United States v. Martin, Nos. 10-5301, 10-5304, & 10-5306

Decided: Nov. 30, 2011

Several defendants were arrested for their alleged involvement with a large drug trafficking operation in and around the Washington, D.C. area. Shortly after arrest, the government seized some the defendants’ property supposedly involved with the drug operation pursuant to a civil forfeiture warrant. The government also handed down a grand jury indictment that included criminal forfeiture allegations.

The next month, the defendants contested the civil forfeiture under the Civil Asset Forfeiture Reform Act. Because the government did not respond to the defendants’ complaints within the proscribed ninety days, the defendants moved to have their seized property returned. In response, the government issued several criminal forfeiture warrants pursuant to the previous grand jury indictment. The district court then denied the defendant’s motion to return the property, holding that it was untimely and that the criminal forfeiture warrants mooted the claim anyway.

After being convicted by a jury for their involvement with the drug ring, the district court held a post-trial forfeiture hearing prior to sentencing the defendants. The court decided that forfeiture was warranted and decided to adopt the government’s proposed order, subject to a minor change in joint and severable liability that both parties had agreed to. Thereafter, the district court sentenced the defendants without any mention of the criminal forfeiture of assets. Some three years later, the defendants moved to vacate the forfeiture order for not being entered within the time limits designated by the Rules of Criminal Procedure. The district court denied the motion and altered its judgments to include the forfeiture.

The Fourth Circuit affirmed. A united panel first held that even if the government’s seizure of the defendants’ property was illegal because of its failure to respond to the civil forfeiture challenge, the remedy for illegally seized property is not to return it if the property is subject to forfeiture by a showing of independence evidence. Since the defendants did not challenge the independent evidence the government put forward to sustain the criminal forfeiture, the challenge was rejected.

Then, a divided panel also affirmed the court’s ability to order forfeiture of the property despite its omission from the sentencing order. The majority agreed that the district court violated Rule 32.2 (as it existed at the time of the defendants’ trial) by not making the forfeiture order final and including it in the sentence as part of the final judgment. Nonetheless, since the rule did not set out a remedy in the event that the rule is violated, the court turned to the recent United States Supreme Court decision in Dolan v. United States, 130 S. Ct. 2533 (2010).
The Court in Dolan set forth three categories to analyze rules or statutes under when no consequence is given for missing a deadline. First, “jurisdictional conditions” removes the court’s jurisdiction to take any action in line with what the statute proscribes. The second, a “claims-processing rule” merely limits a party’s ability to bring motions or claims before the court after a given deadline. Finally, a “time-related directive” is a very forgiving category 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.” The Fourth Circuit held that Rule 32.2 was a “time-related directive” and that this, coupled with the fact that the defendants were undoubtedly on notice that the court would be issuing a forfeiture order as soon as the agreed upon changes were completed, meant a loss of jurisdiction was inappropriate and the court’s forfeiture order stands.

Judge Gregory dissented, finding Dolan distinguishable from the present case. Dolan, says Gregory, was narrowly limited to cases of restitution—not forfeiture—and dealt with situations where the amount of the restitution was left blank, not entirely missing from the judgment. Since Dolan was inapplicable, Judge Gregory would hold that the district court did not follow the Rules of Criminal Procedure and therefore quite simply did not have the authority to issue the order or to amend its judgment to include one.

Full Opinion

-C. Alexander Cable

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