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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-50769
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LISTON RANDOLPH POSEY, II,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
_________________________________________________________________
June 26, 2000
Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.
E. GRADY JOLLY:
Liston Randolph Posey was convicted-and is now serving a
sentence--for manufacturing in excess of one hundred marijuana
plants and for carrying a firearm during and in relation to a drug-
trafficking offense pursuant to 18 U.S.C. ЇЇ 841(a)(1) and
924(c)(1). In this appeal, however, he only raises the district
court's grant of the government's post-judgment motion to dispose
of the evidence seized in connection with the charge resulting in
his conviction.
The indictment against Posey did not allege that the firearms
at issue were subject to criminal forfeiture. No criminal

forfeiture judgment was entered in the case. Furthermore, the
government has not followed the procedures for criminal forfeiture
set forth in Fed. R. Crim. P. 7(c)(2), 31(e), and 32(d)(2). Nor
did the government institute forfeiture proceedings under 26 U.S.C.
ЇЇ 7321-28 and 18 U.S.C. Ї 924(d)(1) within 120 days of seizure of
the property. Because the government failed to follow the plain
language of any of these statutory requirements, the government was
not entitled to an order disposing of the property pursuant to 18
U.S.C. Ї 3665.1 See, e.g., Cooper v. City of Greenwood, 904 F.2d
302, 304 n.2 (5th Cir. 1990)("Concededly 18 U.S.C. Ї 3665 . . .
provides for forfeiture of firearms used in perpetrating a felony
as punishment for the offense. However, this provision can be
invoked only if the indictment alleges the property subject to
forfeiture
and
a
judgment
of
criminal
forfeiture
is
118 U.S.C. Ї 3665 states:
A judgment of conviction for transporting a stolen motor
vehicle in interstate or foreign commerce or for
committing or attempting to commit a felony in violation
of any law of the United States involving the use of
threats, force, or violence or perpetrated in whole or in
part by the use of firearms, may, in addition to the
penalty provided by law for such offense, order the
confiscation and disposal of firearms and ammunition
found in the possession or under the immediate control of
the defendant at the time of his arrest. The court may
direct the delivery of such firearms or ammunition to the
law-enforcement agency which apprehended such person, for
its use or for any other disposition in its discretion.
We find nothing persuasive in the government's argument that the
discretion vested in the district court under this statute gives a
district court the latitude to ignore the above-cited statutory
sections.
2

entered.")(citations omitted); United States v. Seifuddin, 820 F.2d
1074, 1075-79 (9th Cir. 1987).
The government argues that our statement in Cooper was dicta.
That being the case, it urges us to adopt the view that Ї 3665
vests the district court with virtually complete discretion to
enter a forfeiture order so long as some minimum level of due
process is afforded. We do not accept this invitation. First, the
plain language of Ї 3665 provides that the district court may order
forfeiture in the "judgment of conviction." Section 3665 does not
grant the district court any such authority post-judgment. Second,
although our footnote in Cooper may have been dicta, we think it
states a correct view of the law. Given the plethora of the above-
cited statutory rules prescribing procedures that must be followed
should the government wish to seek a forfeiture, the government's
concept of Ї 3665, either as vesting discretion in the district
court irrespective of these other rules, or as substituting some ad
hoc notion of due process in their stead, is plainly wrong.
Finally, United States v. Benson, 184 F.3d 936 (8th Cir. 1999),
does not control here.2 In sum, the government's arguments are
2Indeed, Benson did not even consider the question presented
here. Instead, the question in Benson was whether forfeiture under
Ї 3665 was proper after the individual's conviction under Ї 924(c)
had been found to be improper. It is apparent that the possible
impropriety of the forfeiture on the grounds raised here was not
argued in Benson.
3

completely meritless. We expect the government to comply with the
plain language of these rules in the future.
The order of the district court is
R E V E R S E D.
4