211 F.3d 175 (1st Cir. 2000)
UNITED STATES OF AMERICA, Appellee,v.HERBERT DERMAN, Defendant, Appellant.
Nos. 99-1577, 99-1578
United States Court of Appeals For the First Circuit
Heard February 9, 2000Decided May 5, 2000

[Copyrighted Material Omitted]
Richard M. Egbert, with whom Mary Ellen Kelleher was on brief,  for appellant.
Ariane D. Vuono, Assistant U.S. Attorney, with whom Donald K.  Stern, United States Attorney, and Shelbey Wright, Assistant U.S.  Attorney, were on brief, for appellee.
Before: Selya, Boudin, and Lynch,  Circuit Judges.
LYNCH, Circuit Judge.


1
Herbert Derman, a lawyer, was  charged with eight counts stemming from a marijuana-growing  operation on the property of his weekend home along the Massachusetts-New York border.  A jury convicted Derman of two  counts: conspiracy to manufacture, distribute, and possess with  intent to manufacture and distribute marijuana, see 21 U.S.C.  § 846, and criminal forfeiture, see 21 U.S.C. § 853.  Derman was  sentenced to a term of 121 months in prison; five years of  supervised release; a fine of $20,000; and forfeiture of his  weekend home and property.  Derman appeals his conviction and  sentence on four grounds: (1) claimed prosecutorial misconduct  through a persistent appeal to class prejudice; (2) denial of his  motion to suppress evidence obtained during searches of his  properties; (3) failure of the court to offer and his trial counsel  to request an opportunity for closing arguments on the forfeiture  count; and (4) errors regarding the timing of his appeal of the  forfeiture sentence.  This last issue involves an important point  of criminal procedure: we decide when an order of forfeiture,  entered after the 1996 amendments to Rule 32, becomes final,  thereby triggering the time for appeal.  We affirm the judgment and  sentence.

I.

2
Herbert Derman owned property, consisting of two parcels,  that straddled the Massachusetts-New York border.  Derman, together  with his wife, Barbara Derman, had a weekend home on the New York  side, in the town of Hillsdale.  In 1983, Derman leased a portion  of the property on the Massachusetts side, in the towns of North  Egremont and Alford, to Marcel Rosenzweig for the purpose of  erecting a greenhouse.  Rosenzweig erected the greenhouse in the  spring of 1984.  Above ground the new structure appeared to be a  commercial greenhouse, below ground the space was designed for the  greenhouse's true purpose: growing marijuana.  Marijuana was grown  in the underground location until September 1991 when Richard  Haber, an indicted co-conspirator, was arrested at the site for  possession of a small amount of marijuana.  Though the underground  operation was not discovered at this time, as a precautionary  measure, the operation was moved to Rosenzweig's property in  Sandisfield, Massachusetts, where it continued until it was exposed  on August 17, 1995.


3
In December 1995, agents obtained and executed search  warrants on Derman's New York City apartment, his New York City law  office, his Hillsdale residence, his Massachusetts property, and  his Vail, Colorado home.  Eventually, Derman and six others,  including Rosenzweig and Haber, were charged with various federal  crimes relating to the marijuana-growing operation.1


4
In contrast to his indicted co-conspirators, who pled  guilty in accordance with plea agreements,2 Derman decided to stand  trial.  His principal defense was that he had no knowledge of the  marijuana-growing operation on his property.  Derman's motion to  suppress the evidence seized during the searches of his properties  was denied on July 23, 1998.  See United States v. Derman, 23 F.  Supp. 2d 95, 98 (D. Mass. 1998).  On July 29, 1998, a jury returned  guilty verdicts on counts one and thirteen and not guilty verdicts  on the remaining counts.  On the government's motion, the court,  after issuing three stays to allow Derman time to file a brief,  entered a preliminary order of forfeiture on November 6, 1998.  On  December 15, 1998, Derman filed a motion for leave to file a late  notice of appeal of the preliminary forfeiture order.  The court  denied this motion on January 4, 1999.  Two days later, Derman  filed another motion, which the court construed as a motion for  reconsideration of the motion for leave to file a late notice of  appeal.  On March 5, 1999, Derman was sentenced and on March 22,  1999, the court denied Derman's motion for reconsideration.  He now  appeals.

II.

5
Derman's appeal concentrates on the charge of  prosecutorial misconduct through a persistent appeal to class  prejudice.  His accusation focuses not only on statements by the  prosecutor, the usual subject of misconduct allegations, but also  on the government's trial strategy, which, Derman says, combined  inappropriate prosecutorial statements with the introduction of  class-biased evidence.  Derman points, in particular, to nine  instances during the trial:


6
1. the admission into evidence of a photograph of Barbara  Derman in a ski outfit with mountains in the background  and a witness's identification of Mrs. Derman in the  photograph;


7
2. the questioning of Derman's secretary about "Derman's  life-style back in the early 1970s when [she] began to  work for him;"


8
3. the questioning of another secretary about Derman's  property, possessions, and vacations;


9
4. the admission into evidence of a part of a videotape  of Derman's Hillsdale home, which had been searched;


10
5. the admission into evidence of certain photographs  from a photo album, as well as the cover page to the  album, which was labeled "Special Memories" and which  identified the locations photographed in the album,  including some other than the locations in the admitted  photographs;


11
6. the testimony of a Drug Enforcement Administration  agent that the photo album contained photographs  depicting all of the locations named in the "Special  Memories" list;  7. the cross-examination of Barbara Derman regarding the  locations identified in the "Special Memories" list;


12
8. the introduction into evidence of receipts from  Cartier jewelers and another jeweler and the questioning  of Barbara Derman regarding these items;


13
9. the references in the prosecutor's closing argument  and rebuttal to vacations and jewelry and the statement  that "if there is one thing that this case has shown[,  it] is that the Dermans needed and wanted to get more  money."


14
At trial, Derman objected to items 1,3 2, 3,4 and 8 on various  grounds and to items 4 and 5 on the basis of class bias.  At trial,  Derman did not make the allegation he now makes that the  prosecution engaged in a course of conduct at trial that was based  on class prejudice.


15
The government contends that the prosecutor's comments  during the trial "focused directly on Derman's claim . . . that he  had no motive, financial or otherwise, to engage in a drug  conspiracy."  Further, it says that "[e]vidence of Derman's  lifestyle was specially relevant . . . to show how he used the  proceeds."  The government also contended at oral argument that  Derman's attorney opened the door to this line of inquiry when he  asked rhetorically in his opening argument, "where is the money?"


16
Courts have found prosecutorial misconduct for  introducing class bias when prosecutors have engaged in actions  that might inflame the passions of the jury to such an extent as to  call into doubt the fairness of the trial.  The Second Circuit, in United States v. Stahl, 616 F.2d 30 (2d Cir. 1980), reversed a  judgment of conviction in a jury trial where the record indicated  that the prosecutor "intend[ed] to arouse prejudice against the  defendant because of his wealth and engaged in calculated and  persistent efforts to arouse such prejudice throughout the trial  . . . [and] made several statements . . . that were not supported  by the evidence and may, in some instances, have been intentionally  misleading."  Id. at 32.  Similarly, the Sixth Circuit, in Sizemore v. Fletcher, 921 F.2d 667 (6th Cir. 1990), upheld the issuance of  a writ of habeas corpus in a case where the prosecutor "made  repeated and deliberate statements clearly designed to inflame the  jury and prejudice the rights of the accused, and the court [did]  not offer[] appropriate admonishments to the jury."  Id. at 670; see also Read v. United States, 42 F.2d 636, 645 (8th Cir. 1930)  (reversing guilty verdict in misappropriation of funds case).  As  this court stated in United States v. Rothrock, 806 F.2d 318 (1st  Cir. 1986), "[a]rgument, especially the government's, should not  degenerate into an appeal to prejudice."  Id. at 323.


17
That said, the line between statements that are "appeals  to class prejudice [that] are highly improper and cannot be  condoned" and statements regarding class that are "relevant to the  issues at hand" is not easily drawn.  United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239 (1940).  It is especially  difficult to draw when an accused's motivation is at issue, and  when, as here, the alleged motivation is financial.  Derman says  that the government crossed the line and that his conviction should  be reversed and his sentence vacated.5


18
We have no need to worry about the remedy because there  was no misconduct.  The statements by the prosecutor, during the  trial and during closing arguments, went to the motive for the  alleged crimes and did not impermissibly stray into class bias. Derman's motive was not only essential to the government's case,  but also crucial to the defense, as is evidenced by defense  counsel's question, in his opening argument, "where is the money?,"  and by his statement, in his closing, "There is no money, they  can't find any money."


19
Additionally, the district court judge was sensitive to  the potential prejudicial effect of the evidence admitted.6  With  this in mind, he limited the introduction of the number of  photographs of Barbara Derman, he restricted the extent to which  the photo album could be used, and he curtailed the use of the  videotape.  Further, he made an offer to give a limiting  instruction on some of the admitted evidence, an offer which the  defense did not accept.


20
Finally, there is no indication, looking at the totality  of the evidence admitted and the statements made by the prosecutor,  that there was a trial strategy or course of conduct that,  intentionally or unintentionally, would lead to the unlawful  enkindling of class bias in the jury.

III.

21
Derman also contests the denial of his motion to  suppress.  See Derman, 23 F. Supp. 2d at 102.  He specifies three  errors: (1) the warrants were not sufficiently particular; (2) the  scope of the search at the law firm exceeded the authority of the  warrant; and (3) the warrant was not provided to Derman's agent at  his law office when requested.7


22
First, Derman alleges that the search warrants were  insufficiently particular.  "[T]here is no guidance whatsoever in  the warrant[s]," he says, "to assist the executing officers in  their determination of what items are authorized to be seized."  He  cites to four of the warrants' descriptions of items to be seized:


23
"5. All unprivileged documents in client  files" relating to certain individuals and  companies;


24
"6. All documents relating to any transaction  between [the various alleged co-conspirators]  identified in the . . . affidavit . . .  including canceled checks, cashier's checks,  money orders, invoices, contracts, agreements,  correspondence, memoranda and photographs;"


25
"9. Letters and other documents reflecting  communications between" Derman and others "and  their criminal associates identified in the  . . . affidavit;" and


26
"11. Address and phone books reflecting the  names and addresses of associates identified  in the . . . affidavit."


27
Derman asserts that "[t]he descriptions offer no assistance to the  executing officers as to how to determine what items will fall  within those categories."  He finds especially problematic the  instruction regarding privileged information.


28
The Fourth Amendment requires that "no Warrants shall  issue, but upon probable cause, supported by Oath or affirmation,  and particularly describing the place to be searched, and the  persons or things to be seized."  U.S. Const. amend. IV.  We have  used a two-pronged test to determine whether "the goods to be  described [can] not be precisely described . . . : first, the  degree to which the evidence presented to the magistrate  establishes reason to believe that a large collection of similar  contraband is present on the premises to be searched, and, second,  the extent to which, in view of the possibilities, the warrant  distinguishes, or provides the executing agents with criteria for  distinguishing, the [sought-after evidence] from the rest of an  individual's possessions."  United States v. Fuccillo, 808 F.2d  173, 176 (1st Cir. 1987) (first set of alterations in original)  (internal quotation marks and citations omitted); see also United  States v. Abrams, 615 F.2d 541, 544-46 (1st Cir. 1980); Montilla  Records, Inc. v. Morales, 575 F.2d 324, 325 (1st Cir. 1978). Derman contends that the warrants issued in this case did not  satisfy Fuccillo's second prong.


29
The particularity of the warrant and the breadth of the  search (which we will discuss below) are matters that should be  considered with special care in the context of a law office because  of the pervasiveness there of privileged items.  See Klitzman,  Klitzman & Gallagher v. Krut, 744 F.2d 955, 959 (3d Cir. 1984); People v. Hearty, 644 P.2d 302, 313 (Colo. 1982) (en banc); see  also Andresen v. Maryland, 427 U.S. 463, 466-69, 478-82 (1976)  (allowing the search of a law office when the lawyer was a target  of the investigation.); Law Offices of Bernard D. Morley, P.C. v. MacFarlane, 647 P.2d 1215, 1222-23 (Colo. 1982) (en banc) (same); cf. Hearty, 644 P.2d at 313 (applying rule where the attorney is  not a subject of the investigation).  But cf. O'Connor v. Johnson,  287 N.W.2d 400, 402, 405 (Minn. 1979) (instituting a rule against  searches by warrant of law offices when the attorney is not a  subject of an investigation).


30
In this case, the warrants provided sufficient criteria  in the list of "Items to be Seized" to distinguish the evidence  sought from other materials, including privileged materials. Further, a memorandum directed to the agents, investigators, and  attorneys participating in the search of the law office emphasized  that "[c]lient files for persons or entities other than  [Rosenzweig, Haber, and a realty company allegedly connected with  the marijuana-growing operation] cannot be opened or seized  pursuant to the warrant."  Additionally, a "privilege team"  composed of attorneys, separate from the team of searching agents,  was on hand "to answer any legal questions which may arise during  the search" and, following the gathering of evidence, to "conduct  a thorough review of all items seized . . . and determine whether  any of the seized items contain any privileged information."


31
Second, Derman asserts that the actual search of the law  office was overbroad in scope.  The district court found that the  agents made a "cursory" review of all the files and dictation  tapes.  See Derman, 23 F. Supp. 2d at 102.  Derman points to the  affidavit of Aghavni Ellian, a secretary in Derman's law office,  which states that the agents looked through "each and every" file,  looked through documents, and took notes "and/or took the file[s]  into Herbert Derman's office where other agents were stationed." We review the district court's findings of fact under the clearly  erroneous standard.  See United States v. Ferreras, 192 F.3d 5, 9  (1st Cir. 1999), cert. denied, 120 S. Ct. 969 (2000).  The district  court's finding that the agents made a cursory review of the files  is not clearly erroneous.  Cf. Andresen, 427 U.S. at 482 n.11 ("In  searches for papers, . . . some innocuous documents will be  examined, at least cursorily, in order to determine whether they  are, in fact, among those papers authorized to be seized.").


32
Third, Derman claims that the officers' failure to give  Ellian a copy of the search warrant violates Federal Rule of  Criminal Procedure 41(d) and justifies suppression.8 See United  States v. Gantt, 194 F.3d 987, 1000-05 (9th Cir. 1999).  But cf.United States v. Bonner, 808 F.2d 864, 868-69 (1st Cir. 1986). This argument has been waived.  Ellian's affidavit asserting that  she was never served with the warrant was before the district court  judge for the purpose of supporting Derman's claim that the search  exceeded its scope, not for a Rule 41(d) claim.  The trial court  did not consider Rule 41(d) in its decision, and neither do we.

IV.

33
Derman raises several issues pertaining the forfeiture of  the property, some of which pose the question of whether there is  appellate jurisdiction.  We start with the issue of jurisdiction.


34
Before Derman was sentenced, but after the guilty  verdict, the court entered, on the government's unopposed motion,  a "preliminary order of forfeiture."  Derman sought and was denied  leave to file a late notice of appeal, then asked for and was  denied reconsideration.  Apparently, the district court took the  view that the date of entry of the pre-sentence preliminary order  of forfeiture triggered the running of the time to appeal.  Defense  counsel says that that was unlikely, but, in an abundance of  caution, he tried to appeal from the order.  Thereafter, on March  5 (amended on March 9), 1999, the district court imposed judgment  and sentence, including an order that the property be forfeited. Derman promptly appealed the judgment, including the final order of  forfeiture.


35
The issue of whether the district court abused its  discretion in not permitting Derman an extension to file a notice  from the preliminary order of forfeiture has been briefed.  It  raises the question of which order -- the preliminary pre-sentence  order or the final judgment order -- is the final order for  purposes of appeal.


36
As amended in 1996, Federal Rule of Criminal Procedure  32(d)(2) states:


37
If a verdict contains a finding that property is subject  to a criminal forfeiture, . . . the court may enter a  preliminary order of forfeiture after providing notice to  the defendant and a reasonable opportunity to be heard on  the timing and form of the order.  The order of  forfeiture shall authorize the Attorney General to seize  the property subject to forfeiture, to conduct any  discovery that the court considers proper to help  identify, locate, or dispose of the property, and to  begin proceedings consistent with any statutory  requirements pertaining to ancillary hearings and the  rights of third parties.  At sentencing, a final order of  forfeiture shall be made part of the sentence and  included in the judgment.  The court may include in the  final order such conditions as may be reasonably  necessary to preserve the value of the property pending  any appeal.


38
Thus, the forfeiture order, as the government now concedes, is a  part of the sentence, see Libretti v. United States, 516 U.S. 29,  38-39 (1995), and becomes final for purposes of appeal when the  court issues its judgment.9  See Fed. R. App. P. 4(b).


39
As a result, Derman has properly appealed from the final  order of forfeiture contained in his sentence.  Derman raises two  sorts of objections to the forfeiture order itself.  He attacks the  order on grounds of "sufficiency, prosecutorial misconduct and  Constitutional errors."10  Derman, however, did not preserve this  issue for appeal.  We would normally review his claim for plain  error.  See United States v. Badeaux, 42 F.3d 245, 246 (5th Cir.  1994).  But Derman's argument on this point, in his brief, is  perfunctory and unaccompanied by developed argumentation and we  consider it waived. See Romero v. Colegio de Abogados de Puerto  Rico, 204 F.3d 291, 296 n.4 (1st Cir. 2000).


40
Derman also says he should have been given an opportunity  to argue the forfeiture issue to the jury before it decided the  forfeiture count.  After the jury found Derman guilty on count one  and not guilty on the other substantive counts, the judge  instructed the jurors on the forfeiture count.  The trial judge did  not offer, nor did counsel request, additional argument.  Derman  now claims that it was error for the judge not to have offered  counsel the opportunity to give closing argument on this count. Derman also claims that the failure of his trial counsel to request  further argument on the forfeiture count constitutes ineffective  assistance of counsel.  Counsel, Derman claims, could have informed  the jury of "the fact that there are two separate parcels [that  make up Derman's property, i.e., a parcel in New York and a parcel  in Massachusetts], and . . . [argued] that forfeiture of the entire  two parcels was disproportionate to the defendant's crime."


41
Since Derman's counsel did not object to the lack of  closing argument on forfeiture, we review for plain error.  SeeUnited States v. DeLeon, 187 F.3d 60, 65 (1st Cir.), cert. denied,  120 S. Ct. 551 (1999).  Thus, "before an appellate court can  correct an error not raised at trial, there must be (1) error, (2)  that is plain, . . . (3) that affects substantial rights" and (4)  that "seriously affects the fairness, integrity, or public  reputation of judicial proceedings."  Johnson v. United States, 520  U.S. 461, 466-67 (1997) (alterations in original) (internal  quotation marks omitted).


42
The district court did not commit plain error by not  offering counsel the opportunity to present arguments to the jury  on the forfeiture count.  While it may be error for a judge to deny  counsel's request for argument on forfeiture, Derman's counsel made  no such request.  Cf. Herring v. New York, 422 U.S. 853, 862 (1975)  ("In a criminal trial, which is in the end basically a factfinding  process, no aspect of such advocacy could be more important than  the opportunity finally to marshal the evidence for each side  before submission of the case to judgment."); United States v. Feldman, 853 F.2d 648, 662 (9th Cir. 1988) (holding that "trial  courts should bifurcate forfeiture proceedings from ascertainment  of guilt, requiring separate jury deliberations and allowing  argument of counsel").  Even if we thought that the trial judge  should have offered counsel additional argument on the forfeiture  count, we would not be convinced that this failure would satisfy  the third and fourth tests of the plain error doctrine.  There was  sufficient evidence in the record to support the jury's finding  and, as explained below, it is unclear what argument Derman's  counsel could have made that would have altered the forfeiture  verdict.


43
Derman's ineffective assistance of counsel argument also  fails.  Usually, we will "not entertain an ineffective-assistance-of-counsel claim on direct appeal unless the record is sufficiently  developed."  United States v. Martinez-Martinez, 69 F.3d 1215, 1225  (1st Cir. 1995).  The record is sufficiently developed here. SeeUnited States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991).


44
In Natanel, we found that "trial counsel's decision to  waive a separate closing statement [on a count that was to be sent  to the jury separately] strikes us as a strategy choice . . . well  within the range of professionally reasonable judgments."  Id. at  310 (alteration in original) (internal quotation marks omitted). Counsel's decision in Natanel was deliberate.  See id. at 309.  In  this case, however, it is too much to assume, as the government  asks us to, that Derman's counsel purposefully waived argument on  the forfeiture count.  There is little reason to think that this  was true.


45
In Strickland v. Washington, the Supreme Court found that  "[t]he benchmark for judging any claim of ineffectiveness must be  whether counsel's conduct so undermined the proper functioning of  the adversarial process that the trial cannot be relied on as  having produced a just result."  Strickland v. Washington, 466 U.S.  668, 686 (1984).  A conviction will be overturned if (1) "counsel's  performance was deficient," that is, "counsel made errors so  serious that counsel was not functioning as the 'counsel'  guaranteed the defendant by the Sixth Amendment;" and (2) "the deficient performance prejudiced the defense," that is, "counsel's  errors were so serious as to deprive the defendant of a fair trial,  a trial whose result is reliable."  Id. at 687.


46
Even assuming trial counsel's performance was deficient,  which we doubt, Derman has not demonstrated prejudice. The two  arguments that Derman now asserts his erstwhile counsel should have  made to the jury would have been irrelevant to its decision.  The  jury was only to answer the judge's question: "Was the property  owned by defendant, Herbert Derman, specifically the real property,  together with all improvements thereon, at 83 Whites Hill Road,  Hillsdale, New York, North Egremont and Alford, Massachusetts,  . . . used or intended to be used in any manner or part to commit  or to facilitate commission of violations of the narcotics laws?"  The questions of whether all of Derman's property or just some  parcels should have been subject to forfeiture, see United States v. Bieri, 21 F.3d 819, 824 (8th Cir. 1994) (holding that "tracts of  real property subject to forfeiture under section 853 are defined  by the instruments and documents that created the defendant's  interest in the property") (internal quotation marks omitted); United States v. Smith, 966 F.2d 1045, 1053-54 (6th Cir. 1992)  (same); United States v. Reynolds, 856 F.2d 675, 677 (4th Cir.  1988) (same for civil forfeiture), and whether the forfeiture was  excessive, see Bieri, 21 F.3d at 824, were for the judge, not for  the jury, to answer.

V.

47
For these reasons, the judgment is affirmed.



Notes:


1
 In a superseding indictment dated October 1, 1996, a  grand jury charged Derman with conspiracy to manufacture,  distribute, and possess with intent to manufacture and distribute  marijuana, see 21 U.S.C. § 846 (count one); manufacture and  possession of marijuana with intent to distribute, see 21 U.S.C.  § 841(a)(1) (count two); conspiracy to commit money laundering, see 18 U.S.C. § 371 (count five); money laundering and aiding and  abetting, see 18 U.S.C. §§ 2, 1956(a)(1)(A)(i), 1956(a)(1)(B)(i)  (counts six, eight, ten, and twelve); and criminal forfeiture, see 21 U.S.C. § 853 (count thirteen).


2
 Save Rosenzweig, who died of cancer prior to trial.


3
 Derman objected to the number of photographs the  government sought to introduce; he agreed to the admission of the  one photo of Mrs. Derman.


4
 Derman objected to the characterization of the  neighborhood of his New York City apartment as the "Upper East  Side."


5
 If we were to find misconduct, the remedy of a new trial  would not necessarily be in order.  "The determination of whether  prosecutorial misconduct has so poisoned the well that a new trial  is required involves the weighing of several factors: (1) the  severity of the misconduct; (2) the context in which it occurred;  (3) whether the judge gave any curative instructions and the likely  effect of such instructions; and (4) the strength of the evidence  against the defendant."  United States v. Rodrguez-De Jess, 202  F.3d 482, 485 (1st Cir. 2000) (internal quotation marks and  citations omitted); see also United States v. Canas, 595 F.2d 73,  77-78 (1st Cir. 1979).  In making this determination, we would  "take a balanced view of the evidence in the record."  Rodrguez-De  Jess, 202 F.3d at 485.


6
 It might seem curious that item 1, a photograph of a  woman in a ski outfit and sunglasses on a ski slope, was used to  identify Barbara Derman.  But defense counsel did not object to the  photograph, much less object on the ground that the photograph  would evoke class bias.


7
 Derman does not challenge on appeal the probable cause  determination underlying the warrants, as he did before the  district court. See Derman, 23 F. Supp. 2d at 99.


8
 Rule 41(d) states in pertinent part:
The officer taking property under the warrant shall give to  the person from whom or from whose premises the property was  taken a copy of the warrant . . . .
Fed. R. Crim. P. 41(d).


9
 The case law regarding this issue can be confusing  because of the varying usages of the term "preliminary order of  forfeiture."  Before the 1996 amendments, a court could issue a  preliminary order of forfeiture at (or following) sentencing.  The  pre-1996 preliminary order was preliminary, however, only in the  sense that the government's interest was not finalized until the  court could evaluate ancillary third-party claims to the forfeited  property; the preliminary order was final, and thus appealable, as  to the defendant.  See United States v. Pelullo, 178 F.3d 196, 202  (3d Cir. 1999); United States v. Bennett, 147 F.3d 912, 914 (9th  Cir. 1998); United States v. Christunas, 126 F.3d 765, 767-68 (6th  Cir. 1997); cf. United States v. Libretti, 38 F.3d 523, 527 (10th  Cir. 1994), aff'd, 516 U.S. 29 (1995).  If, before 1996, the  government was concerned that a delay between verdict and  sentencing might hamper recovery of the forfeited property, it  could request a restraining order to maintain the status quo until  sentencing.  See Fed. R. Crim. P. 32, advisory committee's note to  32(d)(2), 1996 amendments; United States v. Alexander, 772 F. Supp.  440, 442 (D. Minn. 1990).  To solve this problem, the 1996  amendments allowed a court to issue a "preliminary order" before  sentencing.  Because this preliminary order is issued before  sentencing, it is different from the pre-1996 preliminary order: it  is not final as to the defendant and thus not appealable.  Cf.United States v. Coon, 187 F.3d 888, 901 (8th Cir. 1999), cert.  denied, 120 S. Ct. 1417 (2000).  The post-1996 preliminary order  acts much like the pre-1996 restraining order.  After the 1996  amendments, the forfeiture order entered at sentencing is called  "final order of forfeiture," and it is this order that is  appealable.  Thus, regardless of the name given to the order of  forfeiture (preliminary or final), both before and after the 1996  amendments the key moment for determining finality for the purpose  of appeal is sentencing.  Of course, if the forfeiture order is  entered after sentencing, the time for appeal runs from the date of  the post-sentencing order.


10
  In his brief, Derman characterizes this as an error of  the jury verdict.  As the discussion in the text suggests, the  error complained of is more properly described as an error in the  sentence.


