United States v. Marion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13884 MARCH 26, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 06-00088-CR-FTM-29-SPC

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

ISAAC L. MARION, JR.,

Defendant-Appellee

PATRICIA A. GRAY,

Third-Party-Claimant-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(March 26, 2009)

Before BIRCH, HULL and FAY, Circuit Judges.
PER CURIAM:

This appeal by the United States government involves interpretation of the

criminal forfeiture provisions in 21 U.S.C. § 853 and Federal Rule of Criminal

Procedure 32.2. At issue is the timeliness of Patricia Gray’s third-party petition

asserting a claim in properties subject to forfeiture. The government contends that

Gray’s petition was untimely because it was not filed within thirty days of her

receiving notice of the preliminary order of forfeiture. The district court disagreed

on grounds that the petition was filed within thirty days from the date that criminal

judgment was entered against the defendant, Isaac L. Marion, Jr. (“Marion”).

Furthermore, the district court concluded that the government had waived the issue

of untimeliness and that its motion to dismiss was itself untimely. Upon thorough

consideration of the record, the parties’ briefs, and oral arguments, we find

reversible error and REVERSE AND REMAND.

I. BACKGROUND

Patricia Gray is Isaac Marion’s grandmother. Marion pled guilty in early

2007 to conspiracy to possess with intent to distribute cocaine from at least

December 2000 through 18 December 2005. After Marion’s guilty plea but before

he was sentenced, the government filed a motion for a preliminary order of

forfeiture as to two properties identified in the indictment that were allegedly

2
bought with his drug proceeds: (1) 862 Zana Drive, Fort Myers, Florida, and (2)

856 Zana Drive, Fort Myers, Florida. Marion did not file a response.

On 6 June 2007, the district court granted the government’s motion and

entered a preliminary order of forfeiture as to both properties. The court

specifically found that “the United States has met its burden of establishing the

sufficiency of the nexus between the offense and the property sought for

forfeiture.” R1-159 at 1. Accordingly, “all right, title and interest” of Marion in

the Zana Drive properties were forfeited to the government. Id. at 2.

The government then provided direct written notice of the preliminary order

of forfeiture to all known interested persons. On 18 June 2007, Gray received by

certified mail written notices at both Zana Drive homes. Each notice informed

Gray that pursuant to Federal Rule of Criminal Procedure 32.2(c) and 21 U.S.C. §

853(n), she must file a petition within thirty days of receipt of the notice if she

claimed a legal interest in the forfeited property. Additionally, the notices advised

that, “If you fail to file a petition with the [district court], judgment of default may

be taken against you, and any interest you may have in the property would be lost

forever and forfeited to the United States.” R2-239, Exh. D2 at 2; R2-239, Exh.

D3 at 2. The government also published notice of the preliminary order of

forfeiture in a local newspaper on three occasions, with the last date being 3 July

3
2007.

On 19 September 2007, the court sentenced Marion to 132 months of

imprisonment for his conspiracy conviction and ordered the forfeiture of both Zana

Drive properties.1 It was not until 4 October 2007, three and a half months after

receiving her notices, that Gray filed a petition claiming an interest in each Zana

Drive property.

The district court scheduled an ancillary hearing to adjudicate Gray’s third-

party claims. The hearing date was twice postponed, the first time on the

government’s motion for a continuance so that the parties could conduct discovery.

On 28 December 2007, the government moved to dismiss the petition as untimely

on grounds that Gray had filed the petition more than thirty days after receiving

notices of the preliminary order of forfeiture. On 8 and 9 January 2008, the court

1
Marion’s Presentence Investigation Report (“PSI”) stated the following facts regarding
Marion’s conversations with a Confidential Source (“CS”) about the Zana Drive Properties:

The CS was told many times by Marion, Jr. that he invested his drug proceeds in real
estate. Marion, Jr. had taken the CS to see two of the houses he was building in Fort
Myers, and these homes were described as 856 and 862 Zana Drive. Marion, Jr.
explained to the CS that these houses were not in his name, but rather in his mother’s
and other relatives’ names, and that he had paid cash for these houses.

Presentence Investigation Report at 5. At sentencing, Marion claimed he had no interest in the
Zana Drive properties. Over Marion’s objection, the district court adopted the facts from the
PSI, sentenced Marion to 132 months of imprisonment, and forfeited Marion’s interest in the
Zana Drive properties to the government. Marion appealed his sentence, but only as to the three-
level role enhancement. We affirmed his sentence. United States v. Marion, 280 Fed. Appx.
917, 920 (11th Cir. 2008) (per curiam) (unpublished).

4
conducted an ancillary hearing on Gray’s petition.

On 16 January 2008, the district court entered an order denying the

government’s motion to dismiss Gray’s petition as untimely. First, the court found

that the government had waived the issue of untimeliness because it failed to

mention this issue in its motion for continuance of the ancillary hearing. Second,

the court found that the government’s motion was itself untimely. The court noted

that Rule 32.2(c)(1)(A), (B) suggests that a motion to dismiss should be filed

before the discovery process and the ancillary hearing, whereas the government

filed its motion after the first two scheduled hearing dates. Finally, the court found

that Gray’s petition was filed within thirty days of 19 September 2007, the date

that criminal judgment was entered against Marion and the government had

obtained any interest of Marion’s in the properties. The court opined, “Obviously,

there could be no ancillary hearing until the government obtained the interest from

[Marion].” R3-253 at 7. The court further found no prejudice to the government

as a result of the petition’s filing date and therefore denied the government’s

motion to dismiss.

Additionally, the district court granted Gray’s petition on grounds that her

interest in the Zana Drive properties was superior to the government’s interest.

The government contended that Marion used drug proceeds to purchase the Zana

5
Drive properties, that Gray was a nominee owner for him, and that Gray had not

shown a legitimate source of funds for her purchase of the properties. The

government’s trial brief pointed out that Marion had told a CS that he liked to

invest drug proceeds in real estate and had placed the properties in the names of his

grandmother and other relatives. Marion also had shown a CS the Zana Drive

properties as properties he owned. The district court rejected the government’s

argument based on its findings that Gray was the legal title holder of the Zana

Drive properties, that she was presumed to be the owner of the Zana Drive

properties under Florida law as the legal title holder, and that “[w]hile the evidence

was not sufficient to determine precisely how petitioner financed the purchase and

construction, the government failed to produce evidence establishing a lack of

legitimate potential sources of money for petitioner’s use.” Id. at 20. The court

subsequently amended the preliminary order of forfeiture to reflect that Gray had a

legal right, title, and interest in both properties as the legal owner.2

The government filed a motion to amend the judgment pursuant to Federal

2
The government also appeals the district court’s grant of Gray’s petition on grounds that
the court ignored its record evidence that Marion had admitted the nexus between his drug
proceeds and the Zana Drive properties, see 21 U.S.C. § 853(n)(5) (“In addition to testimony and
evidence presented at the hearing, the court shall consider the relevant portions of the record of
the criminal case which resulted in the order of forfeiture.”), and erroneously shifted the burden
of proof to the government at the ancillary hearing to show Gray did not have a legitimate source
of funds to purchase the Zana Drive properties, see id. § 853(n)(6)(A) (stating that the petitioner
has the burden of proof by a preponderance of the evidence). We need not reach these issues
based on our decision concerning the motion to dismiss.

6
Rule of Civil Procedure 59(e), which the district court denied. The government

now appeals the order denying its motion to dismiss and granting Gray’s third-

party petition as well as the order denying its motion to amend the judgment.

II. DISCUSSION

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. See

United States v. Watkins, 320 F.3d 1279, 1281 (11th Cir. 2003). We will affirm

the denial of a motion to amend the judgment absent an abuse of discretion. See

Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (per curiam), cert. denied,

___ U.S. ___, 128 S. Ct. 660 (2007). “The only grounds for granting [a Rule 59]

motion are newly-discovered evidence or manifest errors of law or fact.” Id.

(quotation marks and citation omitted).

The Zana Drive properties were initially forfeited to the government

pursuant to 21 U.S.C. § 853. That statute provides that any person convicted of a

drug-law violation punishable by more than one year of imprisonment “shall forfeit

to the United States . . . any property constituting, or derived from, any proceeds

the person obtained, directly or indirectly, as a result of such violation.” 21 U.S.C.

§ 853(a)(1). Third-party interests in the properties are governed, inter alia, by the

following provisions:

7
 (1) Following the entry of an order of forfeiture under
this section, the United States shall publish notice of the
order and of its intent to dispose of the property in such
manner as the Attorney General may direct. The
Government may also, to the extent practicable, provide
direct written notice to any person known to have alleged
an interest in the property that is the subject of the order
of forfeiture as a substitute for published notice as to
those persons so notified.

(2) Any person, other than the defendant, asserting a
legal interest in property which has been ordered
forfeited to the United States pursuant to this section
may, within thirty days of the final publication of
notice or his receipt of notice under paragraph (1),
whichever is earlier, petition the court for a hearing to
adjudicate the validity of his alleged interest in the
property. The hearing shall be held before the court
alone, without a jury.

Id. § 853(n)(1), (2) (emphasis added). Thus, the statute establishes a thirty-day

window during which any third parties who wish to assert an interest in criminally

forfeited property must file a petition for a hearing. Id. § 853(n)(2).

In addition to the latter statute, Federal Rule of Criminal Procedure 32.2

outlines the procedure a court must follow for criminal forfeitures. See Fed. R.

Crim. P. 32(k)(2). Rule 32.2 requires the court to determine what property is

subject to forfeiture “[a]s soon as practicable after a verdict or finding of guilty, or

after a plea of guilty or nolo contendere is accepted.” Id. 32.2(b)(1). For specific

property, this determination is based on the government’s establishment of a nexus

8
between the property and the offense. See id. Once this determination has been

made, the court “must promptly enter a preliminary order of forfeiture . . . directing

the forfeiture of specific property without regard to any third party’s interest in all

or part of it.” Id. 32.2(b)(2). At sentencing (or any time before if the defendant

consents), the preliminary order of forfeiture “becomes final as to the defendant

and must be made a part of the sentence and be included in the judgment.” Id.

32.2(b)(3).

The court can only determine whether a third party has an interest in the

property if she files a claim in an ancillary proceeding under Rule 32.2(c). See id.

32.2(b)(2). The government is authorized to begin ancillary proceedings when the

court enters its preliminary order of forfeiture. See id. 32.2(b)(3) (“The entry of a

preliminary order of forfeiture authorizes the Attorney General (or a designee) to

seize the specific property subject to forfeiture . . . and to commence proceedings

that comply with any statutes governing third-party rights.” ); see also United

States v. Petrie, 302 F.3d 1280, 1284 (11th Cir. 2002). At the ancillary proceeding,

the court may rule on a motion to dismiss the petition for lack of standing, failure

to state a claim, or “for any other lawful reason.” Fed. R. Crim. P. 32.2(c)(1)(A).

After the ancillary proceeding, the court “must enter a final order of forfeiture by

amending the preliminary order of forfeiture as necessary to account for any third-

9
party rights.” Id. 32.2(c)(2). “If no third party files a timely petition, the

preliminary order becomes the final order of forfeiture if the court finds that the

defendant . . . had an interest in the property that is forfeitable under the applicable

statute.” Id. Once the final order has been entered, neither the defendant nor a

third party may object on the ground that the third party had an interest in the

property. See id.

A. Timeliness of Gray’s Petition

An initial point of contention is whether the thirty-day rule for filing a third-

party petition is mandatory. Gray maintains that it is not because § 853(n)(2) states

that a third party “may” petition the court within the specified thirty-day time

period and Rule 32.2(c)(1)(A) provides that a district court “may” dismiss a

petition for any lawful reason. 21 U.S.C. § 853(n)(2); Fed. R. Crim. P.

32.2(c)(1)(A). According to Gray, the use of the word “may” instead of “must”

renders the thirty-day rule optional. The government acknowledges that a third

party cannot be forced to file a claim within the thirty-day period but maintains that

the failure to do so will extinguish that third party’s rights.

Both the forfeiture statute and Rule 32.2 support the government’s position.

Under the statute, if no third-party petitions are filed, the United States obtains

clear title to the property “following the expiration of the period provided in

10
paragraph (2) for the filing of such petitions.” 21 U.S.C. § 853(n)(7). Likewise,

Rule 32.2(c)(2) provides that a third party who fails to file a timely petition may

not object when the preliminary order of forfeiture becomes the final order of

forfeiture. See Fed. R. Crim. P. 32(c)(2); see also Fed. R. Crim. P. 32.2 advisory

committee notes (2000 Adoption) (stating that Rule 32.2(c)(2) preserves the

established tenet of current law that “if a third party has notice of the forfeiture but

fails to file a timely claim, his or her interests are extinguished, and may not be

recognized when the court enters the final order of forfeiture”). Taken together,

these provisions mean that if a third party desires to assert an interest in forfeitable

property, she may do so by filing a sworn petition “within thirty days of the

publication of the impending forfeiture or of the third party actually receiving

notice of the impending forfeiture, whichever is earlier.” United States v. Soreide,

461 F.3d 1351, 1355 (11th Cir. 2006) (per curiam). If a third party chooses not to

file a petition within the prescribed thirty days, however, she forfeits her interests

in the property.3 See id. (concluding that a third party could not assert a claim of a

superior interest in the forfeited property because it was belatedly raised); United

States v. Grossman, 501 F.3d 846, 848-49 (7th Cir. 2007) (affirming dismissal for

untimeliness of a third-party petition filed five months after the party received

3
In addition, we see no reason why Congress would specify a thirty-day period for filing
third-party petitions but make it optional to comply with that narrow window.

11
notice of the preliminary forfeiture order), cert. denied, ___ U.S. ___, 128 S. Ct.

1098 (2008).

This brings us to the central dispute in this case – whether the thirty-day

period prescribed in § 853(n)(2) can be triggered by notice of a preliminary order

of forfeiture entered before sentencing or only by notice of a forfeiture entered in

conjunction with a criminal judgment at the time of sentencing. The district court

focused on the latter, which meant that Gray’s thirty-day period started running

when criminal judgment was entered against Marion on 19 September 2007.4

We begin with the criminal forfeiture statute itself, 21 U.S.C. § 853. The

sections pertaining to third-party notification and the thirty-day filing period refer

only to “an order of forfeiture” or “property which has been ordered forfeited.”

See 21 U.S.C. § 853(n)(1), (2). Section 853(n) does not distinguish between a

preliminary order of forfeiture and a final order of forfeiture entered at sentencing.

See id. The statute alone does not plainly answer the question of whether the

government’s obligation to publish notice of a forfeiture order (and, in turn, third

parties’ thirty-day window to disclaim their interest) is triggered by the preliminary

4
Although the district court focused on the date that criminal judgment was entered, the
statute requires the court to focus on the date that notice of forfeiture was received or published.
See 21 U.S.C. § 853(n)(2). The record does not reflect that the government sent out a second
notice following the date of criminal judgment. Regardless, Gray concedes that “[t]he
government correctly supplied direct written notice and publication to several known owners and
parties in interest during the summer of 2007, including Gray.” Answer Brief of Patricia A.
Gray at 19.

12
order of forfeiture or the final order of forfeiture entered at sentencing.

Yet, the plain language of Rule 32.2 suggests that the preliminary order of

forfeiture process, including notice proceedings to third parties, may begin before

sentencing and entry of a final criminal judgment. Rule 32.2(b) expressly provides

that the forfeiture process should begin “[a]s soon as practicable after a verdict or

finding of guilty, or after a plea of guilty or nolo contendere is accepted” with the

district court determining what property is subject to forfeiture and “promptly”

entering a preliminary order of forfeiture. Fed. R. Crim. P. 32.2(b)(1), (2). Rule

32.2(b) further provides that the “entry of a preliminary order of forfeiture

authorizes the Attorney General (or a designee) to . . . commence proceedings that

comply with any statutes governing third-party rights.” Id. 32.2(b)(3). Rule

32.2(b) necessarily contemplates that this process may begin before sentencing

because it specifies that “[a]t sentencing—or at any time before sentencing if the

defendant consents—the order of forfeiture becomes final as to the defendant.” Id.

The Advisory Committee Notes to the 1996 amendments to Rule 32 and the

2000 amendments adopting Rule 32.2 confirm that these rules were intended to

allow the preliminary order of forfeiture process, including notice to third parties,

to begin before sentencing. See United States v. Elmes, 532 F.3d 1138, 1144 n.7

(11th Cir. 2008) (“Although not binding, the interpretations in the Advisory

13
Committee Notes are nearly universally accorded great weight in interpreting

federal rules.” (quotation marks and citation omitted)). In 1996, Rule 32 was

amended to allow a district court to enter a preliminary order of forfeiture, which

then authorized the government to begin ancillary proceedings. See Fed. R. Crim.

P. 32(d)(2) (1997). Prior to this amendment, Rule 32 had been interpreted to mean

that a forfeiture order could not be entered until sentencing. See Fed. R. Crim. P.

32 advisory committee notes (1996 Amendments). Lengthy delays between a

verdict and sentencing had resulted in delayed forfeiture proceedings, however.

See id. This in turn had caused serious problems, one being that third parties had

to wait until the forfeiture order had been entered at sentencing before they could

petition the court to begin ancillary proceedings. See id.; see also United States v.

Yeje-Cabrera, 430 F.3d 1, 15 (1st Cir. 2005) (stating that the advisory committee

notes to Rule 32.2(b) “are concerned almost entirely with improving the procedure

by which the relative ownership interests of the defendant and of third parties are

determined.”). In addition, delays in forfeiture proceedings cost the government

valuable time in locating assets which may become unavailable or unusable and

force the government to seek restraining orders because it cannot actually seize the

property until a forfeiture order is entered. See Fed. R. Crim. P. 32 advisory

committee notes (1996 Amendments).

14
 The 1996 amendments to Rule 32 addressed these concerns “by specifically

recognizing the authority of the court to enter a preliminary forfeiture order before

sentencing.” Id. But these amendments did not mandate the timing of entry of a

preliminary order of forfeiture. Instead, “[e]ntry of an order of forfeiture before

sentencing rests within the discretion of the court, which may take into account

anticipated delays in sentencing, the nature of the property, and the interests of the

defendant, the government, and third persons.” Id. Likewise, the Advisory

Committee Notes to the 2000 adoption of Rule 32.2, which incorporated Rule

32(d)(2), reiterate the government’s authority under subdivision (b)(3) to begin an

ancillary proceeding “once the court enters a preliminary order of forfeiture.” Fed.

R. Crim. P. 32.2 advisory committee notes (2000 Adoption). Thus, a primary

purpose of the amendments to Rule 32 and the subsequent adoption of Rule 32.2

was to enable third parties to assert their interests in an ancillary proceeding prior

to the entry of criminal judgment and sentencing.

Despite these extensive revisions of the Federal Rules of Criminal

Procedure, § 853(n) still says “an order of forfeiture” or “property which has been

ordered forfeited” and has not been updated to distinguish between a preliminary

order of forfeiture and a final order of forfeiture. We may not disregard Rule 32.2,

however. “The Federal Rules of Criminal Procedure have the force and effect of

15
law. Just as a statute, the requirements promulgated in these Rules must be

obeyed.” United States v. Gilbert, 244 F.3d 888, 915 n.66 (11th Cir. 2001)

(quotation marks and citation omitted).

We see no conflict between § 853 and Rule 32.2 and believe the two can

easily be harmonized. The language of § 853 referring to “an order of forfeiture”

or “property which has been ordered forfeited” is broad enough to encompass both

a preliminary order of forfeiture and a final order of forfeiture. And when Rule

32.2 is read in tandem with § 853, the references to “an order of forfeiture” or

“property which has been ordered forfeited” in § 853(n)(1) and (2) logically

include a preliminary order of forfeiture.5 That is, once a preliminary order of

forfeiture is entered, whether before or at the time criminal judgment is entered, the

government is authorized to commence proceedings governing third-party rights

and must publish notice of that order and its intent to dispose of the property. See

21 U.S.C. § 853(n)(1); Fed. R. Crim. P. 32.2(b)(3). A third party then has thirty

days from the receipt of notice of the preliminary forfeiture order or the final

publication of notice of the latter, whichever is earlier, within which to petition the

5
At least two of our sister circuits have reached similar conclusions. See Grossman, 501
F.3d at 848-49 (affirming dismissal for untimeliness of third-party petition filed five months
after receipt of preliminary forfeiture order); United States v. Stone, No. 06-11293, 2008 WL
5422837, at *1-4 (5th Cir. Dec. 31, 2008) (per curiam) (unpublished) (affirming dismissal for
untimeliness of third-party petition filed over two months after receipt of preliminary forfeiture
order).

16
court for an ancillary hearing. See id. § 853(n)(2). Again, this thirty-day period

will begin to run from the triggering date, even if it is before criminal judgment is

entered. The failure to file a petition within this thirty-day time period

extinguishes a third-party’s interests. See id. § 853(n)(7); Fed. R. Crim. P.

32.2(c)(2). We believe this interpretation is faithful to the plain language of Rule

32.2 and § 853, the purpose behind the amendment of Rule 32 and the adoption of

Rule 32.2, and, importantly, congressional intent, as reflected by its decision not to

veto or modify the provisions in Rule 32.2 (and formerly Rule 32) creating the

preliminary order of forfeiture procedures.6 See Gonzalez v. Sec’y for Dep’t of

Corr., 366 F.3d 1253, 1270 (11th Cir. 2004) (en banc) (discussing interplay of

Federal Rule of Civil Procedure 60(b) and the Antiterrorism and Effective Death

Penalty Act and explaining, “Congress allowed Rule 60(b) to be created through

6
We do not suggest that a district court must enter a preliminary order of forfeiture before
sentencing. As noted above, the district court has the discretion to determine when entry of an
order of forfeiture is in the best interests of all of the parties. Nor do we suggest that a district
court must hold an ancillary hearing before entering criminal judgment if a third-party petition
has been filed. Section 853(n)(4) instructs that an ancillary hearing shall be held within thirty
days of the filing of a third-party petition, but specifies that this rule applies “to the extent
practicable and consistent with the interests of justice.” 21 U.S.C. § 853(n)(4). A district court
may conclude that is in the interests of justice to wait until after entering criminal judgment to
hold the ancillary hearing if, for example, the court believes that it may grant a defendant’s
motion for judgment of acquittal or a new trial and that it would be a waste of resources to hold
an ancillary hearing before it rules on the motion.
Instead, we say only here that: (1) a district court may enter a preliminary order of
forfeiture before criminal judgment is entered; (2) if the district court does so, the government is
authorized to commence proceedings governing third-party rights; and (3) if the government
does so before criminal judgment is entered, the requirement that third parties file their petition
asserting a legal interest in the forfeited property within thirty days of notice applies equally.

17
the Rules Enabling Act process, see generally, 28 U.S.C. §§ 2071-2077, by not

exercising its legislative authority to veto or modify that rule, see § 2074.

Congress can supercede Rule 60(b) or any other rule promulgated through the rules

process by actively asserting its legislative authority to enact provisions that

govern procedure.”).7

Now that we have explained how § 853 and Rule 32.2 are naturally read

together to allow for the third-party petition process to begin before criminal

judgment has been entered when the district court has entered a preliminary order

of forfeiture, we still must explain why two of our precedents in this area do not

dictate a different result. First, in United States v. Pease, 331 F.3d 809, 813 (11th

Cir. 2003), we stated that the government only acquires a convicted defendant’s

interest in forfeited property when the district court orders the interest forfeited as

part of its criminal judgment (a point not in dispute here). Here, the district court

relied on Pease in reasoning that an ancillary hearing could not occur until after the

government had obtained its interest from Marion on 19 September 2007 and thus

that her claim was timely filed within thirty days of the date the government

acquired Marion’s interest. See Pease, 331 F.3d at 810 (“Once the defendant’s

7
Further, to the extent it is argued that § 853 conflicts with Rule 32.2, the rule must
trump. See 28 U.S.C. § 2072(b) (“All laws in conflict with such rules shall be of no further force
or effect after such rules have taken effect.”).

18
interest in the subject property is forfeited by the entry of a final judgment, any

person (other than the convicted defendant) claiming an interest in the property

may commence an ancillary proceeding in the district court by petitioning the court

pursuant to 21 U.S.C. § 853(n)(2) to enter an order declaring that his or her interest

is superior to the defendant’s interest (which the final judgment forfeited to the

United States).”).

We agree with the government that Pease does not control the outcome here

because it involved different issues than those presently before us. At issue in

Pease was: (1) whether a criminal forfeiture must be made part of the criminal

judgment adjudicating the defendant’s guilt and imposing a sentence, and (2) if so,

does the district court’s failure to include a forfeiture order in its judgment

constitute a “clerical mistake” within the meaning of Federal Rule of Criminal

Procedure 36. Id. at 812. After addressing the first question and concluding that

the issuance of a preliminary order of forfeiture does not relieve the district court

of the obligation to include an order of forfeiture in its judgment, the Pease court

turned to a discussion of when third-party petitions may be filed. See id. at 813-

14. The Pease court, however, was not presented with a question of whether the

third-party petitions filed in that case were timely filed or the broader question of

whether the government is authorized under Rule 32.2(b)(3) to issue notice and

19
begin ancillary proceedings when a preliminary order of forfeiture is entered

before entry of a final criminal judgment. Accordingly, any comments on that

issue are dicta and non-binding precedent. See Swann v. S. Health Partners, Inc.,

388 F.3d 834, 837 (11th Cir. 2004); Great Lakes Dredge & Dock Co. v. Tanker

Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir. 1992).

Second, our discussion in Gilbert of when third-party petitions may be filed

also does not require a different conclusion here. Gilbert addressed, in part,

whether a district court’s order of forfeiture that was entered after the jury’s

forfeiture verdict, but before the district court entered a criminal judgment and

imposed a sentence, was the “order of forfeiture” required to begin ancillary

proceedings under 18 U.S.C. § 1963(l).8 Gilbert, 244 F.3d at 926. The Gilbert

court concluded that it was not because “section 1963(l) ancillary proceedings are

held so that innocent third-party owners can get their interests back from the

government” and thus “ancillary proceedings – which are activated under [§]

1963(l) by an order of forfeiture – could not take place without the government’s

seizure of the property, which is authorized under [§] 1963(e) and [Federal Rule of

Criminal Procedure] 32(b)(2) by a judgment of forfeiture.” Id. Because “it is clear

8
Section 1963 is the penalty statute for crimes under the Racketeer Influenced and
Corrupt Organizations Act. Section 1963(l) has language addressing the filing of third-party
claims that is essentially identical to 21 U.S.C. § 853(n).

20
from the forfeiture scheme that the judgment, rather than the order, must come

first” and “the judgment may not be entered until sentencing,” the Gilbert court

deduced “the ‘order of forfeiture’ required by section 1963(l) also may not be

entered until sentencing.” Id.

The forfeiture order at issue in Gilbert, however, was entered in 1990. This

was before the 1996 amendments to Rule 32(d) and the 2000 adoption of Rule

32.2, discussed supra. These amendments authorized a district court to determine

the property subject to forfeiture and enter a preliminary order of forfeiture “[a]s

soon as practicable after a verdict or finding of guilty, or after a plea of guilty or

nolo contendere is accepted.” Fed. R. Crim. P. 32.2(b)(1), (2). Rule 32.2 further

provides that “[t]he entry of a preliminary order of forfeiture authorizes the

Attorney General . . . to commence proceedings that comply with any statutes

governing third-party rights.” Id. 32.2(c). Because Gilbert addressed a forfeiture

order that was entered before the Federal Rules of Criminal Procedure authorized

preliminary orders of forfeiture, Gilbert’s discussion of the timing of the

commencement of third-party proceedings is also not on point.

Returning to this case, based on § 853, read in tandem with Rule 32.2, we

conclude that Gray’s petition was not timely filed. It is undisputed that Gray

received proper written notice of the preliminary order of forfeiture on 18 June

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2007 and that the last date of published notice of the preliminary forfeiture order

was 3 July 2007. Pursuant to 21 U.S.C. § 853(n)(2), the earlier date of 18 June

2007 started the thirty-day clock. It is also undisputed that Gray filed her petition

on 4 October 2007, well over three months after receiving her notice. Accordingly,

Gray’s petition was untimely. See 21 U.S.C. § 853(n)(2). The district court

therefore erred in denying the government’s motion to dismiss on grounds that

Gray filed her petition within thirty days that criminal judgment was entered

against Marion.

B. Waiver and Timeliness of the Government’s Motion to Dismiss

We also reject the district court’s remaining grounds for denial of the

government’s motion to dismiss. The district court concluded that the government

had waived the issue of timeliness by not asserting it in the motion for continuance

of the ancillary hearing. A defense to a claim for relief must be asserted in a

responsive pleading only if a responsive pleading is required, however. See Fed.

R. Civ. P. 12(b). Where a pleading does not require a response, “an opposing party

may assert at trial any defense to that claim.” Id. Here, neither § 853 nor Rule

32.2 required the government to file a responsive pleading asserting its defenses to

a third-party petition. See 21 U.S.C. § 853; Fed. R. Crim. P. 32.2. The fact that

the government failed to raise the issue of untimeliness in its motion for

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continuance did not waive the issue. Accordingly, the district court erred in

concluding that the government had waived the issue of timeliness and in denying

the government’s motion to dismiss on this basis.

Nor was the government’s motion to dismiss untimely. While Rule 32.2

suggests the timing of a court’s disposition of a motion to dismiss, it does not set

forth requirements for when a motion to dismiss must be filed. Specifically, under

Rule 32.2(c)(1)(A), the court in the ancillary proceeding “may, on motion, dismiss

the petition” for any lawful reason. Fed. R. Crim. P. 32.2(c)(1)(A). Rule

32.2(c)(1)(B) permits the court to allow discovery “[a]fter disposing of any motion

filed under Rule 32.2(c)(1)(A) and before conducting a hearing.” Id.

32.2(c)(1)(B). When a motion to dismiss is filed before discovery or a hearing, it

“should be treated like a motion to dismiss a civil complaint under Federal Rule of

Civil Procedure 12(b).” Pacheco v. Serendensky, 393 F.3d 348, 352 (2d Cir.

2004). Once discovery ends, “a party may move for summary judgment under

Federal Rule of Civil Procedure 56.” Fed. R. Crim. P. 32.2(c)(1)(B). As the

government concedes, the better practice may be to file the motion to dismiss

before discovery and the ancillary hearing. There is no requirement that this be

done, however. The district court thus erroneously based its denial of the

government’s motion to dismiss on a finding that the motion was untimely.

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 III. CONCLUSION

We conclude that the district court should have granted the government’s

motion to dismiss Gray’s third-party petition for untimeliness. Gray’s failure to

file her petition within thirty days of her receipt of the preliminary forfeiture order

notices extinguished her interests in the Zana Drive properties under § 853(n) and

Rule 32.2(c)(2). The government did not waive the issue of timeliness and its

motion to dismiss was not untimely. Accordingly, the district court erred in

denying the government’s motion to dismiss and in granting Gray’s petition. The

court further abused its discretion in denying the government’s motion to amend

the judgment. We therefore REVERSE and REMAND for additional proceedings

consistent with this opinion.

REVERSED AND REMANDED.

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