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United States v. Carman

United States Court of Appeals, Sixth Circuit

August 6, 2019

United States of America, Plaintiff-Appellee,
v.
Christina Carman, Defendant-Appellant.

          Argued: May 3, 2018

          Appeal from the United States District Court for the Eastern District of Kentucky at Ashland. No. 0:14-cr-00020-2-David L. Bunning, District Judge.

         ARGUED:

          Nicole S. Elver, DRESSMAN BENZINGER LAVELLE PSC, Louisville, Kentucky, for Appellant.

          John M. Pellettieri, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

         ON BRIEF:

          Nicole S. Elver, Kent Wicker, DRESSMAN BENZINGER LAVELLE PSC, Louisville, Kentucky, for Appellant.

          John M. Pellettieri, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Laura K. Voorhees, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.

          Before: SUHRHEINRICH, GIBBONS, and KETHLEDGE, Circuit Judges.

          OPINION

          KETHLEDGE, CIRCUIT JUDGE.

         Subject to very few exceptions, the filing of a notice of appeal shifts from the district court to the court of appeals adjudicatory authority over any aspect of the case-here, Christina Carman's conviction and sentence-involved in the appeal. Yet here-more than four months after the district court had entered its criminal judgment, and nearly as long after Carman had appealed-the district court purported to amend her sentence by entering a $17.5 million forfeiture order. By then the district court had lost authority to enter that order (though not for the reasons Carman says). We therefore vacate the order.

         In 2014, Carman was indicted with three co-defendants for her involvement in a years-long conspiracy to sell untaxed cigarettes on a massive scale. See United States v. Maddux, 917 F.3d 437 (6th Cir. 2019). The indictment stated that the government would seek both the forfeiture of various items of property and a money judgment in the amount of $45 million, representing alleged proceeds of the conspiracy. On January 27, 2016, a jury convicted Carman (along with two of her co-defendants; one had pled guilty) of conspiracy to commit mail and wire fraud. The district court held a forfeiture hearing the next day. See generally Fed. R. Crim. P. 32.2(b)(1). At the hearing, the government stated that the only items of property it sought from Carman were two Cadillac Escalades, which she agreed to forfeit. That left the question of a money judgment, which the parties agreed to submit on briefs. Accordingly, the government later moved for a preliminary order of forfeiture, see generally Fed. R. Crim. P. 32.2(b)(2), requesting a money judgment against Carman of about $35 million. Carman responded in opposition. By April 2016 the matter was fully briefed.

         There matters stood until August 30, 2016, when the district court sentenced Carman and each of her co-defendants. The district court sentenced Carman to 60 months' imprisonment without ruling upon the government's motion for a money judgment or otherwise mentioning a forfeiture order. (The district court later stated during a different defendant's sentencing hearing-which is to say, a hearing not relevant here-that it would "take up later" the issue of "any money judgments[.]" R. 623 at 7339.). Nor did the government ask for such an order during Carman's hearing. The very next day-August 31, 2016-the district court entered its criminal judgment in Carman's case. (That judgment included a cryptic reference to the forfeiture of in rem property, but the government does not dispute that the reference was a clerical error.) On September 6, 2016, Carman filed a notice of appeal as to that judgment. Our court thereafter set a briefing schedule, pursuant to which Carman filed her opening brief on January 3, 2017.

         Two weeks later-and more than four months after Carman appealed her conviction and sentence to this court-the district court entered a forfeiture order against Carman in the amount of approximately $17.5 million. Carman then filed a ...


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