United States v. Snodgrass

Court of Appeals for the First Circuit·Decided May 23, 1994·No. 94-1002·Published

Opinion

USCA1 Opinion

May 23, 1994 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

No. 94-1002

UNITED STATES OF AMERICA,
Plaintiff, Appellee,

v.

CERTAIN REAL PROPERTY LOCATED AT RIVER ROAD, ELIOT,
YORK COUNTY, MAINE,
Defendant, Appellee,

________________

DANA B. SNODGRASS, JR.
Claimant, Appellant.
__________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]
___________________
___________________

Before

Torruella, Selya and Stahl,
Circuit Judges.
______________

___________________

Thomas Van Houten on brief for appellant.
_________________
Jay P. McCloskey, United States Attorney, and Michael M.
_________________ __________
DuBose, Assistant United States Attorney, on brief for appellee.
______

__________________

__________________

Per Curiam. Dana B. Snodgrass, Jr. appeals from the
__________

district court's order dismissing his claim to the defendant

property for lack of standing and from the judgment of

forfeiture for the United States. We affirm.

BACKGROUND

On January 26, 1993, plaintiff United States filed a

complaint of forfeiture in rem against defendant property, a

Maine residence, pursuant to 21 U.S.C. 881(7).

Approximately two months later, Dana B. Snodgrass, Jr. filed

a claim to the property stating that he is its "legal titled

owner." In his answer to the complaint, claimant asserted an

"innocent owner" defense to the forfeiture.

On November 9, 1993, with the consent of both counsel,

the district court held a preliminary evidentiary hearing on

the issue of claimant's standing to challenge the forfeiture.

On November 10, 1993, the district court issued a memorandum

of decision and order concluding that claimant is without

standing to assert his claim of ownership. United States v.
_____________

Certain Real Property Located at River Rd., 839 F. Supp. 1
____________________________________________

(D. Me. 1993). The district court ordered that Snodgrass,

Jr.'s claim be dismissed and that judgment enter for the

plaintiff. A final decree of forfeiture entered on November

15, 1993.

The district court's factual findings are set forth

fully in its memorandum and are not challenged. In brief,

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the district court found that claimant's father, Dana B.

Snodgrass, Sr., had conveyed defendant property to claimant

after learning that he, Snodgrass, Sr., was being

investigated for drug trafficking.1 Although not reflected

in the deed of conveyance, Snodgrass, Sr. retained all rights

to the occupancy and use of the property and the obligation

to tend to and fund its upkeep and maintenance. At the time

of the transfer, Snodgrass, Sr. had had no relationship of

substance for seventeen years with claimant, who resided in

Seattle, Washington. The court found that the transaction of

conveyance was intended solely by Snodgrass, Sr. to shield

the property from forfeiture and was not intended to convey

any right of dominion or control over, or even any beneficial

interest in, the defendant property.

DISCUSSION

In a civil forfeiture action, once the government has

met its burden of showing probable cause to believe that a

substantial connection exists between the property to be

forfeited and the illegal exchange of a controlled substance,

the burden shifts to the claimant to show that the property

is not subject to forfeiture. United States v. 116 Emerson
_____________ ___________

St., 942 F.2d 74, 79 (1st Cir. 1991). As an element of this
___

burden, a claimant must prove an interest in the property

____________________

1. The parties stipulated that probable cause exists to find
that the defendant property was used to facilitate a
violation of 21 U.S.C. 841(a)(1).

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sufficient to establish standing to contest the forfeiture.

United States v. 526 Liscum Drive, 866 F.2d 213, 216 (6th
_____________ _________________

Cir. 1989). "[C]ourts have uniformly rejected standing

claims put forward by nominal or straw owners." United
______

States v. Contents of Accounts Nos. 3034504504 & 144-07143,
______ _________________________________________________

971 F.2d 974, 985 (3d Cir. 1992) (quoting David B. Smith,

Defense and Prosecution of Forfeiture Cases, 9.04, at 9-
____________________________________________

58.6 (1985 & Supp. 1991)), cert. denied, 113 S. Ct. 1580
____________

(1993). Thus, possession of mere legal title by one who does

not exercise dominion and control over the property may be

insufficient to establish standing to challenge a forfeiture.

Id.; see also United States v. Vacant Land Located at 10th
__ ___ ____ _____________ ____________________________

St.

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USCA1 Opinion



May 23, 1994          [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 94-1002

UNITED STATES OF AMERICA,
                                 Plaintiff, Appellee,

                                          v.

                 CERTAIN REAL PROPERTY LOCATED AT RIVER ROAD, ELIOT,
                                 YORK COUNTY, MAINE,
                                 Defendant, Appellee,

                                   ________________

                                DANA B. SNODGRASS, JR.
                                 Claimant, Appellant.
                                  __________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                       [Hon. Gene Carter, U.S. District Judge]
                                          ___________________
                                 ___________________

                                        Before

                             Torruella, Selya and Stahl,
                                   Circuit Judges.
                                   ______________

___________________

               Thomas Van Houten on brief for appellant.
               _________________
               Jay  P. McCloskey,  United States  Attorney, and  Michael M.
               _________________                                 __________
          DuBose, Assistant United States Attorney, on brief for appellee.
          ______

__________________

                                  __________________

Per Curiam.   Dana B.  Snodgrass, Jr.  appeals from  the
                 __________

            district court's order dismissing  his claim to the defendant

            property  for  lack of  standing  and  from the  judgment  of

            forfeiture for the United States.  We affirm.

                                      BACKGROUND

                 On  January 26,  1993, plaintiff  United States  filed a

            complaint of forfeiture in  rem against defendant property, a

            Maine   residence,   pursuant   to   21  U.S.C.       881(7).

            Approximately two months later,  Dana B. Snodgrass, Jr. filed

            a  claim to the property stating that he is its "legal titled

            owner."  In his answer to the complaint, claimant asserted an

            "innocent owner" defense to the forfeiture.

                 On November  9, 1993, with the consent  of both counsel,

            the district court held  a preliminary evidentiary hearing on

            the issue of claimant's standing to challenge the forfeiture.

            On November 10,  1993, the district court issued a memorandum

            of  decision and  order concluding  that claimant  is without

            standing  to assert his claim of ownership.  United States v.
                                                         _____________

            Certain  Real Property Located at  River Rd., 839  F. Supp. 1
            ____________________________________________

            (D.  Me. 1993).   The district court  ordered that Snodgrass,

            Jr.'s  claim be  dismissed and  that judgment  enter for  the

            plaintiff.  A final decree of forfeiture entered on  November

            15, 1993.

                 The  district court's  factual  findings are  set  forth

            fully  in its memorandum and  are not challenged.   In brief,

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the  district court  found  that claimant's  father, Dana  B.

            Snodgrass,  Sr., had conveyed  defendant property to claimant

            after   learning  that   he,   Snodgrass,  Sr.,   was   being

            investigated for drug  trafficking.1  Although  not reflected

            in the deed of conveyance, Snodgrass, Sr. retained all rights

            to the occupancy and  use of the property and  the obligation

            to tend to and fund its upkeep and maintenance.   At the time

            of  the transfer, Snodgrass,  Sr. had had  no relationship of

            substance for  seventeen years with claimant,  who resided in

            Seattle, Washington.  The court found that the transaction of

            conveyance was  intended solely  by Snodgrass, Sr.  to shield

            the property from  forfeiture and was not  intended to convey

            any right of dominion or control over, or even any beneficial

            interest in, the defendant property.  

                                      DISCUSSION

                 In a  civil forfeiture  action, once the  government has

            met  its burden of showing  probable cause to  believe that a

            substantial  connection  exists between  the  property to  be

            forfeited and the illegal exchange of a controlled substance,

            the burden shifts to  the claimant to show that  the property

            is not subject to  forfeiture.  United States v.  116 Emerson
                                            _____________     ___________

            St., 942 F.2d 74, 79 (1st Cir. 1991).  As an element  of this
            ___

            burden, a  claimant must  prove an  interest in  the property

____________________

            1.  The parties stipulated that probable cause exists to find
            that  the  defendant  property   was  used  to  facilitate  a
            violation of 21 U.S.C.   841(a)(1).

                                         -3-

sufficient to establish  standing to contest the  forfeiture.

            United States v.  526 Liscum  Drive, 866 F.2d  213, 216  (6th
            _____________     _________________

            Cir.  1989).    "[C]ourts  have  uniformly  rejected standing

            claims  put  forward by  nominal  or straw  owners."   United
                                                                   ______

            States v.  Contents of Accounts Nos.  3034504504 & 144-07143,
            ______     _________________________________________________

            971 F.2d 974,  985 (3d  Cir. 1992) (quoting  David B.  Smith,

            Defense and Prosecution  of Forfeiture Cases,    9.04, at  9-
            ____________________________________________

            58.6  (1985 &  Supp. 1991)),  cert. denied,  113 S.  Ct. 1580
                                          ____________

            (1993).  Thus, possession of mere legal title by one who does

            not exercise dominion  and control over  the property may  be

            insufficient to establish standing to challenge a forfeiture.

            Id.;  see also United States  v. Vacant Land  Located at 10th
            __    ___ ____ _____________     ____________________________

            St.  &  Challenger Way,  15 F.3d  128,  130 (9th  Cir. 1993);
            ______________________

            United States v. 5000 Palmetto Drive, 928 F.2d 373, 375 (11th
            _____________    ___________________

            Cir.  1991); 526 Liscum Drive, 866 F.2d at 217; United States
                         ________________                   _____________

            v.  One 1945 Douglas C-54 (DC-4) Aircraft, 604 F.2d 27, 28-29
                _____________________________________

            (8th  Cir.   1979);  United  States  v.   New  Silver  Palace
                                 ______________       ___________________

            Restaurant, Inc., 810 F. Supp. 440, 444 (E.D.N.Y. 1992).
            ________________

                 In the  instant case,  the evidence amply  supported the

            district  court's   conclusion   that  the   transaction   of

            conveyance  was  a  facially  transparent sham.    After  the

            conveyance, Snodgrass, Sr. continued to live on the property.

            With the exception  of one  visit to Maine,  during which  he

            stayed in a hotel,  claimant remained in Seattle, Washington.

            Snodgrass,  Sr. paid the mortgage  and taxes on the property.

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Claimant  did  not know  the amount  of  the mortgage  or the

            identity  of the mortgage  holder.  Snodgrass,  Sr. also made

            improvements to the property without consulting claimant.  In

            sum, there was no evidence whatsoever that claimant exercised

            any  dominion or  control  over the  property.   Indeed,  the

            evidence pointed  inexorably to the conclusion  that claimant

            was nothing more than a nominal or straw owner.  Accordingly,

            the district court  properly concluded  that claimant  lacked

            standing to contest the forfeiture.

                 Claimant argues that a  rule requiring him to  show more

            than  legal  title  to  establish  standing  to  challenge  a

            forfeiture   is  inconsistent   with  Article   III  standing

            jurisprudence.  We disagree.   The rationale for the  rule is

            that  things are often not what they appear to be, especially

            in  the world of drug  trafficking. See United  States v. 900
                                                ___ ______________    ___

            Rio Vista Blvd., 803  F.2d 625, 630 (11th Cir.  1986); United
            _______________                                        ______

            States  v. One  1977 36  Foot Cigarette  Ocean Racer,  624 F.
            ______     _________________________________________

            Supp.  290,  294-95  (S.D. Fla.  1985).    People  engaged in

            illegal  activites often  try to  disguise their  interest in

            property  by placing title in  someone else's name.   900 Rio
                                                                  _______

            Vista  Blvd., 803 F.2d at 630.  Article III standing requires
            ____________

            that a claimant  suffer an injury in fact.   Adams v. Watson,
                                                         _____    ______

            10 F.3d 915, 918 (1st Cir. 1993).  A  straw owner has no real

            interest in the seized  property and, accordingly, suffers no

            genuine injury.  

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Claimant also suggests that  the district court erred in

            not allowing him to prove  ownership to a jury as  an element

            of  his claim.    We  deem  this  argument  waived.    Having

            consented to an evidentiary hearing to determine his standing

            to assert a claim of  ownership, claimant cannot now complain

            of  the manner  of proceeding  below.   See United  States v.
                                                    ___ ______________

            Palmer, 956 F.2d 3, 6 (1st Cir. 1992) (an issue not presented
            ______

            to the trial  court cannot  be raised for  the first time  on

            appeal).  

                 Affirmed.  See 1st Cir. R. 27.1.
                 ________   ___

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