Moreover, the language of ยง 853(h) itself clarifies that the district court "has the authority to decide whether to allow the government to dispose of forfeited property pending an appeal." United States v. Messino, 907 F. Supp. 1231, 1233 (N.D. Ill. 1995). If the district court has the discretion to stay the sale of forfeited property, presumably it also has the discretion to allow the sale of the property. "The logical corollary is that the district court retains jurisdiction over forfeiture matters while an appeal is pending."
To the extent that the defendant's motion could be construe as a motion to stay the forfeiture while his appeal is pending, this Court declines to issue that order. Although the Sixth Circuit has not addressed this issue, the First Circuit has held that the district court has jurisdiction to decide a forfeiture matter even while the underlying criminal conviction is on appeal. See United States v. Hurley, 63 F.3d 1, 23-24 (1st Cir. 1995), cert. denied 517 U.S. 1105 (1996); see also United States v. Messino, 907 F. Supp. 1231, 1233 (N.D. Ill. 1995). In addition, the First Circuit further stated that if the appellate court overturned the underlying conviction, then the forfeiture order could be overturned or undone.
Id. at 1088. Neither of these cases, nor the others cited by the United States, see United States v. Saccoccia, 62 F. Supp. 2d 539, 542 (D.R.I. 1999); United States v. Messino, 907 F. Supp. 1231, 1232-33 (N.D. Ill. 1995);United States v. Norton, No. 2:99-CR1-0078, 2002 WL 31039138, at *2 n. 3 (W.D. Va. Sept. 3, 2002), support the proposition that a district court may modify the terms of a final order of forfeiture during the pendency of an appeal from a judgment incorporating that order. Cf. Venen v. Sweet, 758 F.2d 117, 121 (3d Cir. 1985) (stating that the divestiture rule "has the salutary purpose of preventing the confusion and inefficiency which would of necessity result were two courts to be considering the same issue or issues simultaneously"); United States v. Wilkes, No. 1:04-CR-0287, 2005 WL 1120295, at *1 (M.D. Pa. May 12, 2005) ("There are few circumstances in which a district court may continue to exercise authority over a case after the filing of a notice of appeal. . . .").