Judge Duncan, joined by Judge Motz, wrote the majority opinion earlier this week in United States v. Martin affirming the criminal forfeiture of a Mercedes and gobs of cash.
Although agreeing on some issues, the panel split in resolving the argument that “the district court was without jurisdiction to order the criminal forfeiture of their property after sentencing and the entry of judgments.” Judge Duncan’s opinion addresses this issue largely through application of the Supreme Court’s decision in Dolan v. United States, 130 S.Ct. 2533 (2010), a recent case addressing the consequences of a missed deadline:
Appellants correctly note that the district court neither referenced 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 analogous context. Following this guidance, we conclude that missing the deadline set in Rule 32.2 does not deprive a district court of jurisdiction to enter orders of criminal forfeiture so 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 construct 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 provided, “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 defendant was on notice that the district court would order restitution 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.
Judge Gregory dissented from the majority’s holding regarding the criminal forfeiture:
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 judgment, 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 preliminary order of forfeiture before sentencing and judgment. Nor were proper remedial actions, such as amendment of the sentence pursuant to Rule 35, timely pursued under the Federal Rules of Criminal Procedure. Because the appellants’ sentences became final for purposes of Rule 32.2 before the district 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.
Dolan v. United States, which is the principal precedent that the panel argues about, had an unusual voting line-up. Justice Breyer wrote for a 5-4 majority, joined by Justice Thomas, Justice Ginsburg, Justice Alito, and Justice Sotomayor. Chief Justice Roberts authored a dissent, joined by Justice Stevens, Justice Scalia, and Justice Kennedy.