[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 26 2000
THOMAS K. KAHN
No. 98-3829 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 97-00140-CR-T-17E
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HAROLD GROSS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 26, 2000)
Before ANDERSON, Chief Judge, DUBINA, Circuit Judge, and FAY, Senior Circuit
Judge.
PER CURIAM:
This case presents an issue of first impression in this Court: whether a
preliminary order of forfeiture is final and immediately appealable. We hold that a
preliminary order of forfeiture is final and immediately appealable and we set aside
this forfeiture and remand to the district court for a hearing.
Defendant-appellant, Harold Gross, was convicted of conspiracy to distribute
marijuana in violation of 21 U.S.C. § 846 and sentenced to 24 months of
incarceration. The indictment provided for the forfeiture of any property derived from
or used to facilitate the commission of a charged offense, as prescribed by 21 U.S.C.
§ 853. Following Gross’s plea colloquy, the Government moved for a preliminary
order of forfeiture of the property located at 7464 Teaberry Street. Gross objected on
the grounds that the property was not subject to forfeiture. The district court entered
the preliminary order of forfeiture for the Teaberry Street property and Gross appealed
the order.
Initially, we hold that the district court’s preliminary order of forfeiture is final
and immediately appealable. This is a matter of first impression in this Court, but four
other circuits have addressed the question and determined that such an order is final
and appealable because the order finally determines the defendant’s rights in the
forfeited property. See United States v. Pelullo, 178 F.3d 196, 202-203 (3rd Cir.
1999); United States v. Bennett, 147 F.3d 912, 914 (9th Cir. 1998); United States v.
Christunas, 126 F.3d 765, 767-68 (6th Cir. 1997); United States v. Libretti, 38 F.3d
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523, 526-27 (10th Cir. 1994), aff’d, 516 U.S. 29 (1995). We agree with the reasoning
of those courts.
We review whether a sufficient factual nexus exists to support the criminal
forfeiture for clear error. See Libretti v. United States, 516 U.S. 29, 42 (1995). The
Government concedes that the district court erred by entering the preliminary order
of forfeiture because the record in this case fails to establish any factual nexus
between the offense of conviction and the Teaberry Street property. Therefore, we
vacate the preliminary order of forfeiture and remand to the district for a hearing.
VACATED AND REMANDED.
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