Order Holding Criminal Judgment in Abeyance — United States v. Thompson (Dkt. 99, D. Neb.)

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An order holding criminal judgment in abeyance by U.S. District Judge Brian C. Buescher in United States v. Sharon M. Thompson, No. 8:21-CR-270, in the U.S. District Court for the District of Nebraska, dated and filed February 9, 2023 as Doc # 99, after a sentencing hearing on February 8, 2023. It states that Thompson admitted the forfeiture allegations in her plea agreement and that, at the government's request, the court included forfeiture when announcing the sentence. The court finds that the government never moved for a preliminary order of forfeiture before sentencing, as Rule 32.2(b)(2)(B) requires, and holds the judgment in abeyance while that is addressed, giving the parties two days to suggest revisions to any preliminary order.

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8:21-cr-00270-BCB-SMB Doc # 99 Filed: 02/09/23 Page 1 of 3 - Page ID # 301




                         IN THE UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,

                        Plaintiff,                                      8:21-CR-270

        vs.
                                                            ORDER HOLDING CRIMINAL
SHARON M. THOMPSON,                                          JUDGMENT IN ABEYANCE

                        Defendant.


       This matter comes before the Court following a sentencing hearing on February 8, 2023,

as to defendant Sharon M. Thompson. As part of her plea agreement with the Government,

Thompson admitted to the forfeiture allegations in the Indictment. Filing 55 at 1. At the very end

of the sentencing, the Government requested that the Court orally order forfeiture as part of

Thompson’s sentence pursuant to Federal Rule of Criminal Procedure 32.2(b)(4)(B). In reliance

on the Government’s specific request, the Court included forfeiture when orally announcing

Thompson’s sentence.

       The Court has now discovered that the Government’s request violated applicable rules by

never moving for entry of a preliminary order of forfeiture prior to sentencing. This is a significant

mistake on the Government’s part. Rule 32.2(b)(2)(B) requires a preliminary order of forfeiture

“sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications

before the order becomes final as to the defendant” at sentencing. Fed. R. Crim. P. 32.2(b)(2)(B);

see also United States v. Christensen, No. 4:12CR3044, 2012 WL 5354745, at *1 (D. Neb. Oct.

29, 2012) (noting that the motion for a preliminary order of forfeiture was not filed prior to

sentencing, as required by Rule 32.2(b)(2)). In United States v. Shakur, the Eighth Circuit Court

of Appeals held that the district court’s failure to enter a preliminary order of forfeiture in



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    8:21-cr-00270-BCB-SMB Doc # 99 Filed: 02/09/23 Page 2 of 3 - Page ID # 302




accordance with Rule 32.2(b)(2) was reversible error because it deprived the defendant of “a

meaningful opportunity to contest the deprivation of property rights, as due process required.” 691

F.3d 979, 989–90 (8th Cir. 2012). As another judge in this district has observed, “Failing to enter

a preliminary order of forfeiture prior to sentencing is not merely a technical violation of Rule

32.2, but goes to the fundamental procedural due process requirement that defendants ‘receive

adequate notice and procedures to contest the deprivation of property rights that result from

criminal forfeiture . . . .’” Christensen, 2012 WL 5354745, at *3 (internal quotation marks omitted)

(quoting Shakur, 691 F.3d at 988).

        To correct this error, the Court will proceed as follows.1 Under Federal Rule of Criminal

Procedure 35(a), a district court may within 14 days of sentencing “correct a sentence that resulted

from arithmetical, technical, or other clear error.” Fed. R. Crim. P. 35(a). Sentencing occurred on

February 8, 2023—one day prior to the date of this order—so the deadline under Rule 35(a) will

not pass until February 22, 2023. To stay within the time parameters of Rule 35(a), and to avoid

vacating the defendant’s sentence and holding another hearing, the Court will order that the

Government move to enter a preliminary order of forfeiture by 5:00 p.m. on Thursday, February

9, 2023. The motion should specify the property to be included in the preliminary order of

forfeiture and meet all the other requirements of Rule 32.2. If the Court decides to enter a

preliminary order of forfeiture, the parties will have two days to suggest revisions or modifications

pursuant to Rule 32.2(b)(2)(B). Such amount of time is reasonable given that the forfeiture is

uncontested and the defendant admitted to the forfeiture allegations as part of her plea agreement.

Once that time has passed, the Court will enter an order stating that the preliminary order of

forfeiture has now become final as to the defendant and file the criminal judgment. Until then, the


1
 The Court notes that, in the future, it expects the Government to follow the process outlined in Federal Rule of
Criminal Procedure 32.2 when seeking forfeiture.

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  8:21-cr-00270-BCB-SMB Doc # 99 Filed: 02/09/23 Page 3 of 3 - Page ID # 303




Court’s order of forfeiture pronounced orally at sentencing and the criminal judgment are held in

abeyance. If the defendant has any objections to this procedure, she must file any objections by

5:00 p.m. on Thursday, February 9, 2023. Accordingly,

       IT IS ORDERED:

       1. The order of forfeiture pronounced orally at sentencing and the criminal judgment are

           held in abeyance;

       2. The Government shall move to enter a preliminary order of forfeiture by 5:00 p.m. on

           Thursday, February 9, 2023, as outlined in this order; and

       3. The parties will have two days from the filing of any preliminary order of forfeiture to

           suggest revisions or modifications pursuant to Rule 32.2(b)(2)(B).

       Dated this 9th day of February, 2023.

                                                    BY THE COURT:


                                                    ___________________________
                                                    Brian C. Buescher
                                                    United States District Judge




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