16-3860 (L) United States v. Peterson (Crew) 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1 st day of December, two thousand seventeen. PRESENT: ROBERT A. KATZMANN, Chief Judge, JOHN M. WALKER, Jr., GUIDO CALABRESI, Circuit Judges.

_____________________________________ United States of America, Appellee , v. 16-3860 (L), 16-4196 (Con) Gregory Crew, Claimant–Appellant , Leon Toppin, Intervenor–Appellant , Richard Peterson, AKA Robert James, Defendant .

_____________________________________FOR APPELLANTS: Gregory Crew, pro se, Leon Toppin, pro se, San Francisco, CA. FOR APPELLEE: Noah Falk, Michael Ferrara, Assistant United States Attorneys, for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, NY. Appeal from an order of the United States Dist rict Court for the Sout hern District of New York (Chin, J ., sitting by designation).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court is AFFIRMED

. Appellants Gregory Crew and Leon Toppin, proceeding pro se, appeal from an order authorizing the government to ta ke control of and sell a San Francisco property. Defendant Richard Peterson pleaded guilty to fraud-related o ffenses and was ordered to forfeit a townhouse in San Francisco. Crew and Toppi n resided in separate units with in the townhouse. Crew filed a petition pursuant to 21 U.S.C. § 853(n) asserting an interest in the property. Toppin did not. The district court determined that Crew had an interest in the property worth half of the equity after a deduction for fraudulent proceeds Peterson had us ed for renovations. This Court affirmed the final order of forfeiture. United States v. Crew , 537 F. App’x 3 (2d Cir. 2013) (summary order). The government then moved for an order authorizing it to take control of and sell the property. Crew opposed and Toppin sought to intervene to oppose. The distri ct court granted the government’s motion, and this appeal followed. Both Crew and Toppi n assert due process challenges to the ancillary forfeiture proceeding. We assume the parties’ familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal. On appeal, Crew argues that he was never pr operly served with an y filings related to forfeiture, and therefore the final order of forfeiture and order of sale are void. The3 law-of-the-case doctrine bars Crew from asserting this argument because he could have raised it in his prior appeal of the forfeiture order, but failed to do so. See United States v. Williams , 475 F.3d 468, 471 (2d Cir. 2007) (“[T]he law of the case doctrin e forecloses reconsider ation of issues that were decided—or that could have been decided—during prior proceedings.”). And it is undisputed that he received actual notice of the motion for an order of sale, which he opposed. Consequently, his due process challenge fails. Toppin similarly argues that he was never given notice of the preliminary order of forfeiture, and the ancillary forfe iture proceeding is therefore void. However, it is undisputed that the government published notice of the preliminary order of forfeiture one day a week for three straight weeks in a California newspaper. See Fed. R. Crim. P. 32.2(b)(6 ); Supp. R. G(4)(a)(iii), (iv)(A). Although Toppin argues that he had an agreement with Peterson granting him lifetime exclusive occupancy of the first floor apartment of the property and a lifetime option to purchase the entire property, Toppin did not record the agreement until May 2016, and therefore the government’s title search would not have revealed that he had any pote ntial interest in the property. See Fed. R. Crim. P. 32.2(b)(6)(A) (requiring written notice only to “any person who reasonably appears to be a potential claimant w ith standing to contest the forfeiture”). But regardless of the above, and in itself determina tive, Toppin does not dispute that his counsel actually received the preliminary order of forfe iture in connection with an other property subject to forfeiture. See Fed. R. Crim. P. 32.2(b)(6)(D ); Supp. R. G(4)(b)(iii)(B). Toppin failed to file a petition asserting a legal interest in the property within 30 days “of the final publication of notice or his receipt of notice,” or in fact ever, and he was therefore ba rred from intervening to challenge the forfeiture or order of sale. 21 U.S.C. § 853(k), (n); see DSI Assocs

. LLC v. United States , 4964 F.3d 175, 183 (2d Cir. 2007) (“It is . . . well set tled that section 853(n) provides the exclusive means by which a third party may lay claim to forfeited assets—after the preliminary forfeiture order has been entered.”). Consequently, his due process challenge fails as well. We have considered Appellants’ remaining argu ments and find them to be without merit. Accordingly, we AFFIRM the order of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk