clarification emphasizes that the purpose of the deadline
is not to create a coercive sanction, but to ensure that a defen-
dant is on notice as to all aspects of his sentence, including
forfeiture.
Our colleague’s comprehensive dissent notwithstanding,
there is no dispute that Appellants were fully aware of both
the pending forfeiture itself and, beyond even the facts of
Dolan, the exact amount. Notably, Appellants themselves do
not—and indeed could not—argue that they were caught off-
guard. The district court held multiple, comprehensive hear-
ings on forfeiture, in which both the fact of liability and the
amount were determined. See J.A. 364-461, 480-532. The dis-
trict court made clear at the end of the final forfeiture hear-
ing—a mere minutes15 prior to sentencing Appellants—that it
15
From the record, it appears the time between the district court
unequivocally stating that it intended to enter—after a minor change—the
forfeiture order—which was presented to it by the government, with cop-
ies given to Appellants—and the beginning of the individual sentencings
was approximately 32 minutes. See J.A. 532, 533, 543.
14 UNITED STATES v. MARTIN
intended to enter the forfeiture order. Appellants lack of sur-
prise is further evidenced by the fact that they did not chal-
lenge the forfeiture until almost three years after the district
court entered the final order of forfeiture.
Accordingly, because the Rule 32.2 deadline, as it then
existed, is most persuasively understood as a time-related
directive rather than a jurisdictional condition, and because
Appellants were indisputably on notice at the time of sentenc-
ing that the district court would enter forfeiture orders, we
refuse to vacate the district court’s tardy forfeiture orders.
III.
For the foregoing reasons, we affirm the criminal forfeiture
of Appellants’ assets.
AFFIRMED
GREGORY, Circuit Judge, concurring in part and dissenting
in part:
Although I concur in Parts I and II.A of Judge Duncan’s
opinion rejecting appellant’s requested remedy of suppres-
sion, I am compelled to dissent from Parts II.B and III.
Not a single case, published or unpublished, has done what
today’s majority does: it holds that even if a punishment of
forfeiture is not discussed at sentencing or ordered in judg-
ment, a defendant can still be subject to that punishment if she
has notice that such punishment may be ordered.
It is undisputed that the district court did not enter a prelim-
inary order of forfeiture before sentencing and judgment. Nor
were proper remedial actions, such as amendment of the sen-
tence pursuant to Rule 35, timely pursued under the Federal
Rules of Criminal Procedure. Because the appellants’ sen-
tences became final for purposes of Rule 32.2 before the dis-
UNITED STATES v. MARTIN 15
trict court entered the preliminary order of forfeiture, I would
hold that the district court did not have authority to enter the
preliminary and final orders of forfeiture in 2007 and the
amended judgments in 2010, and therefore the district court’s
orders and amended judgments should be vacated.
In order to reach its conclusion that the appellants must for-
feit their property despite no discussion about forfeiture at
their sentencing hearings and no inclusion of forfeiture in
their written judgments, the majority relies heavily on Dolan
v. United States, 130 S. Ct. 2533 (2010). That case held that
a statutory deadline to order restitution "does not deprive the
court of the power to order restitution," id. at 2539, "where
. . . the sentencing court made clear prior to the deadline’s
expiration that it would order restitution, leaving open (for
more than 90 days) only the amount," id. at 2537. Dolan,
however, does not stand for the majority’s contention that as
long as the defendant has notice that a penalty would be
ordered, the sentencing court retains authority to impose such
penalty after the relevant statutory deadline. See supra at 9-10
("[M]issing the deadline set in Rule 32.2 does not deprive a
district court of jurisdiction to enter orders of criminal forfei-
ture so long as the sentencing court makes clear prior to sen-
tencing that it plans to order forfeiture."). The Dolan decision
is much narrower: the sentencing court retains authority to
determine the amount of a penalty after the relevant statutory
deadline when the sentencing court makes the defendant
aware at sentencing that the defendant will be subject to that
penalty. The majority takes Dolan out of its context and gives
its narrow holding breadth in a qualitatively different area of
the law. I respectfully dissent.
There are two differences between the present case and
Dolan that I believe warrant vacatur of the district court’s
orders. First, Dolan was narrowly conscribed to cover only
restitution cases in which the amount of the penalty—not the
fact of the penalty itself—was left blank. Second, the restitu-
16 UNITED STATES v. MARTIN
tion and forfeiture statutory schemes have different purposes
and structures. I deal with each in turn.
I.
It is incontrovertible that forfeiture was included neither in
the oral sentence nor in the written judgment for any of the
appellants. The factual difference from Dolan is striking. Both
Dolan’s sentence and order of judgment state that he was
going to be subject to restitution; it was only the amount of
the penalty that was left open. The difference between not
knowing the amount of a punishment, as in Dolan, and not
being subject to a punishment at all, as here, is a difference
in kind, not degree. It is true, as the majority notes, the appel-
lants were on notice that their sentences would include forfei-
ture. See supra at 10. But being sentenced with judgment
entered against you is likewise fundamentally different from
being on notice that you may be sentenced. Under the majori-
ty’s holding, it seems that after a defendant "has served his
entire sentence—and who knows how long after?—a court
might still order additional imprisonment, additional restitu-
tion, an additional fine, or an additional condition of super-
vised release." Dolan, 130 S. Ct. at 2548 (Roberts, C.J.,
dissenting).
Careful parsing of Dolan and the precedent in the asset-
forfeiture context reveals that these decisions are all meant to
solve a very particular problem of court management: ensur-
ing efficient use of the court’s time while not sacrificing the
accuracy of its punishments. The Dolan Court tells us that its
decision covers the case in which "a judge who (currently
lacking sufficient information) wishes to leave open, say, the
amount of a fine, or a special condition of supervised release."
Id. at 2543. What’s needed in such cases is to give judges the
flexibility to "essentially fill in an amount-related blank in a
judgment that made clear that restitution was applicable." Id.
at 2544. The significant difference in the appellants’ cases is
that it wasn’t just the amount of the forfeiture that they
UNITED STATES v. MARTIN 17
awaited, it was the very fact of forfeiture that was left open
by the sentencing hearing and the judgment.
Critically, Rule 35 is squarely at issue on these facts,
although it is not addressed by the majority. See Fed. R. Crim.
P. 35(a) (2008) ("Within 7 days after sentencing, the court
may correct a sentence that resulted from arithmetical, techni-
cal, or other clear error."). That Rule 35 is so squarely pre-
sented here highlights the legal difference between merely
filling in "amount-related blank" and issuing a punishment.
Because the Dolan district judge was merely filling in an
amount-related blank, Rule 35 did not apply: there was no
error to correct in the sentence. Dolan, 130 S. Ct. at 2544.
While the only timing rule at stake in Dolan was the 90-day
limit for determining the amount of restitution imposed by 18
U.S.C. § 3664(d)(5), we are faced here with the passing of not
only Rule 32.2’s requirement, but also the elapsing of the
timeframe in which a court may amend a sentence. There are
significant differences between Rule 32.2 and Dolan’s restitu-
tion statute, which I address in Part II, infra. More troubling,
however, is the fact that the majority’s ruling essentially reads
Rule 35 out of the Federal Rules of Criminal Procedure.
I agree with the consensus view that a violation of Rule
32.2 without more does not necessarily void an order of for-
feiture for lack of authority. See, e.g., United States v. Yeje-
Cabrera, 430 F.3d 1, 6, 14, 16 (1st Cir. 2005); United States
v. Bennett, 423 F.3d 271, 272 (3d Cir. 2005). Two avenues
exist for a court to remedy a failure to include forfeiture in a
defendant’s sentence. As already mentioned, Rule 35 is one
such path. And Rule 36 provides another: "[A]fter giving any
notice it considers appropriate, the court may at any time cor-
rect 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 (2010).
Here, the district court did amend its judgment some four
years after its initial entry when it discovered its error through
18 UNITED STATES v. MARTIN
the appellants’ motion to vacate the orders of forfeiture. Rule
36 indeed states explicitly, "at any time," and the 2009
amendments to Rule 32.2 make clear that a district court may
correct its failure to include the forfeiture order in the judg-
ment "at any time" through the use of Rule 36. See Fed. R.
Crim. P. 32.2(b)(4)(B) (2010). But far in advance of the
amendment of judgment, the seven-day window to amend the
oral sentences had closed, and the appellants’ sentences had
become final. By modifying its judgments four years after
sentencing through Rule 36, the district court attempts to
sweep Rule 35 under the rug. The fact that the court modified
judgment some four years later via Rule 36’s "at any time"
allowance cannot trump Rule 35’s seven-day window to cor-
rect a "clear error" in sentencing. Rule 35 would never be nec-
essary if we so broadly read Rule 36’s corrective power. To
allow such backdoor routes would cast Rule 35 out of the
Federal Rules of Criminal Procedure and undermine the final-
ity of criminal sentences. See United States v. Pease, 331 F.3d
809, 816 (11th Cir. 2003) ("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.") (citing United
States v. Whittington, 918 F.2d 149, 151 (11th Cir. 1990);
United States v. Werber, 51 F.3d 342, 347 (2d Cir. 1995)
("Rule 36 is not a vehicle for the vindication of the court’s
unexpressed sentencing expectations, or for the correction of
errors made by the court itself.") (internal quotation marks
omitted).
It is therefore not the violation of Rule 32.2’s command
alone that compels vacatur. That violation, coupled with expi-
ration of Rule 35’s timeline, is determinative. Rule 35 "only
makes sense against a background rule that trial courts cannot
change sentences at will." Dolan, 130 S. Ct. at 2548 (Roberts,
C.J., dissenting). An imposed sentence is final subject only to
the exceptions that Congress has explicitly permitted. United
States v. Addonizio, 442 U.S. 178, 189 (1979). Before Rule 35
was adopted, "trial courts had no . . . authority" to modify
imposed sentences. Id. at 189 n.16. Yet today’s majority
UNITED STATES v. MARTIN 19
would read Rule 35 to say that trial courts have authority to
amend sentences at any time—the clear textual limit of seven
days notwithstanding and despite the Supreme Court’s clear
command that Rule 35’s time limit is "jurisdictional and may
not be extended." Id. at 189.
It is telling that the majority does not cite to any precedent
in the forfeiture context for its holding. In all other cases on
missed Rule 32.2 deadlines, even in the most egregious fac-
tual scenarios, there is at least a discussion at the sentencing
hearing in which the court confirms that the defendant will be
subject to forfeiture. See, e.g., United States v. Grasso, 376
F.App’x 166, 167 n.1 (3rd Cir. 2010); Brief of Appellee at 19,
United States v. Ereme, 339 F.App’x 340 (4th Cir. 2009) (No.
08-5094), 2009 WL 958911 at *19 (defense acknowledged at
sentencing that "[t]he defendant has already been the subject
of a forfeiture order for $367,500, which will indeed bankrupt
the defendant if it’s permitted").
Furthermore, the changes wrought by the 2009 amend-
ments to the Federal Rules of Criminal Procedure do not sup-
port the majority’s position, as it contests, see supra at 13; the
amendments support the view that the present facts are
beyond the pale. The amended Rule states, "The court must
include the forfeiture when orally announcing the sentence or
must otherwise ensure that the defendant knows of the forfei-
ture at sentencing." Fed. R. Crim. P. 32.2(b)(4)(B) (2010)
(emphasis added). There is nothing in the record that demon-
strates that the sentencing court ensured that the defendants
knew of forfeiture. The Rule does not say that notice from
previous hearings suffices. Furthermore, the amended rule,
relied upon by the Grasso court, 376 F.App’x at 168, high-
lights the important factual difference between the present
case and Grasso and Ereme. In the latter cases, forfeiture was
discussed at the hearing, demonstrating the defendant’s
knowledge that forfeiture was going to be imposed. The Rule
certainly could have been written so that it would be sufficient
20 UNITED STATES v. MARTIN
that a defendant is on notice of a penalty of forfeiture. It, how-
ever, was not so written.
The only case factually identical to this one is a reported
district court case from this Circuit. See United States v. King,
368 F. Supp. 2d 509 (D.S.C. 2005). The King court found it
had no authority to enter a preliminary order of forfeiture after
sentencing when forfeiture had not been raised at sentencing
or entered in the judgment. (The court went further to con-
clude that Rule 36 cannot be used to substantively alter a
defendant’s sentence. Id. at 512; see infra Part I.B. (discuss-
ing Rules 35 and 36).) Crucially, "the government . . . raised
no issue regarding forfeiture at sentencing." Id. at 512-13. The
record below makes it clear that forfeiture was not mentioned
at sentencing, nor made part of the oral sentence, nor included
in the judgment of the court. Indeed, under the pre-2010 revi-
sions to Rule 32.2, "[w]hile it is not expressly stated in the
Rule, most courts hold that the provision in Rule 32.2(b)(3)
requiring the forfeiture order to be made part of the sentence
means that the court must mention the forfeiture when the
sentence is orally announced." Stefan D. Cassella, Asset For-
feiture Law In The United States 600 (2007).
A defendant’s interest in the finality of his sentence is
greater in cases in which there is no indication in the sentence
or the judgment that the defendant is subject to a certain sanc-
tion than cases like Dolan in which the sentencing court and
the judgment both state that the defendant is subject to a cer-
tain sanction in an amount to be determined later. Rule 35’s
time limits, even if they don’t apply to the "filling in the
blanks" of a restitution order included in the sentence and in
the judgment, must surely apply in force to the simple fact of
forfeiture. Contrary to the Dolan dissent’s view, a defendant’s
interest in the finality of his sentence was not squarely pres-
ented in that case as it is here.
II.
Despite the majority’s reliance on Dolan’s policy factors,
many of those factors actually have little relevance in the for-
UNITED STATES v. MARTIN 21
feiture context or they favor the appellants in this case. Even
if I were to conclude that Dolan’s framework covered the
instant case despite the fact that this isn’t a "fill in the blank"
case, I would hold that the six policy and statutory-purpose
considerations of Dolan compel vacatur of the forfeiture
orders and amended judgments.
First, the Dolan Court relied heavily on the importance of
full compensation of victims in restitution cases. 130 S. Ct. at
2540 ("[T]he statute seeks speed primarily to help the victims
of crime and only secondarily to help the defendant."). In
Dolan, victims of the crime would be prejudiced if the Court
had vacated the untimely restitution order. The same concern
for victims does not explicitly appear in the criminal forfei-
ture statutes. To the extent that third parties are contemplated
by the forfeiture scheme, their rights are injured by the major-
ity’s conclusion that there is no force behind Rule 32.2’s
deadline. The forfeiture rule provides that the preliminary
order of forfeiture becomes final as to the defendant at the
time of sentencing. Fed. R. Crim. P. 32.2(b)(4)(A). What this
means is that thereafter a third party may challenge the forfei-
ture order before it becomes final in order to dispute, say,
ownership of the property subject to forfeiture. See id. Insist-
ing on a prompt date for the preliminary order protects third-
party interests and promotes judicial efficiency. The problem
before Rule 32.2(b) was that "third parties who might have an
interest in the forfeited property are not parties to the criminal
case. At the same time, a defendant who has no interest in
property has no incentive, at trial, to dispute the government’s
forfeiture allegations." Fed. R. Crim. P. 32.2 (2000 advisory
committee’s note). Rule 32.2(b) aligns the incentives of the
parties, provided that the preliminary order of forfeiture
becomes final as to the defendant at a specific time—at sen-
tencing.
That the order of forfeiture becomes final as to the defen-
dant at sentencing is in stark contrast to the restitution frame-
work, which allows the trial court to go forward with
22 UNITED STATES v. MARTIN
sentencing while delaying the restitution order for 90 days. 18
U.S.C. § 3664(d)(5) (2010). This difference puts Rule 35
squarely in play in the forfeiture context, whereas it is practi-
cally mooted by § 3664(d)(5)’s 90-day allowance to enter the
amount of the victim’s losses. Again, it is not solely Rule
32.2’s structure that compels the conclusion that the orders
must be vacated; it is Rule 32.2 read in conjunction with Rule
35 that mandates such an outcome.
The second and fourth Dolan grounds discussed by the
majority are the purpose of the statutory scheme. The primary
purpose of forfeiture is to punish and deter criminals, not
compensate injured third parties, as is the goal of the restitu-
tion statute. The majority is right when it argues that "the sub-
stantive purpose of criminal forfeiture is . . . to deprive
criminals of the fruits of their illegal acts and deter future
crimes." Supra at 12. But the same, of course, could be said
for any criminal punishment for crimes involving illicit gains.
It cannot mean that all deadlines for imposing sentences can
be waived because of that undeniably important goal. It was
the rights of third parties—victims of defendants—that the
Dolan decision sought to protect; if it sought to promote gen-
eral deterrence and the punishment of wrongs, such promo-
tion was only ancillary.
The third Dolan ground the majority discusses is the fact
that "there is no indication that the purpose of the deadline set
in Rule 32.2 is to provide defendants with certainty as to the
amount of the liability." Supra at 12 (emphasis added). Of
course, the issue isn’t whether Rule 32.2’s purpose is to pro-
vide certainty with respect to the amount of liability—this is
not a "fill in the blank" case like Dolan—it is whether Rule
32.2, when read with Rule 35, is intended to provide certainty
to the defendant as to whether she is subject to that punish-
ment at all.
The fifth ground discussed by Dolan and noted by the
majority is that similar statutes have been interpreted simi-
UNITED STATES v. MARTIN 23
larly. This merely assumes the answer to the very question
that we are trying to answer today: are the forfeiture statute
and Rule 35 similar enough to the restitution framework to
warrant the application of Dolan?
The sixth ground of Dolan cited by today’s majority is that
the appellants could have prevented any harm by objecting to
their sentences’ "lack of finality as to the forfeiture orders."
Supra at 13. To put it less charitably, the majority expects
defendants to object at their sentencing on the grounds that a
particular punishment they thought might be imposed has not
actually been imposed. Apart from the oddity of requiring a
defendant to ask the court for a harsher sentence, this logic
undermines our adversarial system by forcing a defense attor-
ney to alert the court of the prosecutor’s oversights. See, e.g.,
Tx. Eth. Op. 504 (defense counsel has no duty to correct mis-
takes made by prosecutor in court about prior convictions of
defendant). The district court, at each of the appellants’ sen-
tencing hearings, asked the government if anything else
needed to be ruled on, and the government in each instance
replied in the negative. J.A. 586 (Martin); J.A. 688 (Bynum);
J.A. 788-89 (Goodwin). The government also had an opportu-
nity to correct the court’s mistake through use of an 18 U.S.C.
§ 3742 appeal, but it chose not to. See Pease, 331 F.3d at 811-
12 (government could not use Rule 36 to amend the judgment
correcting a sentence that did not mention forfeiture when
government did not use appeal under § 3742). To insist a
defense attorney should object when a sentence is not as high
as she expected violates the principle of zealous advocacy
required by our adversarial system.
Taken as a whole, the policy and structural considerations
determinative in Dolan either have little import in the forfei-
ture context or actually support the appellants’ case. Even if
I were to conclude that these facts present a Dolan issue with
respect to Rule 32.2 alone, I would find the differences
between the forfeiture and restitution schemes command
vacatur of the district court’s orders.
24 UNITED STATES v. MARTIN
III.
Congress surely did not want criminals to retain the profit
of their illegal enterprises—certainly not anymore than they
want criminals to serve a shorter sentence than was intended
by the sentencing judge. Yet Congress also values the finality
of a sentence. The Federal Rules of Criminal Procedure pro-
vide for the correction of oversights in sentencing and in judg-
ments. The district court here did not timely avail itself of
these correctives. As such, I would find that the district court
had no authority to enter the preliminary order of forfeiture
after the sentence became final, nor did it have authority to
issue its final order of forfeiture. I would therefore vacate the
amended judgments and orders of forfeiture.