United States v. Markentz Blanc ( 2017 )


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  •            Case: 16-11616   Date Filed: 06/21/2017   Page: 1 of 8
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 16-11616
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:14-cr-20104-RLR-2
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    MARKENTZ BLANC,
    a.k.a. Blind,
    a.k.a. Burns,
    Defendant - Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (June 21, 2017)
    Before MARCUS, JORDAN, and JULIE CARNES, Circuit Judges.
    PER CURIAM:
    Case: 16-11616       Date Filed: 06/21/2017      Page: 2 of 8
    Defendant Markentz Blanc (“Defendant”) appeals the district court’s denial
    of his motion under Fed. R. Crim. P. 41(g) for the return of property lost through
    criminal forfeiture. We affirm.
    I. INTRODUCTION
    Defendant was charged with numerous crimes, including drug trafficking,
    unlawful possession of a firearm, and identity theft. His indictment contained a
    forfeiture provision that included a list of vehicles, firearms, and currency subject
    to forfeiture upon conviction. Defendant was convicted of all but one of the
    twenty-five counts and sentenced to 300 months’ imprisonment. At Defendant’s
    sentencing hearing on July 6, 2015, the Government advised the court that
    Defendant did not oppose the forfeiture of two vehicles—a Nissan Altima and a
    Hyundai Genesis—being part of the judgment. The court accepted the forfeiture
    into the record and said it would be part of the judgment.
    The district court entered a preliminary order of forfeiture on August 3,
    2015, and ordered the Government to publish notice of the preliminary order, as
    required by Fed. R. Crim. P. 32.2(b)(6).1 Defendant did not appeal this order. On
    September 29, 2015, the Government filed a declaration of publication, which
    indicated that notice of forfeiture was posted on an official government internet
    1
    Rule 32.2 of the Federal Rules of Criminal Procedure outlines the procedures to be followed
    when effecting a criminal forfeiture.
    2
    Case: 16-11616        Date Filed: 06/21/2017       Page: 3 of 8
    site for at least thirty days (August 8, 2015 to September 6, 2015). The notice
    listed the Altima, the Genesis, and $9,428.00 in U.S. currency. The notice further
    indicated that anyone with a third-party claim to the forfeited property needed to
    make a claim within sixty days of the first date of publication on August 8th.
    On January 27, 2016, four months after the filing of the declaration of
    publication, Defendant filed a pro se motion, entitled “Motion for Return of
    Property Pursuant to Rule 41 and in Light of Rule 32.2 Violations as Mandated
    Within United States v. Petrie, 
    302 F.3d 1280
    , 1290, (11th Cir. 2002).”2 In the
    motion, Defendant argued that the property should be returned to Sabrina Merilia,
    Defendant’s girlfriend, 3 because she was not provided notice that the Government
    was seeking forfeiture against the property and because the property was not the
    proceeds of any drug trafficking. Merilia attached an affidavit in which she
    claimed that she had purchased the vehicles with money from lawful employment,
    that the currency was her savings, and that she assumed the cars would be returned
    to her after the case.
    2
    Fed. R. Crim. P. Rule 41(g) allows a person who has had property seized as part of a criminal
    forfeiture to move for its return:
    (g) Motion to Return Property. A person aggrieved by an unlawful search and
    seizure of property or by the deprivation of property may move for the property’s
    return. The motion must be filed in the district where the property was seized.
    The court must receive evidence on any factual issue necessary to decide the
    motion. If it grants the motion, the court must return the property to the movant,
    but may impose reasonable conditions to protect access to the property and its use
    in later proceedings.
    3
    In its brief, the Government refers to Merilia as Defendant’s wife.
    3
    Case: 16-11616     Date Filed: 06/21/2017    Page: 4 of 8
    On March 10, 2016, Defendant moved for default judgment on his motion
    for return of property. The district court summarily denied Defendant’s motion for
    return of property in an order entered on March 22, 2016. The court subsequently
    denied Defendant’s motion for default judgment on April 7, 2016. Defendant filed
    a notice of appeal, dated March 31, 2016, which was entered on April 7, 2016. In
    the notice, Defendant indicated he intended to appeal the denial of the motion to
    return property and the denial of default judgment.
    After raising a jurisdictional question concerning the timeliness of the appeal
    and receiving submissions from both Defendant and the Government, a panel of
    this Court deemed Defendant’s appeal to have been filed on March 31, 2016,
    meaning that his appeal of the March 22, 2016 order was timely. Because the
    April 7th order did not exist at the time that Defendant filed his notice of appeal,
    however, the Court determined that it could not review that order, which had
    denied default judgment. The Court also determined that the notice of appeal was
    not timely to seek review of the August 4, 2015 preliminary forfeiture order.
    Accordingly, this appeal concerns only the district court’s March 22, 2016 order
    denying Defendant’s motion for return of property.
    II. DISCUSSION
    Before turning to the merits of Defendant’s motion, we address the
    Government’s argument that we have no jurisdiction to hear this appeal. The
    4
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    Government argues that because Defendant’s appeal is actually an attack on the
    preliminary forfeiture order, this Court does not have jurisdiction over this appeal,
    and so it should be dismissed. A panel of this Court, however, has already ruled
    that we have jurisdiction to hear this appeal because it was timely filed. The law-
    of-the-case doctrine requires us to abide by that decision. 4 United States v. Stinson,
    
    97 F.3d 466
    , 469 (11th Cir. 1996). That said, the Government is correct that
    Defendant’s arguments in his brief only address the propriety of the preliminary
    forfeiture order and do not otherwise support his motion.5 As we have already
    ruled that we lack jurisdiction over the preliminary forfeiture order, this line of
    argument does not help Defendant. That Defendant has chosen to make arguments
    that may have no chance of success, however, does not mean that we lack
    jurisdiction over his otherwise properly and timely filed appeal.
    As to the merits of Defendant’s appeal, a district court’s conclusions of law
    in denying a motion for return of seized property or rejecting a third-party’s claims
    to property subject to criminal forfeiture are reviewed de novo. United States v.
    Howell, 
    425 F.3d 971
    , 973 (11th Cir. 2005); United States v. Marion, 
    562 F.3d 4
      There are three exceptions to the law-of-the-case doctrine: (1) a subsequent trial produces
    substantially different evidence, (2) controlling authority has since made a contrary decision of
    law, and (3) the prior decision was clearly erroneous and would be manifestly unjust. 
    Stinson, 97 F.3d at 469
    . We conclude that none of these exceptions apply here.
    5
    Relying on United States v. Petrie, 
    302 F.3d 1280
    , 1284–85 (11th Cir. 2002), Defendant
    argues that the district court did not have jurisdiction to enter the preliminary order of forfeiture
    because it was issued after sentencing, and Rule 32.2 requires that it be done before. 
    Petrie, 302 F.3d at 1284
    –85.
    5
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    1330, 1335 (11th Cir. 2009). Any factual findings made as part of this analysis are
    reviewed for clear error. 
    Howell, 425 F.3d at 973
    ; 
    Marion, 562 F.3d at 1335
    .
    When an individual moves for return of his property under Rule 41(g) after the
    close of all criminal proceedings, the motion is treated as a civil action in equity.
    
    Howell, 425 F.3d at 974
    . To prevail, he must show a possessory interest in the
    property seized and that he has “clean hands.” 
    Id. Defendant does
    not directly assert that he has a possessory interest in the
    forfeited property. To the contrary, Defendant agreed at his sentencing hearing
    that he did not oppose the forfeiture of the vehicles as part of the judgment. Even
    if Defendant had a possessory interest in the property, though, his lack of clean
    hands precludes a ruling in his favor. Having been convicted of all but one of the
    counts against him in the underlying trial, Defendant does not have clean hands.
    The trial evidence established that the vehicles were used to facilitate Defendant’s
    offenses, and that the money sought by Defendant was proceeds of the criminal
    offenses, and so subject to forfeiture. As we have held, it would be inequitable to
    “return to a criminal the fruits of his crimes.” United States v. Machado, 
    465 F.3d 1301
    , 1307 (11th Cir. 2006), overruled on other grounds by United States v. Lopez,
    
    562 F.3d 1309
    , 1313 (11th Cir. 2009). The district court therefore correctly denied
    Defendant’s Rule 41(g) motion for return of his property.
    6
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    Merilia’s alleged third-party interests in the property do not call for a
    different result. Once a preliminary forfeiture order as to third parties is issued, an
    ancillary proceeding can be conducted under Fed. R. Crim. P. 32.2(c). Fed. R.
    Crim. P. 32.2(b)(4). The court can only determine whether a third party has an
    interest in the property, however, if the party first files a claim in that ancillary
    proceeding. 
    Marion, 562 F.3d at 1336
    . Under 21 U.S.C. § 853(n)(7), a third party
    has thirty days from the final publication notice of the preliminary forfeiture order
    to file a claim. Failure to do so results in forfeiture of the third party’s interest, and
    the preliminary order becomes final. 
    Id. at 1336–37.
    “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.” 
    Id. at 1336.
    Defendant does not
    point to anything in the record to indicate that Merilia ever filed a claim under Rule
    32.2(c), let alone a timely one, even though the district court noted in the March
    22nd order that “a final order of forfeiture has not been issued in this cause.
    Sabrina Merilia should file her claim forthwith.” No claim by Sabrina Merilia
    having been filed, any interest she might have had in the property is not properly
    before us. Moreover, even had Merilia filed a claim, it is she who should be
    challenging the forfeiture, not Defendant.
    7
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    III. CONCLUSION
    The district court properly denied Defendant’s motion to return property.
    Accordingly, the district court’s denial of Defendant’s motion is AFFIRMED.
    8
    

Document Info

Docket Number: 16-11616 Non-Argument Calendar

Judges: Marcus, Jordan, Carnes

Filed Date: 6/21/2017

Precedential Status: Non-Precedential

Modified Date: 11/6/2024