Opinion
Case No. 3:18-cr-89-MMH-MCR
2022-04-21
UNITED STATES of America v. Reginald BROWN
Andrew Tysen Duva, Bonnie Ames Glober, Michael Coolican, US Attorney's Office, Jacksonville, FL, for United States of America.
Andrew Tysen Duva, Bonnie Ames Glober, Michael Coolican, US Attorney's Office, Jacksonville, FL, for United States of America.
ORDER
MARCIA MORALES HOWARD, United States District Judge
This cause is before the Court on Defendant Reginald Brown's pro se Motion for Suspension of the Preliminary Order of Forfeiture for Substitute Asset Until the Appeals Process and All Other Legal Filings are Completed (Doc. 520, "Motion to Suspend") and Motion to Postpone the Preliminary Order of Forfeiture for Substitute Asset Until All Legal Processes are Exhausted Under Equitable Grounds (Doc. 522, "Motion to Postpone"). The United States responded in opposition. (Doc. 530, "Amended Response"). Brown filed a document that the Court construes as a reply brief (Doc. 539, "Reply"), and the United States filed a sur-reply (Doc. 541, "Sur-reply").
A jury convicted Brown of thirty-two charges relating to mail and wire fraud and money-laundering, plus one count of failing to file a tax return. (Doc. 281, Jury Verdict; Doc. 448, Judgment). On October 29, 2020, the Court entered an Order of Forfeiture against Brown for $411,752.68. (Doc. 441, Order of Forfeiture). The Court found that "[b]ecause the $411,752.68 in proceeds was dissipated by the defendant, the United States may seek, as a substitute asset, pursuant to 21 U.S.C. § 853(p), forfeiture of any of the defendant's property up to the value of $411,752.68." Id. at 2. In the Judgment entered on November 3, 2020, the Court sentenced Brown to a total term of 18 months in prison, ordered him to pay restitution in the amount of $411,752.68, and incorporated the October 29, 2020 Order of Forfeiture. See Judgment at 2–6.
Brown appealed his conviction and sentence, but he did not challenge the forfeiture portion of the Judgment. United States v. Brown, No. 20-14254, 2021 WL 5407455, at *1 (11th Cir. Nov. 19, 2021). The Eleventh Circuit Court of Appeals affirmed Brown's conviction and sentence on November 19, 2021, id., and on February 16, 2022, the court issued the mandate (Doc. 531, USCA Mandate). Meanwhile, on January 19, 2022, this Court entered a preliminary order of forfeiture for substitute asset. (Doc. 519, Preliminary Order of Forfeiture for Substitute Asset). The Court determined that the United States was entitled to the forfeiture of real property belonging to Brown – 3063 Ray Road, Jacksonville, FL 32209 – as a substitute asset in partial satisfaction of the Order of Forfeiture.
Brown filed the Motion to Suspend and Motion to Postpone shortly after the Court entered the Preliminary Order of Forfeiture for Substitute Asset. Brown states that 3063 Ray Road is his home and he would be left homeless without it. In both Motions, Brown asks that the Court delay forfeiture of the property and allow him to continue living there, subject to making $150.00 monthly payments toward his restitution obligation, while he pursues a motion to vacate sentence under 28 U.S.C. § 2255. Brown states that he intends to raise several ineffective-assistance-of-counsel claims in a § 2255 motion. Motion to Postpone at 1–2. Brown also contends that he "never concealed or disposed of the proceeds of the illegal activity ... nor was the property derived from those proceeds involved" in the offense. Motion to Suspend at 2. The United States responds that a district court has no authority to stay forfeiture pending a § 2255 proceeding. Amended Response at 4–5. The United States also requests that the Court impose certain conditions on Brown's occupation of the property to preserve the property's value until it is liquidated. Id. at 5–7.
After the United States filed the Amended Response, Brown filed "Defendant's Motion to the United States’ Court Response to Defendant[’]s Motion to Postponement of the Preliminary Order of Forfeiture for Substitute Asset Until All Legal Processes Are Exhausted Under Equitable Grounds," which the Court construes as a reply. (Doc. 539, "Reply"). In the Reply, Brown asserts that trial counsel, sentencing counsel, and appellate counsel gave ineffective assistance by failing to contest the forfeiture; that the substitute property subject to forfeiture (the home) was "not ill-gotten" ; that he cannot be held jointly and severally liable for forfeiture under Honeycutt v. United States, 581 U.S. 443, 137 S. Ct. 1626, 198 L.Ed.2d 73 (2017) ; and that the prosecutor withheld information from the grand jury. See generally Reply. In its Sur-reply, the United States argues that (1) any challenge to the forfeiture judgment is time-barred now that Brown's direct appeal is over, (2) Brown cannot collaterally challenge a forfeiture order under 28 U.S.C. § 2255, and (3) Brown has identified no authority justifying a further stay of the forfeiture proceedings. Sur-reply (Doc. 541) at 1–6.
Local Rule 3.01(d) of the Local Rules for the United States District Court, Middle District of Florida ("Local Rule(s)"), does not allow a party to file a reply brief as a matter of right. Brown did not request nor did he obtain leave of Court to file the Reply. Additionally, four days before Brown filed the pro se Reply, Donald Mairs, Esq., was added as Brown's counsel of record. (See Doc. 537). Under Local Rule 2.02(b)(3), a party who is represented by an attorney may not appear pro se.
Brown's argument that the home was not ill-gotten is beside the point. By its nature, substitute property subject to forfeiture need not have been ill-gotten. Under 21 U.S.C. § 853(p), substitute property may be forfeited in place of the ill-gotten property or proceeds where the ill-gotten proceeds cannot be recovered.
Honeycutt is inapposite because the Court did not find Brown to be jointly and severally liable for forfeiture. Rather, the Court found that Brown could be held individually liable for the forfeiture amount of $411,752.68. Order of Forfeiture at 1.
As the government suggests, there is no point to staying the forfeiture proceedings because it is too late for Brown to challenge the forfeiture judgment. The October 29, 2020 Order of Forfeiture determined that Brown was individually liable for up to $411,752.68 in forfeiture, and that because Brown had dissipated the proceeds, the United States could "seek, as a substitute asset, pursuant to 21 U.S.C. § 853(p), forfeiture of any of the defendant's property up to the value of $411,752.68." Order of Forfeiture (Doc. 441) at 2. The Order of Forfeiture became final when the Court incorporated it into the Judgment and sentence on November 3, 2020. See Judgment (Doc. 448); Fed. R. Crim. P. 32.2(b)(4)(A). If Brown wished to challenge his liability for forfeiture, the amount of forfeiture, or the United States’ authority to seek property as a substitute asset, the time to do so was on direct appeal. But because Brown did not challenge any part of the forfeiture judgment on direct appeal, he has procedurally defaulted such a challenge. See United States v. Bane, 948 F.3d 1290, 1294, 1296 (11th Cir. 2020) (defendants’ failure to challenge their forfeiture judgments on direct appeal precluded them from collaterally attacking forfeiture in a petition for writ of error coram nobis). Brown has not demonstrated that he can overcome the default through a showing of cause and actual prejudice. See id. at 1296–98. Although the ineffective assistance of counsel may constitute cause for a procedural default, United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000), Brown has not shown that his attorneys’ lack of objection to the forfeiture judgment was objectively unreasonable. As to actual prejudice, Brown has not shown more than "merely ‘the possibility of prejudice’ " and that the error was "one ‘of constitutional dimensions’ [that] worked to [his] ‘actual and substantial disadvantage.’ " Bane, 948 F.3d at 1297–98 (citations omitted). Nor has Brown shown a jurisdictional defect as to forfeiture. See id. at 1295.
The only authority for a district court to stay a forfeiture order is found in 21 U.S.C. § 853(h) and Rule 32.2 of the Federal Rules of Criminal Procedure ("Rule(s)"). Section 853(h) provides in relevant part:
Upon application of a person, other than the defendant or a person acting in concert with him or on his behalf, the court may restrain or stay the sale or disposition of the property pending the conclusion of any appeal of the criminal case giving rise to the forfeiture, if the applicant demonstrates that proceeding with the sale or disposition of the property will result in irreparable injury, harm, or loss to him.
21 U.S.C. § 853(h) (emphasis added). Brown cannot request a stay under § 853(h) because he is the defendant.
Rule 32.2(d) provides in relevant part that "[i]f a defendant appeals from a conviction or an order of forfeiture, the court may stay the order of forfeiture on terms appropriate to ensure that the property remains available pending appellate review." Fed. R. Crim. P. 32.2(d). Rule 32.2(d) does not apply here because Brown has no appeals pending. Brown's direct appeal concluded when the Eleventh Circuit Court of Appeals issued the mandate affirming his conviction and sentence. See USCA Mandate (Doc. 531). Moreover, Rule 32.2(d) does not authorize a district court to stay an order of forfeiture while a defendant pursues a motion to vacate sentence under § 2255. Indeed, Brown cannot use § 2255 to collaterally attack a forfeiture order because § 2255 allows a defendant to attack only the custodial aspects of his sentence. By its terms, § 2255 applies only to "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released" from custody. 28 U.S.C. § 2255(a) (emphasis added). Thus, the Eleventh Circuit has held that a federal defendant cannot use § 2255 to challenge his restitution because restitution has nothing to do with "claiming the right to be released" from custody. Mamone v. United States, 559 F.3d 1209, 1210–11 (11th Cir. 2009) ; see also Blaik v. United States, 161 F.3d 1341, 1342–43 (11th Cir. 1998). The same reasoning extends to a challenge to forfeiture because " 28 U.S.C. § 2255 does not offer relief from the non-custodial features of a criminal sentence." United States v. Harris, 546 F. App'x 898, 901 (11th Cir. 2013) (citing Mamone, 559 F.3d at 1211 ). Nor does it matter if Brown couches his forfeiture challenges in terms of ineffective assistance of counsel because ultimately he is still challenging a non-custodial aspect of his sentence. See Warner v. United States, No. 18-13959-H, 2019 WL 11880628, at *2 (11th Cir. Mar. 13, 2019) (single-judge order denying certificate of appealability (COA); concluding that reasonable jurists would not debate district court's denial of claim that counsel was ineffective for waiving challenge to civil forfeiture because "a claim challenging a forfeiture judgment is outside the scope of § 2255 proceedings."); see also Singleton v. United States, No. 20-13653-F, 2021 WL 4521384, at *3 (11th Cir. Apr. 15, 2021) (single-judge order denying COA; concluding that reasonable jurists would not debate district court's denial of claim that counsel was ineffective for failing to challenge a restitution order because a challenge to restitution is outside the scope of § 2255 (citing Mamone, 559 F.3d at 1211 )). Because Brown presents no authority for staying forfeiture proceedings pending a § 2255 motion, the Court will not grant the stay. United States v. Martenson, 780 F. Supp. 492, 496 (N.D. Ill. 1991).
Brown did not petition the United States Supreme Court for a writ of certiorari review.
Although the Court does not rely on unpublished opinions as precedent, they may be cited in this Order because the Court finds their reasoning persuasive on a particular point. See McNamara v. GEICO, 30 F. 4th 1055, 1060–62 (11th Cir. Apr. 5, 2022). Rule 32.1 of the Federal Rules of Appellate Procedure permits the Court to cite unpublished opinions that have been issued on or after January 1, 2007. Fed. R. App. P. 32.1(a).
In short, Brown did not contest the forfeiture judgment on appeal and the Court has no power to impose a stay of forfeiture now. Defendant Reginald Brown's pro se Motion to Suspend (Doc. 520) and Motion to Postpone (Doc. 522) are therefore DENIED . The United States’ request that the Court impose conditions on Brown's maintenance of 3063 Ray Road, Amended Response (Doc. 530) at 5–7, is DENIED WITHOUT PREJUDICE . "A party applying to the court for an order must do so by motion," Fed. R. Crim. P. 47(a), not by responding to another motion. The United States may renew its request by filing a motion seeking such relief.
DONE AND ORDERED at Jacksonville, Florida this 21st day of April, 2022.