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United States v. Durham

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


March 14, 2008

UNITED STATES OF AMERICA PLAINTIFF,
v.
ROBERT MARK DURHAM, DEFENDANT.

The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on Defendant Robert Mark Durham's Motion Pursuant to Rule 41(g) Rules of Criminal Procedure (Doc. 523). Durham contends that certain financial accounts forfeited as substitute assets in support of a $500,000 monetary forfeiture judgment entered against him in on November 5, 2004 (Doc. 383) are exempt from forfeiture. Durham did not argue that any of the funds were exempt at the time the Court ordered the forfeiture; however, he raised the argument on direct appeal. United States v. Durham, 149 Fed.Appx. 533 (7th Cir. 2005) (not reported). The Seventh Circuit held that this Court did not err in ordering the forfeiture of the accounts. Id.

A criminal forfeiture is part of the criminal sentence. Young v. United States, 489 F.3d 313, 315 (7th Cir.2007). Therefore, any challenge to the forfeiture must proceed on appeal in the same manner as a challenge to any other component of a criminal sentence. Id. Here, Durham raised the issue on appeal, and it was rejected. Although labeled as a Motion under Rule 41(g), Durham's motion is actually "an improper attempt to challenge a component of his sentence."

Id. As a general rule, "a district court's jurisdiction to alter a judgment of conviction after sentencing is extremely limited," and a motion under 41(g) does not fit into one of the recognized exceptions to that general rule. Id. at 316. Therefore, the Court is without jurisdiction to hear Durham's motion. See id. at 316 (modifying the judgment of the district court to reflect a dismissal for lack of subject matter jurisdiction.) Accordingly, the Court DISMISSES Durham's Motion (Doc. 523) for lack of subject matter jurisdiction .

IT IS SO ORDERED.

20080314

© 1992-2008 VersusLaw Inc.



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