Anthony Leon Waits v. United States

Federal Rule of Criminal Procedure 32.2(a) prohibits a district court from entering a forfeiture judgment “unless the indictment or information contains notice to the defendant that the government will seek the forfeiture of property as part of any sentence in accordance with the applicable statute.” The indictment against Waits did not give notice of the applicable statute; it gave notice of an inapplicable statute. The district court nevertheless entered a forfeiture judgment against Waits. The Eighth Circuit affirmed, finding that all Rule 32.2(a) requires is notice that the government intends to seek forfeiture without giving notice of the applicable statute. The Seventh and Ninth Circuits agree with the Eighth Circuit, but the Second Circuit reads Rule 32.2(a) to mean that a defendant is entitled to know not only that the government seeks forfeiture but also the statutory basis for doing so. The question presented is: Does Federal Rule of Criminal Procedure 32.2(a) prohibit a district court from entering a forfeiture judgment when the indictment does not give notice of the applicable forfeiture statute?