Œ After an examination of the briefs and the record, we have

concluded that oral argument is unnecessary. Thus the appeal is

submitted on the briefs and the record. FED. R. APP. P. 34(a)(2).

ŒŒ This decision was originally released as an unpublished

order. Upon the government’s motion, we now issue it as a

published opinion.

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2591

TERRY B. YOUNG,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02-C-390—George W. Lindberg, Judge.

____________

SUBMITTED APRIL 9, 2007Œ—DECIDED APRIL 24, 2007

PUBLISHED JUNE 14, 2007ŒŒ

____________

Before POSNER, WOOD, and WILLIAMS, Circuit Judges.

PER CURIAM. More than five years after he was convicted for his role in a drug ring, Terry Young moved for

the return of funds that he says were “taken” by the

district court as part of a defective criminal forfeiture.
2 No. 06-2591

Young cited Federal Rule of Criminal Procedure 41 as

the basis for this motion, which the district court denied

because Young had made the same argument in a prior,

unsuccessful motion. Young appealed. We inadvertently

issued a final order in this case before Young’s reply

brief was due, and then vacated that order to consider

Young’s reply. We again find, however, that the district

court lacked subject matter jurisdiction over Young’s

motion.

Young was a high-ranking member of the Traveling

Vice Lords, a Chicago street gang. A jury found him guilty

of drug crimes and money laundering and returned a

special verdict finding that Young and his coconspirators

had netted proceeds of $6 million. Prior to sentencing, the

district court entered a “preliminary” order of criminal

forfeiture, see 18 U.S.C. § 982; 21 U.S.C. § 853; FED. R.

CRIM. P. 32(d)(2) (Dec. 1, 1996) (superseded by FED. R.

CRIM. P. 32.2(b) effective Dec. 1, 2000), which divested

Young of his interest in specific property that was either

traceable to the proceeds or identified by the government

as substitute assets. In September 1999 the court sentenced Young to life imprisonment on the drug counts

and 20 years on the money-laundering charge. In the

judgment of conviction the court also ordered that Young

“shall forfeit” his interest in the $6 million. A “final” order

of forfeiture, see 18 U.S.C. § 982(b)(1); 21 U.S.C. § 853(n),

was entered in October 1999 and amended in December

1999. Young filed a direct appeal but raised no issue

concerning the criminal forfeiture. We upheld his convictions but remanded for resentencing, United States v.

Mansoori, 304 F.3d 635, 642 (7th Cir. 2002). On remand

the district court again imposed an overall sentence of

life, which we recently upheld. United States v. Mansoori,

480 F.3d 514 (7th Cir. 2007).

Young filed his current “Rule 41” motion in November

2005. In that motion he demands that the government
No. 06-2591 3

return a small amount of currency seized from his house

plus the proceeds of a bank account, cashiers check, and

certificate of deposit. These funds, which total roughly

$133,000, are all specifically identified as substitute

assets in the “preliminary” and “final” orders of forfeiture,

see 21 U.S.C. § 853(p), but they are not itemized in the

judgment of conviction. Young, who says nothing about

the $6 million forfeiture that is in the judgment of conviction, argues based upon his reading of former Rule

32(d)(2) of the Federal Rules of Criminal Procedure that

the currency and other items comprising the $133,000

were not criminally forfeited because they are not listed

in the judgment of conviction. See FED. R. CRIM. P. 32(d)(2)

(Dec. 1, 1996) (“At sentencing, a final order of forfeiture

shall be made part of the sentence and included in the

judgment.”). Instead, says Young, the district court took

the funds without jurisdiction when it entered the

amended “final” order of forfeiture in December 1999.

Young made the identical argument in an earlier “Rule 41”

motion that was filed and denied while his initial appeal

was pending, and in denying the present motion the

district court explained that it would not “revisit its

prior decision denying return of the property.”

In our view, Young’s motion is best seen as an improper

attempt to challenge a component of his sentence. Although we have recognized that a motion labeled as one

under Rule 41 is sufficient to commence a civil equitable

proceeding to recover seized property that the government has retained after the end of a criminal case, United

States v. Sims, 376 F.3d 705, 708 (7th Cir. 2004); United

States v. Solis, 108 F.3d 722, 722 (7th Cir. 1997), a criminal forfeiture is part of the defendant’s sentence and must

be challenged on direct appeal or not at all. See United

States v. Machado, 465 F.3d 1301, 1305-06 (11th Cir.

2005); United States v. Apampa, 179 F.3d 555, 557 (7th

Cir. 1999) (per curiam); United States v. Mosavi, 138 F.3d
4 No. 06-2591

1365, 1366 (11th Cir. 1998); see also Sims, 376 F.3d at 708

(noting that Rule 41 may be invoked “after criminal

proceedings have concluded to recover the defendant’s

property when the property is no longer needed as

evidence—unless, of course, it has been forfeited in the

course of those proceedings” (emphasis added)). Young

wrongly concludes that the amended “final” order of

forfeiture entered in December 1999 affected his interest

in the funds. That order resolved the rights of third

parties, not Young. See 21 U.S.C. § 853(k), (n); United

States v. Pelullo, 178 F.3d 196, 202 (3d Cir. 1999); United

States v. Messino, 122 F.3d 427, 428 (7th Cir. 1997);

see generally FED. R. CRIM. P. 32.2(c) (providing for

postsentencing, ancillary proceeding to resolve third-party

claims to criminally forfeited property). Young’s interest

in the disputed funds was resolved through the jury’s

verdict, the “preliminary” order of forfeiture, and the

judgment of conviction. See FED. R. CRIM. P. 32(d)(2) (Dec.

1, 1996) (superseded by FED. R. CRIM. P. 32.2(b), effective

Dec. 1, 2000); Pelullo, 178 F.3d at 202; United States v.

Christunas, 126 F.3d 765, 767 (6th Cir. 1997); Messino,

122 F.3d at 428.

We are not persuaded by Young’s contention that the

funds were never forfeited simply because the specific

items are not written into the judgment of conviction.

Young does cite one opinion questioning the validity of a

criminal forfeiture where the judgment of conviction is

altogether silent about forfeiture, see United States v.

Pease, 331 F.3d 809, 811, 813-15 (11th Cir. 2003); see also

United States v. Gilbert, 244 F.3d 888, 923-26 (11th Cir.

2001); United States v. Coon, 187 F.3d 888, 901 (8th Cir.

1999), but Young’s judgment—which orders him to forfeit $6 million—is hardly silent. Moreover, we have

suggested disagreement with the conclusion that a failure to incorporate the order of forfeiture into the judgment of conviction undermines a criminal forfeiture. See
No. 06-2591 5

Apampa, 179 F.3d at 556 (“Nor did the fact that the

district judge specified the punishment in two documents

(one providing imprisonment and the other forfeiture)

affect the time to appeal; this remains a ‘defendant’s’

appeal in ‘a criminal case’.”). Other circuits have done the

same. See United States v. Yeje-Cabrera, 430 F.3d 1, 15

(1st Cir. 2005) (opining that rule of procedure requiring

criminal forfeiture to be incorporated into judgment of

conviction “is largely a housekeeping rule and does not

itself go to any fundamental rights of defendants”); United

States v. Bennett, 423 F.3d 271, 273-74, 282 (3d Cir. 2005)

(failure to mention criminal forfeiture at sentencing

hearing or in judgment of conviction did not invalidate

forfeiture that otherwise complied with statutory requirements; omission of forfeiture from judgment of

conviction is “far less substantive than a failure to include

other penalties, which do not typically stem from preliminary post-conviction orders”); United States v. Loe, 248

F.3d 449, 464 (5th Cir. 2001) (where district court had

entered preliminary order of forfeiture before sentencing

and ordered forfeiture orally at the sentencing hearing,

criminal forfeiture was valid despite absence of specific

reference in judgment of conviction).

The judgment of conviction unquestionably orders Young

to forfeit $6 million, and with criminal forfeiture the

government is always free to pursue substitute assets

like the funds Young wants back. 21 U.S.C. § 853(p);

United States v. Misla-Aldarondo, 478 F.3d 52, 74-75 (1st

Cir. 2007); United States v. Alamoudi, 452 F.3d 310, 312-

14 (4th Cir. 2006). Thus his motion appears to have little

arguable merit. The motion, though, really concerns the

extent of the forfeiture language in the judgment of

conviction, and that, we conclude, is a challenge to the

judgment itself. A district court’s jurisdiction to alter a

judgment of conviction after sentencing is extremely

limited, see e.g., United States v. Smith, 438 F.3d 796, 799-
6 No. 06-2591

801 (7th Cir. 2006); United States v. Zingsheim, 384 F.3d

867, 871 (7th Cir. 2004), and we are aware of no exception

that would authorize Young’s belated challenge to a

criminal forfeiture that could have been challenged on

direct appeal. Accordingly, the judgment of the district

court is MODIFIED to reflect a dismissal for lack of subject matter jurisdiction, and as modified the judgment

is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-14-07