United States v. Christina Carman
United States v. Christina Carman
Opinion
Subject to very few exceptions, the filing of a notice of appeal shifts from the district court to the court of appeals adjudicatory authority over any aspect of the case-here, Christina Carman's conviction and sentence-involved in the appeal. Yet here-more than four months after the district court had entered its criminal judgment, and nearly as long after Carman had appealed-the district court purported to amend her sentence by entering a $17.5 million forfeiture order. By then the district court had lost authority to enter that order (though not for the reasons *616 Carman says). We therefore vacate the order.
In 2014, Carman was indicted with three co-defendants for her involvement in a years-long conspiracy to sell untaxed cigarettes on a massive scale.
See
United States v. Maddux
,
There matters stood until August 30, 2016, when the district court sentenced Carman and each of her co-defendants. The district court sentenced Carman to 60 months' imprisonment without ruling upon the government's motion for a money judgment or otherwise mentioning a forfeiture order. (The district court later stated during a different defendant's sentencing hearing-which is to say, a hearing not relevant here-that it would "take up later" the issue of "any money judgments[.]" R. 623 at 7339.). Nor did the government ask for such an order during Carman's hearing. The very next day-August 31, 2016-the district court entered its criminal judgment in Carman's case. (That judgment included a cryptic reference to the forfeiture of in rem property, but the government does not dispute that the reference was a clerical error.) On September 6, 2016, Carman filed a notice of appeal as to that judgment. Our court thereafter set a briefing schedule, pursuant to which Carman filed her opening brief on January 3, 2017.
Two weeks later-and more than four months after Carman appealed her conviction and sentence to this court-the district court entered a forfeiture order against Carman in the amount of approximately $17.5 million. Carman then filed a notice of appeal as to that order, which is the appeal before us now.
Carman argues that the district court lacked jurisdiction to enter that order because it was entered in violation of Federal Criminal Rule 32.2. Her argument's premise is correct. In cases where the district court "finds that property is subject to forfeiture," the court must, whenever possible, enter a preliminary order of forfeiture "sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications" before the defendant's sentencing hearing. Fed. R. Crim. P. 32.2(b)(2)(A), (B). Yet no preliminary order was entered here. The district court also "must include the forfeiture when orally announcing the sentence or must otherwise ensure that the defendant knows of the forfeiture at sentencing."
Id
. 32.2(b)(4). The preliminary forfeiture order then "becomes final as to the defendant" "[a]t sentencing."
But Carman's conclusion-that on these facts the Criminal Rules had divested
*617
the district court of jurisdiction to enter its January 17, 2016 forfeiture order-does not follow. The Supreme Court has repeatedly made clear that deadlines in court rules are "nonjurisdictional[.]"
Nutraceutical Corp. v. Lambert
, --- U.S. ----,
But Carman's notice of appeal did nearly the same thing. "Filing a notice of appeal transfers adjudicatory authority from the district court to the court of appeals."
Manrique v. United States
, --- U.S. ----,
Carman's notice of appeal stated that she was appealing the district court's judgment in her criminal case. That judgment included both her conviction and sentence. Upon the filing of her notice of appeal, therefore, adjudicatory authority over "those aspects" of Carman's case-
i.e.
, her conviction and sentence-passed to this court.
Griggs
,
A forfeiture order is "part of the [defendant's] sentence in the criminal case[.]"
*618
A recent case from the First Circuit follows the same analysis.
See
United States v. George
,
The government argues that we should simply disregard the district court's lack of adjudicatory authority to enter the January 17, 2017 forfeiture order, asserting that vacatur of that order would result in mere "paper shuffling"-in the form of re-entry of the same order on remand. But the government nowhere explains how the Criminal Rules would permit entry of that order over Carman's objection, after her sentence was not only imposed in the district court but affirmed on appeal. Nor do we see any basis to disregard-on what the government calls "pragmatic" grounds, or otherwise-the Supreme Court's decisions making clear that the district court lacked authority to enter the forfeiture order.
See
Griggs
,
It remains only to note that, even though the district court lacked authority to enter its forfeiture order, we have jurisdiction over this appeal.
See
* * *
We vacate the district court's January 17, 2017 forfeiture order as applied to Carman, and remand the case for further proceedings consistent with this opinion.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Christina CARMAN, Defendant-Appellant.
- Cited By
- 18 cases
- Status
- Published