NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

________________ 

No. 15-2901 

________________ 

UNITED STATES OF AMERICA 

v. 

 

DAVID NICOLL 

 * MELISSA SINGH, 

 Appellant 

 *(Pursuant to Rule 12(a), Fed. R. App. P.) 

 ________________ 

Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Criminal Action No. 2-13-cr-00385-001) 

District Judge: Honorable Stanley R. Chesler 

________________ 

Submitted Under Third Circuit LAR 34.1(a) 

September 27, 2017 

Before: AMBRO, KRAUSE, Circuit Judges, and CONTI, District Judge 

(Opinion filed: September 28, 2017) 

 

 Honorable Chief Judge Joy Flowers Conti, District Court Judge for the Western District 

of Pennsylvania, sitting by designation. 
2 

________________ 

OPINION*

________________ 

AMBRO, Circuit Judge 

 David Nicoll purchased a blood testing laboratory that became the center of a 

bribery and kickback scheme by which he would pay bribes to physicians to induce them 

to refer their patients’ blood samples to his laboratory. He pled guilty to the charges 

against him and, as part of the plea agreement, agreed to forfeit all of his rights, title, and 

interest in property listed in the agreement. One item of real property on that list was a 

Manhattan condominium worth approximately $700,000 that was purchased by Appellant 

Melissa Singh. She had a romantic relationship with Nicoll, and he gave her the 

necessary funds using the laboratory’s company account (that is, it was purchased with 

illegal kickbacks he received while running his criminal enterprise). Singh holds title to 

the property and has been in exclusive possession of it. 

 The District Court entered a First Preliminary Order of Forfeiture that included the 

condominium. Singh filed a third-party petition claiming an interest in the property but 

the Court dismissed it. It determined that Singh had purchased the unit with money 

furnished by Nicoll from the proceeds of his criminal activity and thus it was properly 

forfeited. It also found that, because Singh purchased the condominium with money 

given to her as a gift, she was not a bona fide purchaser of the unit and could not claim a 

 

*

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent. 
3 

third-party interest in it under the criminal forfeiture statute, 21 U.S.C. § 853. Singh 

appeals. 

 In criminal forfeiture proceedings, the Government must establish “the requisite 

nexus between the [forfeited] property and the offense.” Fed. R. Crim. P. 32.2(b)(1)(A). 

A court will then make a preliminary forfeitability determination “based on evidence 

already in the record, id. at 32.2(b)(1)(B), and which is made without regard to any third 

party’s interest in the property,” id. at 32.2(b)(2)(A). By statute, a third party cannot 

challenge an order of preliminary forfeiture in criminal proceedings over property 

forfeited to the Government as a result of a criminal conviction. 21 U.S.C. § 853(k). 

Instead, a third party claiming an interest in forfeited property may file an ancillary 

proceeding in which he or she demonstrates that interest. Id. § 853(n). Only if the third 

party has established it has a vested right in the property superior to that of the defendant, 

or it is a bona fide purchaser of the property, will the court amend the preliminary 

forfeiture order. United States v. Lavin, 942 F.2d 177, 185 (3d Cir. 1991) (citing 21 

U.S.C. § 853(n)(6)(A) and (B)). 

 Singh asserts that the District Court erred in permitting the Government to 

demonstrate the requisite nexus after the property was listed in the preliminary forfeiture 

order. She claims the Government must make that demonstration prior to the property’s 

entry in the order, and thus the District Court erred, affecting her rights in the proceeding. 

She is incorrect. We need not address whether the District Court committed procedural 

error afoul of Rule 32.2 because, even if it did, that error is irrelevant to Singh’s claimed 

third-party interest. 
4 

 Rule 32.2 creates a bifurcated forfeiture procedure for all interested parties. At the 

first stage, only the Government and defendant are involved—the court makes a 

preliminary forfeiture determination “without regard to any third party’s interest,” which 

can only be considered later after the preliminary order is issued. Fed. R. Crim. P. 

32.2(b)(2)(A). At this stage, the “requisite nexus” analysis affects only the rights of the 

defendant. That is, the Rule’s purpose is to require that the Government demonstrate 

why forfeiture of the defendant’s property is appropriate to ensure that it does not 

wrongly seize property unrelated to a defendant’s criminal activity. It is a procedural 

safeguard to protect the defendant. See Libretti v. United States, 516 U.S. 29, 41 (1995) 

(Rules regarding criminal forfeiture generally “attach heightened procedural protections 

to imposition of criminal forfeiture as punishment for certain types of criminal 

conduct.”). Third parties are immaterial to the requisite nexus analysis. Indeed, they are 

expressly barred from intervening in it. 21 U.S.C. § 853(k). 

 The second stage of the forfeiture proceedings allows third parties to file ancillary 

proceedings and establish their superseding or bona fide-purchaser interests in the 

forfeited property. Fed. R. Crim. P. 32.2(c). But this does not provide the opportunity to 

re-litigate matters pertinent to the prior stage of the proceedings from which that third 

party was statutorily excluded. That is what Singh attempts to do here. Whether the 

District Court followed the exact steps outlined in Rule 32.2(b) is of no import to her. 

Per the Rule and the forfeiture statute, any error would implicate Nicoll’s property rights, 
5 

not Singh’s.1

 The only relevant question on appeal as it pertains to Singh is whether the 

District Court correctly determined that she did not possess a superior property interest or 

was not a bona fide purchaser of the condominium (and thus whether she had a thirdparty interest in the property for the purpose of forfeiture). 

 Turning to that question, the District Court concluded that Singh had no superior 

property right “at the time of the commission of the acts which gave rise to the forfeiture 

of the property,” as required by 21 U.S.C. § 853(n)(6)(A). It is undisputed that she 

purchased the condominium during the commission of Nicoll’s criminal scheme. The 

Court also determined that, because Singh admitted that the condominium was obtained 

with money given to her by Nicoll as a gift, she was not a bona fide purchaser of it as 

alternatively required by 21 U.S.C. § 853(n)(6)(B). See United States v. Kennedy, 201 

F.3d 1324, 1335 (11th Cir. 2000). Singh does not contest these findings. Under the 

forfeiture statute she has no third-party interest in the property that warrants its excision 

from the stipulated list of property in the forfeiture order. 

 Accordingly, we affirm. 

 1

 Furthermore, the District Court eventually determined that the Government met 

its burden in demonstrating the requisite nexus between the condominium and proceeds 

from Nicoll’s criminal activity before entering the final forfeiture order. To the extent 

there was any procedural error in making this determination, that is Nicoll’s appeal to 

take (as it implicates only his rights), and he does not pursue such an appeal.