1The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-1768

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the 

* Western District of Missouri.

Charles I. Covey, *

*

Defendant - Appellant. *

___________

Submitted: September 15, 2000

Filed: November 16, 2000 

___________

Before WOLLMAN, Chief Judge, LOKEN, and MURPHY, Circuit Judges.

___________

MURPHY, Circuit Judge.

Charles Covey was convicted by a jury of conspiracy to commit money

laundering and aiding and abetting money laundering in violation of 18 U.S.C. §§

1956(a)(1)(B)(i), 1956(h), and 1956 (a)(2). The district court1 entered a preliminary

forfeiture order for $70,000 pursuant to 18 U.S.C. § 982 and Fed. R. Civ. P. 32(d)(2);

it later denied Covey's motion for reconsideration or clarification. Covey was

sentenced to 57 months imprisonment and a $19,118.44 fine. Covey now appeals his
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conviction, sentence, and the preliminary order of forfeiture. We affirm the judgment

and dismiss the forfeiture appeal as premature.

Charles Covey was a certified public accountant (CPA) and sole officer, director

and shareholder of MCM Enterprises, Inc. (MCM). His sister, Mary Closser, asked

him to speak to Gary and Darrell Hart about making them a loan. The Harts were drug

dealers who sold and distributed marijuana and who wanted to use cash proceeds from

their drug business to start a motorcycle sales and repair shop. They were unable to

use more than $10,000 cash to buy inventory for the shop without filing federal forms

so they were looking for ways to launder their money. The Harts rewarded Closser for

connecting them with Covey by paying for a new driveway in front of her house. 

During spring 1993 Covey and the Harts had a series of meetings, and Covey

agreed to loan the Harts $50,000 through MCM in exchange for their $70,000 cash

payment to him. During one meeting Gary Hart told Covey that the cash was from drug

proceeds. On June 9, 1993 the parties executed a loan agreement prepared by Covey.

The agreement provided that MCM would loan Hart Independence Motorcycles

$50,000 at a 13% annual interest rate and the latter would pay MCM $3,072.38 per

month for 18 months. The agreement was signed by Covey as president of MCM.

Deena Rauscher, Gary Hart's wife, signed the agreement for herself and Sharon Hart,

Darrell Hart's wife, who was not present. Darrell Hart signed as a guarantor. 

The loan agreement represented that the inventory of the motorcycle business

was to be collateral for the loan. The inventory did not yet exist, however, and Covey

did not take a security interest in the later-acquired inventory. Instead, the Harts met

Covey one night in a restaurant parking lot where they gave him a paper bag containing

$70,000 in bills. The money was in one thousand dollar stacks held together with

rubber bands. Contrary to the recitation in the loan agreement, the coconspirators

agreed that the collateral for the principal of the loan was $50,000 in cash, $10,000 was

collateral for interest, and $10,000 was termed a loan origination fee. 
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After the agreement was signed, Covey sent the Harts a $50,000 check, which

the Harts deposited in an account under the name of Hart Independence Motorcycles.

Covey had not required any financial, tax, or employment information from the Harts.

Neither did he file a federal form reporting his receipt of over $10,000 in cash from the

Harts. Between July 2, 1993 and January 1994, the Harts made six payments on the

loan, totaling $18,441.31. Covey put these payments into MCM's account and then

withdrew corresponding amounts for deposit into his personal account.

The motorcycle business was not a success, and the Harts stopped making

payments on the loan after January 1994. On October 3, 1994, Covey sent a letter

informing the Harts that the loan was in default and that he would begin taking

payments from the cash collateral. Thereafter, Covey began to deposit currency from

the $70,000 cash payment into MCM's bank account. He deposited approximately

$36,000 from these funds and later transferred the money to his personal account. 

In December 1995, Covey sent a check for $19,561.86 by certified mail to

Darrell Hart with the notation "Refund Excess Loan Collateral." The Harts suspected

that Covey was cooperating with law enforcement, and they did not retrieve the mail

from the post office. About that time, Covey filed an Internal Revenue Service Form

8300 to report receipt of more than $10,000 in a cash transaction. Covey reported that

MCM Enterprises had received $70,000 cash in return for a loan of $50,000 and

checked the "suspicious transaction" box on the form. Unlike the loan agreement,

which stated that the motorcycle shop inventory was collateral for the loan, the form

reported that $60,000 in cash was received as collateral and that the remaining $10,000

was a loan fee.

On December 15, 1998, a federal grand jury returned a three count indictment

against Covey. Count I charged Covey with conspiracy to commit money laundering

in violation of 18 U.S.C. § 1956(h). Count II charged Covey with aiding and abetting

money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and (2). Count III
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sought forfeiture of $70,000 from Covey under 18 U.S.C. § 982. On July 28, 1999, the

district court dismissed Count I on the grounds that the count did not adequately

apprise the defendant of the charge. On August 9, 1999, a grand jury filed a

superseding indictment which restated all three counts and added factual allegations to

the conspiracy charge in Count I. 

At trial, the jury was given an instruction on conspiracy, which read in pertinent

part:

It is not necessary that the government prove, beyond a reasonable

doubt, that more than one act was done in furtherance of the

conspiracy. It is sufficient if the government proves beyond a

reasonable doubt, one such act; but in that event, in order to return a

verdict of guilty, you must unanimously agree upon which act was

done. 

Jury Instruction 19. 

The jury returned a guilty verdict on all three counts, including the forfeiture

count. The district court then entered a preliminary order requiring Covey to forfeit

$70,000. Covey objected that he had not had sufficient notice or opportunity to be

heard and that the amount of the forfeiture was excessive. The district court denied his

motion for reconsideration or clarification and sentenced him to 57 months and a

$19,118.44 fine. The court found that Covey had used special skills and experience in

accounting and finance to further the money laundering scheme and added two levels

to his adjusted offense level, resulting in a guideline range of 57 - 71 months. Covey

moved for a new trial, judgment of acquittal, arrest of judgment, and a stay of further

seizures and accounting of seized assets. The motions were denied. Covey paid over

the $70,000 and received a document entitled "Satisfaction of Judgment" on June 5,

2000.
2

"Any person who conspires to commit any offense defined in this section . . .

shall be subject to the same penalties as those prescribed for the offense the

commission of which was the object of the conspiracy." 18 U.S.C. § 1956(h) (2000).

3

"Any person who attempts or conspires to commit any offense defined in this

subchapter shall be subject to the same penalties as those prescribed for the offense,

the commission of which was the object of the attempt or conspiracy." 21 U.S.C. §

846 (2000).

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Covey raises a variety of issues on appeal, including insufficient evidence,

incomplete jury instructions, and violation of his Fifth and Sixth Amendment rights.

He also challenges his conspiracy conviction on the grounds that Count I of the

superseding indictment did not allege an overt act in furtherance of the conspiracy, an

element he asserts is essential to the charge. He objects to the preliminary order of

forfeiture, arguing that he was not given adequate notice or an opportunity to be heard

and that the amount was excessive. He contends that the district court erred when it

enhanced his sentence for use of special skills in furtherance of the money laundering

scheme. The government counters all points. It argues an overt act is not an essential

element of a money laundering offense, that the language of the money laundering

statute, 18 U.S.C. § 1956(h),2 is nearly identical to that for drug conspiracies, 21

U.S.C. § 846,3 which does not require an overt act be proven as an element of the

offense,see United States v. Shabani, 513 U.S. 10, 12 (1994); United States v. Severe,

29 F.3d 444, 447 (8th Cir. 1994), cert. denied, 513 U.S. 1096 (1995). Since 18 U.S.C.

§ 1956(h) was modeled on 21 U.S.C. § 846, it should be given a similar construction.

The government argues that this court does not have jurisdiction to hear Covey's appeal

of the preliminary forfeiture order because it is not a final order, that Covey had

adequate advance notice and a sufficient hearing, and that the amount was not

excessive. The government asserts that the special skills enhancement was appropriate,

the evidence was sufficient, and there is no merit to Covey's other arguments.

I.
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A challenge to the sufficiency of an indictment is reviewed de novo. See United

States v. O'Hagan, 139 F.3d 641, 651 (8th Cir. 1998). Count I of the superseding

indictment charged:

That between August, 1992, up to January, 1996, said dates being

approximate, in the Western District of Missouri, CHARLES I.

COVEY and MARY ANN CLOSSER, defendants herein, did

knowingly and intentionally combine, conspire, confederate and agree

with each other and other persons, both known and unknown to the

grand jury, to willfully conduct and attempt to conduct, financial

transactions affecting interstate commerce, including the transfer of

approximately $50,000 from CHARLES I. COVEY to the bank

account of Hart Independence Motorcycles, Inc., and the transfer of

approximately $19,561.86 by a check drawn on the checking account

of MCM Enterprises, Inc.; knowing that the transactions were

assigned in whole or in part, to conceal and disguise the nature,

location, source, ownership and control of the proceeds of specified

unlawful activity, that is the distribution of marihuana; and that while

conducting and attempting to conduct the financial transactions knew

that the property involved in the transactions represented the proceeds

of some form of unlawful activity . . . .

Superseding indictment at 1-2.

An indictment is not required to take a particular form and should not be read in

a "hyper-technical fashion." See id. It should be "deemed sufficient 'unless no

reasonable construction can be said to charge the offense.'" United States v. Morris,

18 F.3d 562, 568 (8th Cir. 1994) (citation omitted). Here, a fair reading of Count I was

sufficient to notify Covey that the transfers of checks in the amounts of $50,000 and

$19,561.86 were acts the government alleged he performed in furtherance of the money

laundering conspiracy.
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The offense of money laundering is described in this way in the statute :

Whoever, knowing that the property involved in a financial transaction

represents the proceeds of some form of unlawful activity, conducts

or attempts to conduct such a financial transaction which in fact

involves the proceeds of specified unlawful activity knowing that the

transaction is designed in whole or in part to conceal or disguise the

nature, the location, the source, the ownership, or the control of the

proceeds of specified unlawful activity . . . shall be sentenced to a fine

of not more than $500,000 or twice the value of the property involved

in the transaction, whichever is greater, or imprisonment for not more

than twenty years, or both.

18 U.S.C. § 1956 (a)(1)(B)(i) (2000). Here, the object of the conspiracy was to

conceal the nature of the Harts' drug proceeds. Covey committed acts in furtherance

of that conspiracy when he gave the Harts checks in return for cash that he knew was

derived from illegal activities. See United States v. Norman, 143 F.3d 375, 377-78 (8th

Cir. 1998). Count I charged him with knowingly conducting a financial transaction

designed to disguise the source of illegal proceeds by transferring $50,000 and

$19,561.86 checks to Hart Independence Motorcycles. It thus alleged overt acts in

furtherance of the conspiracy. See United States v. Hutchinson, 488 F.2d 484, 490 (8th

Cir. 1973) (an overt act is "an act of one or more of the conspirators to effect the object

of the conspiracy" (citation omitted)).

II.

Federal Rule of Criminal Procedure 32(d)(2) provides that "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

preliminary order is not a judgment or a final order. See United States v. Coon, 187

F.3d 888, 901 (8th Cir. 1999), cert. denied, 120 S.Ct. 1417 (2000). Rather, the

forfeiture becomes final when "a final order of forfeiture shall be made part of the
4The concurrence suggests that Covey would not be liable for the full $70,000

if the Harts forfeit some part of that amount. The cases cited by the concurrence

indicate, however, that in criminal forfeiture all coconspirators may be liable for the full

amount of the proceeds involved in the criminal enterprise. See, e.g., United States v.

McHan, 101 F.3d 1027, 1042 (4th Cir. 1996) (citing with approval cases that indicate

that cumulative forfeitures may be permissible). In any event, Covey will have an

opportunity to be heard on remand before a final forfeiture judgment is entered against

him.

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sentence and included in the judgment." FED. R. CRIM. P. 32(d)(2). After the order of

forfeiture is included in the judgment, the preliminary order is appealable as part of the

judgment. See Coon, 187 F.3d at 901. 

In this case no final order of forfeiture was included in the judgment. The

judgment indicates that the jury returned a guilty verdict on Count III, but makes no

other reference to the forfeiture. The space after the preprinted section with the

heading "The defendant shall forfeit the defendant's interest in the following property

to the United States:" was left blank. No forfeiture amount is mentioned in the

judgment. Covey complied with the court's preliminary post verdict order to forfeit

$70,000, and the government conceded at oral argument that he still has a right to

question the amount for which he should finally be held accountable.4 We do not have

jurisdiction when no final forfeiture order or judgment has been entered so the appeal

must be dismissed as premature. See id. (citing United States v. Casas, 999 F.2d 1225,

1231-32 (8th Cir. 1993), cert. denied, 510 U.S. 1078 (1994)). 

III.

The sentencing guidelines provide for an enhancement of two levels if "the

defendant . . . used a special skill, in a manner that significantly facilitated the

commission or concealment of the offense . . . ." U.S. SENTENCING GUIDELINES

MANUAL § 3B1.3 (1998). "'Special skill' refers to a skill not possessed by members of
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the general public and usually requiring substantial education, training or licensing.

Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition

experts." Id. at cmt. 3.

Covey argues that the two level enhancement to his sentence was inappropriate

because he did not use any special skills to make the loan to the Harts. A district

court's factual determination that the defendant used special skills in the commission

or concealment of the offense is reviewed for clear error. See United States v. Graham,

60 F.3d 463, 468 (8th Cir 1995); United States v. Garfinkel, 29 F.3d 1253, 1261 (8th

Cir. 1994). The sentencing judge presided at Covey's three day trial and had an

opportunity to hear and see the witnesses and make credibility assessments. He

determined that Covey had used his special skills as a CPA to effectuate the money

laundering scheme, finding that Covey had been a CPA since 1972, that he had skills

and experience in accounting and finance, that he had prepared an amortization

schedule, a loan agreement and other loan-related financial documentation, and that he

had used multiple bank accounts in order to carry out the scheme. Because the district

court did not clearly err, we will not disturb its factual findings. See Koon v. United

States, 518 U.S. 81, 97 (1996).

Covey claims that members of the general public can prepare loan documents

and amortization tables and that he used a loan document program to prepare them.

The legal question is not whether the task could be performed by a person without

special skills, but whether the defendant's special skills aided him in performing the

task. See United States v. Noah, 130 F.3d 490, 500 (1st Cir. 1997) (tax preparer used

special skills in fraudulently filing online tax returns); United States v. Lewis, 41 F.3d

1209, 1214 (7th Cir. 1994) (truck driver employed specialized driving skills during a

theft); United States v. Fritzson, 979 F.2d 21, 22 (2d Cir. 1992) (accountant used

special skills in filing fraudulent tax returns for his children). There is no requirement

in the guidelines that the enhancement for use of special skills be used only for complex

tasks. See Noah, 130 F.3d at 500. Since Covey's special skills assisted him in
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conspiring with the Harts and in aiding and abetting money laundering, we affirm the

application of the special skills enhancement in this case.

IV.

Covey's other arguments do not require much discussion. He asserts that the

district court should have granted his motions for judgment of acquittal or for a new

trial on the grounds that there was insufficient evidence to convict him on any of the

three counts. A denial of a motion for acquittal based on insufficiency of evidence is

reversed only if the evidence, viewed in the light most favorable to the government, is

such that a reasonable jury must harbor a reasonable doubt that the defendant was

guilty of the crime charged. See United States v. Martinez, 168 F.3d 1043, 1047 (8th

Cir. 1999). The denial of a new trial is reviewed for clear and manifest abuse of

discretion. See United States v. Lacey, 219 F.3d 779, 783-84 (8th Cir. 2000). Covey's

claims of insufficiency are without merit since there was ample evidence to support the

verdicts and no showing that a new trial was needed.

Covey claims that the district court erred when it failed to give certain jury

instructions at trial, but he did not raise these claims at trial so they are reviewed for

plain error. See United States v. Jorgensen, 144 F.3d 550, 560 (8th Cir. 1998). Covey

argues that the district court should have given the jury an instruction on willfulness in

conjunction with Count I, an instruction defining "attempt" in conjunction with Counts

I and II, an instruction that a guilty verdict on each count of the indictment must be

supported by unanimity, a good faith instruction, and an instruction that an overt act

was an essential element of Count I. The district court did not err in omitting any of

these instructions. No willfulness instruction was required because the requisite state

of mind for both conspiracy and money laundering is knowledge. See, e.g., United

States v. Madrid, No. 99-4060NI, 2000 WL 1294323, at *3 (8th Cir. Sept. 14, 2000);

United States v. Jensen, 69 F.3d 906, 911 (8th Cir. 1995). Covey was not charged with

attempt to commit money laundering so it was not necessary to instruct on attempt. A
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general unanimity instruction is usually sufficient to protect a defendant's right to a

unanimous verdict, see United States v. Davis, 154 F.3d 772, 783 (8th Cir. 1998), and

we find no plain error in the lack of a specific unanimity instruction in this case. As the

appellant concedes, good faith instructions generally are not given in money laundering

cases. Finally, a sufficient instruction on an overt act requirement was given. 

Covey argues that his Fifth Amendment rights were violated when the district

court allowed the government to use documents that he had produced. It has long been

established that it is generally not unconstitutional to use the contents of documents

prepared and produced by a criminal defendant. See United States v. Doe, 465 U.S.

605, 611-12 (1984).

Covey also claims that the district court erred in denying his motion for an

evidentiary hearing to determine whether he was deprived of his Sixth Amendment

right to effective counsel. A claim of ineffective assistance usually requires the

examination of facts outside the original record so it is more appropriately raised in a

collateral proceeding under 28 U.S.C. § 2255. See, e.g., United States v. Martin, 59

F.3d 767, 771 (8th Cir. 1995); Kelly v. Crunk, 713 F.2d 426, 427 (8th Cir. 1983) (per

curiam). 

V.

Covey has not shown that he is entitled to a judgment of acquittal, a new trial,

or resentencing. We affirm the judgment of the district court and dismiss the appeal of

the preliminary forfeiture order as premature.

LOKEN, Circuit Judge, concurring in part and dissenting in part.

I respectfully dissent from Part III of the court’s opinion, which affirms the

imposition of an upward special skills sentencing adjustment. I concur in the court’s
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disposition of the forfeiture issue but for reasons not addressed in Part II. In all other

respects, I join the court’s opinion.

I.

In Part III, the court affirms the district court’s finding that Covey used his

special skills as a CPA to effectuate the money laundering offense. The court frames

the issue as being “whether the defendant’s special skills aided him in performing the

task.” Ante at p. 9. That understates the government’s burden in proving this role-inthe-offense adjustment. The Guidelines provide for a two-level upward adjustment if

the defendant “used a special skill, in a manner that significantly facilitated the

commission or concealment of the offense.” U.S.S.G. § 3B1.3 (emphasis added); see

United States v. Graham, 60 F.3d 463, 468 (8th Cir. 1995). Applying this more

stringent standard, I conclude the district court’s finding was clearly erroneous.

The Sentencing Commission included accountants in its examples of persons

who possess the requisite special skills. See U.S.S.G. § 3B1.3, comment. (n.3). But

the question is whether Covey used those skills to significantly facilitate the money

laundering loan transaction. The drug dealers, Gary and Darrell Hart, did not seek out

Covey for his accounting skills. They dealt with him as a lender, and Covey made the

loan through his personal investment company, MCM. The district court reasoned that

Covey used his special training and experience in creating a loan amortization schedule

and in documenting the loan transaction. In fact, Covey used a computer program to

generate the amortization schedule and loan documentation. Such resources are readily

available to any lender such as MCM, and are doubtless available to any layman

wishing to make an isolated loan to a friend or acquaintance. Thus, the record does not

support a finding that Covey used his special skills as a CPA to significantly facilitate

the commission of the offense. Compare United States v. Hemmingson, 157 F.3d 347,

359-60 (5th Cir. 1998); United States v. Foster, 876 F.2d 377, 378 (5th Cir. 1989). 
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The record also contains no evidence that Covey used his CPA skills to

significantly facilitate the concealment of the money laundering offense. Indeed, the

evidence was to the contrary. Covey attempted to conceal his receipt of cash collateral

by having the loan documents grant MCM a security interest in the Harts’ motorcycle

shop inventory. But the loan was made before the inventory was acquired, and the loan

documents failed to include a routine provision extending the lender’s security interest

to after-acquired inventory. In addition, when Covey sought legal advice in December

1995 (long after the June 1993 loan), counsel advised him to file an IRS Form 8300,

a cash transaction report that must be filed by persons who receive more than $10,000

cash in a transaction entered into in the course of their trade or business. I have little

doubt that a sophisticated money launderer would have known the cash transaction

reporting requirements and would have attempted to structure the loan to the Harts so

as to avoid those requirements. Absent proof by the government to the contrary, these

facts suggest either that Covey was an incompetent CPA, or that after-acquired security

interests and cash transaction reports are not part of a CPA’s special knowledge and

skill, or that Covey had the knowledge and skill but did not apply them to this

transaction. No matter which inference is accurate, the upward special skills

adjustment is unwarranted. 

By ignoring uncontroverted evidence that Covey either did not have or did not

use special CPA skills to significantly facilitate this offense, the district court and this

court have impermissibly broadened § 3B1.3 to increase Covey’s sentence based on

his mere status as a CPA. I respectfully dissent in part.

II.

Although I agree with the result reached by the court in Part II of its opinion, I

find the forfeiture issue more difficult than the court acknowledges. One principle has

been established -- in this circuit, a preliminary forfeiture order is not appealable as a

final order or judgment. See United States v. Coon, 187 F.3d 888, 901 (8th Cir. 1999),
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cert. denied, 120 S. Ct. 1417 (2000); contra United States v. Christunas, 126 F.3d 765,

768 (6th Cir. 1997). But here, after entering a preliminary order forfeiting “$70,000

in United States currency,” the district court entered a final Judgment reciting that

Covey had been found guilty of “Criminal Forfeitures.” When a forfeiture is included

in the final judgment, “prior case law would suggest that the preliminary order of

forfeiture is an appealable part of the judgment.” Coon, 187 F.3d at 901; accord

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

As the court notes, Covey’s final Judgment does not specify what property was

forfeited. But the preliminary order forfeited Covey’s interest in $70,000 of currency,

which of course is fungible property. The preliminary order and the final Judgment

together surely give the government as judgment creditor the right to proceed against

the forfeited property. And that is precisely how the parties interpreted the situation.

After entry of the final Judgment, Covey appealed and moved this court for an order

staying the criminal forfeiture. The government opposed that motion, arguing that it

should be permitted as a judgment creditor to immediately seize the forfeited property.

We denied the motion for stay, Covey paid the forfeited amount, and the government

filed a satisfaction of judgment. In these circumstances, Coon and Pelullo apply and

make the forfeiture order final and appealable.

But there is another wrinkle to the problem, one that has not yet been addressed

in the evolving law of criminal forfeitures. On appeal, Covey does not challenge the

sufficiency of the government’s forfeiture evidence. Nor does he raise any issue about

his interest in the forfeited property, since the subject of this forfeiture is currency.

Rather, he argues, first, that he and the Harts are jointly and severally liable for the

$70,000 forfeiture and the government has improperly collected from both; and second,

that forfeiting the entire $70,000 from him results in an unconstitutional excessive fine

under Austin v. United States, 509 U.S. 602, 621-22 (1993), and its progeny. These

are issues going to the manner in which the government collects its forfeiture judgment.

They are not ripe for final disposition -- by this court or by the district court -- until the
5See United States v. Pitt, 193 F.3d 751, 765 (3d Cir. 1999); United States v.

McHan, 101 F.3d 1027, 1043 (4th Cir. 1996), cert. denied, 520 U.S. 1281 (1997);

United States v. Benevento, 836 F.2d 129, 130 (2d Cir. 1988); cf. United States v.

Simmons, 154 F.3d 765, 769 (8th Cir. 1998) (conspirators are jointly and severally

liable for the proceeds of a RICO offense). 

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government has collected its forfeiture judgments against Covey and the Harts. In my

view, the forfeiture issues Covey raises are not appealable for this reason, without

regard to whether the district court’s forfeiture order is now final. 

This distinction may be important in the further proceedings the parties

contemplate. Both parties agree that Covey and the Harts as conspirators are jointly

and severally liable for forfeitures under 21 U.S.C. § 853(a)(1) -- an issue this court has

not yet addressed.5 Covey argues that the government has collected more than it

deserves -- $70,000 from Covey and additional forfeitures from the Harts. The

government responds that property seized from the Harts “represented proceeds of their

drug activities” and therefore is not “applicable” to Covey’s forfeiture. This dispute

raises an unresolved issue of law: when drug proceeds are exchanged by a money

launderer for “clean” cash, and the drug dealers use that cash to invest in a legitimate

business, may the government recover twice the amount of the drug proceeds by

forfeiting both the money launderer’s cash and the drug dealer’s property? I think not.

But the issue should not be resolved until the government has completed its forfeiture

collections. Similarly, Covey’s excessive fine argument should not be addressed until

the district court has held an evidentiary hearing to determine what portion of the

$70,000 in drug proceeds the government has collected from Covey, as opposed to the

drug dealers, Gary and Darrell Hart. 

The government has conceded on appeal that Covey is entitled to a hearing on

these issues after it completes its forfeiture collections, and that Covey will be entitled
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to a refund if he has overpaid his forfeiture liability. Therefore, I concur in the court’s

decision that the forfeiture issues Covey seeks to raise on appeal are premature.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.