On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. No. 00-cr-00456-3). District Judge: Honorable Harvey Bartle, III.
The opinion of the court was delivered by: Becker, Circuit Judge.
Submitted Under Third Circuit LAR 34.1(a) July 11, 2005
Before: ALITO and BECKER, Circuit Judges, and SHADUR, District Judge.*fn1
Frank Wiggs Bennett appeals from an order of the District Court amending his sentence to require him to forfeit $42,020 in drug proceeds to the government. Although Bennett had clearly stipulated, prior to sentencing, that this sum would be forfeited, and the District Court had entered a preliminary order of forfeiture, Bennett's original sentence did not include a final order of forfeiture. Bennett argues that the District Court lacked the power to order forfeiture after sentencing.
The District Court erred in failing to include a final order of forfeiture in Bennett's sentence, but under the circumstances just described, this was in effect a clerical error. It was permissible for the District Court to correct the error under Rule 36 of the Federal Rules of Criminal Procedure, which allows courts to correct clerical errors in their judgments. We will therefore affirm.
Bennett and ten co-defendants were indicted for crimes related to a large-scale conspiracy to distribute methamphetamine. The indictment included a number of criminal forfeiture charges, demanding that the defendants forfeit various sums of cash, bank accounts, real estate, and vehicles that had been seized by the government as alleged proceeds of the conspiracy. On March 15, 2001, a jury convicted Bennett of conspiracy, possession of methamphetamine with intent to distribute, and use of a communication facility in furtherance of a drug offense.
Immediately after the jury verdict was read, the government read several forfeiture stipulations into the record, including the following stipulation relating to Bennett:
As to Frank Wiss [sic] Bennett, there is a stipulation that defendant Bennett will forfeit two amounts of currency. Those amounts are set forth on page 38 of the indictment, item seven, currency in the amount of $35,020 taken from Frank Bennett's Keystone safe-Bank safe deposit box. And item eight on page 38, excuse me, item six on page 38, currency in the amount of $7,000 taken from 2620 East Somerset Street, Philadelphia, Pennsylvania, the residence of Frank Bennett and that would conclude the agreement and the stipulated forfeiture with respect to Frank Wiss [sic] Bennett, Your Honor, those two sums.
This statement correctly recited paragraphs B-6 and B-7 of the indictment, and Bennett's trial attorney agreed that it accurately expressed Bennett's stipulation with the government.
On March 21, 2001, the government moved for a preliminary order of forfeiture. On March 23, the District Court granted the motion and entered a preliminary forfeiture order, allowing the Attorney General to seize the $42,020 attributed to Bennett. See Fed. R. Crim. P. 32.2(b)(1) & (3).
On August 28, 2001, the District Court sentenced Bennett to 240 months' imprisonment, ten years' supervised release, and a $500 special assessment. A written judgment and commitment order was entered on August 30, 2001. However, neither the oral sentence nor the written judgment included any forfeiture provision; indeed, forfeiture was not mentioned at the sentencing hearing. The written judgment included a form "Schedule of Payments" with a space for forfeiture that was left blank.
On August 31, 2001, Bennett filed an appeal from his conviction and sentence, which this Court rejected in 2003. United States v. Bennett, No. 01-3412, 74 Fed. Appx. 201 (3d Cir. Aug. 29, 2003) (not precedential opinion). On October 9, 2001, the government filed a motion for a final forfeiture order. This motion was unopposed, and on October 16, 2001, the District Court issued a final forfeiture order, authorizing the forfeiture of $42,020 in currency seized from Bennett.
On June 22, 2004, Bennett filed a pro se motion for return of property pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure. On August 9, 2004, the government filed a response to the motion, accompanied by its own motion to amend the judgment of sentence to include a forfeiture order. On August 30, 2004, the District Court denied Bennett's motion and granted the government's motion in a one-page order. The court thereby amended the August 30, 2001, judgment of sentence to include the stipulated forfeiture order. The amended judgment included the same "Schedule of Payments" form as the initial judgment; this time, however, the $42,020 forfeiture amount was included in the forfeiture blank. Bennett, still proceeding pro se, filed a timely notice of appeal.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction over Bennett's criminal case under 18 U.S.C. § 3231, and over his motion for return of property under Fed. R. Crim. P. 41(g). See United States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999). This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.
In most Rule 41(g) cases demanding return of forfeited property, "[w]e review the District Court's decision to exercise its equitable jurisdiction for abuse of discretion." Chambers, 192 F.3d at 376. Here, however, our review is plenary. In a typical case under Rule 41(g), a district court exercises its equitable powers, and our review of that exercise looks only for abuse of discretion. In this case, however, Bennett's Rule 41(g) motion contends that the District Court lacked jurisdiction to amend its original sentence to include a forfeiture order. The legal question of whether the District Court had the authority to amend its sentence is subject to plenary review. See United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004) (per curiam).
III. The Requirement That Forfeiture Be a Part of the Sentence
The District Court entered two purportedly final orders that were intended to trigger forfeiture of Bennett's property. First, on October 16, 2001, the court issued a "final order of forfeiture," which we analyze in this Part. Almost three years later, on August 30, 2004, the court amended the original sentence to include a forfeiture; we consider that amendment in Part IV, infra.
Bennett was convicted of violations of 21 U.S.C. §§ 843(b) and 846, consisting of conspiracy to distribute methamphetamine and use of a "communication facility" in furtherance of a drug crime. The relevant statute provides that anyone convicted of a drug violation under U.S. Code title 21, chapter 13, subchapter I or II (including Bennett's crimes) "shall forfeit to the United States . . . any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation." 21 U.S.C. § 853(a)(1). ...