Eleventh Circuit Finds Defendant Lacked Standing to Challenge Asset Forfeiture Order – U.S. v. Davenport

February 8, 2012 by David S. Seltzer

As a Miami-Dade asset forfeiture criminal defense attorney, I was interested to see a federal appeals case in which the defendant did not lose an asset forfeiture appeal exactly — she was not permitted to challenge the order in the first place. In United States v. Davenport, Juanita Davenport appealed to the Eleventh U.S. Circuit Court of Appeals the dismissal of various claims related to $214,980 seized from a safe-deposit box. Davenport and co-defendants including Orlando Muckle were charged in Georgia with conspiring to possess drugs with intent to distribute. Through Muckle’s guilty plea, the federal government successfully requested forfeiture of the money in the safe-deposit box. Here, Davenport unsuccessfully appealed the denial of her motion to vacate the forfeiture order; the dismissal of her petition to the property; and the denial of her request to vacate for excusable neglect.

Davenport was also charged with making a false statement to law enforcement about the safe-deposit box, and ultimately pleaded guilty to that in exchange for the dismissal of other charges. The dismissed charges included the charge seeking forfeiture of the money. A year later, Muckle pleaded guilty to the drug charges, which did include an asset forfeiture count. Prior to accepting the plea, Muckle denied in writing and at a hearing that he had an ownership stake in the money, but the government nonetheless filed a preliminary order of forfeiture, giving other owners 30 to 60 days to petition the court for their share. Davenport’s attorney, apparently confused, did not petition until well after the deadline, and it was dismissed as untimely. She retained a new lawyer and asked to vacate the order for excusable neglect. The court ultimately declined to do so and dismissed the request as untimely, ordering the entire amount forfeited.

The Eleventh Circuit affirmed in part and dismissed in part, but not in a way that gave relief to Davenport. On her motion to vacate the preliminary order of forfeiture against Muckle, the court found that she had no standing to challenge it in the first place. Third parties may claim interest in property subject to criminal forfeiture, the court said, but their requests are considered only after the POF is entered, and they must be timely. Indeed, federal law does not allow third-party claimants to intervene in the criminal trial, the Eleventh said. In this issue of first impression, it sided with the Second, Eighth and Tenth Circuits, all of which found no right to intervene until the POF is entered and a hearing is called on third-party rights. Thus, it ruled that Davenport had no right to challenge the POF in this case. In addition, it ruled that the notice of the forfeiture hearing — where she would have standing — was adequate even though it was sent to her ex-attorney instead of her current one. Finally, it denied relief for missing the deadline, saying her ex-attorney’s negligence was not excusable neglect.

As a Fort Lauderdale drug crimes defense lawyer, I know courts can be tough about deadlines. Generally speaking, they are reluctant to excuse missing a deadline unless there was a genuine mistake on the court’s part. That Davenport apparently hired a bad attorney was not relevant to the claim (at least to the Eleventh Circuit). She may have a state-court cause of action against the attorney, but she will have to pursue it without her share of the money that was forfeited. Often, in my experiences as a south Florida narcotics criminal defense attorney, courts are not merciful in restitution cases — in part because the law is not written to allow much mercy. That’s why it’s so important to have an experienced, professional defense lawyer advocating for you at every step.

Based in Miami, Seltzer Law, P.A., represents clients who are facing criminal charges throughout the state of Florida. If you or a loved one is headed for court and you’d like to discuss your options with an experienced criminal attorney, don’t hesitate to contact us online or call toll-free at 1-888-THE-DEFENSE (1-888-843-3333).

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