The Supreme Court’s Evolving Forfeiture Jurisprudence and the Little-Known Writ of Audita Querela

Back in 1946, Federal Rule of Civil Procedure 60 abolished ancient writs like coram nobis, coram vobis, and audita querela, thus ensuring that most of today’s lawyers would never learn these obscure Latin terms. But at least audita querela could make a limited comeback in criminal forfeiture cases.

Although very few things unite the traditionally conservative and liberal wings of the U.S. Supreme Court, reigning in the government’s expansive use of forfeiture laws to seize property may be one area where the Justices can find common ground. For example, Justice Thomas, in a rare concurrence denying certiorari, has questioned whether modern civil forfeiture practices “can be squared with the Due Process Clause and our Nation’s history.” In Honeycutt v. United States, a unanimous Court held that criminal forfeiture statute 21 U.S.C. § 853 precluded the long-standing practice of joint and several liability among co-conspirators. And most recently, in Timbs v. Indiana, Justice Ginsburg wrote for the Court (without dissent) that the Eighth Amendment’s Excessive Fines Clause applies to the States, vacating the forfeiture of a Land Rover for a minor drug offense.

With such tremors in the forfeiture landscape, one can expect more quakes to come. And with such seismic shifts, questions inevitably will arise as to whether these precedential decisions should apply retroactively to cases already final after direct appeal. Although the first instinct of many practitioners may be to reach for traditional post-conviction tools like 28 U.S.C. §§ 2254 and 2255, such procedural vehicles are only available to challenge custody, not monetary penalties like forfeiture and restitution. See, e.g., Kaminski v. United States, 339 F.3d 84 (2d Cir. 2003).

So, what is a defendant to do if the Supreme Court hands down a decision that would otherwise apply to his or her case, but the time for appeal has passed?

At least where there is a colorable claim that the decision should apply retroactively, the answer may lie in the rarely invoked ancient writ of audita querela.

The Supreme Court in 1954 held in United States v. Morgan that another ancient writ, that of coram nobis, survived in criminal cases through the All Writs Act. Under the All Writs Act, 28 U.S.C. § 1651, courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” In Mr. Morgan’s case, he needed coram nobis to set aside a prior federal conviction because he was no longer in federal custody and, therefore, could not meet the “in custody” requirement of 28 U.S.C. § 2255. As one court of appeals has explained, “[t]he teaching of Morgan is that federal courts may properly fill the interstices of the federal post-conviction remedial framework through remedies available at common law.” United States v. Ayala, 894 F.2d 425, 428 (D.C. Cir. 1990).

Given that traditional habeas tools are also not available for monetary penalties like forfeiture, the All Writs Act may again come into play, this time through audita querela. “The common law writ of audita querela permitted a defendant to obtain relief against a judgment or execution because of some defense or discharge arising subsequent to the rendition of the judgment.” Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009) (quotation marks omitted). In other words, if the Supreme Court hands down a new forfeiture decision, and a case can be made that the decision should be applied retroactively, audita querela could potentially allow the Court to consider the issue in cases that are final, even where Section 2255 would not.

Several circuit courts have recognized, or assumed without deciding, that audita querela remains available in criminal cases under the proper circumstances. See, e.g., Massey, 581 F.3d at 174 (3d Cir.); United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005); United States v. Torres, 282 F.3d 1241, 1245 n.6 (10th Cir. 2002); Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001); United States v. LaPlante, 57 F.3d 252, 253 (2d Cir. 1995); United States v. Johnson, 962 F.2d 579, 583 (7th Cir. 1992); United States v. Reyes, 945 F.2d 862, 865 (5th Cir. 1991); United States v. Holder, 936 F.2d 1, 2 (1st Cir. 1991); Ayala, 894 F.2d at 428 n.4 (D.C. Cir.). And as of the time of this post, at least one district court has granted a writ of audita querela to apply the Supreme Court’s 2017 Honeycutt decision mentioned above. See United States v. Crews, No. 10-633-04, ECF Nos. 607 & 628 (E.D. Pa. Jan. 23, 2018).

Although Crews may be unique thus far (the government there agreed that Honeycutt should be applied retroactively), more opportunities for audita querela may arise going forward, particularly if the Supreme Court continues to re-shape forfeiture law. Where such decisions arguably set forth new rules that may apply retroactively, audita querela may provide the procedural vehicle needed to get the argument in front of the court.