NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 17-3812 ____________ UNITED STATES OF AMERICA
v.
LANCE GARDENHIRE, Appellant ______________
Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-15-cr-00087-001) District Judge: Honorable Nora B. Fischer ______________
Submitted under Third Circuit L.A.R. 34.1(a) April 30, 2019 ______________
Before: RESTREPO, ROTH, and FISHER, Circuit Judges.
(Filed: November 19, 2019)
______________
OPINION* ______________
RESTREPO, Circuit Judge.
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. Lance Gardenhire conspired with his wife Lasean to launder money generated
from heroin sales by purchasing and renovating their family home. Gardenhire pleaded
guilty to drug conspiracy and conspiring to launder money. After accepting the plea, the
District Court determined that the Gardenhires’ home was subject to forfeiture and he
appealed. His court-appointed appellate counsel contends that his appeal presents no
nonfrivolous issues and moves to withdraw under Anders v. California, 386 U.S. 738
(1967). We will grant the motion and affirm the District Court’s decision to forfeit the
property.
I.
In July 2012, Lance Gardenhire and a friend began purchasing heroin from a
source in New Jersey and selling it in Western Pennsylvania. By the time the conspiracy
ended in May 2015, Gardenhire’s trafficking organization was responsible for the
distribution and sale of thousands of bricks of heroin.
In the fall of 2012, Lance and his wife Lasean purchased a house at 405 Zara
Street in Pittsburgh for $21,900. On the day she executed the sales agreement, Lasean
deposited a total of $20,000 into four separate accounts she maintained at two different
banks. On the closing date, she deposited an additional $11,000 in three separate
accounts. From the date of the purchase through 2014, Lance and Lasean spent at least
$64,000 to renovate their home, raising the property’s fair market value to $122,000.
Between 2012 and 2014, Lasean worked as a customer service representative,
earning $23,323 in 2012, $37,678 in 2013, and $57,619 in 2014. Lance claimed he 2 earned legitimate income as a barber and event promoter, but provided no credible
evidence to support this assertion. During the span of the conspiracy, Lance’s co-
conspirator would retrieve heroin from 405 Zara Street and deliver the profits of the sales
to Lasean, who would walk inside the house with the bundles of cash.
Lance Gardenhire pleaded guilty to conspiracy to distribute and possess with
intent to distribute one kilogram or more of heroin and conspiracy to launder money. The
District Court granted a downward variance from the advisory Guidelines range and
sentenced him to 240 months imprisonment on each count, to be served concurrently.
Pursuant to the terms of Lance’s plea agreement, the only issue available for appeal was
whether 405 Zara Street was subject to forfeiture.
After the plea but prior to sentencing, the District Court held an evidentiary
hearing and determined the Government established grounds for forfeiting Lance’s
house. Lance’s counsel filed an appeal on his behalf and a motion to withdraw as
counsel, asserting that there are no viable grounds for appeal. We agree and affirm the
decision of the District Court.
II.
In deciding the motion to withdraw, we consider whether counsel’s brief fulfills
the Anders requirements and whether our independent review of the record reveals any
nonfrivolous issues for appeal. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
Counsel’s brief must “(1) satisfy the court that counsel has thoroughly examined the
record in search of appealable issues, and (2) . . . explain why the issues are frivolous.” 3 Id. (citing United States v. Marvin, 311 F.3d 778, 780 (3d Cir. 2000). We review the
District Court’s findings of fact for clear error and exercise plenary review of the law as it
was applied to those facts. United States v. Lockett, 406 F.3d 207, 211 (3d Cir. 2005);
United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).
The Anders brief satisfies us that all possible issues deriving from the forfeiture of
the house are without merit. As the brief explains, the District Court found three separate
bases for the forfeiture: (1) that the house was both “involved in” as well as “traceable to”
a property involved in a money laundering offense, pursuant to 18 U.S.C. § 982(a)(1); (2)
the house constituted a “substitute asset” for drug proceeds that had been laundered
through Lasean’s bank accounts and were no longer recoverable, under 18 U.S.C. §
982(b)(1) and 21 U.S.C. § 853(p); and, (3) with regard to Lance’s interest in the house, it
was bought through and used to facilitate the selling of drugs, under 21 U.S.C. §
853(a)(1).
The evidentiary hearing record established that 405 Zara Street was bought and
renovated during the timeframe of the drug-selling conspiracy and was used to store
heroin and heroin proceeds, triggering the rebuttable presumption under Section 853(d)
that the property was subject to forfeiture. The District Court found that Lance did not
produce credible evidence to overcome the presumption, specifically rejecting the
Gardenhires’ proffers that cash gifts or Lance’s legitimate income were used to purchase
and renovate the home. We agree with counsel that challenging this credibility
determination, which is not unreasonable and therefore entitled to great deference, does
4 not constitute a viable issue for an appeal. U.S. ex rel. Russo v. State of N. J., 438 F.2d
1343, 1346 (3d Cir. 1971) (“A reasonable determination of credibility made by initial
trier of fact must be given great deference.”). See also Atl. Limousine, Inc. v. NLRB, 243
F.3d 711, 718-19 (3d Cir. 2001). The credibility determination is secondary to the fact
that Lance conceded he spent heroin proceeds on renovating his house in post-hearing
filings. We therefore agree with counsel that Lance could not raise a viable claim
challenging the grounds for the forfeiture under 21 U.S.C. § 853(a)(1).
In Lance’s pro se brief, he argues that the District Court erred in weighing the
credibility of the witnesses, in determining he had the requisite intent to conceal funds,
and by ignoring evidence of his legitimate income. These claims are without merit.
In deciding whether a property is subject to forfeiture, the Court must determine
whether the Government established the requisite nexus between the property and the
offense. See Fed. R. Crim. P.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 17-3812 ____________ UNITED STATES OF AMERICA
v.
LANCE GARDENHIRE, Appellant ______________
Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-15-cr-00087-001) District Judge: Honorable Nora B. Fischer ______________
Submitted under Third Circuit L.A.R. 34.1(a) April 30, 2019 ______________
Before: RESTREPO, ROTH, and FISHER, Circuit Judges.
(Filed: November 19, 2019)
______________
OPINION* ______________
RESTREPO, Circuit Judge.
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. Lance Gardenhire conspired with his wife Lasean to launder money generated
from heroin sales by purchasing and renovating their family home. Gardenhire pleaded
guilty to drug conspiracy and conspiring to launder money. After accepting the plea, the
District Court determined that the Gardenhires’ home was subject to forfeiture and he
appealed. His court-appointed appellate counsel contends that his appeal presents no
nonfrivolous issues and moves to withdraw under Anders v. California, 386 U.S. 738
(1967). We will grant the motion and affirm the District Court’s decision to forfeit the
property.
I.
In July 2012, Lance Gardenhire and a friend began purchasing heroin from a
source in New Jersey and selling it in Western Pennsylvania. By the time the conspiracy
ended in May 2015, Gardenhire’s trafficking organization was responsible for the
distribution and sale of thousands of bricks of heroin.
In the fall of 2012, Lance and his wife Lasean purchased a house at 405 Zara
Street in Pittsburgh for $21,900. On the day she executed the sales agreement, Lasean
deposited a total of $20,000 into four separate accounts she maintained at two different
banks. On the closing date, she deposited an additional $11,000 in three separate
accounts. From the date of the purchase through 2014, Lance and Lasean spent at least
$64,000 to renovate their home, raising the property’s fair market value to $122,000.
Between 2012 and 2014, Lasean worked as a customer service representative,
earning $23,323 in 2012, $37,678 in 2013, and $57,619 in 2014. Lance claimed he 2 earned legitimate income as a barber and event promoter, but provided no credible
evidence to support this assertion. During the span of the conspiracy, Lance’s co-
conspirator would retrieve heroin from 405 Zara Street and deliver the profits of the sales
to Lasean, who would walk inside the house with the bundles of cash.
Lance Gardenhire pleaded guilty to conspiracy to distribute and possess with
intent to distribute one kilogram or more of heroin and conspiracy to launder money. The
District Court granted a downward variance from the advisory Guidelines range and
sentenced him to 240 months imprisonment on each count, to be served concurrently.
Pursuant to the terms of Lance’s plea agreement, the only issue available for appeal was
whether 405 Zara Street was subject to forfeiture.
After the plea but prior to sentencing, the District Court held an evidentiary
hearing and determined the Government established grounds for forfeiting Lance’s
house. Lance’s counsel filed an appeal on his behalf and a motion to withdraw as
counsel, asserting that there are no viable grounds for appeal. We agree and affirm the
decision of the District Court.
II.
In deciding the motion to withdraw, we consider whether counsel’s brief fulfills
the Anders requirements and whether our independent review of the record reveals any
nonfrivolous issues for appeal. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
Counsel’s brief must “(1) satisfy the court that counsel has thoroughly examined the
record in search of appealable issues, and (2) . . . explain why the issues are frivolous.” 3 Id. (citing United States v. Marvin, 311 F.3d 778, 780 (3d Cir. 2000). We review the
District Court’s findings of fact for clear error and exercise plenary review of the law as it
was applied to those facts. United States v. Lockett, 406 F.3d 207, 211 (3d Cir. 2005);
United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).
The Anders brief satisfies us that all possible issues deriving from the forfeiture of
the house are without merit. As the brief explains, the District Court found three separate
bases for the forfeiture: (1) that the house was both “involved in” as well as “traceable to”
a property involved in a money laundering offense, pursuant to 18 U.S.C. § 982(a)(1); (2)
the house constituted a “substitute asset” for drug proceeds that had been laundered
through Lasean’s bank accounts and were no longer recoverable, under 18 U.S.C. §
982(b)(1) and 21 U.S.C. § 853(p); and, (3) with regard to Lance’s interest in the house, it
was bought through and used to facilitate the selling of drugs, under 21 U.S.C. §
853(a)(1).
The evidentiary hearing record established that 405 Zara Street was bought and
renovated during the timeframe of the drug-selling conspiracy and was used to store
heroin and heroin proceeds, triggering the rebuttable presumption under Section 853(d)
that the property was subject to forfeiture. The District Court found that Lance did not
produce credible evidence to overcome the presumption, specifically rejecting the
Gardenhires’ proffers that cash gifts or Lance’s legitimate income were used to purchase
and renovate the home. We agree with counsel that challenging this credibility
determination, which is not unreasonable and therefore entitled to great deference, does
4 not constitute a viable issue for an appeal. U.S. ex rel. Russo v. State of N. J., 438 F.2d
1343, 1346 (3d Cir. 1971) (“A reasonable determination of credibility made by initial
trier of fact must be given great deference.”). See also Atl. Limousine, Inc. v. NLRB, 243
F.3d 711, 718-19 (3d Cir. 2001). The credibility determination is secondary to the fact
that Lance conceded he spent heroin proceeds on renovating his house in post-hearing
filings. We therefore agree with counsel that Lance could not raise a viable claim
challenging the grounds for the forfeiture under 21 U.S.C. § 853(a)(1).
In Lance’s pro se brief, he argues that the District Court erred in weighing the
credibility of the witnesses, in determining he had the requisite intent to conceal funds,
and by ignoring evidence of his legitimate income. These claims are without merit.
In deciding whether a property is subject to forfeiture, the Court must determine
whether the Government established the requisite nexus between the property and the
offense. See Fed. R. Crim. P. 32.2(b)(1)(A). The Court’s decision to credit testimony
describing how the Gardenhires laundered proceeds from the heroin conspiracy through
Lasean’s numerous bank accounts into the cash purchase of 405 Zara Street is all but
unassailable on appeal. United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997)
("When the district court's decision is based on testimony that is coherent and plausible,
not internally inconsistent and not contradicted by external evidence, there can almost
never be a finding of clear error.") Even assuming witnesses’ hearing testimony did not
establish the Gardenhires’ intent to conceal funds, both Lance and Lasean admitted their
intention to do so in their guilty plea colloquys, thereby conceding a nexus existed
5 between the property and the money laundering offense. Lance’s claim that the Court
ignored evidence of his legitimate income is meritless in light of the Government’s
evidence disproving any such income existed. Because the Court’s finding that the house
was not financed by legitimate wealth is supported by the record, no clear error occurred
in finding forfeiture of the house. Fed. R. Civ. P. 52(a); Cooper v. Tard, 855 F.2d 125,
126 (3d Cir. 1988) (our review on appeal is limited to whether District Court’s findings
on disputed facts are supported by the record).
Given the facts unveiled at the hearing, which were supported in part by Lance’s
own admissions, we conclude the District Court had sufficient evidence before it to
render the forfeiture of 405 Zara Street proper.
III.
Counsel’s brief satisfies the requirements of Anders. Our independent review of
the record confirms counsel’s assessment that there are no nonfrivolous issues on appeal.
Therefore, we will grant counsel’s motion to withdraw and affirm the District Court’s
decision to find the Gardenhires’ house forfeited.