What happened
The Sixth Circuit affirmed a $108,454.88 forfeiture sentence against Jeremy Wayne Harrell on Thursday, holding that a Kentucky federal court mishandled the timing of criminal forfeiture but that the procedural errors did not warrant vacating the sentence.
In a published opinion, the panel said the district court violated Federal Rule of Criminal Procedure 32.2 by failing to impose forfeiture at sentencing and by failing to include forfeiture in its initial or first amended judgments. But the appeals court concluded the rule violation was subject to harmless-error review and did not prejudice Harrell.
Harrell was convicted by a jury of stealing government funds after receiving Department of Veterans Affairs unemployability benefits while working about 40 hours a week for a nonprofit he founded. The government sought a preliminary forfeiture order for $108,454.88 before sentencing, but the district court did not address the motion or enter a preliminary forfeiture order before the sentencing hearing.
At the December 2024 sentencing hearing, the district court sentenced Harrell to six months in prison, one year of supervised release with six months in home detention, a $100 special assessment and restitution to be determined later, but did not mention forfeiture in the oral pronouncement. After more post-sentencing motion practice and multiple judgment entries, the court ultimately entered a second amended judgment in June imposing the $108,454.88 forfeiture.
Harrell argued on appeal that the forfeiture sentence violated Rule 32.2, his right to be present and the rule that an oral sentence controls over a conflicting written judgment. The government countered that Harrell invited any error, or that any violation was harmless.
The Sixth Circuit rejected the invited-error argument, saying the district court, not Harrell, was the overwhelming cause of the forfeiture problems. The court said Harrell merely agreed to the court's proposal to defer the issue after indicating he had been prepared to discuss forfeiture at the hearing.
On the core forfeiture issue, the panel said Rule 32.2 required the sentencing court to actually impose forfeiture at sentencing, not simply give notice that forfeiture might be imposed later. Still, the panel said Harrell received opportunities to oppose forfeiture and could not show that the timing error changed the outcome.
The panel also held that Harrell's physical absence when forfeiture was later imposed did not affect his substantial rights under plain-error review. And it found no impermissible conflict between the oral sentence and the second amended judgment because the sentencing transcript showed the court had expressly held the forfeiture issue open for later resolution.