UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANDRE PEASE, a.k.a
Magic, Defendant-Appellant, BEVERLY REEDY, LATOYA PEASE, Interested
Parties, Appellants.
No. 00-13237 Non-Argument Calendar
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
331 F.3d 809; 2003 U.S. App. LEXIS 10291; 16 Fla. L. Weekly Fed. C 627
May 22, 2003, Decided
May 22, 2003, Filed
SUBSEQUENT HISTORY: [**1] As Corrected June 23, 2003.
PRIOR HISTORY: Appeal from the United States District Court for the
Middle District of Florida. D. C. Docket No. 98-00302-CR-T-24C. Judge:
Susan C. Bucklew. United States v. Pease, 240 F.3d 938, 2001 U.S. App.
LEXIS 1270 (11th Cir. Fla., 2001)
DISPOSITION: District court order reversed.
LexisNexis (TM) HEADNOTES - Core Concepts:
COUNSEL: For Pease, Andre, Reedy, Beverly, Pease, Latoya, Appellants:
Della Fera, Richmond F., Entin, Margules & Della Fera, P.A., Ft.
Lauderdale, FL.
For United States of America, Appellee: Ronca, Peggy Morris,
Jacksonville, FL. McNamara, Linda Julin, U.S. Attorney's Office, Tampa,
FL. Phipps, Tamra, U.S. Attorney's Office, M.D., of Florida, Tampa, FL.
JUDGES: Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.
OPINIONBY: TJOFLAT
OPINION: [*810] TJOFLAT, Circuit Judge:
Title 21 of the United States Code provides that a person convicted of
a federal drug felony forfeits to the United States "(1) any property
constituting, or derived from, any proceeds the person obtained . . .
as the result of such [crime]," and "(2) any of the person's property
used . . . to commit, or to facilitate the commission of, such
[crime]." 21 U.S.C. § 853(a)(1)-(2). The forfeiture may be
obtained in a civil in rem proceeding or in a criminal in personam
proceeding. See United States v. Gilbert, 244 F.3d 888, 918-20 (11th
Cir. 2001) (discussing the differences between civil and criminal
forfeiture). In a criminal proceeding, the United States acquires the
defendant's interest in the property, which is described in the
indictment, if the Government establishes that such interest
constitutes § 853(a) property, and the district court
thereafter enters a final judgment adjudicating the defendant's guilt,
imposing [**2] the defendant's sentence, and ordering forfeiture
of the defendant's interest. 21 U.S.C. § 853(a); 18 U.S.C.
§ 3554; Fed. R. Crim P. 32.2. n1
n1 In this case, we apply the predecessor to Rule 32.2 - Rule 32 -
because Rule 32 was the Rule in effect on the date of the indictment
which, in addition to charging criminal offenses, sought forfeiture.
Once the defendant's interest in the subject property is forfeited by
the entry of a final judgment, any person (other than the convicted
defendant) claiming an interest in the property may commence an
ancillary proceeding in the district court by petitioning the court
pursuant to 21 U.S.C. § 853(n)(2) to enter an order
declaring that his or her interest is superior to the defendant's
interest (which the final judgment forfeited to the United States). n2
To prevail, the petitioner must establish by a preponderance of the
evidence that his or her interest in the subject property was superior
to any right, [**3] title, or interest the defendant may
have possessed at the time he or she committed the offense giving rise
to the forfeiture, or that he or she was a bona fide purchaser for
value. 21 U.S.C. § 853(n)(6). n3
n2 Section 853(n)(2) provides:
Any person, other than the defendant, asserting a legal interest in
property which has been ordered forfeited to the United States pursuant
to this section [, i.e., § 853(a),] may, within thirty days
of the final publication of notice or his receipt of notice under
paragraph (1), whichever is earlier, petition the court for a hearing
to adjudicate the validity of his alleged interest in the property. The
hearing shall be held before the court alone, without a jury.
n3 Section 853(n)(6) provides:
If, after the hearing, the court determines that the petitioner has
established by a preponderance of the evidence that -
(A) the petitioner has a legal right, title, or interest in the
property, and such right, title, or interest renders the order of
forfeiture invalid in whole or in part because the right, title, or
interest was vested in the petitioner rather than the defendant or was
superior to any right, title, or interest of the defendant at the time
of the commission of the acts which gave rise to the forfeiture of the
property under this section; or
(B) the petitioner is a bona fide purchaser for value of the right,
title, or interest in the property and was at the time of purchase
reasonably without cause to believe that the property was subject to
forfeiture under this section;
the court shall amend the order of forfeiture in accordance with its
determination.
[**4]
[*811] In the scenario before us, Andrew Pease ("the
defendant") pled guilty on September 11, 1998, to conspiracy to possess
with intent to distribute cocaine. n4 He pled pursuant to a plea
agreement in which he agreed to forfeit to the United States his
interest in certain real and personal property. After the plea was
entered, but before sentencing, the court entered a preliminary order
of forfeiture on January 4, 1999 pursuant to Rule 32 of the Federal
Rules of Criminal Procedure. n5 At sentencing, however, which took
place on January 29, 1999, the court failed to make the preliminary
order of forfeiture a part of its judgment. The judgment the court
entered recited that the defendant had been sentenced to prison for 360
months and five years' supervised release, but was entirely silent as
to forfeiture. The defendant thereafter appealed his conviction and
sentence. The Government could have cross-appealed the defendant's
sentence under 18 U.S.C. § 3742(b) - specifically, the
district court's failure to include an order of forfeiture in its final
judgment - but did not do so. We affirmed the defendant's conviction
and sentence on March 1, 2001. United States v. Pease, 240 F.3d 938
(11th Cir. 2001). [**5] Our mandate issued on April 25, 2001.
n4 See 21 U.S.C. § § 841(a)(1), 846.
n5 See infra Part II.A for the text of the Rule.
I.
In September 1999, while the defendant's appeal was pending in this
court, the Government, drawing on the preliminary order of forfeiture
for its authority, published a notice informing third parties that the
property described in the preliminary order had been forfeited to the
United States and of their right to petition the district court
pursuant to 21 U.S.C. § 853(n)(2), (6) for a declaration
that they held an interest in such property and that their interest was
superior to the defendant's (forfeited) interest. On September 27,
1999, Latoya Pease ("Pease") and Beverly Reedy ("Reedy"), the
defendant's sister and mother, respectively, filed §
853(n)(2) petitions with the district court, n6 claiming an interest in
some of the property described in the preliminary order of forfeiture.
n7 The same day, the defendant, claiming [**6] an interest in
three items listed in the preliminary order, also filed a §
853(n)(2) petition. n8 Shortly thereafter, the Government moved to
strike the defendant's petition on the ground that §
853(n)(2) prohibits a convicted defendant from claiming an interest in
property that had been forfeited.
n6 Pease and Reedy appeared through counsel.
n7 Pease claimed an interest in the orange 1995 Chevrolet Suburban
identified in paragraph i of the preliminary forfeiture order. Reedy
claimed an interest in three items identified in the preliminary
forfeiture order: property located at 808 Daphne Drive, Brandon,
Florida (item b); a red 1992 Chevrolet Suburban (item f); and a white
1996 Chevrolet pickup truck (item j). The Government later withdrew its
forfeiture claims for the Daphne Drive property and the 1992 Suburban.
Therefore, only the 1996 Chevrolet pickup truck is at issue in this
appeal. Several other persons and entities also filed §
853(a) petitions. They either abandoned their petitions or entered into
stipulations with the Government as to the disposition of their claimed
interests. None of these petitions are before us, or are otherwise
relevant, in this appeal. [**7]
n8 Acting pro se, the defendant claimed an interest in three items
listed in the preliminary forfeiture order: property located at 4105
North 9th Street, Tampa, Florida (item a); property located at 808
Daphne Drive, Brandon, Florida (item b); and a 1997 Yamaha Exciter
Speedboat (item e).
On November 29, 2000, while the petitioners' claims and the
Government's motion [*812] to strike were pending, the
defendant moved the district court to dismiss the ancillary proceeding.
He contended that because the judgment in his criminal case did not
include a final order of forfeiture, the court lacked the authority to
entertain a § 853(n) ancillary proceeding. Pease and Reedy
subsequently moved the court to dismiss the ancillary proceeding on the
same ground. Realizing that the petitioners' motions might have merit -
that the court's authority to hold an ancillary hearing depended on the
inclusion of a final order of forfeiture as part of the judgment
entered in the defendant's criminal case - the Government attempted to
avoid the problem the petitioners posed. [**8] Citing Rule
36 of the Federal Rules of Criminal Procedure, which authorizes a
district court to correct " [c]lerical mistakes in judgments," the
Government moved the district court to amend the judgment in the
defendant's case to include a final order of forfeiture mirroring the
preliminary order of forfeiture the court entered on January 4, 1999.
The district court referred the § 853(n)(2) petitions and
the Government's Rule 36 motion to a magistrate judge, who held an
evidentiary hearing on the merits of the petitions and considered
whether the relief the Government was seeking constituted the
correction of a "clerical mistake" within the intendment of Rule 36. At
the conclusion of the hearing, the magistrate judge issued a report and
recommendation which recommended that the district court grant the
Government's motion and deny the § 853(n)(2) petitions. The
magistrate judge concluded that Pease and Reedy had failed to satisfy
the burden of proof prescribed by § 853(n)(6), and that the
statute barred the defendant from claiming his interest in the
forfeited property. n9 On June 6, 2000, the district court adopted the
magistrate judge's recommendations, substantively amended the judgment
in the defendant's case, and denied [**9] the petitioners'
claims. n10 All three petitioners now appeal. n11
n9 See supra notes 2-3.
n10 Although the district court granted the Government's motion, it did
not issue an amended judgment. We assume that the court treated its
ruling as having amended the judgment, even though the court did not
notify the defendant of his right to appeal the judgment, as amended,
as required by Rule 32(c)(5) of the Federal Rules of Criminal Procedure.
n11 Because, as noted in the text supra, § 853(n)(2)
precludes the defendant from bringing an ancillary proceeding to obtain
a determination of his interest in the forfeited property, and because
our disposition of this appeal does not require that we consider
whether the defendant has standing to pursue his interest in the
subject property in the unique circumstances of this case, we conclude,
for sake of discussion, that the defendant's petition is barred. Our
reference to "appellants," therefore, refers to Pease and Reedy.
II.
This appeal presents two [**10] legal questions. First, does the
law require that a criminal forfeiture be made part of the judgment
entered in the case in which the court adjudicates the defendant's
guilt and imposes sentence? Second, if the answer to that question is
yes, does the district court's failure to include in its judgment a
forfeiture order (which the parties' plea agreement called for) amount
to a "clerical mistake" within the meaning of Rule 36 of the Federal
Rules of Criminal Procedure? n12 We address these questions in order.
n12 The version of Rule 36 in effect at the time of the indictment
provides:
Clerical mistakes in judgments, orders or other parts of the record and
errors in the record arising from oversight or omission may be
corrected by the court at any time and after such notice, if any, as
the court orders.
[*813] A.
The answer to the first question is clear. The United States cannot
acquire a convicted defendant's interest in property forfeited under 21
U.S.C. § 853(a) unless and [**11] until the district
court orders the interest forfeited as part of its judgment in the
defendant's case. Section 853 is part of the Comprehensive Drug Abuse
Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq.,
and states that " [t]he court, in imposing sentence . . . shall order,
in addition to any other sentence imposed pursuant to [Subchapter I] of
[Chapter 13, Drug Abuse Prevention and Control,] that the person
forfeit to the United States all property described in [§
853(a)(1)-(2)]." n13 United States v. Gilbert, 244 F.3d 888, 924 (11th
Cir. 2001) (" [C]riminal forfeiture is part of a defendant's
sentence."); see also United States v. L'Hoste, 609 F.2d 796, 812-13
(5th Cir. 1980) (holding that forfeiture should be ordered as part of a
defendant's sentence). n14 In 1972, Rule 32 of the Federal Rules of
Criminal Procedure was amended to provide a procedure for including an
order of forfeiture as part of the defendant's sentence. See Fed. R.
Crim. P. 32(d)(2) advisory committee's notes. In 1996, the Rule was
amended as follows to authorize the district court to enter a
preliminary order of forfeiture [**12] after the return of a jury
verdict of forfeiture or a plea of guilty providing for forfeiture: n15
If a verdict contains a finding that property is subject to a criminal
forfeiture, or if a defendant enters a guilty plea subjecting property
to such forfeiture, the court may enter a preliminary order of
forfeiture after providing notice to the defendant and a reasonable
opportunity to be heard on the timing and form of the order. The order
of forfeiture shall authorize the Attorney General to seize the
property subject to forfeiture, to conduct any discovery that the court
considers proper to help identify, locate, or dispose of the property,
and to begin proceedings consistent with any statutory requirements
pertaining to ancillary hearings and the rights of third parties. At
sentencing, a final order of forfeiture shall be made part of the
sentence and included in the judgment. . . .
Fed. R. Crim. P. 32(d)(2) (emphasis added).
n13 In enacting the Sentencing Reform Act of 1984, 18 U.S.C.
§ 3551 et seq., Congress replicated this requirement - that
forfeiture occurs when the district court includes an order of
forfeiture, as part of the defendant's sentence, in its judgment - in
18 U. S.C. § 3554:
The court, in imposing sentence on a defendant who has been found
guilty of an offense described in . . . [Chapter II or III] of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 shall
order, in addition to the sentence that is imposed pursuant to the
provisions of section 3551, that the defendant forfeit property to the
United States. . . .
[**13]
n14 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)
(en banc), this court adopted as binding precedent all decisions of the
former Fifth Circuit handed down prior to October 1, 1981.
n15 The version of Rule 32, as amended in 1996, was in effect at the
time of the defendant's indictment.
The issuance of a preliminary order of forfeiture under Rule 32(d)(2)
does not relieve the district court of the obligation to include an
order of forfeiture in its judgment if forfeiture to the United States
is to come to fruition - that is, the Government actually acquires the
defendant's interest in the subject property. This becomes clear when
we note that a third party's right to petition the district court for
an order declaring that its interest in [*814] the subject
property is superior to the defendant's interest (if any) does not come
into being until the Government, " [f]ollowing the entry of an order of
forfeiture under this section [, i.e., § 853(a),]
publish[es] notice of the order and its intent to dispose of the
property in such a manner as the Attorney [**14] General may
direct." 21 U.S.C. § 853(n)(1). "[W]ithin thirty days of the
final publication or his receipt of notice . . . whichever is earlier,
[the third party may] petition the court for a hearing to adjudicate
the validity of his alleged interest." Id. § 853(n)(2). If
the third party fails to file a petition within thirty days of such
notice, "the United States shall have clear title to property that is
the subject of the order of forfeiture and may warrant good title to
any subsequent purchaser or transferee." Id. § 853(n)(7).
If, as the Government contends in this case, a third party's right to
petition the court comes into existence when, as in this case, it
publishes notice pursuant to a preliminary order of forfeiture, then
§ 853(n)(1)'s reference to the "entry of an order of
forfeiture under this section," i.e., § 853(a), is
effectively rewritten to provide that the Attorney General may issue a
§ 853(n)(1) notice pursuant to either a preliminary order of
forfeiture or an order of forfeiture issued at sentencing, as part of
the court's judgment.
Under the scenario the Government advances here - where the Attorney
General may proceed [**15] pursuant to either order - suppose
that prior to the defendant's sentencing and the entry of judgment, (1)
the district court enters a preliminary order of forfeiture, (2) the
Attorney General publishes a § 853(n)(1) notice, (3) third
parties file § 853(n)(2) petitions, (4) the court hears the
petitions and, in accordance with § 853(n)(6), rejects the
parties' petitions, and (5), in accordance with § 853(n)(7),
the court grants the United States "clear title to the property that is
the subject of the order of forfeiture." Suppose further that, as is
the case here, the court does not include in its judgment, as part of
the defendant's sentencing package, an order of forfeiture. In that
case, the § 853(n) proceedings would have gone for naught.
Or suppose that subsequent to the entry of the preliminary order of
forfeiture, the district court, invoking its authority under Rule 29(b)
of the Federal Rules of Criminal Procedure, grants the defendant's
motion for judgment of acquittal on the count(s) of the indictment
which provided the predicate for forfeiture, or the court, invoking
Rule 33 of the Federal Rules of Criminal Procedure, grants the
defendant a new trial on the same counts. [**16] The result
would be the same as it is in the instant scenario - the §
853(n) ancillary proceedings would have gone for naught. What's more,
the court would have wasted its judicial and parajudicial resources and
put the parties to an expense they should not have been required to
incur.
Rule 32(d)(2), as noted above, provides that if the court issues a
preliminary order of forfeiture, the Attorney General may, among other
things, "begin proceedings consistent with any statutory requirements
pertaining to ancillary hearings and the rights of third parties." The
untoward scenarios we have portrayed - where the district court issues
a preliminary order of forfeiture but for one reason or another does
not include an order of forfeiture as part of the defendant's
sentencing package and its judgment - would, in our view, be
inconsistent with the "statutory requirements" of 18 U.S.C.
§ 3554, 21 U.S.C. § 853, and Rule 32(d)(2)'s
requirement that, if forfeiture is to be granted to the United States,
the defendant's judgment must contain an order of forfeiture, and our
teachings in United States v. Gilbert. In sum, our answer to the first
question [**17] - must criminal forfeiture be made a part
of [*815] the judgment in the defendant's case - is yes.
Anticipating this conclusion, the Government urges us to affirm the
district court's rejection of appellants' claims to the subject
property, contending that our failure to do so would "subvert the
intent of the plea agreement and the purpose of the forfeiture statutes
to divest criminals of their ill-gotten gains." Government's Supp. Ltr.
Bf. at 3. What the Government overlooks is that an affirmance would
yield the same result as a reversal. If we affirm the district court,
the appellants will take nothing, but neither will the Government. The
reason why the Government will take nothing is that due to the absence
of a forfeiture order in the judgment entered in the defendant's case,
the United States did not acquire the defendant's interest in the
subject property. In short, the parties would return to square one -
their pre-indictment positions. n16 The result will be the same if we
reverse the district court's decision; the parties will be restored to
their pre-indictment positions. n17 This brings us to the question of
whether the district court's amendment of the judgment in the
defendant's [**18] case to include forfeiture as part of the
defendant's sentence constituted a proper exercise of the court's
authority, under Rule 36 of the Federal Rules of Criminal Procedure, to
remedy clerical errors.
n16 We intimate no view as to whether the Government could successfully
pursue civil forfeiture of the property, an in rem proceeding against
the property pursuant to 21 U.S.C. § 881. See Gilbert, 244
F.3d at 918-20.
n17 Again, we intimate no view as to whether the Government could
successfully pursue civil forfeiture.
B.
Rule 36 authorizes the district courts to correct "[c]lerical mistakes
in judgments . . . arising from oversight or omission . . . at any
time." In this case, the oversight or omission was the Government's,
not the district court's. The prosecutor simply forgot to ask the court
during the sentencing hearing to provide as part of the sentencing
package a provision that the defendant forfeit to the United States his
interest in certain properties. [**19] n18 For
[*816] purposes of this appeal, however, we will assume that the
Rule embraces errors arising from counsel's, rather than the court's,
oversight or omission.
n18 The record of the defendant's sentencing hearing contains no
evidence that the sentence the court announced from the bench included
a final order of forfeiture. To the contrary, the prosecutor appears to
have mistakenly believed that the Government should seek a final order
of forfeiture after sentencing.
Prosecutor: Judge while it's true that we have forfeiture language and
we have filed a bill of particulars I just looked through the file,
there is no final order of forfeiture, and although that may be
encumbered, we don't have it right now.
Court: I don't think there's ever been a motion.
Prosecutor: No. No, and as I understand, they do that after, uh - after
today's hearing. . . .
Therefore, in this case, we are not confronted with a factual scenario
in which the court's written judgment differs from the sentence the
court announced from the bench. United States v. Ridgeway, 319 F.3d
1313, 1315 (11th Cir. 2003) (noting that an oral sentence controls when
it is in conflict with the written judgment of conviction) (citing
United States v. Jones, 289 F.3d 1260, 1264 n.5 (11th Cir. 2002) and
United States v. Khoury, 901 F.2d 975, 977 (11th Cir. 1990)).
It is apparent from the above remarks that the prosecutor believed that
the defendant's sentencing could take place on two occasions. On the
first occasion, the court would sentence the defendant to prison (or,
if the law permitted it, to probation), and impose a fine or
restitution, if such were called for by the Sentencing Guidelines. Once
this sentencing took place, the defendant would have ten days to appeal
his sentence pursuant to 18 U.S.C. § 3742(a). This is what
occurred in the instant scenario; the defendant appealed his sentence
pursuant to § 3742(a) (along with his conviction), and we
affirmed. On the second occasion, in the prosecutor's view, the court
would hold a second sentencing hearing, solely for the purpose of
ordering forfeiture. Since, as we explain in the text, forfeiture is
part of a defendant's sentencing package, the defendant would have the
right to appeal the forfeiture. In this case, the prosecutor never
returned for the second sentencing hearing. Rather, the Government sat
on its hands until the appellants moved to dismiss the ancillary
hearing on the ground that the judgment in the defendant's case
contained no order of forfeiture.
In sum, forfeiture is part of the defendant's sentencing package for an
obvious reason. The magnitude of the forfeiture may influence how the
court treats the other parts of the package. For example, if forfeiture
is sizeable, the court may impose a fine at the bottom of the
Sentencing Guidelines' range or, if the forfeiture would render the
defendant impecunious, perhaps no fine at all. The two-step sentencing
scenario the Government proposed in the defendant's case turns common
sense on its head.
[**20]
The Government concedes, as it must, that the district court erred in
applying Rule 36 as it did in the defendant's case. Rule 36 can be used
to correct "clerical" errors; it cannot be used, as it was here, to
make a substantive alteration to a criminal sentence. See United States
v. Whittington, 918 F.2d 149, 151 (11th Cir. 1990); see also United
States v. Werber, 51 F.3d 342, 347 (2d Cir. 1995) ("Rule 36 is not a
vehicle for the vindication of the court's unexpressed sentencing
expectations, or for the correction of errors made by the court
itself.") (internal quotation marks omitted); United States v. Daddino,
5 F.3d 262, 264 (7th Cir. 1993) ("[R]ecent cases and commentary flesh
out the parameters of Rule 36 and demonstrate that this exception does
not apply to errors made by the court itself."). In short, the district
court misused Rule 36 to modify the defendant's sentence in a
substantive way.
In addition to misapplying Rule 36, the court acted without
jurisdiction. The defendant's case was still pending on appeal when, on
June 5, 2000, the district court amended the judgment to include an
order of forfeiture. It is settled [**21] law that the appeal of
a judgment in a criminal case deprives the district court of
jurisdiction to amend the judgment (except for clerical errors pursuant
to Rule 36). See, e.g., United States v. Vicaria, 963 F.2d 1412, 1415
(11th Cir. 1992).
In a final effort to obtain a forfeiture order, the Government asks
that we remand this case to the district court with an instruction to
correct the judgment in the defendant's case pursuant to Rule 35(a) of
the Federal Rules of Criminal Procedure. n19 The problem with this
request is that the defendant's criminal case is not before us; we
disposed of the appeal in that case nearly two years ago, when the
mandate issued on April 25, 2001. The case before us is an ancillary
proceeding, a civil case. See United States v. Gilbert, 244 F.3d 888,
906-07 (11th Cir. 2001). Even if we were [*817] to assume
that the instant case is a criminal case, meaning that Rule 35(a) might
apply, we would have no basis for remanding the case with the
instruction that the district court amend the judgment to provide for
forfeiture. The Rule permits a district court to correct a sentence
that we have "determined on appeal under 18 U.S.C. § 3742
[**22] to have been imposed in violation of the law, to have been
imposed as a result of an incorrect application of the sentencing
guidelines, or to be unreasonable . . . ." Fed. R. Crim. P. 35(a). As
we have noted, the Government failed to appeal the defendant's sentence
- for failure of the district court to order forfeiture as part of the
sentence - thus, the purported error is not before us.
n19 Entitled "Correction or Reduction of Sentence," the version of Rule
35(a) in effect at the time of the defendant's indictment provides:
The court shall correct a sentence that is determined on appeal under
18 U.S.C. 3742 to have been imposed in violation of the law, to have
been imposed as a result of an incorrect application of the sentencing
guidelines, or to be unreasonable, upon remand of the case to the court-
(1) for imposition of a sentence in accord with the findings of the
court of appeal; or
(2) for further sentencing proceedings, if after such proceedings, the
court determines that the original sentence was incorrect.
[**23]
III.
For the foregoing reasons, the district court's order is REVERSED. On
receipt of our mandate, the district court shall dismiss the ancillary
proceeding for lack of an order of forfeiture. n20
n20 The import of this ruling is that the preliminary order of
forfeiture entered on January 4, 1999, expired on January 29, 1999,
when the court sentenced the defendant.
SO ORDERED.