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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14309
Non-Argument Calendar
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D.C. Docket No. 1:00-cr-00425-JIC-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL KNOWLES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 2, 2020)
Before WILSON, ROSENBAUM and MARCUS, Circuit Judges.
PER CURIAM:
Samuel Knowles appeals from the district court’s order of forfeiture of
substitute assets (“the substitute forfeiture order”), which encompassed proceeds
from the sale of property he owned in Canada. The order at issue here followed from
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a multi-million-dollar forfeiture judgment the sentencing court had originally
entered against Knowles upon his convictions and sentences, which arose out of his
role as a leader in an international drug-trafficking conspiracy. In a previous appeal,
Knowles challenged his convictions and sentences -- including an argument that the
original forfeiture order violated international law because a forfeiture count was not
included in the Bahamian government’s warrant of surrender -- and we affirmed.
United States v. Knowles, 390 F. App’x 915, 935-36 (11th Cir. 2010). In this appeal,
Knowles argues that: (1) the substitute forfeiture order is invalid because the
government did not present evidence that his property is directly traceable to his
personal criminal conduct, rather than that of his co-conspirators; and (2) the
government is estopped from ordering forfeiture of the Canadian proceeds as
substitute property because it knew about that property at the time of sentencing, but
did not include it in the original forfeiture order. After thorough review, we affirm.
Generally, we review the district court’s legal conclusions concerning
forfeiture de novo, and its findings of fact for clear error. United States v. Puche,
350 F.3d 1137, 1153 (11th Cir. 2003). However, objections or arguments that are
not raised in the district court are reviewed for only plain error. United States v.
Evans,
478 F.3d 1332, 1338 (11th Cir. 2007). We’ve held that a defendant does not
get “two bites at the appellate apple” and is deemed to have waived his right to raise
an argument on a second appeal that was not raised in his first appeal. United States
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v. Fiallo-Jacome,
874 F.2d 1479, 1481-83 (11th Cir. 1989) (quotations omitted).
Further, under the law-of-the-case doctrine, our findings of fact and conclusions of
law generally are binding in all subsequent proceedings in the trial court or on a later
appeal. United States v. Escobar-Urrego,
110 F.3d 1556, 1560 (11th Cir. 1997).
Under 21 U.S.C. § 853(a), any person convicted of an offense punishable by
imprisonment for more than one year must forfeit to the government, in relevant
part: “(1) any property constituting, or derived from, any proceeds the person
obtained, directly or indirectly, as the result of such violation; [and] (2) any of the
person’s property used, or intended to be used, in any manner or part, to commit, or
to facilitate the commission of, such violation.” 21 U.S.C. § 853(a)(1)-(2). The
government must prove the elements of criminal forfeiture by a preponderance of
the evidence. United States v. Dicter,
198 F.3d 1284, 1289-90 (11th Cir. 1999).
Section 853(p), however, authorizes a district court to order the forfeiture of
“any other property of the defendant,” up to the value of the directly forfeitable
property described in § 853(a), if the directly forfeitable property, due to the
defendant’s acts or omissions,
(A) cannot be located upon the exercise of due diligence;
(B) has been transferred or sold to, or deposited with, a third party;
(C) has been placed beyond the jurisdiction of the court;
(D) has been substantially diminished in value; or
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(E) has been commingled with other property which cannot be divided
without difficulty.
Id. § 853(p)(1)-(2). We’ve held that the word “any” in § 853(p) is a broad word that
“does not mean some or all but a few, but instead means all,” and have affirmed the
forfeiture order of substitute property that was not involved in or traceable to the
defendant’s crime. United States v. Fleet,
498 F.3d 1225, 1229 (11th Cir. 2007).
Fed. R. Crim. P. 32.2 provides that a preliminary order of forfeiture is final as
to the defendant upon its entry at sentencing. Fed. R. Crim. P. 32.2(b)(4)(A).
Nonetheless, Rule 32.2(e) provides that, upon the government’s motion, a district
court may “at any time” enter or amend an order of forfeiture to include, in relevant
part, “substitute property that qualifies for forfeiture under an applicable statute.”
Fed. R. Crim. P. 32.2(e)(1)(B). Rule 32.2(e) further provides that, if the government
shows that the defendant’s property is subject to forfeiture as substitute property, the
court must enter an order forfeiting that property. Fed. R. Crim. P. 32.2(e)(2)(A).
In Honeycutt v. United States, the case relied upon by Knowles, the defendant
was charged for various federal crimes as a result of working as an employee of a
store that sold a product known to be used to manufacture methamphetamine, and
the Sixth Circuit determined that he and the owner of the store each bore full
responsibility for the entire criminal forfeiture judgment.
137 S. Ct. 1626, 1630-31
(2017). The Supreme Court reversed, holding that criminal forfeiture under § 853(a)
was limited to property that the defendant personally had obtained in relation to the
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crime, and thus, the principles of joint and several liability did not apply to forfeiture
judgments.
Id. at 1633-35. The Court reasoned that, because the defendant had no
controlling interest in the store and did not personally benefit from the sales, he never
personally obtained property as a result of the crime, and criminal forfeiture under §
853 was therefore not required.
Id. at 1635.
Here, the only question before us is whether the district court erred by ordering
the forfeiture of Knowles’s Canadian proceeds as substitute property. 1 While
Knowles did not object or otherwise respond to the government’s motion for the
district court to order the forfeiture of substitute assets, it is unclear whether Knowles
had adequate time to respond. We need not decide whether to apply de novo or plain
error review, however, because Knowles’s claim fails under either standard.
For starters, we are unpersuaded by Knowles’s claim that the substitute
forfeiture order is invalid because the government did not present any evidence that
1
Knowles also attempts to challenge the original forfeiture order on the ground that, under
Honeycutt, the multi-million-dollar forfeiture amount was not attributable to Knowles’s offenses,
but that claim is not properly before us. Indeed, Knowles already directly appealed the original
order to this Court on different grounds, see Knowles, 390 F. App’x at 935-36, and he does not
get “two bites at the appellate apple.”
Fiallo-Jacome, 874 F.2d at 1481-83. And even if this
issue were properly before us, Knowles’s argument is meritless because the district court
properly instructed the jury that the government had the burden of proving that it was more likely
than not that the forfeiture amount was attributable to Knowles’s offenses. 21 U.S.C. § 853(a)(1)
(2);
Dicter, 198 F.3d at 1289-90. Moreover, under the law-of-the-case doctrine, we are bound by
our finding in his earlier appeal that Knowles was a “leader” with decision-making authority and
a high degree of participation in the drug conspiracy.
Escobar-Urrego, 110 F.3d at 1560.
Knowles therefore directly or indirectly “obtained” $13.9 million in proceeds from the drug
conspiracy himself, and thus, unlike in Honeycutt, those proceeds were directly forfeitable under
§ 853(a). See
Honeycutt, 137 S. Ct. at 1633-35; 21 U.S.C. § 853(a)(1)-(2).
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any of the Canadian property is directly traceable to his personal criminal conduct.
By definition, substitute property can be “any” property and is only forfeitable
because the traceable and directly forfeitable property is unavailable. See 21 U.S.C.
§ 853(p);
Fleet, 498 F.3d at 1226, 1229.
Further, no evidence suggests that the government knew about the Canadian
property or proceeds at the time of sentencing -- rather, the affidavit of Virginia
Hodge, a Federal Bureau of Investigation special agent involved in the criminal
investigation of Knowles, said that the government only “recently” became aware
of it. In any event, even if the government was aware of the Canadian property or
proceeds at the time of sentencing, Knowles does not point to any caselaw to support
his claim that the government cannot seek forfeiture of substitute property that it
knew about at the time of the original sentencing but did not include in the original
forfeiture order. To the contrary, the government was authorized to bring a motion
for forfeiture of substitute property “at any time” and could not have included the
Canadian proceeds in the original order, since it has never claimed that these were
related to the crime. See 21 U.S.C. § 853(a)(1)-(2); Fed. R. Crim. P. 32.2(e)(1)(B).
Finally, the district court showed, through the uncontroverted evidence found
in Hodge’s affidavit, that Knowles’s directly forfeitable property could not be
located through the exercise of due diligence, as a result of his own acts or omissions.
Dicter, 198 F.3d at 1289-90. As a result, pursuant to Fed. R. Crim. P. 32.2(e)(2)(A),
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the district court was required to order the forfeiture of the Canadian proceeds, and
we affirm.
AFFIRMED.
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