   Case: 13-2363     Document: 003111406620          Page: 1     Date Filed: 10/02/2013



                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 13-2363
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                             COREY ALEXIS BERNARD,
                                               Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                     (D.C. Criminal Action No. 2-12-cr-00229-001)
                     District Judge: Honorable Mary A. McLaughlin
                      ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 October 1, 2013
       Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: October 2, 2013 )
                                      ___________

                                        OPINION
                                       ___________

PER CURIAM

       Corey Alexis Bernard appeals from an order of the United States District Court for

the Eastern District of Pennsylvania, which denied his motion that he characterized as a

motion to return property filed pursuant to Fed. R. Crim. P. 41(g). Bernard pleaded

guilty to willful failure to report currency in violation of 31 U.S.C. §§ 5322 and 5316,
    Case: 13-2363     Document: 003111406620         Page: 2      Date Filed: 10/02/2013



bulk cash smuggling in violation of 31 U.S.C. § 5332, and making false statements in

violation of 18 U.S.C. § 1001. He indicated at the plea hearing that he planned to dispute

the appropriateness of forfeiture. However, at his sentencing hearing, he affirmed several

times that he had decided not to contest forfeiture. The District Court signed a

preliminary order of forfeiture of the sum of $193,046 on January 24, 2013, and included

the forfeiture in an oral sentencing. The preliminary order was entered the following day,

in conjunction with a written judgment. See United States v. Bennett, 423 F.3d 271, 281-

82 (3d Cir. 2005).

       In a document dated April 4, 2013, and entitled “Pursuant to Rule 41(g), Claimant

seek to pursue Motion to Return Property that was waived because of illadvice [sic] of

counsel,” Bernard sought to have the sum of $193,046 returned, arguing that he waived

return of funds because he did not understand the terms of the forfeiture, thus rendering

his guilty plea “unknowing, involuntary, and unintelligently entered.” 1 Dkt. #39. The

District Court denied relief in an order entered April 11, 2013, explaining that the issue

had been “thoroughly discussed at the sentencing hearing and in papers filed prior to

sentencing.” Dkt. #40. The Court concluded that Bernard “knowingly withdrew his

objections to forfeiture.” Bernard filed a notice of appeal, dated May 6, 2013, and

entered the following day.


1
 Although we do not reach the merits of Bernard’s motion, we note that the Supreme
Court has rejected a claim that a court’s failure to establish the factual basis for a
forfeiture provision contained in a plea agreement undermines the guilty plea, as
forfeiture is an aspect of sentencing, rather than an element of the offense. Libretti v.
United States, 516 U.S. 29, 38 (1995).

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       We have held that a motion to return property pursuant to Fed. R. Crim. P. 41 is

treated as a civil complaint, and that the time for filing an appeal is thus governed by

Rule 4(a) of the Federal Rules of Appellate Procedure. United States v. Bein, 214 F.3d

408, 411 n.3 (3d Cir. 2000). Thus, Bernard’s notice of appeal was timely filed, and we

decline the Government’s invitation to dismiss this appeal for lack of jurisdiction.

       However, the District Court lacked jurisdiction to consider Bernard’s motion, as it

was not a proper Rule 41(g) motion for return of property. See id. at 411 (Government

must return property seized for evidence after criminal proceedings conclude, “unless it is

contraband or subject to forfeiture”) (emphasis added). Bernard’s motion did not seek

return of other property that was not subject to the forfeiture order; rather, it was a

challenge to the forfeiture order itself, and “is best seen as an improper attempt to

challenge a component of his sentence.” Young v. United States, 489 F.3d 313, 315

(7th Cir. 2007). “[A] criminal forfeiture is part of the defendant’s sentence and must be

challenged on direct appeal or not at all.” Id.; see also United States v. Pelullo, 178 F.3d

196, 202 (3d Cir. 1999) (forfeiture order is final, appealable order at sentencing as

forfeiture order conclusively determines all of defendant’s interest in forfeited property).

       For the foregoing reasons, we will modify the District Court judgment to reflect a

dismissal for lack of subject matter jurisdiction, and will affirm the judgment as

modified.




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