United States v. Ereme , 339 F. App'x 340 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5094
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EMMANUEL THAD EREME,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:02-cr-00478-PJM-2)
Submitted: July 13, 2009 Decided: July 31, 2009
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney,
Deborah Johnston, Bryan E. Foreman, Christen A. Sproule,
Assistant United States Attorneys, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Emmanuel Thad Ereme is serving 144 months in prison
for conspiracy to dispense, distribute and possess with intent
to distribute Schedule II controlled substances, in violation of
21 U.S.C. § 846 (2006), as well as several counts of unlawfully
dispensing various Schedule II controlled substances, in
violation of 21 U.S.C. § 841(a)(1) (2006). On direct appeal,
this court affirmed Ereme’s conviction and sentence, but
dismissed his appeal of the district court’s preliminary
forfeiture order. See United States v. Ereme, 2007 WL 1046887,
*1 n.1 (4th Cir. Apr. 9, 2007) (Nos. 05-4263, 05-4327, 06-4575).
In this present appeal, Ereme challenges the district
court’s order denying his motion to vacate the district court’s
preliminary forfeiture order against him or, in the alternative,
for an evidentiary hearing on the Government’s motion for a
final forfeiture order. Ereme asserts that the district court
erred when it relied on the mandate rule to deny his motion to
vacate the preliminary forfeiture order because he contends that
the district court lacked subject matter jurisdiction to enter
the order after final judgment was entered and, accordingly, his
post-appeal challenge to the validity of that order was not
foreclosed by the mandate rule. Because the preliminary
forfeiture order was purportedly invalid, Ereme asserts that the
district court’s final forfeiture order is also invalid. Ereme
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also asserts that the district court erred when it ordered
forfeiture of Ereme’s home without conducting an evidentiary
hearing to determine what amounts, if any, were collected toward
satisfying the forfeiture amount from his “co-defendants.”
Finding no error, we affirm.
First, the district court correctly refrained from
considering the validity of its preliminary forfeiture order on
Ereme’s motion to vacate because Ereme had an opportunity to
challenge that order on his direct appeal to this court, but
waived any challenges he may have had. See United States v.
Bell, 5 F.3d 64, 66 (4th Cir. 1993) (stating that the mandate
rule “forecloses relitigation of issues expressly or impliedly
decided by the appellate court,” as well as “issues decided by
the district court but foregone on appeal.”).
“[T]he doctrine [of the law of the case] posits that
when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the
same case.” United States v. Aramony, 166 F.3d 655, 661 (4th
Cir. 1999) (internal citation and quotation marks omitted). The
law of the case must be applied:
“in all subsequent proceedings in the same case in
the trial court or on a later appeal . . . unless:
(1) a subsequent trial produces substantially
different evidence, (2) controlling authority has
since made a contrary decision of law applicable to
the issue, or (3) the prior decision was clearly
erroneous and would work manifest injustice.”
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Id. (internal citation and quotation marks omitted); see Doe v.
Chao, 511 F.3d 461, 464-66 (4th Cir. 2007) (discussing mandate
rule and its exceptions). Because Ereme’s claims do not fall
within any of the exceptions to the law of the case doctrine, he
was foreclosed by his prior, unsuccessful appeal from litigating
the validity of the preliminary forfeiture order on his
subsequent motion to vacate.
We reject Ereme’s suggestion that the district court’s
failure to strictly follow Fed. R. Crim. P. 32.2 divested it of
subject matter jurisdiction to issue the preliminary forfeiture
order after entering final judgment. Ereme does not allege that
he was unaware at the time he was sentenced that a forfeiture
order would be filed against him. To the contrary, the
Government’s indictment explicitly included forfeiture
allegations and referenced Ereme’s home as a possible substitute
asset. Moreover, a bifurcated jury proceeding was held on the
forfeiture issue and the jury returned a verdict specifically
assessing the forfeiture amount. It was Ereme’s own objection
to the Government’s proposed entry of a preliminary forfeiture
order that caused the district court to forego including the
jury’s forfeiture verdict in its final judgment. Accordingly,
we find that the district court’s entry of its preliminary
forfeiture order, only ten days after entry of judgment, was not
jurisdictionally flawed. Rather, it constituted merely a brief
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technical delay, brought about by and insisted upon by Ereme
himself. See United States v. Koch, 491 F.3d 929, 931-32 (8th
Cir. 2007) United States v. Yeje-Cabrera, 430 F.3d 1, 13-15 (1st
Cir. 2005); United States v. Loe, 248 F.3d 449, 464 (5th Cir.
2001).
We also find that the district court did not err in
denying Ereme’s request for an evidentiary hearing on the
Government’s motion for a final forfeiture order to determine
what amounts, if any, had been collected from his “co-
defendants” toward satisfaction of the forfeiture amount. Ereme
was the sole defendant named in the indictment and the
preliminary forfeiture order was entered only against him.
Since no other order exists declaring that any other individual
was in any way responsible for payment of the forfeiture amount,
Ereme is solely and individually responsible for the entire
settlement of that order. ∗ The cases relied upon by Ereme to
support his argument are not to the contrary. See United
States v. Pitt, 193 F.3d 751, 765 (3d Cir. 1999) (interpreting
18 U.S.C. § 982(a)(1) (2006)’s forfeiture requirement as
∗
No forfeiture orders were filed in any of Ereme’s co-
conspirators’ separate actions. See United States v. Wheatley,
8:02-cr-478-PJM-1 (D. Md. Feb. 7, 2005); United States v.
Jackson, 8:02-cr-478-PJM-3 (D. Md. May 25, 2006); and United
States v. Jackson, 8:02-cr-478-PJM-4 (D. Md. March 29, 2005).
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imposing a rule of joint and several liability and applying it
to two individuals who “were both convicted as coconspirators”)
(emphasis added); United States v. Saccoccia, 62 F. Supp. 2d
539, 542 (D.R.I. 1999) (holding that the amount the defendant
must forfeit “must be reduced by amounts already forfeited by
his co-defendants pursuant to the forfeiture judgments entered
against them in this case”) (emphasis added).
Based on the foregoing, we affirm the district court’s
orders. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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