Eleventh Circuit Court of Appeals - Published Opinions

Friday, January 24, 2020

Bane: Affirming Denial of Coram Nobis Challenge to Forfeiture Order Due to Procedural Default

In United States v. Bane, No. 18-10232 (Jan. 24, 2020) (William Pryor, Martin, Sutton (6th)), the Court affirmed the denial of a writ of coram nobis.

After their convictions became final, the defendants petitioned for a writ of coram nobis, challenging their forfeiture judgment in light of the Supreme Court’s ruling in Honeycutt.  Initially, the Court found that the defendants had standing because they were challenging the preliminary (not final) forfeiture order.  As to the merits, the Court assumed, without deciding, that coram nobis could be used to challenge a forfeiture order and that Honeycutt applied retroactively.  The Court affirmed, however, because the defendants procedurally defaulted their claim by not raising it on direct appeal.  The Court found that a Honeycutt error is not jurisdictional because the indictment charged a federal offense; even if the forfeiture allegations were insufficient, that went only to the sentence.   The Court also found that the cause and prejudice exception to procedural default did not apply: they failed to show cause because their claim was not sufficiently novel just because Honeycutt had not yet been decided; and they failed to show prejudice either, as one defendant was responsible for all the proceeds, and the government could have obtained the same property against the other defendant through restitution.

Judge Martin concurred in part and dissented in part, opining that the error was jurisdictional as to one defendant in light of the Supreme Court’s decisions in Welch and Montgomery v. Louisiana.  She reasoned that, as to the one defendant, the forfeiture amount exceeded the statutory limits.