United States v. Arun Sharma , 509 F. App'x 381 ( 2013 )

Case: 12-20209 Document: 00512130788 Page: 1 Date Filed: 01/31/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 31, 2013
No. 12-20209 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARUN SHARMA; ET AL,
Defendants
GAURAV SHARMA,
Movant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-409-1
USDC No. 4:09-CR-409-2
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Gaurav Sharma appeals from the district court’s dismissal of his third-
party petition claiming an interest in property that was subject to a preliminary
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 12-20209
order of forfeiture. The district court dismissed the petition as untimely. We AFFIRM.
Sharma is the son of Dr. Arun Sharma and Dr. Kiran Sharma, both of
whom pleaded guilty to health care fraud. As part of the plea agreements in the
criminal case, the Government agreed to place $1.5 million of the cash seized
from Arun and Kiran Sharma into an irrevocable trust to be used exclusively for
Sharma’s education. On February 7, 2011, the district court issued a
preliminary order of forfeiture, ordering the forfeiture of various assets and also
ordering that $1.5 million be placed in a trust in accordance with the plea
agreement. The court further ordered that “[a]ny money placed in the trust but
not ultimately used for the purpose stated in the Plea Agreement is likewise
ordered forfeited to the United States as fraud proceeds and as substitute
assets.”
Sharma was personally served with the preliminary forfeiture order. He,
along with his sibling, then filed a third-party petition contesting the forfeiture
of various assets in which he claimed an interest. The petition did not address
the educational trust. Sharma’s third-party claims were later settled with the
Government.
On January 12, 2012, upon motion by Arun and Kiran Sharma, the district
court ordered the Government to fund the educational trust with $1.5 million.
On January 26, 2012, the Government filed a notice indicating that $1.38 million
had been placed in the trust and $120,000, representing advances and credits
that the parties had previously agreed would be deducted from the trust amount,
had been placed in the court’s registry. Sharma then filed another third-party
petition on January 27, 2012, concerning the $1.38 million and asking for an
ancillary proceeding. The Government argued in response that the petition was
untimely, and the district court agreed. Sharma now appeals.
We review de novo the district court’s legal conclusions regarding third-
party claims to property subject to a forfeiture order and its factual findings for
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No. 12-20209
clear error. United States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009). After
the district court enters a criminal forfeiture order, any person, other than the
defendant, wishing to assert an interest in property that is subject to the order
“may, within thirty days . . . petition the court for a hearing to adjudicate the
validity of his alleged interest in the property.” 21 U.S.C. § 853(n)(2). The thirty
day window for a party to petition the court begins from either the date of actual
notice or the final publication of notice of the forfeiture order, whichever is
earlier. Id. A third party who files an untimely petition loses his right to assert
any interest in the property. See Marion, 562 F.3d at 1337; United States v.
Stone, 304 F. App’x 334, 336 (5th Cir. 2008); see also FED. R. CRIM. P. 32.2
Advisory Committee Notes (2000 Adoption) (explaining that under subsection
(c) “if a third party has notice of the forfeiture but fails to file a timely claim, his
or her interests are extinguished”).
In the instant case, Sharma received actual notice of the preliminary
forfeiture order on March 3, 2011, but he did not file his third-party petition
related to the educational trust until January 27, 2012, long after the thirty day
period expired. Sharma argues that the thirty day window did not begin until
the Government funded the trust on January 26, 2012. He contends that until
that date he had no interest in forfeited assets to assert because January 26 was
the first time he learned that the Government allegedly would not fund the
educational trust in accordance with the plea agreement. Sharma contends that
the plea agreement required all of the $1.5 million to be used exclusively for his
education but that the trust agreement drafted by the Government required any
funds not distributed from the trust to be forfeited. We are not persuaded.
Sharma is not disputing the amount of funds actually placed in the trust.
Instead, he seeks to assert an interest in the balance of funds remaining in the
educational trust after his education expenses have been paid. As noted above,
however, the district court’s preliminary order of forfeiture expressly provided
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that any funds not used for the purpose stated in the plea agreement, i.e.,
Sharma’s education, would be forfeited as fraud proceeds and substitute assets.
Therefore, Sharma is incorrect that he did not know the funds would be forfeited
until January 26, 2012, because he was aware at least as of March 3, 2011, when
he received actual notice of the preliminary forfeiture order. Moreover, to the
extent that Sharma has standing to assert that this provision breached his
parents’ plea agreement, this court has already rejected a similar argument
raised in Arun and Kiran Sharma’s direct criminal appeal. See United States v.
Sharma, 2012 WL 6621766, at *6 (5th Cir. Dec. 20, 2012).
The district court’s judgment is AFFIRMED.
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