*

After examining the briefs and the record, we have concluded that oral argument is

unnecessary, and the appeals are submitted on the briefs and the record. See Fed. R. App. P.

34(a)(2). Accordingly, the appellant’s motion for the appointment of counsel to submit

additional briefs and/or present oral argument, which was taken with the case, is denied.

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Submitted November 12, 2009*

Decided September 20, 2010

Before

JOHN L. COFFEY, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

Nos. 09‐1126 & 09‐2050

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

EUGENE A. FISCHER,

Defendant‐Appellant.

Appeals from the United States District

Court for the Southern District of Illinois.

No. 87‐cr‐40070‐JPG

J. Phil Gilbert,

Judge.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
Nos. 09‐1126 & 09‐2050 Page 2

O R D E R

Eugene Fischer challenges an order giving the government authority to renew a

judgment lien arising from a $30 million criminal forfeiture entered against Fischer more

than 20 years ago. Fischer filed two notices of appeal from the district court’s order, but the

second is duplicative.

Fischer was convicted in 1988 of conspiring to distribute marijuana, 21 U.S.C. §§ 846,

841(a)(1), and running a continuing criminal enterprise, 21 U.S.C. § 848. The district court

imposed a life term on the CCE conviction and a concurrent 35‐year sentence for the

conspiracy. The court also ordered a criminal forfeiture in the amount of $30 million

pursuant to 21 U.S.C. § 853. The conspiracy conviction was later vacated, but the CCE

conviction and the forfeiture judgment remain intact. See United States v. Fischer, 205 F.3d

967, 972 (7th Cir. 2000).

In October 2008, the government asked the district court to renew the judgment lien

arising from the criminal forfeiture. As authority for its motion, the government relied on 28

U.S.C. § 3201, a part of the Federal Debt Collection Procedure Act (“FDCPA”). Section 3201

provides that a judgment in a civil action creates a lien that expires after 20 years but can be

extended for another 20 by obtaining court approval for renewal. 28 U.S.C. § 3201(a), (c).

The government acknowledged that § 3201 literally applies only to judgment liens in civil

cases but asserted, “in an abundance of caution,” that the district court should rely on the

statute to authorize renewal of the lien against Fischer’s property. The court was

unconvinced that § 3201 has any relevance to a lien arising from a criminal forfeiture, but

still granted the government’s motion. The court emphasized, however, that it was not

reopening or renewing the judgment of conviction against Fischer, but was only renewing the

judgment lien.

On appeal Fischer argues, as he did in the district court, that § 3201 is not applicable

to criminal forfeitures. Instead, he insists, the governing statute is 18 U.S.C. § 3613, which

expressly applies to unpaid criminal fines. Under the version of § 3613 in effect when he

committed his crimes, Fischer continues, a lien expires after 20 years and cannot be

renewed. See 18 U.S.C. § 3613 (1984).

We are convinced that neither 18 U.S.C. § 3613 nor 28 U.S.C. § 3201 applies to the lien

arising from the criminal forfeiture against Fischer. A judgment of criminal forfeiture is in

personam and creates “a judgment lien against [a defendant] for the balance of his prison

term and beyond.” United States v. Baker, 227 F.3d 955, 970 (7th Cir. 2000). This criminal

forfeiture, which is a mandatory judgment for the amount of proceeds derived from the

crime, see United States v. Vampire Nation, 451 F.3d 189, 201 (3d Cir. 2006), is distinct from a

criminal fine, which is a discretionary penalty that may vary with the defendant’s financial

resources, see United States v. Casey, 444 F.3d 1071, 1076 (9th Cir. 2006) (citing 18 U.S.C. § 3572).

Because the 20‐year limit of 18 U.S.C. § 3613 applies only to criminal fines, Fischer’s reliance

on this statute is unavailing.
Nos. 09‐1126 & 09‐2050 Page 3

As for the government’s resort to the judgment lien provision of the FDCPA, 28

U.S.C. § 3201, this statute also is inapplicable. By its terms, § 3201 applies only to liens

created from “a judgment in a civil action.” Id. § 3201(a). The lien here was created not by

any civil judgment but, as mentioned, by an in personam criminal forfeiture entered against

Fischer under 21 U.S.C. § 853. This lien remains in effect until satisfied and thus requires no

renewal under 28 U.S.C. § 3201 or any other statute. Until the lien is satisfied, the

government may at any time seek the forfeiture of substitute assets under 21 U.S.C. § 853(p).

See Young v. United States, 489 F.3d 313, 316 (7th Cir. 2007) (per curiam).

We appreciate that caution compelled the government to seek renewal of the

criminal forfeiture lien under the FDCPA, given the broad scope of the Act. The FDCPA

provides that it is the “exclusive” procedure to recover a judgment on a debt, unless

inconsistent with another federal law more specific to the judgment at issue. 28 U.S.C. §

3001(a)‐(b). Still, even if the FDCPA generally applies to criminal forfeitures, it does not

follow that the specific 20‐year limit of § 3201—which plainly covers only “civil” judgment

liens—applies. The FDCPA also does not prevent the government from using alternative

methods for collecting on a criminal forfeiture, including the forfeiture of substitute assets

under 21 U.S.C. § 853(p). Cf. United States v. Coluccio, 19 F.3d 1115, 1116 (6th Cir. 1994) (“[T]he

FDCPA does not preclude officials from utilizing other procedures to collect criminal fines . . .

.”); United States v. Scarboro, 352 F. Supp. 2d 714, 716‐17 (E.D. Va. 2005) (government not

required to use FDCPA to enforce criminal restitution order). Notably, the FDCPA makes

clear that it does not limit the government’s right to “to collect any . . . forfeiture arising in a

criminal case.” 28 U.S.C. § 3003(b)(2).

Because 28 U.S.C. § 3201(c) authorizes the renewal of only “civil” judgment liens, we

must reverse the district court’s order purporting to use that statute to extend the criminal

forfeiture lien against Fischer. We emphasize, though, that such an extension was

unnecessary, and the government’s rights to enforce the judgment lien arising from the

criminal forfeiture remain intact.

In appeal No. 09‐1126, we REVERSE the order of the district court and direct the

dismissal of the government’s motion for the reasons explained in this order.

Appeal No. 09‐2050 is DISMISSED as duplicative.