Young, Terry B. v. United States ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2591
TERRY B. YOUNG,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02-C-390—George W. Lindberg, Judge.
____________
SUBMITTED APRIL 9, 2007Œ—DECIDED APRIL 24, 2007
PUBLISHED JUNE 14, 2007ŒŒ
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Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
PER CURIAM. More than five years after he was con-
victed for his role in a drug ring, Terry Young moved for
the return of funds that he says were “taken” by the
district court as part of a defective criminal forfeiture.
Œ
After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus the appeal is
submitted on the briefs and the record. FED. R. APP. P. 34(a)(2).
ŒŒ
This decision was originally released as an unpublished
order. Upon the government’s motion, we now issue it as a
published opinion.
2 No. 06-2591
Young cited Federal Rule of Criminal Procedure 41 as
the basis for this motion, which the district court denied
because Young had made the same argument in a prior,
unsuccessful motion. Young appealed. We inadvertently
issued a final order in this case before Young’s reply
brief was due, and then vacated that order to consider
Young’s reply. We again find, however, that the district
court lacked subject matter jurisdiction over Young’s
motion.
Young was a high-ranking member of the Traveling
Vice Lords, a Chicago street gang. A jury found him guilty
of drug crimes and money laundering and returned a
special verdict finding that Young and his coconspirators
had netted proceeds of $6 million. Prior to sentencing, the
district court entered a “preliminary” order of criminal
forfeiture, see 18 U.S.C. § 982; 21 U.S.C. § 853; FED. R.
CRIM. P. 32(d)(2) (Dec. 1, 1996) (superseded by FED. R.
CRIM. P. 32.2(b) effective Dec. 1, 2000), which divested
Young of his interest in specific property that was either
traceable to the proceeds or identified by the government
as substitute assets. In September 1999 the court sen-
tenced Young to life imprisonment on the drug counts
and 20 years on the money-laundering charge. In the
judgment of conviction the court also ordered that Young
“shall forfeit” his interest in the $6 million. A “final” order
of forfeiture, see 18 U.S.C. § 982(b)(1); 21 U.S.C. § 853(n),
was entered in October 1999 and amended in December
1999. Young filed a direct appeal but raised no issue
concerning the criminal forfeiture. We upheld his convic-
tions but remanded for resentencing, United States v.
Mansoori, 304 F.3d 635, 642 (7th Cir. 2002). On remand
the district court again imposed an overall sentence of
life, which we recently upheld. United States v. Mansoori,
480 F.3d 514 (7th Cir. 2007).
Young filed his current “Rule 41” motion in November
2005. In that motion he demands that the government
No. 06-2591 3
return a small amount of currency seized from his house
plus the proceeds of a bank account, cashiers check, and
certificate of deposit. These funds, which total roughly
$133,000, are all specifically identified as substitute
assets in the “preliminary” and “final” orders of forfeiture,
see 21 U.S.C. § 853(p), but they are not itemized in the
judgment of conviction. Young, who says nothing about
the $6 million forfeiture that is in the judgment of con-
viction, argues based upon his reading of former Rule
32(d)(2) of the Federal Rules of Criminal Procedure that
the currency and other items comprising the $133,000
were not criminally forfeited because they are not listed
in the judgment of conviction. See FED. R. CRIM. P. 32(d)(2)
(Dec. 1, 1996) (“At sentencing, a final order of forfeiture
shall be made part of the sentence and included in the
judgment.”). Instead, says Young, the district court took
the funds without jurisdiction when it entered the
amended “final” order of forfeiture in December 1999.
Young made the identical argument in an earlier “Rule 41”
motion that was filed and denied while his initial appeal
was pending, and in denying the present motion the
district court explained that it would not “revisit its
prior decision denying return of the property.”
In our view, Young’s motion is best seen as an improper
attempt to challenge a component of his sentence. Al-
though we have recognized that a motion labeled as one
under Rule 41 is sufficient to commence a civil equitable
proceeding to recover seized property that the govern-
ment has retained after the end of a criminal case, United
States v. Sims, 376 F.3d 705, 708 (7th Cir. 2004); United
States v. Solis, 108 F.3d 722, 722 (7th Cir. 1997), a crimi-
nal forfeiture is part of the defendant’s sentence and must
be challenged on direct appeal or not at all. See United
States v. Machado, 465 F.3d 1301, 1305-06 (11th Cir.
2005); United States v. Apampa, 179 F.3d 555, 557 (7th
Cir. 1999) (per curiam); United States v. Mosavi, 138 F.3d
4 No. 06-2591
1365, 1366 (11th Cir. 1998); see also Sims, 376 F.3d at 708(noting that Rule 41 may be invoked “after criminal
proceedings have concluded to recover the defendant’s
property when the property is no longer needed as
evidence—unless, of course, it has been forfeited in the
course of those proceedings” (emphasis added)). Young
wrongly concludes that the amended “final” order of
forfeiture entered in December 1999 affected his interest
in the funds. That order resolved the rights of third
parties, not Young. See 21 U.S.C. § 853(k), (n); United
States v. Pelullo, 178 F.3d 196, 202 (3d Cir. 1999); United
States v. Messino, 122 F.3d 427, 428 (7th Cir. 1997);
see generally FED. R. CRIM. P. 32.2(c) (providing for
postsentencing, ancillary proceeding to resolve third-party
claims to criminally forfeited property). Young’s interest
in the disputed funds was resolved through the jury’s
verdict, the “preliminary” order of forfeiture, and the
judgment of conviction. See FED. R. CRIM. P. 32(d)(2) (Dec.
1, 1996) (superseded by FED. R. CRIM. P. 32.2(b), effective
Dec. 1, 2000); Pelullo, 178 F.3d at 202; United States v.
Christunas, 126 F.3d 765, 767 (6th Cir. 1997); Messino,
122 F.3d at 428.
We are not persuaded by Young’s contention that the
funds were never forfeited simply because the specific
items are not written into the judgment of conviction.
Young does cite one opinion questioning the validity of a
criminal forfeiture where the judgment of conviction is
altogether silent about forfeiture, see United States v.
Pease, 331 F.3d 809, 811, 813-15 (11th Cir. 2003); see also
United States v. Gilbert, 244 F.3d 888, 923-26 (11th Cir.
2001); United States v. Coon, 187 F.3d 888, 901 (8th Cir.
1999), but Young’s judgment—which orders him to for-
feit $6 million—is hardly silent. Moreover, we have
suggested disagreement with the conclusion that a fail-
ure to incorporate the order of forfeiture into the judg-
ment of conviction undermines a criminal forfeiture. See
No. 06-2591 5
Apampa, 179 F.3d at 556 (“Nor did the fact that the
district judge specified the punishment in two documents
(one providing imprisonment and the other forfeiture)
affect the time to appeal; this remains a ‘defendant’s’
appeal in ‘a criminal case’.”). Other circuits have done the
same. See United States v. Yeje-Cabrera, 430 F.3d 1, 15
(1st Cir. 2005) (opining that rule of procedure requiring
criminal forfeiture to be incorporated into judgment of
conviction “is largely a housekeeping rule and does not
itself go to any fundamental rights of defendants”); United
States v. Bennett, 423 F.3d 271, 273-74, 282 (3d Cir. 2005)
(failure to mention criminal forfeiture at sentencing
hearing or in judgment of conviction did not invalidate
forfeiture that otherwise complied with statutory re-
quirements; omission of forfeiture from judgment of
conviction is “far less substantive than a failure to include
other penalties, which do not typically stem from prelimi-
nary post-conviction orders”); United States v. Loe, 248
F.3d 449, 464 (5th Cir. 2001) (where district court had
entered preliminary order of forfeiture before sentencing
and ordered forfeiture orally at the sentencing hearing,
criminal forfeiture was valid despite absence of specific
reference in judgment of conviction).
The judgment of conviction unquestionably orders Young
to forfeit $6 million, and with criminal forfeiture the
government is always free to pursue substitute assets
like the funds Young wants back. 21 U.S.C. § 853(p);
United States v. Misla-Aldarondo, 478 F.3d 52, 74-75 (1st
Cir. 2007); United States v. Alamoudi, 452 F.3d 310, 312-
14 (4th Cir. 2006). Thus his motion appears to have little
arguable merit. The motion, though, really concerns the
extent of the forfeiture language in the judgment of
conviction, and that, we conclude, is a challenge to the
judgment itself. A district court’s jurisdiction to alter a
judgment of conviction after sentencing is extremely
limited, see e.g., United States v. Smith, 438 F.3d 796, 799-
6 No. 06-2591
801 (7th Cir. 2006); United States v. Zingsheim, 384 F.3d
867, 871 (7th Cir. 2004), and we are aware of no exception
that would authorize Young’s belated challenge to a
criminal forfeiture that could have been challenged on
direct appeal. Accordingly, the judgment of the district
court is MODIFIED to reflect a dismissal for lack of sub-
ject matter jurisdiction, and as modified the judgment
is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-14-07