          Case: 15-11833   Date Filed: 07/07/2016   Page: 1 of 5




                                                         [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-11833
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:12-cr-20468-JAL-2



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee.

                               versus

MICHAEL GARRETT CHAVOUS,

                                                                     Defendant,

ELAINE CHAVOUS,

                                                    Interested Party-Appellant.

                     ________________________

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

                             (July 7, 2016)
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Before TJOFLAT, WILLIAM PRYOR and FAY, Circuit Judges.

PER CURIAM:

      In November 2012, Michael Chavous was sentenced on a plea of guilty to

conspiracy to traffick cocaine. His sentence contained a provision forfeiting to the

United States $65,000 in U.S. currency. 1 In United States v. Chavous, 522

Fed.Appx. 799 (11th Cir. 2013), we affirmed his conviction and his sentence,

which the exception of the forfeiture provision which he did not challenge. In

January 2014, Chavous petitioned the District Court for an order setting aside the

forfeiture. The court denied the motion, and on appeal, we affirmed, treating

Chavous’ motion as a Federal Rule of Criminal Procedure 41(g) motion for the

return of seized property. United States v. Chavous, 589 Fed.Appx. 468, 469 (11th

Cir. 2014).

      In January 2015, Chavous’ wife, Elaine Chavous, alleging ownership of the

forfeited $65,000, petitioned the District Court pursuant to 21 U.S.C. § 853(n) to

hold a hearing so that her right to the money could be determined. The court

referred the petition to a Magistrate Judge, who recommended that it be denied as

untimely. The District Court, adopting the recommendation, denied the requested

hearing and thus the petition. This appeal followed.




      1
          A co-defendant, sentenced earlier, also forfeited to the United States the same $65,000.
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      On appeal, Mrs. Chavous, appearing pro se, argues that: (1) the government

failed to meet the burden of proof necessary to acquire a forfeiture order; (2) the

forfeiture violated both her and Mr. Chavous’s due process rights; (3) Mr.

Chavous’s trial and appellate counsel were ineffective; and (4) the district court

should have considered her objections to the magistrate judge’s Report and

Recommendation (“R&R”). After review of the record and consideration of the

parties’ briefs, we affirm the District Court’s decision.

      We review a district court’s legal conclusions regarding third-party claims to

criminally forfeited property de novo and its factual findings for clear error.

United States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009).

      Criminal forfeiture proceedings are governed by 21 U.S.C. § 853 and Fed.

R. Crim. P. 32.2. See 21 U.S.C. § 853; Fed. R. Crim. P. 32.2. Any person

convicted of certain felony drug offenses must forfeit any property derived from

the violation. 21 U.S.C. § 853(a). If the court finds that property is subject to

forfeiture, it must promptly enter a preliminary order of forfeiture without regard to

any third party’s interest in the property. Fed. R. Crim. P. 32.2(b)(2). Following

the entry of an order of forfeiture, including a preliminary order, the government

must publish notice of its intent to dispose of the property and provide direct

written notice to any person known to have an alleged interest in the property to

the extent practicable. Marion, 562 F.3d at 1339; 21 U.S.C. § 853(n)(1); Fed. R.


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Crim. P. 32.2(b)(6). The preliminary order becomes final as to the defendant at

sentencing. Fed. R. Crim. P. 32.2(b)(4). A third party has 30 days after the final

publication of notice to petition the court for a hearing to adjudicate the validity of

her interest in the property. 21 U.S.C. § 853(n)(2). If a third party fails to file a

petition before the deadline, she forfeits her interest in the property. Marion, 562

F.3d at 1337. Following the court’s disposition of all petitions, or if no petitions

are timely filed, the United States receives clear title to the property. 21 U.S.C.

§ 853(n)(7).

      If a third party files a petition asserting an interest in the property as

prescribed by statute, the court must conduct an ancillary proceeding. Fed. R.

Crim. P. 32.2(c)(1). If no third party files a timely petition, the preliminary order

becomes the final order of forfeiture if the court finds that the defendant, or any

combination of defendants convicted in the case, had an interest in the property

that is forfeitable. Fed. R. Crim. P. 32.2(c)(2). Neither the defendant nor a third

party may object to the final order on the ground that the third party had an interest

in the property. Id.

      An ancillary proceeding constitutes the sole means by which a third party

can establish entitlement to the forfeited property. United States v. Davenport, 668

F.3d 1316, 1320 (11th Cir. 2010). Third parties are barred from intervening in a

trial or appeal of a criminal case involving the forfeiture of property, and are


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instead limited to participating in the ancillary proceeding. Id.; 21 U.S.C. § 853(k).

Third parties cannot relitigate the merits of the forfeitability of property, but can

only use the ancillary proceeding to determine if they have a legal interest in the

forfeited property. Davenport, 668 F.3d at 1321. The sole mechanism for

vindicating a third party’s purported interest in forfeited property is the ancillary

proceeding. Id. They lack standing to challenge the validity of the order of

forfeiture itself. Id.

       The District Court properly determined that Mrs. Chavous’s third-party

petition in response to the criminal forfeiture was untimely because it was filed

over two years after the mandatory deadline. The government’s publication of

forfeiture provided sufficient notice under the circumstances because it had no

reason to believe that she had an interest in the property. Finally, Mrs. Chavous

lacks standing to raise her remaining arguments that the government failed to meet

its burden of proof in Mr. Chavous’s criminal trial and that Mr. Chavous’s trial and

appellate counsel were ineffective because these two arguments challenge the

validity of the preliminary order of forfeiture in the underlying criminal trial,

which only Mr. Chavous has standing to challenge.

       AFFIRMED.




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