             Case: 15-14536    Date Filed: 06/01/2016   Page: 1 of 7


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-14536
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 0:12-cr-60204-WJZ-2

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

STACIE WEISMAN,

                                                            Defendant-Appellant.

                         ________________________

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

                                 (June 1, 2016)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Stacie Weisman appeals the district court’s denial of her Federal Rule of

Civil Procedure 59(e) motion to alter or amend the district court’s amended order

of forfeiture. Weisman entered into a plea agreement, in which she agreed to
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forfeit all assets listed in an attached exhibit (“Exhibit A”), which included

jewelry. In a separate paragraph, the plea agreement stated that Weisman “further

agrees to entry of a money judgment against her in the amount involved in the

violation to which she is pleading guilty.” After entering a preliminary judgment

and order of forfeiture, the district court amended its order to require that the

forfeited Exhibit A assets be turned over to a related bankruptcy estate and that the

money judgment remain in place. On appeal, Weisman argues that the district

court abused its discretion in denying her motion to amend its amended order of

forfeiture because: (1) it was the intention of the parties and the unambiguous

meaning of the plea agreement that the forfeited property would satisfy any money

judgment against her; and (2) if the jewelry sold above its estimated value,

allowing the government to retain the proceeds would result in an impermissible

double recovery. After thorough review, we affirm.

      We review the denial of a Rule 59(e) motion for abuse of discretion.

Mincey v. Head, 206 F.3d 1106, 1135 (11th Cir. 2000). “[A]n abuse of discretion

occurs if the judge fails to apply the proper legal standard or to follow proper

procedures in making the determination, or makes findings of fact that are clearly

erroneous.” Id. at 1137 n.69 (quotations and alterations omitted). The district

court’s factual findings regarding the scope of a plea agreement will be set aside




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only if they are clearly erroneous. United States v. Copeland, 381 F.3d 1101, 1105

(11th Cir. 2004).

      In the context of a Federal Rule of Civil Procedure 60(b) motion, we’ve held

that a defendant could not challenge a criminal forfeiture order under the Federal

Rules of Civil Procedure because the judgment was not entered in a civil case.

United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998).              However,

ancillary proceedings to criminal forfeiture actions are civil in nature. United

States v. Gilbert, 244 F.3d 888, 906-07 (11th Cir. 2001), superseded by rule on

other grounds as stated in United States v. Marion, 562 F.3d 1330, 1340-41 (11th

Cir. 2009). “Although a motion for reconsideration of a district court order in a

criminal action is not expressly authorized by the Federal Rules of Criminal

Procedure, the Supreme Court has held that the timely filing of such a motion in a

criminal action tolls the time for filing a notice of appeal and the time begins to run

anew following disposition of the motion.” United States v. Vicaria, 963 F.2d

1412, 1413-14 (11th Cir. 1992) (citing United States v. Dieter, 429 U.S. 6, 8-9

(1976)).

      Under Rule 59(e), a party can file a motion to alter or amend a judgment

within 28 days of the entry of judgment. Fed. R. Civ. P. 59(e). The only grounds

for granting a motion to alter or amend a judgment under Rule 59(e) are newly

discovered evidence or manifest errors of law or fact. Arthur v. King, 500 F.3d


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1335, 1343 (11th Cir. 2007). A motion to alter or amend a judgment may not be

used “to relitigate old matters, raise argument or present evidence that could have

been raised prior to the entry of judgment.” Id. (quotation omitted). It is not an

abuse of discretion for the district court to deny a Rule 59(e) motion based on a

new legal theory or arguments that should have been submitted prior to the initial

judgment. Mincey, 206 F.3d at 1137 n.69. Moreover, new evidence can only be

the basis for a successful Rule 59(e) motion if the evidence was unavailable at the

time of the judgment. Id.

      “[W]hen a guilty plea has been induced by a promise or agreement of the

government, such promise or agreement must be fulfilled.”          United States v.

Hauring, 790 F.2d 1570, 1571 (11th Cir. 1986); see also United States v. Harvey,

869 F.2d 1439, 1443 (11th Cir. 1989) (en banc) (“Due process requires the

government to adhere to the terms of any plea bargain.”). To determine the

meaning of any disputed terms in a plea agreement, a court applies an objective

standard and determines whether the government’s actions were inconsistent with

the defendant’s reasonable understanding when he pled guilty. Copeland, 381 F.3d

at 1105. “The written agreement should be viewed against the background of the

negotiations and should not be interpreted to directly contradict an oral

understanding.” Id. (quotation omitted). In this two-step process, the district court

first considers whether the language in the plea agreement was ambiguous, and if


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so, it considers extrinsic evidence. Id. at 1105-06. An ambiguous plea agreement

must be read against the government. Id. If it is not ambiguous, the court will

limit its interpretation to the clear meaning of the wording. Id. at 1105. Second,

the court decides if it should enforce the agreement, in light of the fact that the

validity of a guilty plea transaction ultimately depends on how voluntarily and

intelligently the defendant entered his plea. Id. at 1106.

       Here, the district court did not abuse its discretion in denying Weisman’s

motion to alter or amend its amended order of forfeiture. 1 For starters, the plea

agreement’s forfeiture provisions were not ambiguous and did not entitle Weisman

to apply the value of the Exhibit A property to the money judgment, even if they

sold for more than the estimated value. Paragraph 14 of the agreement stated that

the Exhibit A property was to be forfeited, while paragraph 15 stated that Weisman

further agreed to a money judgment in the amount involved in her laundering. The

language shows that these provisions were not dependent on each other and the

money judgment was in addition to the forfeiture. Plus, the agreement did not

mention Weisman’s ability to credit the Exhibit A property toward the money

judgment, nor did it reference the value of the property in any way.



1
 Although it is unclear whether the district court would have had authority to grant relief in
Weisman’s criminal forfeiture action through the Federal Rules of Civil Procedure, it is
unnecessary to address the issue. As we discuss above, even assuming the district court could
grant Weisman such relief, a review of the record reveals that the district court did not abuse its
discretion in denying Weisman’s motion.
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      Moreover, viewing the agreement in context of the ongoing negotiations, it

is clear that the Exhibit A assets were those assets connected to the criminal

activity that had already been recovered by the government during the

investigation. The money judgment, on the other hand, was intended to address

those assets that were at the heart of Weisman’s conviction -- namely, the missing

assets that were sold by Weisman and others to prevent the government’s seizure.

Neither the missing property nor the proceeds from the sale of the missing property

were recovered by the government, which meant that a money judgment was

needed to recover the value. Indeed, at the plea colloquy, the district court recited

the plea agreement’s forfeiture provisions and there was no discussion of credit for

forfeited assets or any set off. In short, any understanding Weisman had regarding

credit for forfeited Exhibit A assets was not supported by the plea agreement, plea

colloquy, or background information, and was thus not a reasonable interpretation.

      As for her claim that the government’s recovery would result in a double

recovery, we are unpersuaded. The Exhibit A assets were separate from the assets

represented by the money judgment. The plea agreement sought to recover the

Exhibit A assets regardless of their value because they were seized during the

investigation into the criminal activity of Scott Rothstein, Weisman, and the other

co-defendants.   The money judgment, however, was an estimate of the sales

resulting from Weisman’s laundering activity. Thus, the sale of the Exhibit A


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assets, even above the estimated value, did not affect the estimated impact of

Weisman’s laundering.

     AFFIRMED.




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