United States District Court, E.D. North Carolina, Eastern Division
Malcolm J. Howard Senior United States District Judge
matter is before the court upon a letter from defendant,
Phillip Dwayne Adcock, ("Mr. Adcock") [DE #42].
regarding the continued viability of a forfeiture judgment
entered against him. Upon receipt of the letter, this court
directed the United States to submit a response to the court
identifying the legal bases for the continued viability of
the forfeiture judgment. [DE #43]. This court has received
and reviewed the government's response as well as Mr.
Adcock's reply. [DE #45, #47]. This matter is ripe for
December 20, 2002, Mr. Adcock was charged with acts in
violation of Title 21, United States Code, Sections 841 and
846. [DE #1] . On January 6, 2003, the defendant entered into
a plea agreement that included the forfeiture of $24, 000 in
U.S. currency already in the possession of the Government, as
well as the forfeiture of $160, 000, a sum not in the
possession of the Government with unknown whereabouts. [DE
April 4, 2003, this court directed the Clerk of Court,
pursuant to the government's unopposed motion, to enter a
Judgment against the defendant for the forfeitable amount of
$160, 000. [DE #8] . Pursuant to the order, judgment was
entered on April 7, 2003 in the amount of $160, 000 with an
interest rate of 1.19 percent. [DE #9]. However, the court
did not reference this forfeiture judgment in its criminal
judgment entered on April 15, 2003. [DE #11]. Mr. Adcock
served his sentence and, according to his reply, was released
without any attempt by the United States to collect this
debt. [DE #47 at 1].
November 13, 2012, as a result of the revocation of his
supervised release and the addition of an unrelated charge,
Mr. Adcock returned to the custody of the Bureau of Prisons
("BOP"). [DE #37] . In 2014, the BOP required Mr.
Adcock to begin making payments toward the 20 03 forfeiture
judgment or be sanctioned with the loss of certain
privileges. [DE #4 7 at 3]. On September 7, 2016, the court
received a letter from Mr. Adcock requesting documents
relevant to any debts owed to the United States as a result
of his 2003 criminal conviction. [DE #40] . In a subsequent
letter, Mr. Adcock argues the forfeiture judgement is
unenforceable both because it was not included in the final
judgment and collection of the debt does not accord with Rule
69(a) of the Federal Rules of Civil Procedure. [DE #11, #42].
Federal Rule of Civil Procedure 69(a) and North Carolina
General Statute 1-47(1), taken together, provide that a civil
monetary judgement is valid for ten years and may not be
enforced after ten years, unless a motion to renew the
judgment is made within that time, the monetary judgement
herein was in relation to a criminal forfeiture. Therefore,
the rules of criminal, rather than civil, procedure are
Rule of Criminal Procedure 32.2(a) requires that a court
"not enter a judgement of forfeiture . . . unless the
indictment or information contains notice to the defendant
that the government will seek the forfeiture ... as part of
any sentence." The criminal indictment against Mr.
Adcock unequivocally provided notice that it was the intent
of the government to seek forfeiture of "any and all
property used or intended to be used" to facilitate the
alleged criminal offense. [DE #1] . Mr. Adcock was also made
aware of the forfeiture when he signed a plea agreement which
included a $160, 000 forfeiture. [DE #3]. Thus, Mr. Adcock
received sufficient notice on multiple occasions that he
would be held responsible for this monetary judgment.
the forfeiture judgment against Mr. Adcock was not included
or referenced in his judgment of conviction. The court is
required to make the defendant aware of the forfeiture at
sentencing and must include the forfeiture "directly or
by reference in the judgment." Fed. R. Crim. P.
32.2(b)(4)(B). However, "the court's failure to do
so may be corrected at anytime under Rule
36." Id. (emphasis added) . Here, the record
reveals all parties were aware of the forfeiture and intended
it to be included in the final judgment. Therefore, the court
finds the omission to be a clerical error, which does not
invalidate the forfeiture. See U.S. v. Martin, 662
F.3d 3 01, 309-10 (4th Cir. 2011); U.S. v. Quintero,
572 F.3d 351, 353 (7th Cir. 2009)
6 allows the court to correct, "at any time ... a
clerical error in a judgment . . . arising from oversight or
omission." Fed. R. Crim. P. 36. The failure to include
forfeiture language in a final judgment has been held to
constitute a clerical error that may be corrected at the
court's discretion, so long as the parties had prior
notice of the forfeiture. Quintero, at 353. See
U.S. v. Yeje-Cabrera, 430 F.3d 1, 15 (1st Cir. 2005);
U.S. v. Bennett, 423 F.3d 271, 281 (3rd Cir. 2005);
U.S. v Loe, 248 F.3d 499, 464 (5th Cir. 2001);
U.S. v. Hatcher, 323 F.3d 666, 673-74 (8th Cir.
2003) . The court directs the Clerk of Court to correct this
also argues the forfeiture judgment has expired.
Defendant's argument fails, as a judgment of criminal
forfeiture has no expiration because it is in
personam, meaning attached to a particular person.
U.S. v. Fischer, 394 Fed.Appx. 322, 323 (7th Cir.
2010) . Once the judgment of criminal forfeiture has been
made, it continues to be a debt that is owed by the defendant
"until satisfied in full." U.S. v. Delco Wire
& Cable Co., Inc., 772 F.Supp. 1511, 1517 (E.D. Pa.
1991) . Criminal forfeiture judgments "remain in effect
until . . . satisfied" either through the collection of
future earnings or through the forfeiting of substitute
assets. Id. See U.S. v Navarrete, 667 F.3d 886,
887-88 (7th Cir. 2012); U.S. v. Casey, 444 F.3d
1071, 1074 (9th Cir. 2006); U.S. v. Baker, 227 F.3d 955, 970
(7th Cir. 2000) .
that the forfeiture judgment of $160, 000 should have been
referenced in the final judgment of conviction [DE #11],
pursuant to Rule 3 6 of the Federal Rules of Criminal
Procedure, the Clerk of Court is DIRECTED TO ENTER AN AMENDED