30-Day Forfeiture Deadline Applies to Minors

United States v. Alvarez, No. 11-41371 (Higginbotham, Smith, Elrod)

The moral of this story could be that deadlines matter and, if you miss one, ask for an extension instead of (or in addition to) arguing that the deadline doesn’t apply to you.

Claimant, the minor child of Defendant Alvarez, appealed an order of forfeiture regarding property that Alvarez agreed to forfeit in his plea agreement because it was used in furtherance of the conspiracy to distribute cocaine. The government attempted to notify the minor child and her mother of the preliminary forfeiture and the thirty days to file a claim by posting on the government’s forfeiture website and by personal service to the mother and to the grandmother. Seventy-four days after service, the mother filed a claim on the minor’s behalf. The government moved for dismissal on various grounds, including the minor’s failure to file timely, and the district court dismissed the claim.

The panel considered only the failure to file timely. It found that the government made a reasonable effort to provide the minor notice and rejected arguments that the deadline should be more flexible for minors. The panel affirmed dismissal of the minor’s claim but remanded so the judgment could be corrected to include the forfeiture as required by Federal Rule of Criminal Procedure 32.2(b)(4)(B).

The panel noted that the minor did not move to extend the deadline under Rule 6(b)(1) due to excusable neglect. Perhaps if the minor had done so, the panel would have had to address the other issue raised on appeal: whether the minor was a bona fide purchaser for value or holder of a legal interest in the property under 21 U.S.C. § 853(n).