           Case: 11-15133   Date Filed: 09/11/2012   Page: 1 of 13




                                                                     [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-15133
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:94-cr-01009-MP-GRJ-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

CLAUDE LOUIS DUBOC,

                                                          Defendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                            (September 11, 2012)

Before HULL, MARCUS and FAY, Circuit Judges.

PER CURIAM:
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      Claude Louis Duboc appeals the district court’s amendment to an existing

criminal forfeiture order to include two Thailand condominiums Duboc owns.

After review, we affirm.

                               I. BACKGROUND

A. 1999 Initial Forfeiture Order

      In 1994, Duboc was charged with drug trafficking and money laundering

between 1982 and 1994. Duboc pled guilty to (1) conspiring to import marijuana

into the United States, in violation of 21 U.S.C. §§ 952, 960(b)(1)(G), and 963,

and (2) conspiring to launder monetary instruments, in violation of 18 U.S.C.

§ 1956(a)(2)(A) and (g). The district court sentenced Duboc to one term of life

imprisonment and one term of 240 months’ imprisonment.

      At Duboc’s 1998 sentencing, the district court also found that Duboc had no

legitimate source of income and that Duboc’s assets were acquired either directly

or indirectly from his drug trafficking. In 1999, pursuant to 21 U.S.C. § 853, the

district court ordered Duboc to forfeit (1) $100 million in proceeds of the crimes

for which Duboc was convicted, less the value of any property forfeited to date,

and (2) a list of specified assets, including automobiles, bank accounts, and real

estate, which were also proceeds of Duboc’s crimes. The district court retained

jurisdiction so that the government could move for amendments to the forfeiture

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order to include newly discovered property and to substitute assets. See Fed. R.

Crim. P. 32.2(e)(1).

      In 2000, Thailand “restrained” two condominiums in Thailand (the

“Thailand condos”) that Duboc owned in response to a request by the United

States under the Mutual Legal Assistance Treaty (“MLAT”) between Thailand and

the United States.

B. 2011 Amended Forfeiture Order

      In 2011, the government moved to amend the 1999 forfeiture order to

include the Thailand condos. The government claimed that Duboc, who is still

incarcerated, acquired these properties when he was engaged in drug trafficking

and that Duboc had no legitimate explanation for the source of the funds used to

purchase the Thailand condos. Accordingly, the government contended that the

Thailand condos were subject to forfeiture (1) in satisfaction of the $100 million

judgment; (2) as proceeds of Duboc’s crimes of conviction, pursuant to 21 U.S.C.

§ 853(a)(1); and (3) as substitute assets, pursuant to 21 U.S.C. § 853(p). The

government further argued that Duboc was collaterally estopped from relitigating

his conviction and the 1999 forfeiture order.

      Proceeding pro se, Duboc responded to the government’s motion. The

district court granted the government’s motion. In its order, the district court

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applied 21 U.S.C. § 853(d), which establishes a rebuttable presumption that

property of a person convicted of certain crimes is subject to forfeiture if the

property was acquired during the period covered by the crime and there is no

likely source for the property other than the crime. The district court determined

that this presumption of forfeiture applied because (1) the Thailand condos were

acquired during the period covered by Duboc’s indictment; (2) the district court

had previously found that Duboc had no significant legitimate income to justify

his wealth; (3) Duboc had identified no persuasive legitimate source for the

acquisition of the Thailand condos; and (4) the district court had found that Duboc

profited in the amount of $100 million from his criminal activity. See 21 U.S.C.

§ 853(d). Alternatively, the district court found that the Thailand condos could be

forfeited as substitute assets in partial satisfaction of the $100 million judgment,

pursuant to 21 U.S.C. § 853(p).

      Duboc appeals pro se. Duboc argues that the district court erred by

amending the forfeiture order because (1) the Thailand condos were not purchased

with proceeds from drug shipments into the United States, and collateral estoppel

does not bar him from litigating issues decided in his earlier criminal proceeding;

(2) the amendment to the forfeiture order was barred by the statute of limitations

or the doctrine of laches; (3) Duboc’s due process rights were violated by the 11-

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year delay between Thailand’s 2000 restraint of the Thailand condos and the

government’s 2011 motion to amend the forfeiture order; and (4) the MLAT

between Thailand and the United States renders void the district court’s amended

order with respect to the Thailand condos.1 We review these issues in turn.

                                      II. DISCUSSION

A. Forfeiture Order Amendment2

       Under 21 U.S.C. § 853(a)(1), anyone convicted of violating, inter alia, 21

U.S.C. §§ 952, 960(b)(1)(G), and 963 shall forfeit “any property constituting, or

derived from, any proceeds the person obtained, directly or indirectly, as the result

of such violation.” Federal Rule of Criminal Procedure 32.2 requires the district

court to determine what property is subject to forfeiture, and, if the government

identifies specific property, whether the government has established the requisite

nexus between the property and the offense. Fed. R. Crim. P. 32.2(b)(1)(A). The

district court may amend a forfeiture order at any time. Fed. R. Crim. P. 32.2(e)(1)


       1
          Although Duboc’s notice of appeal is untimely, the government waived this issue by
failing to raise it in its initial brief. United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir.
2004); see also United States v. Lopez, 562 F.3d 1309, 1312–13 (11th Cir. 2009) (holding that an
untimely notice of appeal filed by a criminal defendant does not deprive the court of appeals of
jurisdiction).
       2
          This Court reviews de novo the district court’s legal conclusions regarding forfeiture,
and it reviews the district court’s findings of fact for clear error. United States v. Puche, 350
F.3d 1137, 1153 (11th Cir. 2003). This Court reviews de novo the application of collateral
estoppel. United States v. Weiss, 467 F.3d 1300, 1308 (11th Cir. 2006).

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(stating that the district court may “at any time enter an order of forfeiture or

amend an existing order of forfeiture”).

      In addition, 21 U.S.C. § 853(d) establishes a rebuttable presumption that

any property of the defendant is subject to forfeiture if the government establishes

by a preponderance of the evidence that (1) the defendant acquired the property

during the time of, or within a reasonable time after, the criminal activity, and (2)

there was no likely source for the property other than the criminal activity.

      Here, the district court did not err by amending the forfeiture order. Under

21 U.S.C. § 853(d), Duboc’s Thailand condos were presumptively subject to

forfeiture because the district court found that (1) Duboc acquired the Thailand

condos during the time covered by his convictions for violating 21 U.S.C. §§ 952,

960(b)(1)(G), and 963, which are offenses covered by § 853(a); and (2) Duboc had

no legitimate source of income during the time in question and had gained over

$100 million from his criminal activity, see id. § 853(d)(2). Accordingly, Duboc

bore the burden of rebutting the presumption that the Thailand condos were

subject to forfeiture.

      To the extent Duboc now argues that he had a legitimate source of income

to account for his acquisition of the Thailand condos, this issue is (1) the same

issue the district court decided at Duboc’s 1998 sentencing; (2) actually litigated at

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Duboc’s 1998 sentencing; and (3) critical and necessary to the district court’s

decision at Duboc’s 1998 sentencing that Duboc’s property was subject to

forfeiture. Accordingly, the doctrine of collateral estoppel precludes Duboc from

relitigating the district court’s finding at Duboc’s sentencing that Duboc had no

legitimate income to justify his wealth. See United States v. Jean-Baptiste, 395

F.3d 1190, 1194–95 (11th Cir. 2005) (explaining that collateral estoppel bars a

criminal defendant from relitigating issues necessarily decided in his criminal

trial).

          In any event, even if Duboc were entitled to relitigate this issue, Duboc fails

to show that “there was no likely source for” the Thailand condos other than

proceeds of the crimes for which he was convicted. 21 U.S.C. § 853(d)(2). Duboc

argues that he was convicted only with respect to drugs he imported into the

United States and that only 2.4 percent of the $100 million he earned was

attributable to drugs he imported into the United States. But even assuming

Duboc’s figure is accurate, this figure alone does not show that the Thailand

condos were not purchased with the proceeds of the crimes for which Duboc was

convicted.3 Indeed, by Duboc’s own math, he realized $2.4 million from these


          3
         The government points out that the district court never made a finding that the profits
attributable to Duboc’s importation of drugs into the United States was limited to 2.4 percent of
$100 million.

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crimes.

       The Thailand condos are thus subject to forfeiture under 21 U.S.C.

§ 853(a)(1) and (d).

B. Statute of Limitations and Laches4

       Duboc next claims that the government’s motion to amend the forfeiture

order was barred by the statute of limitations and the equitable doctrine of laches.

       As to the statute of limitations, Duboc relies on 19 U.S.C. § 1621, which

states that any suit or action to recover any “forfeiture of property accruing under

the customs laws” must be brought within five years of the time when the offense

was discovered. However, § 1621 applies to in rem civil forfeiture proceedings,

not in personam criminal forfeiture judgments, and is therefore inapplicable here.

See United States v. Carrell, 252 F.3d 1193, 1198–99 (11th Cir. 2001) (identifying

§ 1621 as a civil forfeiture statute applicable in civil in rem forfeiture

proceedings); United States v. Bissell, 866 F.2d 1343, 1348 n.3 (11th Cir. 1989)

(“A criminal forfeiture [under 21 U.S.C. § 853] operates in personam against the

defendant, serving as a penalty upon conviction. A civil forfeiture operates in rem

       4
          This Court reviews de novo the district court’s interpretation and application of the
statute of limitations. United States v. Harriston, 329 F.3d 779, 783 (11th Cir. 2003). Although
this Court has not specified the standard of review that applies to the defense of laches in a
criminal forfeiture case, whether the doctrine of laches applies in a civil case is an issue of law
reviewed de novo. See Peter Leterese & Assoc., Inc. v. World Inst. of Scientology Enter., 533
F.3d 1287, 1319 n.38 (11th Cir. 2008). We thus review de novo Duboc’s laches argument.

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against the property itself under the theory that the property is guilty of wrong-

doing.”).

       Even if § 1621 were applicable, the statute of limitations would be tolled

because the Thailand condos are not located in the United States. See 19 U.S.C.

§ 1621(2) (“[T]he time of the absence from the United States of the person subject

to the penalty or forfeiture, or of any concealment or absence of the property, shall

not be reckoned within the 5-year period of limitation.”); United States v. All

Funds in Account Nos. 747.034/278, 747.009/278, & 747.714/278 in Banco

Espanol de Credito, Spain, 295 F.3d 23, 27 (D.C. Cir. 2003) (concluding that

action under § 1621 was commenced during the “absence of the property” because

property was located outside of United States).

      Duboc’s laches argument also fails because the United States is generally

not subject to the defense of laches when it enforces its rights. See United States

v. Summerlin, 310 U.S. 414, 416, 60 S. Ct. 1019, 1020 (1940) (“It is well settled

that the United States is not . . . subject to the defense of laches in enforcing its

rights.”); United States v. Delgado, 321 F.3d 1338, 1349 (11th Cir. 2003) (noting

that “rare exceptions to this [Summerlin] rule” apply only in civil cases and

“ha[ve] never been applied in a criminal context”). Here, the conduct of the

government was the government’s enforcing its rights to seize property Duboc

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obtained with the profits of an international drug trafficking operation. See

Bissell, 866 F.2d at 1349 (recognizing the “principle that the fruits and

instrumentalities of a crime do not belong to the criminal, but rather to the

government”).

       In any event, as noted above, Federal Rule of Criminal Procedure 32.2(e)(1)

permits the district court to amend a criminal forfeiture order “at any time” on

motion by the government. As of 2009, the $100 million judgment had not been

fully satisfied. And no provision of 21 U.S.C. § 853 or the Federal Rules of

Criminal Procedure otherwise limits the time during which the government may

move to amend an existing criminal forfeiture order to seize property subject to

forfeiture under § 853. See United States v. Baker, 227 F.3d 955, 970 (7th Cir.

2000) (explaining that a criminal forfeiture order is an in personam judgment

enforceable “for the balance of [the defendant’s] prison term and beyond”).

C. Due Process and Notice5

       Duboc argues next that the 11-year delay between the United States’s 2000

request that Thailand restrain the Thailand condos and its 2011 motion to amend




       5
        This Court reviews questions of constitutional law de novo. United States v. Paige, 604
F.3d 1268, 1274 (11th Cir. 2010).

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the 1999 forfeiture order violated his Fifth Amendment due process rights.6

Duboc cites Supreme Court and other federal court of appeals cases holding that

due process requires the government to commence property forfeiture proceedings

without undue delay. See, e.g., United States v. Eight Thousand Eight Hundred

and Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555, 562–70, 103

S. Ct. 2005, 2011–15 (1983); Ivers v. United States, 581 F.2d 1362, 1368 (9th Cir.

1978). The problem for Duboc is that the cases he cites are civil, not criminal,

forfeiture cases. For this reason, they do not establish the due process rights of

criminal defendants in cases such as Duboc’s, where the government seeks the

post-conviction forfeiture of proceeds of criminal activity.

       We need not decide what particular due process rights such convicted

criminal defendants enjoy because the procedures used in this particular case,

which were consistent with 21 U.S.C. § 853, were constitutionally adequate.

These procedures included (1) notice and a hearing after Duboc pled guilty and

before the district court entered the 1999 criminal forfeiture order; and (2) notice

       6
           Duboc also claims that he did not receive notice of the government’s motion to amend
the forfeiture order to include the Thailand condos. This argument is without merit. Duboc
initially received an incomplete copy of the government’s motion and did not respond. The
district court then granted the government’s motion. Duboc then received a complete copy of the
government’s motion and the district court granted Duboc an extension of time to respond.
Duboc responded, and the district court, “upon consideration of the defendant’s objections,”
found that “nothing in the objections justify revisiting the prior decision amending the order of
forfeiture.” [R. 1182].

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and an opportunity to respond to the government’s 2011 motion to amend the

1999 forfeiture order to include the Thailand condos. To the extent Duboc argues

that he was entitled to a hearing sooner than 11 years after the government first

arranged for the “restraint” of the Thailand condos, Duboc makes no showing that

he was prejudiced at all by this delay. See Bissell, 866 F.2d at 1354.

D. MLAT Challenge7

       Duboc’s final argument is that the United States and Thailand did not

comply with the MLAT in 2000 when Thailand restrained the condos in response

to a request by United States authorities. Duboc thus claims that the district

court’s amended order is void as applied to the Thailand condos.

       This argument lacks merit. The MLAT provides for “mutual assistance”

between Thailand and the United States with respect to criminal law enforcement.

Treaty on Mutual Assistance in Criminal Matters, U.S.-Thai., art. 1(1), Mar. 19,

1986, S. Treaty Doc. No. 100-18. This treaty defines “assistance” as including,

inter alia, “assisting in forfeiture proceedings.” MLAT, art. 1(2)(h). The MLAT

specifically states that “[a] private party may not rely upon any provision of this

Treaty to impede the execution of a request, or to exclude or suppress evidence



       7
         The interpretation of a treaty is a question of law that this Court reviews de novo. Yapp
v. Reno, 26 F.3d 1562, 1565 (11th Cir. 1994).

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obtained under the Treaty.” MLAT, art. 1(5). In addition, there is a presumption

that international agreements do not create private rights or private causes of

action in domestic courts, even when the agreement directly benefits private

persons. United States v. Valencia-Trujillo, 573 F.3d 1171, 1180–81 (11th Cir.

2009). This presumption and the plain terms of the MLAT show that Duboc, as a

private party, may not use the MLAT as a defense to the forfeiture of the Thailand

condos.

                                 III. CONCLUSION

      For the foregoing reasons, we affirm the district court’s order amending the

1999 forfeiture order to include Duboc’s Thailand condos.

      AFFIRMED.




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