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                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                               Nos.  15-12643 & 16-15687
                              ________________________

                       D.C. Docket No.  6:08-cr-00176-JA-GJK-1



UNITED STATES OF AMERICA,

                                                                       Plaintiff-Appellee,
                                           versus

FRANK AMODEO,

                                                                    Defendant-Appellant. 

                              ________________________

                     Appeals from the United States District Court
                          for the Middle District of Florida
                             _______________________

                                    (February 21, 2019)

Before WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and MOORE, *
District Judge. 

WILLIAM PRYOR, Circuit Judge:




*
 Honorable K. Michael Moore, United States District Chief Judge for the Southern District of
Florida, sitting by designation. 
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      This appeal presents the question whether a criminal defendant has standing

to appeal the partial vacatur of the final forfeiture order entered in his case.  Frank

Amodeo pleaded guilty to involvement in a criminal scheme to divert his clients’

payroll taxes.  He agreed to forfeit many assets, including the ownership of two

shell corporations.  The district court entered a preliminary forfeiture order that

divested Amodeo of those assets.  After no third parties asserted an interest in the

corporations, the court entered a final forfeiture order that transferred ownership of

them to the government.  Years later, the corporations were named as defendants in

a lawsuit brought by victims of Amodeo’s scheme.  The government then moved to

vacate the final forfeiture order as to the corporations, and the district court granted

that motion.  Amodeo appeals the partial vacatur on the ground that the district

court lacked the authority to enter it.  But because the partial vacatur caused him no

injury, Amodeo lacks standing to complain about it.  We dismiss his appeal for lack

of jurisdiction. 

                                 I. BACKGROUND
      Frank Amodeo instigated a criminal scheme to divert his clients’ payroll

taxes to his companies’ bank accounts instead of remitting that money to the

Internal Revenue Service.  After a grand jury returned a 27-count indictment,

Amodeo reached a plea agreement with the government.  He pleaded guilty to

conspiracy to defraud the United States, failure to collect and remit payroll taxes,



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and obstruction of an agency investigation.  He agreed to forfeit many assets,

including approximately $180 million, multiple properties, luxury cars, a Lear jet,

and the ownership of several corporations.  This appeal concerns two of those

corporations: AQMI Strategy Corporation and Nexia Strategy Corporation. 

      The district court entered a preliminary forfeiture order for the assets listed

in Amodeo’s plea agreement, including AQMI and Nexia.  The preliminary

forfeiture order stated that it “shall be a final order of forfeiture as to the defendant,

Frank L. Amodeo.”  The district court sentenced Amodeo to 270 months of

imprisonment followed by three years of supervised release. 

      The government then moved for a final forfeiture order.  No third parties

claimed an interest in the corporations.  The district court granted the motion and

entered the final forfeiture order.  It ordered that Amodeo’s assets, including the

corporations, were “condemned and forfeited to the United States,” so “clear title

to the property is now vested in the United States.” 

      Amodeo appealed the final forfeiture order, but we dismissed his appeal for

lack of jurisdiction.  United States v. Amodeo, No.  09-16170 (11th Cir.  Mar. 26,

2010).  We explained that Amodeo lacked standing to appeal the final forfeiture

order because the preliminary forfeiture order “fully and finally resolved all of

Frank Amodeo’s interests in the properties referenced in the . . .  final forfeiture

order.”  Id. at 1.  Amodeo’s lack of standing meant this Court lacked jurisdiction



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over his appeal.  Id. Amodeo also appealed his conviction, which we affirmed. 

United States v. Amodeo, 387 F. App’x 953 (11th Cir.  2010). 

       A few years later, victims of Amodeo’s scheme filed a complaint against

several corporations, including the forfeited AQMI and Nexia.  See Complaint at 3,

Palaxar Grp.  v. Williams, No.  6:14-cv-00758-ORL-28GJK (M.D. Fla. Sept. 18,

2013), ECF No.  1.  After AQMI and Nexia were served as defendants in the suit,

the government moved to vacate the final forfeiture order only as to those

corporations.  The government explained that both corporations were shell

corporations without any assets and that it had sought their forfeiture “to prevent

their continued illegal use by [Amodeo] and to deprive [him] of any economic

value that the corporations may have.”  The government informed the district court

that it would not defend either corporation in the Palaxar suit and “believe[d]

it . . .  in the best interest of the [g]overnment to divest ownership of Nexia and

AQMI.”  The district court granted the motion and vacated the final forfeiture order

as to AQMI and Nexia.  The final forfeiture order “otherwise remain[ed] in effect.” 

       Amodeo moved to reconsider the partial vacatur on the ground that the

district court lacked jurisdiction to alter the final forfeiture order, but the district

court denied his motion.  The court confirmed that it had vacated only the final

forfeiture order in part, not the preliminary forfeiture order.  It explained that,

“[j]ust as Amodeo lacked standing to challenge the final order of forfeiture on



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appeal, Amodeo also lack[ed] standing to challenge the partial vacatur of that

order.”  Amodeo appealed the denial of his motion to reconsider the partial

vacatur—the appeal before us now. 

      Meanwhile, Amodeo moved to intervene in the pending Palaxar suit.  He

contended that the partial vacatur of the final forfeiture order restored his

ownership of AQMI and Nexia.  The district court denied the motion, and we

affirmed that denial.  See Palaxar Grp.  v. Williams, 714 F. App’x 926, 928–29

(11th Cir.  2017).  We concluded that the partial vacatur did not return the

ownership of the corporations to Amodeo because “the preliminary forfeiture

order, which divested Mr. Amodeo of his ownership interest, was never disturbed.” 

Id. at 929 & n.4.  We explained that “[t]he government did not return its interest in

AQMI to Mr. Amodeo; instead, the government relinquished its ownership interest

after AQMI was sued.”  Id. at 928.  And we noted that “[a] previous panel of this

court recognized as much, and we have no basis or reason to reach a different

conclusion.”  Id. at 928–29. 




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                           II.  STANDARD OF REVIEW

      We review de novo questions of our jurisdiction.  United States v.

Cartwright, 413 F.3d 1295, 1299 (11th Cir.  2005). 

                                  III.  DISCUSSION

      Amodeo argues that the district court lacked jurisdiction to partially vacate

the final forfeiture order, but we lack jurisdiction to consider that question in this

appeal. “ On every writ of error or appeal, the first and fundamental question is that

of jurisdiction, first, of this court, and then of the court from which the record

comes.”  Mansfield, C. & L.M. Ry.  Co. v. Swan, 111 U.S. 379, 382 (1884)

(emphases added); accord Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–

95 (1998); Bender v. Williamsport Area Sch.  Dist.,  475 U.S. 534, 547 (1986);

Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900); Castleberry v.

Goldome Credit Corp., 408 F.3d 773, 779 (11th Cir.  2005).  So this Court must

satisfy itself of its jurisdiction before we can address whether the district court had

jurisdiction.  See Peppers v. Cobb County, 835 F.3d 1289, 1296 (11th Cir.  2016)

(“[W]e are obliged first to consider our power to entertain the claim.”). 

      That this Court must first satisfy itself of our own jurisdiction is a rule

without exception: “Without jurisdiction[,] the court cannot proceed at all in any

cause.”  Steel Co., 523 U.S. at 94 (quoting Ex parte McCardle, 74 U.S. 506, 514

(1868)). “[ J]urisdiction is power to declare the law,” so when it does not exist, “the



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only function remaining to the court is that of announcing the fact and dismissing

the cause.”  Id. To do otherwise would “violate[] the fundamental constitutional

precept of limited federal power” and so “offend[] fundamental principles of

separation of powers.”  Univ.  of S. Ala. v. Am.  Tobacco Co., 168 F.3d 405, 409–10

(11th Cir.  1999) (citations and internal quotation marks omitted). 

      Amodeo argues that the doctrine of standing does not apply to his criminal

case, but Article III of the Constitution, from which standing derives, governs our

jurisdiction in every type of case.  Article III vests the judiciary with jurisdiction

only over “Cases” and “Controversies.”  U.S. Const.  Art.  III, § 2.  To have a case or

controversy, a litigant must establish that he has standing, which must exist

“throughout all stages of litigation.”  Hollingsworth v. Perry, 570 U.S. 693, 705

(2013). “ That means that standing must be met by persons seeking appellate

review, just as it must be met by persons appearing in courts of first instance.”  Id.

(quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997)); see

also Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353 (11th Cir.  2003) (“Litigants must

establish their standing not only to bring claims, but also to appeal judgments.”). 

To establish appellate standing, a litigant must “prove that he has suffered a

concrete and particularized injury that is fairly traceable to the challenged conduct,

and is likely to be redressed by a favorable judicial decision.”  Hollingsworth, 570

U.S. at 704. 



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      In the context of appellate standing, the primary meaning of the injury

requirement is adverseness: “Only a litigant who is aggrieved by the judgment or

order may appeal.”  Wolff, 351 F.3d at 1354 (citation and internal quotation marks

omitted). “ For there to be . . .  a case or controversy, it is not enough that the party

invoking the power of the court have a keen interest in the issue,” Hollingsworth,

570 U.S. at 700; he “must seek relief for an injury that affects him in a personal

and individual way,” id. at 705 (citation and internal quotation marks omitted).  So

an appellant “must possess a direct stake in the outcome of the case.”  Id. To

establish standing in a forfeiture proceeding, we have looked to whether the litigant

has an interest in the property subject to the forfeiture because, absent an interest in

that property, there is no case or controversy.  United States v. $38,000.00 in U.S.

Currency, 816 F.2d 1538, 1543 (11th Cir.  1987). 

      Amodeo argues that he has standing because the ownership of the

corporations might have reverted to him when the district court partially vacated

the final forfeiture order, but we disagree.  Forfeiture divests a criminal defendant

of property that can be described generally as the fruits of his crime.  Under Federal

Rule of Criminal Procedure 32.2, criminal forfeiture is split into two phases: the

first phase concerns the defendant’s ownership of the property to be forfeited, and

the second phase concerns any third party’s ownership of that property. 




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      When, as Amodeo did, a criminal defendant pleads guilty and agrees to the

forfeiture, the district court must promptly enter a preliminary forfeiture order. 

Fed.  R. Crim.  P. 32.2(b)(1)–(2). “ At sentencing—or at any time before sentencing

if the defendant consents—the preliminary forfeiture order becomes final as to the

defendant.”  Fed.  R. Crim.  P. 32.2(b)(4)(A) (emphasis added).  Although the

preliminary forfeiture order is final as to the defendant, it “remains preliminary as

to third parties until the ancillary proceeding is concluded.”  Id. The defendant may

appeal the preliminary forfeiture order.  Fed.  R. Crim.  P. 32.2(b)(4)(C). 

      The district court conducts an ancillary proceeding so that third parties can

assert their interest in the property.  Fed.  R. Crim.  P. 32.2(c).  Although it occurs in

the context of criminal forfeiture, the ancillary proceeding is civil in nature.  United

States v. Davenport, 668 F.3d 1316, 1323 (11th Cir.  2012).  The ancillary

proceeding exists to determine whether a third party has an interest in the property

that the defendant has already forfeited—not to relitigate the preliminary order’s

finding of forfeitability.  Id. at 1321.  So the ancillary proceeding determines

whether a third party or the government will obtain the forfeited property. 

      After the district court accounts for the interest of any third parties, it must

enter a final forfeiture order.  Fed.  R. Crim.  P. 32.2(c)(2).  A defendant “generally

has no standing to participate in the ancillary proceeding.”  United States v. Pelullo,

178 F.3d 196, 202 (3d Cir.  1999).  And he cannot appeal the final forfeiture order



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because it “has no bearing on the defendant’s rights.”  United States v. Flanders,

752 F.3d 1317, 1343 (11th Cir.  2014). 

      Amodeo’s argument that he potentially owns the corporations due to the

partial vacatur is mistaken.  The preliminary forfeiture order extinguished all of

Amodeo’s interest in the corporations.  United States v. Gross, 213 F.3d 599, 600

(11th Cir.  2000).  In fact, Amodeo expressly agreed that “the preliminary order of

forfeiture shall be final as to the defendant at the time it is entered.”  So when the

district court completed the first phase of the forfeiture by entering the preliminary

forfeiture order, Amodeo had given up his interest in the corporations.  Because no

third parties asserted an interest during the ancillary proceeding, the government

took ownership of the corporations when the district court entered the final

forfeiture order. 

      The partial vacatur of the final forfeiture order did not revive Amodeo’s

ownership of the corporations.  When an order is vacated, “the rights of the parties

are left as though no such judgment had ever been entered.”  United States v. De La

Mata, 535 F.3d 1267, 1276–77 (11th Cir.  2008) (quoting 49 C.J.S. Judgments

§ 357 (2008)).  When the district court vacated the final forfeiture order, it vacated

only the “Final Forfeiture Order (Doc.  177) . . .  to the extent it pertains to Nexia

Strategy Corporation and AQMI Strategy Corporation.”  Considering where the

parties would stand had the district court never entered a final forfeiture order,



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Amodeo would still lack any interest in the corporations because he forfeited it

under the preliminary forfeiture order—which remains intact. 

      We have twice ruled that Amodeo had no interest left in the corporations

after the entry of the preliminary forfeiture order.  We first concluded that Amodeo

lacked standing to appeal the final forfeiture order because the “preliminary order

of forfeiture fully and finally resolved all of Frank Amodeo’s interests in the

properties referenced in the . . .  final forfeiture order.”  Amodeo, No.  09-16170, at

1.  Then, several years later, we ruled that the district court correctly denied

Amodeo’s motion to intervene in Palaxar because he lacked an interest in the

defendant-corporations.  714 F. App’x at 928.  We concluded that “[t]he

government did not return its interest in AQMI to Mr. Amodeo [after the partial

vacatur]; instead, the government relinquished its ownership interest after AQMI

was sued.”  Id. We again explained that “the preliminary forfeiture order, which

divested Mr. Amodeo of his ownership interest, was never disturbed.”  Id. at 929

n.4.  Today, we reach the same conclusion for a third time: Amodeo has no interest

in either AQMI or Nexia. 

      That conclusion means that Amodeo lacks standing to appeal the partial

vacatur.  We have “consistently adhered to one major proposition without

exception: One who has no interest of his own at stake always lacks standing.” 

United States v. Weiss, 467 F.3d 1300, 1311 (11th Cir.  2006) (emphasis omitted)



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(citation and internal quotation marks omitted).  Because the partial vacatur did not

restore Amodeo’s ownership of the corporations, or impose their potential

liabilities on him, he has no interest at stake.  That is, the partial vacatur did not

aggrieve—or even affect—Amodeo, so he has suffered no injury from it.  To put

standing in the “more pedestrian terms” used by Justice Scalia, “it is an answer to

the very first question that is sometimes rudely asked when one person complains

of another’s actions: ‘What’s it to you?’”  Antonin Scalia, The Doctrine of Standing

as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881,

882 (1983).  Amodeo lacks standing because the “it”—the partial vacatur—is

nothing to him. 

      Because Amodeo lacks standing, we must “dismiss this appeal regardless of

whether or not the district court possessed authority to vacate the [final] order[] of

forfeiture.”  United States v. Cone, 627 F.3d 1356, 1359 (11th Cir.  2010).  Amodeo

protests that it would be perverse if the district court could enter an order without

jurisdiction and with no possibility of review, but the authority of the district court

can be litigated in a case or controversy between parties who—unlike Amodeo—

have a real interest in the effects of the partial vacatur, if any such parties exist. 

Even if they do not, the argument that if Amodeo “ha[s] no standing to sue, no one

would have standing, is not a reason to find standing.”  Schlesinger v. Reservists

Comm.  to Stop the War, 418 U.S. 208, 227 (1974).  The assumption that “the



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business of the federal courts is correcting . . .  errors, and that ‘cases and

controversies’ are at best merely convenient vehicles for doing so and at worst

nuisances that may be dispensed with when they become obstacles to that

transcendent endeavor,” “has no place in our constitutional scheme.”  Valley Forge

Christian Coll.  v. Ams.  United for Separation of Church & State, Inc., 454 U.S.

464, 489 (1982).  We are a court of limited jurisdiction, Kokkonen v. Guardian Life

Ins.  Co. of Am.,  511 U.S. 375, 377 (1994), and Article III of the Constitution does

not extend our jurisdiction to consider the question presented in this appeal. 

                                 IV.  CONCLUSION

      We DISMISS Amodeo’s appeal for lack of jurisdiction. 




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ROSENBAUM, Circuit Judge, concurring in the judgment:

      I agree that Frank Amodeo has no standing here.  But I write separately

because I respectfully disagree with the panel opinion’s conclusion that Article III

standing must always be determined first when more than one non-merits issue could

dispose of a case.  Rather, no unyielding jurisdictional hierarchy exists, and courts

retain discretion to dispose of a case on any non-merits, threshold basis when no

ready answer to any such non-merits question is immediately obvious. 

      The Supreme Court has explained that “a federal court has leeway to choose

among threshold grounds for denying audience to a case on the merits.” ( citations

and quotation marks omitted).  Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,

549 U.S. 422, 431 (2007). “[ T]here is no mandatory sequencing of jurisdictional

issues.”  Id. (citation and quotation marks omitted).  For example, a federal court

need not establish subject-matter jurisdiction before dismissing for lack of personal

jurisdiction.  Id. “Nor must a federal court decide whether the parties present an

Article III case or controversy before abstaining under [an abstention doctrine].”  Id.

      In determining which non-merits issue to address, a court may properly

consider factors like “convenience, fairness, and judicial economy.”  Id. at 432.  So

of course, if “a court can readily determine that it lacks jurisdiction over the cause

or the defendant, the proper course would be to dismiss on that ground.”  Id. at 436. 




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But at bottom, “[j]urisdiction is vital only if the court proposes to issue a judgment

on the merits.”  Id. at 431 (citation and quotation marks omitted). 

       This case raises two non-merits, jurisdictional 1 questions: whether Amodeo

has Article III standing and whether federal courts have subject-matter jurisdiction

to partially vacate a final order of forfeiture in the circumstances of this case. 

       On the issue of standing, the panel opinion attempts to distinguish between

appellate and district-court jurisdiction.           But even assuming, arguendo, that

Sinochem’s sequencing rules do not apply to jurisdictional issues unique to our

appellate jurisdiction, the panel opinion forgets that Amodeo has the same basis for

being heard by us as he had for being heard by the district court.  No intervening

change affected Amodeo’s standing between the time the district court decided that

he had no standing and the time Amodeo appealed that ruling to us.  Our jurisdiction

in terms of standing turns on whether Amodeo had standing below, and if he did not,

we must dismiss the case for lack of jurisdiction.  We therefore confront the same

jurisdictional question in terms of Article III standing that the district court did. 

       Similarly, we also face the same jurisdictional question that the district court

did as to whether federal courts have power to grant the government’s requested




1
  The fact that these are both non-merits questions is enough to give us discretion to take either
question first, as “[j]urisdiction is vital only if the court proposes to issue a judgment on the
merits.”  Sinochem, 549 U.S. at 431.  It just so happens that both non-merits issues here are
jurisdictional. 


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partial vacatur of the final order of forfeiture in this case.  Because federal courts are

courts of limited subject-matter jurisdiction, we must always consider whether

subject-matter jurisdiction exists to grant a party’s requested relief.  Thermoset Corp.

v. Bldg.  Materials Corp of Am.,  849 F.3d 1313, 1316-17 (11th Cir.  2017).  If we find

that the district court did not have jurisdiction to grant the government’s request, all

we can do is vacate the illegal order that the district court—and federal courts in

general—had no authority to enter and dismiss the case.  Id. at 1321. 

      In considering our jurisdiction, then, we face the same two threshold questions

as did the district court.  Under Sinochem, if no answer to either question is readily

apparent, we may exercise our discretion to address either issue first. 

      Here, however, the answer to the standing question is immediately obvious. 

Amodeo cannot make a colorable claim that he has standing.  In fact, we have

previously reached exactly this same conclusion in Amodeo’s case.  In Amodeo’s

direct appeal from the final order of forfeiture, we unambiguously held that he lacked

standing because the preliminary order of forfeiture already “fully and finally

resolved all of” Amodeo’s interests in the relevant properties—including the two

companies at issue in this case.  See United States v. Amodeo, No.  09-16170 (11th

Cir.  Mar. 26, 2010).  And even after the district court partially vacated the final order

of forfeiture, we held that the preliminary order of forfeiture continued to govern, so

Amodeo still had no interest in the two companies at issue here.  Palaxar Grp.  v.



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Williams, 714 App’x 926, 928-29 & n.4 (11th Cir.  2017).  In short, it is immediately

obvious that Amodeo has no standing, and his appeal is properly dismissed on that

basis. 

         Yet the panel opinion goes further and imposes mandatory sequencing of non-

merits issues by placing Article III standing unyieldingly before all other

jurisdictional questions.  Majority Op.  at 6 (“That this Court must first satisfy itself

of our own jurisdiction is a rule without exception . . . .”).  That contravenes

Sinochem’s clear directive that “there is no mandatory sequencing of jurisdictional

issues. ”2 Sinochem, 549 U.S. at 431 (citation and quotation marks omitted).  And so

I concur only in the panel opinion’s judgment. 




2
 To be clear, under Sinochem, if no obvious answer existed to either of the jurisdictional questions
we face today—if, say, Amodeo’s standing turned on complicated questions of fact, or if the legal
analysis for standing were mired in inter-Circuit splits—then we could first consider the question
of the district court’s jurisdiction to grant the government’s requested relief.  But as I have
described, as a matter of fact, that is not the case here. 


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