United States v. Corey Bernard

Case: 13-2363 Document: 003111406620 Page: 1 Date Filed: 10/02/2013
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-2363
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UNITED STATES OF AMERICA
v.
COREY ALEXIS BERNARD,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-12-cr-00229-001)
District Judge: Honorable Mary A. McLaughlin
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Submitted Pursuant to Third Circuit LAR 34.1(a)
October 1, 2013
Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: October 2, 2013 )
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OPINION
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PER CURIAM
Corey Alexis Bernard appeals from an order of the United States District Court for
the Eastern District of Pennsylvania, which denied his motion that he characterized as a
motion to return property filed pursuant to Fed. R. Crim. P. 41(g). Bernard pleaded
guilty to willful failure to report currency in violation of 31 U.S.C. §§ 5322 and 5316,
Case: 13-2363 Document: 003111406620 Page: 2 Date Filed: 10/02/2013
bulk cash smuggling in violation of 31 U.S.C. § 5332, and making false statements in
violation of 18 U.S.C. § 1001. He indicated at the plea hearing that he planned to dispute
the appropriateness of forfeiture. However, at his sentencing hearing, he affirmed several
times that he had decided not to contest forfeiture. The District Court signed a
preliminary order of forfeiture of the sum of $193,046 on January 24, 2013, and included
the forfeiture in an oral sentencing. The preliminary order was entered the following day,
in conjunction with a written judgment. See United States v. Bennett, 423 F.3d 271, 281-
82 (3d Cir. 2005).
In a document dated April 4, 2013, and entitled “Pursuant to Rule 41(g), Claimant
seek to pursue Motion to Return Property that was waived because of illadvice [sic] of
counsel,” Bernard sought to have the sum of $193,046 returned, arguing that he waived
return of funds because he did not understand the terms of the forfeiture, thus rendering
his guilty plea “unknowing, involuntary, and unintelligently entered.” 1 Dkt. #39. The
District Court denied relief in an order entered April 11, 2013, explaining that the issue
had been “thoroughly discussed at the sentencing hearing and in papers filed prior to
sentencing.” Dkt. #40. The Court concluded that Bernard “knowingly withdrew his
objections to forfeiture.” Bernard filed a notice of appeal, dated May 6, 2013, and
entered the following day.
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Although we do not reach the merits of Bernard’s motion, we note that the Supreme
Court has rejected a claim that a court’s failure to establish the factual basis for a
forfeiture provision contained in a plea agreement undermines the guilty plea, as
forfeiture is an aspect of sentencing, rather than an element of the offense. Libretti v.
United States, 516 U.S. 29, 38 (1995).
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Case: 13-2363 Document: 003111406620 Page: 3 Date Filed: 10/02/2013
We have held that a motion to return property pursuant to Fed. R. Crim. P. 41 is
treated as a civil complaint, and that the time for filing an appeal is thus governed by
Rule 4(a) of the Federal Rules of Appellate Procedure. United States v. Bein, 214 F.3d
408, 411 n.3 (3d Cir. 2000). Thus, Bernard’s notice of appeal was timely filed, and we
decline the Government’s invitation to dismiss this appeal for lack of jurisdiction.
However, the District Court lacked jurisdiction to consider Bernard’s motion, as it
was not a proper Rule 41(g) motion for return of property. See id. at 411 (Government
must return property seized for evidence after criminal proceedings conclude, “unless it is
contraband or subject to forfeiture”) (emphasis added). Bernard’s motion did not seek
return of other property that was not subject to the forfeiture order; rather, it was a
challenge to the forfeiture order itself, and “is best seen as an improper attempt to
challenge a component of his sentence.” Young v. United States, 489 F.3d 313, 315
(7th Cir. 2007). “[A] criminal forfeiture is part of the defendant’s sentence and must be
challenged on direct appeal or not at all.” Id.; see also United States v. Pelullo, 178 F.3d
196, 202 (3d Cir. 1999) (forfeiture order is final, appealable order at sentencing as
forfeiture order conclusively determines all of defendant’s interest in forfeited property).
For the foregoing reasons, we will modify the District Court judgment to reflect a
dismissal for lack of subject matter jurisdiction, and will affirm the judgment as
modified.
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