United States v. Eight Hundred Sixty Thousand Three Hundred & Ten Dollars ($860,310) in United States Currency ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 13 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
vs.
No. 00-4133
EIGHT HUNDRED SIXTY (D.C. No. 97-CV-620-C)
THOUSAND THREE HUNDRED (D. Utah)
AND TEN DOLLARS ($860,310) IN
UNITED STATES CURRENCY; 1982
CHEVROLET CORVETTE VIN
1G1AY0784C5122191; REAL
PROPERTY LOCATED AT 8262
SOUTH WILLIAMSBURG PARK
CIRCLE, SANDY, UTAH, WITH
ALL APPURTENANCES AND
IMPROVEMENTS THERETO; REAL
PROPERTY LOCATED AT 419
HARRISON STREET, MIDVALE,
UTAH, WITH ALL
APPURTENANCES AND
IMPROVEMENTS THERETO; REAL
PROPERTY LOCATED AT 469
SOUTH ADAMS STREET,
MIDVALE, UTAH, WITH ALL
APPURTENANCES AND
IMPROVEMENTS THERETO;
JOSEPH A. SANCHEZ,
Defendants,
and
MIGUEL VALDEZ-PACHECO
Defendant - Appellant.
-----------------------------
SANDY CITY,
Claimant.
ORDER AND JUDGMENT *
Before KELLY, BRORBY, and MURPHY, Circuit Judges. **
Defendant-Appellant Miguel Valdez-Pacheco, appearing pro se, appeals
from the district court’s order granting summary judgment to the United States in
a civil forfeiture action pursuant to 21 U.S.C. § 881(a)(6). We have jurisdiction
pursuant to 28 U.S.C. § 1291 and we affirm.
Because the parties are familiar with the facts, we will only briefly restate
them here. 1 In 1997, the government filed suit seeking the civil forfeiture of two
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
For a full recitation of the facts, see the Magistrate Judge’s Report &
1
Recommendation. R. Doc. 155, at 1-5.
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parcels of real property in Utah, 2 alleging that the properties had been purchased
with illegal drug proceeds. Uncontested evidence shows that Manual Medina, the
alleged owner of the properties, had pled guilty to several narcotics violations,
had agreed to forfeit assets obtained with drug money as part of a plea agreement,
and had later admitted that the two properties at issue in this case had been
purchased with drug proceeds. See R. Doc. 155 at 1-2, 5. In 1997, Mr. Medina
had caused the title to the two properties to be put in Mr. Valdez-Pacheco’s name
through the use of forged documents. Id. at 3. Subsequently, Mr. Valdez-
Pacheco filed a Verified Claim to both properties. R. Doc. 37. The district court
granted summary judgment to the government based on the magistrate judge’s
conclusion that Mr. Valdez-Pacheco did not have standing to contest the
forfeiture. R. Docs. 160, 155 at 11.
We review a grant of summary judgment de novo. Kingsford v. Salt Lake
City Sch. Dist., 247 F.3d 1123, 1127-28 (10th Cir. 2001). Summary judgment is
appropriate if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). We construe the evidence in
2
The two pieces of real property at issue are located at 8262 South
Williamsburg Park Circle, Sandy, Utah, and 419 Harrison Street, Midvale, Utah.
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the light most favorable to the non-moving party. Kingsford, 247 F.3d at 1128.
Because the government has shown probable cause exists for the forfeiture,
the burden is on Mr. Valdez-Pacheco to show that the forfeiture does not fall
within the four corners of the statute. United States v. $149,442.43 in United
States Currency, 965 F.2d 868, 876-877 (10th Cir. 1992). Initially, however, Mr.
Valdez-Pacheco must establish that he has standing to challenge the forfeiture.
He fails to do so.
Mr. Valdez-Pacheco’s interest in the property at issue must be an interest
“sufficient” to confer standing–usually an ownership or possessory interest.
United States v. $515,060.42 in United States Currency, 152 F.3d 491, 498 (6th
Cir. 1998) (stating that “[p]ossessory interests may be sufficient to bestow
standing on a claimant to contest a forfeiture”); United States v. One Parcel of
Property Located at RR2, Independence, Buchanan County, Iowa, 959 F.2d 101,
103 (8th Cir. 1992) (“To show standing to contest forfeiture, a claimant must
prove that he or she is the owner of the defendant property.”). We look to state
law to determine what property interests Mr. Valdez-Pacheco may assert. United
States v. 9844 South Titan Court, 75 F.3d 1470, 1478 (10th Cir. 1996), overruled
in part on other grounds by United States v. Ursery, 518 U.S. 267 (1996). Under
Utah law, “[a] forged deed is utterly void and does not convey any title to the
grantee, . . . although he may be an innocent purchaser for value without notice of
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the forgery.” N.M. Long Co. v. Kenwood Co., 39 P.2d 1088, 1089 (Utah 1935)
(citation omitted). Mr. Valdez-Pacheco does not contest that the documents
transferring title in this case were forgeries and offers no other evidence of
ownership or possession. Therefore, Mr. Valdez-Pacheco does not have a
sufficient interest in the properties at issue in this case to establish standing to
contest the forfeiture.
In his opening brief, Mr. Valdez-Pacheco asserts four arguments as to why
summary judgment was improper. All are meritless. First, Mr. Valdez-Pacheco
asserts that the district court should have found that a “forged document,”
apparently a “Withdrawal of Claim” that Mr. Valdez-Pacheco submitted to the
court and then withdrew, was enough to create a genuine issue of material fact.
Aplt. Br. at 10. Whether or nor Mr. Valdez-Pacheco’s “Withdrawal of Claim”
document was a forgery is irrelevant. The district court granted the government’s
motion for summary judgment solely on the issue of Mr. Valdez-Pacheco’s lack of
standing.
Second, Mr. Valdez-Pacheco argues that he has an ownership interest in
one of the properties because the property was given to Manual Medina for being
an informant for the United States. Id. This is simply factually inaccurate.
Third, Mr. Valdez-Pacheco asserts that one of the properties was purchased with
money that Mr. Valdez-Pacheco loaned to Mr. Medina and, therefore, has no
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nexus to drug trafficking. Id. This argument was not presented to the district
court, and generally, we will not consider issues raised for the first time on
appeal. See Tele-Communications, Inc. v. Commissioner of Internal Revenue,
104 F.3d 1229, 1232 (10th Cir. 1997). Even if we were to consider this issue, Mr.
Valdez-Pacheco has brought forth no evidence to support his contentions.
Finally, Mr. Valdez-Pacheco asserts that the district court should have construed
Mr. Valdez-Pacheco’s motion for sanctions as a motion for summary judgment.
Aplt. Br. at 10. We do not see why the district court should have done so and fail
to see how this would help Mr. Valdez-Pacheco cure his lack of standing.
In his opening brief and his supplemental brief, Mr. Valdez-Pacheco argues
that the district court erred in denying both his motion to appoint counsel and his
motion for sanctions against both the United States attorney and his own attorney.
Although we do not think that either of these claims has merit, we do not have
jurisdiction to consider them. In Mr. Valdez-Pacheco’s Notice of Appeal, R. Doc.
169, he appeals only the district court’s order granting the government summary
judgment–not the district court’s order denying his motion to appoint counsel or
the district court’s order denying sanctions. “This court cannot exercise
jurisdiction absent a timely notice of appeal.” Rodgers v. Wyoming Attorney
Gen., 205 F.3d 1201, 1204 (10th Cir. 2000) (internal quotations and citation
omitted); see also Fed. R. App. P. 3(a)(1), (c)(1)(B) (“The notice of appeal must .
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. . designate the judgment, order, or part thereof being appealed . . . .”). No
amended or subsequent notice of appeal of which we are aware indicated an intent
to appeal from the denial of sanctions.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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