United States District Court, W.D. Virginia, Harrisonburg Division
Kartic Padmanabhan, Assistant United States Attorney, Roanoke, Virginia, for United States.
Norwood Cook, Jr., Pro Se Defendant.
OPINION AND ORDER
JAMES P. JONES, District Judge.
The defendant, Norwood Cook, Jr. ("Cook"), has moved for relief from a criminal order of forfeiture entered when he was sentenced in 2003. For the following reasons, I will deny the defendant's motion.
The subject Order of Forfeiture entered on January 22, 2003 stated, in pertinent part:
WHEREAS in Count Four of the Indictment filed herein on October 9, 2002, the United States sought forfeiture of any and all interest Defendant Norwood Cook, Jr., has in any property which represents proceeds of a violation of 21 U.S.C. §§ 841 and 846, and/or any property which was used, or intended to be used, to facilitate a violation thereof;
AND WHEREAS Defendant pled guilty to Count One of the Indictment, the criminal violation giving rise to the forfeiture, a violation of 21 U.S.C. §§ 841 and 846, possession with the intent to distribute 50 grams or more of cocaine base, also known as "crack" cocaine, and 500 grams or more of cocaine, Schedule II controlled substances;
AND WHEREAS by virtue of said guilty plea, the Defendant acknowledged that certain real and personal property assets are subject to forfeiture to the United States pursuant to 21 U.S.C. § 853, as the property represents proceeds of a violation of 21 U.S.C. §§ 841 and 846, and was used, or intended to be used, to facilitate a violation thereof, and Defendant further agrees to the entry of this Order prior to sentencing.
(Order of Forfeiture 1, ECF No. 17.)
The Order of Forfeiture referenced specific property subject to forfeiture, but also included a monetary judgment in the amount of two million dollars. The order stated that the value of the monetary judgment "was obtained directly or indirectly as a result of the aforestated offense or is traceable to such property." ( Id. at 2.) The order was endorsed as agreed to by Cook and his attorney and stated that it "shall be made a part of the sentence and included in the judgment." ( Id. at 5.)
On January 24, 2003, a criminal judgment was entered against Cook based upon his guilty plea. The Judgment, however, did not incorporate the Order of Forfeiture as required by Federal Rule of Criminal Procedure 32.2, as it existed at the time of Cook's sentencing. See Fed. R. Crim. P. 32.2(b)(3) (2003 version) ("At sentencing - or at any time before sentencing if the defendant consents - the order of forfeiture becomes final as to the defendant and must be made a part of the sentence and be included in the judgment.").
As an initial matter, I will amend the Judgment in accord with Federal Rule of Criminal Procedure 36 to include a reference to the omitted Order of Forfeiture. Pursuant to Rule 36, "[a]fter giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission." Fed. R. Crim. P. 36. Based on the content ...