United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
matter comes before the court on defendant Crystal
Jones's motions. Ms. Jones has filed three motions: (1)
“Motion for Accounting of Forfeiture and Restitution
Orders; Motion to Vacate Forfeiture Order” (Doc. 122);
(2) “Third Party Claim to Property under Order of
Forfeiture” (Doc. 123); and (3) “Motion to Reopen
or Vacate Order pursuant to Fed. R. Civ. Proc.
60(b)(1)” (Doc. 132). After reciting the background,
the court will address each motion in turn. For the reasons
explained below, the court denies Ms. Jones's motions.
Factual and Procedural Background
November 24, 2014, Ms. Jones pleaded guilty to violating 18
U.S.C. § 2314 for transporting, transmitting, and
transferring more than $500, 000 in stolen funds in
interstate commerce. The charge resulted from an embezzlement
scheme that Ms. Jones carried out between 2008 and 2013 while
she was an office manager at Teel's Used Trucks in Hays,
U.S. Probation Office prepared a Presentence Investigation
Report. In the PSR, the probation officer calculated
Teel's loss as $517, 464.91. Ms. Jones objected to this
amount, claiming that some of the calculated loss included
authorized payments. First, she asserted that some of the
calculated loss included items she had purchased on her
personal credit card for use in Teel's business and she
was entitled to reimbursement for those items. She thus
argued that the amount of these purchases improperly were
included with the loss calculation. Second, she alleged that
her medical insurance payments were authorized and so, these
amounts did not amount to a loss for Teel's.
March 2, 2015, the court conducted a sentencing hearing. At
that hearing, the government called Dana Snellings,
Teel's office manager since 2014, who discovered the
embezzlement. Ms. Snellings testified about the total
calculated loss as well as Ms. Jones's objections. In
response to Ms. Jones's first objection, Ms. Snellings
testified that there were records of two reimbursements to
Ms. Jones in 2007 for $135.26 and $50.00. In response to her
second objection, Ms. Snellings testified that Ms. Jones had
a verbal agreement with Teel's owners about the payment
of insurance premiums, but that Ms. Jones had failed to pay
the business back.
the court ruled on Ms. Jones's objections, it sustained
the objection for the entire amount of the insurance premiums
and partially sustained the objection for the amount of the
two reimbursements. The court deducted these amounts from the
calculated loss and found that the total loss amount was
$482, 260.79. Accordingly, the court ordered Ms. Jones to pay
$482, 260.79 as restitution to Teel's.
Jones directly appealed her sentence to the Tenth Circuit.
United States v. Jones, 680 F. App'x 649 (10th
Cir. 2017). In her appeal, she raised two issues: “(1)
the district court impermissibly shifted the burden of proof
at the sentencing hearing, requiring her to disprove the
amount of loss in the PSR rather than requiring the
government to prove it; and (2) the court erred in including
in the restitution award amounts embezzled outside the
temporal scope of the charge to which she pleaded
guilty.” Id. at 650. On February 22, 2017, the
Tenth Circuit affirmed this court's restitution order.
Id. at 659. Ninety days later, Ms. Jones's
conviction became final because her time to file a petition
for certiorari had expired. U.S. Sup. Ct. R. 13.1.
March 4, 2016, while her direct appeal was pending with the
Tenth Circuit, Ms. Jones filed a motion under 28 U.S.C.
§ 2255 to set aside her sentence based on three
constitutional violations: (1) ineffective assistance of
counsel, (2) insufficient evidence to prove criminal conduct
and the crime charged, and (3) what she termed an
unconstitutional guilty plea. Doc. 81 at 2. On February 10,
2017, the court denied her motion without prejudice. Doc. 131
at 5. The court reasoned, “Absent extraordinary
circumstances, the orderly administration of criminal justice
precludes a district court from considering a § 2255
motion while review of the direct appeal is still
pending.” Id. at 2 (citation omitted). The
court briefly analyzed the merits of Ms. Jones's motion
and determined that none of them presented extraordinary
circumstances-such as questioning the integrity of the
government's prosecution. Id. at 3. So, the
court denied her motion without prejudice, allowing her to
refile her motion after her direct appeal concluded.
Id. at 5.
11, 2016, the court imposed a personal forfeiture money
judgment against Ms. Jones for $484, 260.79. On July 20,
2016, the court ordered the United States Marshal to seize a
substitute asset of Ms. Jones's: a State of Kansas
Learning Quest 529 Education Savings Program account, ending
in #70-10 (“Learning Quest account”). The United
States Marshal seized $9, 691.30 from the account and those
funds are in custody. Ms. Jones has responded to the
government's seizure notice by filing her Motion for
Third Party Claim to Property under Order of Forfeiture (Doc.
123). As of July 8, 2017, the government has collected $6,
357.90 on the personal forfeiture money judgment. Doc. 138-1.
“Motion for Accounting of Forfeiture and Restitution
Orders; Motion to Vacate Forfeiture Order” (Doc.
her first motion, Ms. Jones seeks to vacate the forfeiture
order or, alternatively, stay the forfeiture order until her
conviction becomes final. Doc. 122 at 2. She asserts that she
is entitled to this relief based on her challenges to the
restitution and loss amount in her direct appeal and her
motion under § 2255. But, the court cannot grant her
Jones's means for attacking the forfeiture order is
through a timely appeal. See Fed. R. Crim. P.
32.2(b)(4). “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). “In a criminal case, a
defendant's notice of appeal must be filed in the
district court within 14 days after the later of: (i) the
entry of either the judgment or the order being appealed; or
(2) the filing of the government's notice of
appeal.” Fed. R. App. P. 4(b)(1). But, the Federal
Rules of Criminal Procedure do not provide a means for the
court to revisit a final forfeiture order. United States
v. Alquza, No. 3:11CR373-FDW, 2017 WL 4451146, at *4
(W.D. N.C. Sept. 21, 2017) (analyzing Fed. R. Crim. P. 32.2
and finding that it permits a defendant to attack a final
forfeiture order by a timely appeal under Fed. R. App. P. 4).
Jones pursued this means of attack. She appealed the
underlying restitution order. And, the Tenth Circuit affirmed
this order on February 22, 2017. The forfeiture order now is
final as it applies to Ms. ...