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October 21, 1994



The opinion of the court was delivered by: JAMES H. ALESIA

Before the court are two pretrial matters pertaining to defendant Christopher Richard Messino. First is the government's motion to reconsider the court's order dismissing the forfeiture allegations in the indictment. Second is the government's motion to vacate the hearing regarding the seizure at Christopher Richard Messino's Blue Island, Illinois, home.


 A. Background

 Defendant Christopher Richard Messino moved pretrial to dismiss the forfeiture allegations against him based on statute of limitations. The government's consolidated response ignored the issue, prompting the court to grant the motion based on an assumed acquiescence by the government to defendant's statute of limitations theory. The court however, allowed the government an opportunity to move for reconsideration of that order. The government has now taken that opportunity. The briefing has raised two issues: (1) the government's alleged waiver; and (2) the substance of the argument.

 Defendant argues that the government should be barred from asserting its motion, having waived opposition to defendant's original motion. As troublesome as the government's original briefing was, however, that is not a remedy the court will impose.

 The cases defendant cites, as the government notes, are about waiver in the trial court precluding a party from presenting an argument on appeal. See, e.g., Garlington v. O'Leary, 879 F.2d 277, 282 n.6 (7th Cir. 1989). While instructive, therefore, the cases are not dispositive.

 What has happened here is defendant timely raised an issue of interpretation of law. That having occurred, the issue is before the court. What remains is for the court to dispose of that legal issue. *fn1" That disposition needs to be done under the law as the court sees it, and the court wishes to rule with the benefit of the government's point of view rather than without it. Accordingly, defendant's waiver argument does not warrant denial of the government's motion.

 C. Substance

 Waiver not resolving the issue, that leaves the substance. The government has two arguments. It argues first that defendant has misinterpreted the limitations on criminal forfeiture. It argues second that even under defendant's interpretation of the limitations period, the forfeiture allegations survive. A sub-issue of the latter point is when and how the question is to be resolved: by separate hearing before trial, or after the jury returns a verdict on the criminal allegations. If the first issue regarding interpretation of the limitations period goes the government's way, then the court need go no further.

 The parties agree that no binding authority controls this issue, and the court's research supports that conclusion. There is a bit of persuasive authority, but in general the court is left with the structure of the criminal forfeiture provision in 21 U.S.C. § 853 to determine the outcome.

 As defendants note, the criminal forfeiture provision applies the civil forfeiture provisions of 21 U.S.C. § 881(d) "except to the extent that they are inconsistent with the provisions of [§ 853]." 21 U.S.C. § 853(j). Section 881(d) in turn incorporates customs forfeiture procedure, which prescribes a 5-year statute of limitations "after the time when the alleged offense was discovered." 19 U.S.C. § 1621. Defendant's argument traces this statutory link to assert the 5-year limitation.

 The government responds that Section 853(a), making clear that criminal forfeiture is part of a criminal sentence, is in conflict with the civil procedure, and therefore Section 853(j) carves away those procedures. The court agrees. The procedure for criminal forfeiture anticipates such a remedy to be part of the sentence. Therefore, there is no independent statute of limitations for criminal forfeiture allegations that are tacked on to an indictment. Rather than providing no statute of limitations, as defendant argues, such a holding merely applies the straight criminal statute of limitations, which will provide a limitation protection, although sometimes less strict than defendant's proposal. Accord United States v. Milicia, 769 F. Supp. 877, 884 ...

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