United States v. Real Property Located at 17 Coon Creek Road ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-16590
Plaintiff-Appellee,
D.C. No.
v. 2:09-cv-01937-G
EB-DAD
REAL PROPERTY LOCATED AT 17
COON CREEK ROAD, HAWKINS BAR OPINION
CALIFORNIA, TRINITY COUNTY,
APN: 008-760-12, INCLUDING ALL
APPURTANCES AND IMPROVEMENTS
THERETO,
Defendant,
and
LEUNG CHINN; BETTY K. CHINN,
Claimants,
and
BYRON PICKLE,
Claimant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted
November 19, 2014—San Francisco, California
2 UNITED STATES V. PICKLE
Filed May 19, 2015
Before: Marsha S. Berzon and Johnnie B. Rawlinson,
Circuit Judges, and Elaine E. Bucklo, Senior District
Judge.*
Opinion by Judge Bucklo;
Dissent by Judge Rawlinson
SUMMARY**
Civil Forfeiture
The panel reversed the district court’s judgment of default
and final judgment of forfeiture of real property, and held that
the district court erroneously viewed claimant’s failure to
respond to special interrogatories the government propounded
pursuant to Federal Rules of Civil Procedure’s Supplemental
Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions G(6)(c)(i)(A) as a per se basis for striking his claim.
The panel held that the claimant’s failure to answer the
government’s Rule G(6) interrogatories would not have
warranted striking his claim as a discovery sanction without
giving the claimant an opportunity to cure his lack of
response. The panel also held that claimant’s failure to
*
The Honorable Elaine E. Bucklo, Senior District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. PICKLE 3
comply with Rule G(6) did not vitiate his statutory standing
to contest the forfeiture and dismissal of his claim forthwith.
The panel remanded for further proceedings.
Judge Rawlinson dissented because she believed the
majority’s interpretation of the rules applicable to forfeiture
actions conflicted with the court’s precedent and the decisions
of most other courts that considered the issue, and she would
hold that the district court acted within its discretion in
striking claimant’s claim.
COUNSEL
Editte D. Lerman, Ukiah, California, for Claimant-Appellant.
Kevin C. Khasigian (argued), Assistant United States
Attorney; Benjamin B. Wagner, United States Attorney,
Eastern District of California, Sacramento, California, for
Plaintiff-Appellee.
4 UNITED STATES V. PICKLE
OPINION
BUCKLO, Senior District Judge:
Byron Pickle (“Pickle”) appeals the district court’s June
15, 2012, default judgment and final judgment of forfeiture
of real property located at 17 Coon Creek Road in Hawkins
Bar, California (the “defendant property”). The judgment
was entered after the court granted the government’s motion
to strike Pickle’s claim and answer based on Pickle’s failure
to respond to special interrogatories the government
propounded pursuant to Federal Rules of Civil Procedure’s
Supplemental Rules for Admiralty or Maritime Claims and
Asset Forfeiture Actions (“Rule”) G(6)(c)(i)(A), and then
denied Pickle’s motion to stay on the ground that without a
claim, Pickle lacked standing to challenge the forfeiture
action.
It is apparent from the district court’s order that it viewed
Pickle’s failure to answer the Rule G(6) special
interrogatories as a per se basis for striking his claim.
Because that conclusion is incorrect as a matter of law, we
reverse and remand the case for further proceedings
consistent with this opinion.
BACKGROUND
On July 16, 2009, the United States initiated this in rem
action seeking forfeiture of the defendant property. The
forfeiture action was the result of criminal investigations by
the California Bureau of Narcotic Enforcement (BNE) into
suspected marijuana trafficking activities by claimant Byron
Pickle, his son, James Pickle, and his brother, Thomas Pickle,
all of whom were arrested after searches executed on the
UNITED STATES V. PICKLE 5
defendant property (where Pickle resided), and the “Hennessy
Road property” (where Thomas and James resided), revealed,
inter alia, a large marijuana cultivation site, several hundred
marijuana plants, bagged marijuana, packaging materials,
firearms, and tens of thousands of dollars in cash. James and
Thomas were charged with state drug offenses, but the
District Attorney declined to file criminal charges against
Pickle, and the BNE closed its investigation into Pickle’s
conduct on May 27, 2010.
The government’s verified complaint for forfeiture states
that Pickle is “[t]he recorded owner of the defendant real
property.” It further asserts that “Pickle occupies the main
residence” located on the defendant property, and that one of
Pickle’s sons occupies a travel trailer also located on the
property.
Pickle filed a verified claim in this proceeding on August
11, 2009, in which he likewise stated that he is the “recorded
owner” of the defendant property. Pickle also filed an answer
on September 4, 2009, in which he claimed “an innocent
possessory and/or ownership interest” in the defendant
property.1
On October 7, 2009, the parties stipulated, and the district
court agreed, to a six month stay of the action based on the
ongoing criminal investigation of Pickle and the ongoing
prosecution of James and Thomas. The stay was extended,
by court-approved stipulation, in May, August, and
November of 2010. In all three of these stipulations, the
parties observed that “it does not appear that any charges will
1
A claim and answer was also filed by Leung and Betty Chinn, who
held liens on the defendant property. Their claim is not at issue on appeal.
6 UNITED STATES V. PICKLE
be filed against claimant Byron Pickle,” but agreed that the
stay was warranted in view of the ongoing prosecution of
James and Thomas, whose anticipated invocation of the Fifth
Amendment would interfere with the government’s ability to
gather relevant information. The November 2010 stay was
set to expire on March 28, 2011, and the parties were directed
to file a status report by March 14, 2011, “advising the Court
whether a further stay is necessary.”
The Joint Status Report the parties submitted pursuant to
the November stay order did not request a further stay of the
proceedings, but instead specified topics for discovery;
proposed discovery deadlines; provided for motions and
filing deadlines; and proposed a trial date. The district court
issued a Pretrial Scheduling Order on March 23, 2011, setting
February 16, 2012, as the discovery cutoff, April 16, 2012, as
the deadline for hearing dispositive motions, and September
11, 2012, as the trial date.
On July 21, 2011, the United States served a Request for
Admissions, General Interrogatories, Special Interrogatories,
and a Request for Production of Documents. The special
interrogatories specifically asked Pickle to:
(1) State your full name for all names by
which you are now known, or have been
known in the past, including any and all
aliases;
(2) State every Social Security Number and
driver's license number you have used
with each name;
(3) State the date and place of your birth;
UNITED STATES V. PICKLE 7
(4) State your present residence address; and
(5) Identify and describe with particularity the
nature of your interest in the defendant
real property.
Pursuant to Rule G(6)(b), Pickle had twenty-one days, i.e.,
until August 15, 2011, to respond to the special
interrogatories.
Pickle did not timely respond to the special
interrogatories, but on August 17, 2011, the parties agreed to
extend the deadline to September 19, 2011. Meanwhile, on
August 2, 2011, Pickle moved to suppress the marijuana
evidence obtained from the search of his property in 2008,
and to dismiss the forfeiture proceedings pursuant to Rule
G(8)(b)(i) and Fed. R. Civ. P. 12(b)(6), arguing that without
the marijuana evidence, the United States could not state a
claim for forfeiture. Then, on September 6, 2011, Pickle
moved for a stay of the proceedings on the ground that “all of
the discovery requests” the government served on July 21,
2011, sought information that implicated his Fifth
Amendment protection against self-incrimination.
On October 11, 2011, the government filed both an
opposition to Pickle’s motion to stay and a motion to strike
Pickle’s claim. In both of these submissions, the government
argued, inter alia, that Pickle’s failure to respond to the Rule
G(6) special interrogatories caused him to lack the “statutory
standing” required to seek a stay of the proceedings or to
contest the forfeiture of the defendant property.
On October 21, 2011, the district court issued a
scheduling order resetting the dates on which the various
8 UNITED STATES V. PICKLE
pending motions would be heard. The court concluded that
the government’s motion to strike must be resolved before
either of Pickle’s pending motions.
The court granted the government’s motion to strike
Pickle’s claim on December 20, 2011. In the same order, the
court denied Pickle’s motion to stay, explaining that “absent
a claim to the defendant property, Pickle no longer has
standing to contest this forfeiture action.” On June 15, 2012,
the district court entered a judgment of default and final
judgment of forfeiture. Petitioner timely appealed.
STANDARD OF REVIEW
We review the district court’s interpretation of the
Supplemental Admiralty and Maritime Claims Rules de novo.
United States v. $11,500.00 in U.S. Currency, 710 F.3d 1006,
1010 (9th Cir. 2013). While “[d]ismissal of a forfeiture claim
for failure to comply with procedural requirements is
reviewed for abuse of discretion, id. at 1011, a claimant’s
standing “is a threshold issue which we review de novo.”
United States v. 22249 Dolorosa Street, 167 F.3d 509, 511
(9th Cir. 1999).
DISCUSSION
Pickle assigns three errors to the district court’s final
judgment. First, Pickle claims that the court abused its
discretion by adjudicating the government’s motion to strike
before considering Pickle’s first-filed motion to stay.
Relatedly, Pickle asserts that the court abused its discretion
when it held that Pickle lacked standing to challenge the
forfeiture once his claim was stricken, reasoning that the
ground on which the claim was stricken would not have
UNITED STATES V. PICKLE 9
arisen had the action been stayed. Third, Pickle contends that
the district court abused its discretion by failing to afford him
the opportunity to cure his violation of Rule G(6) prior to
striking his claim.
The challenged district court decisions all rested on one
central error in the district court’s analysis—its conclusion
that it was compelled to strike Pickle’s claim once it
determined that he had failed to comply with Rule G(6). As
we will explain, Pickle’s failure to answer the G(6)
interrogatories would not have warranted striking his claim as
a discovery sanction without giving Pickle an opportunity to
cure his lack of response. Nor did Pickle’s failure to comply
with Rule G(6) vitiate his statutory standing. For both of
these reasons, the district court erred in striking Pickle’s
claim.
1. The constitutional and procedural requirements of claims
pursuant to CAFRA
The Civil Asset Forfeiture Reform Act of 2000
(“CAFRA”), 18 U.S.C. § 983, governs all in rem civil
forfeiture proceedings commenced on or after August 23,
2000. See United States v. Approximately $1.67 Million
(U.S.) in Cash, 513 F.3d 991, 998 (9th Cir. 2008). Section
983(a)(4)(A) of the statute provides:
In any case in which the Government files in
the appropriate United States district court a
complaint for forfeiture of property, any
person claiming an interest in the seized
property may file a claim asserting such
person’s interest in the property in the manner
10 UNITED STATES V. PICKLE
set forth in the Supplemental Rules for
Certain Admiralty and Maritime Claims . . . .
18 U.S.C. § 983(a)(4)(A).
Rule G(5) of the incorporated Supplemental Rules—
formerly Rule C(6)—enumerates the filing requirements for
a verified claim under CAFRA. It mandates, inter alia, that
a claim: identify the specific property claimed; identify the
claimant and state the claimant’s interest in the property; be
signed by the claimant under penalty of perjury; and be
served on the government attorney identified in the
government’s notice of proceedings. Rule G(5)(a).
Rule G(6), captioned “Special Interrogatories,”
establishes that “[t]he government may serve special
interrogatories limited to the claimant’s identity and
relationship to the defendant property without the court’s
leave at any time after the claim is filed and before discovery
is closed,” and requires answers or objections to be served
within 21 days after the interrogatories are served. We have
explained that the “purpose of [Rule G(6)] is ‘to permit the
government to file limited interrogatories at any time after the
claim is filed to gather information that bears on the
claimant’s standing.’” United States v. $133,420.00 in U.S.
Currency, 672 F.3d 629, 635 (9th Cir. 2012) (quoting
Supplemental Rule G Advisory Committee Notes
(subdivision (6)).
Rule G(8)(c)(i) provides that the government may move
to strike a claim:
(A) for failing to comply with Rule G(5) or
(6), or
UNITED STATES V. PICKLE 11
(B) because the claimant lacks standing.
Although Rule G(8) authorizes the government to bring a
motion to strike on these bases, the Advisory Committee
Notes to Rule G(8) caution courts that when a motion to
strike is brought pursuant to Rule G(8)(c)(i)(A), “the court
should strike a claim or answer only if satisfied that an
opportunity should not be afforded to cure the defects under
Rule 15. Not every failure to respond to subdivision (6)
interrogatories warrants an order striking the claim.”
Accordingly, courts typically afford claimants one or even
several opportunities to cure defective Rule G(6) responses,
except where the circumstances indicate that it would be
futile to do so or reflect persistent discovery abuses. See, e.g.,
United States v. Approximately $658,830.00 in U.S.
Currency, No. 2:11-cv-00967 MCE KJN PS, 2011 WL
5241311, at *3 (E.D. Cal. Oct. 31, 2011) (declining to strike
claim for failure to comply with Rule G(6), quoting Advisory
Committee Notes’ guidance that “‘[n]ot every failure to
respond to subdivision (6) interrogatories warrants an order
striking the claim,’” and therefore affording the claimant
twenty-one days to respond to the special interrogatories);
United States v. $4,656,085.10 in Bank Funds, No. SACV 12-
0219-DOC, 2014 WL 5393858, at *4–*6 (C.D. Cal. Sept. 15,
2014) (striking claim only after claimant failed to heed an
order compelling her to respond to the government’s special
interrogatories, failed to appear at a hearing on the
government’s motion for a default judgment, and failed to
respond to an order to show cause as to why her claim should
not be stricken); United States v. Approximately $10,000 in
U.S. Currency, No 1:11-cv091845-SKO, 2013 WL 5314890,
at *4–*5 (E.D. Cal. Sept. 20, 2013) (granting the
government’s unopposed motion to strike after concluding
that claimant had abandoned the litigation generally, as he
12 UNITED STATES V. PICKLE
had not only failed to respond to the government’s special
interrogatories, but had also ceased communicating with his
attorney and had failed to take any steps to retain a new
attorney or proceed pro se).
To pursue a claim, the claimant must demonstrate, in
addition to the usual requirement of establishing Article III
standing, see Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138,
1146 (2013), compliance with “the jurisdictional procedural
requirements” set forth in Supplemental Rule G(5). United
States v. $100,348.00 in U.S. Currency, 354 F.3d 1110, 1126
(9th Cir. 2004). Many courts refer to the latter as “statutory
standing” and have held that it is established through
compliance with Rule G. See id.; see also, e.g., United States
v. $487,825.000 in U.S. Currency, 484 F.3d 662, 664 (3rd
Cir. 2007) (“[t]o establish statutory standing in a forfeiture
case, the claimant must comply with the procedural
requirements set forth in Rule C(6)(a) [the predecessor to
Rule G(5)] and § 983(a)(4)(A)).
This circuit and others have stated that standing to contest
a forfeiture action can be conditioned on “strict compliance
with filing requirements.” United States v. 5145 N. Golden
State Blvd., 135 F.3d 1312, 1316 (9th Cir. 1998) (citing
United States v. 1 Street A-1, 978 F.2d 776, 778 (1st Cir.
1992); see also United States v. $38,570 U.S. Currency,
950 F.2d 1108, 1112–15 (5th Cir. 1992); United States v.
Eng, 951 F.2d 461, 468 (2d Cir. 1991), abrogated on other
grounds by Degen v. United States, 517 U.S. 820 (1996).
Nevertheless, the term “standing” is something of a
misnomer, as “courts have ‘discretion to overlook the failure
to conform to the requirements of [forfeiture claim rules].’”
United States v. $11,500.00 in U.S. Currency, 710 F.3d 1006,
1012 (9th Cir. 2013) (quoting United States v. 2659 Roundhill
UNITED STATES V. PICKLE 13
Dr., 194 F.3d 1020, 1024 (9th Cir. 1999)) (alteration in
original); see also United States v. 4492 S. Livonia Rd., 889
F.2d 1258, 1262 (2d Cir. 1989) (excusing technical
noncompliance with procedural rules governing filing of
claims on ground that claimant made sufficient showing of
interest in property).
2. The government’s motion to strike
In this case, the government identified Rule G(8)(c)(A) as
the basis for its motion to strike. It then zeroed in on Pickle’s
failure to answer its Rule G(6) special interrogatories as the
specific ground on which it based its entitlement to relief.
The government’s motion did not assert that Pickle had failed
to comply with Rule G(5), nor did it claim that Pickle lacked
Article III standing. In fact, in its opposition to Pickle’s
motion to stay, the government stated affirmatively that it did
not contest Pickle’s constitutional standing, (“[a]t this time,
the United States does not contest claimant’s Article III
standing”). Rather, the government argued that “Pickle’s
claim and answer should be stricken . . . for failure to comply
with Supplemental Rule G(6).” The government framed the
issue in its motion to strike as Pickle’s lack of statutory
standing, arguing that “Rule G(6) responses are required to
determine standing,” and that “[s]tatutory standing is
established through strict compliance with Supplemental
Rules G(5) and G(6).”
3. The district court’s order granting the government’s
motion to strike
The district court began its three-page order by
identifying the Rule authorizing the government’s motion as
Rule G(8)(c)(i)(A) and stating that “[t]he government argues
14 UNITED STATES V. PICKLE
that Pickle’s claim and answer should be stricken because
Pickle has failed to respond to the government’s Rule G(6)
Special Interrogatories.” The court then quoted the
government’s recitation of the factual basis supporting its
motion:
[T]he United States’ Rule G(6) special
interrogatories were mailed to the claimant on
July 21, 2011. The claimant’s responses were
due by August 15, 2011. The deadline was
later extended to September 19, 2011. To
date, the Government has not received the
claimant’s answers to the Supplemental Rule
G special interrogatories and the twenty-one
(‘21’) days in which a response is required has
lapsed. (Mot. 4:1-7.)
The court acknowledged Pickle’s argument that his motion
for a stay effectively responded to the special interrogatories
but reiterated its earlier determination that Pickle’s stay
motion could not be decided until the government’s motion
to strike was resolved.
The court went on to find that the “government’s special
interrogatory discovery probes Pickle’s connection to the
defendant property,” and then quoted the provisions of Rule
G(6), stating that, “[t]he government may serve special
interrogatories limited to the claimant’s identity and
relationship to the defendant property without the court’s
leave at any time after the claim is filed but before discovery
is closed,” and that “[a]nswers or objections to these
interrogatories must be served within 21 days after the
interrogatories are served.” (alterations in court order). The
court cited two district court cases from other jurisdictions in
UNITED STATES V. PICKLE 15
which forfeiture claims were stricken based on the claimant’s
failure to comply with Rule G(6), and then concluded,
“[s]ince Pickle’s opposition is an ineffective response to the
special interrogatories at issue, the government’s motion to
strike Pickle’s claim and answer because of Pickle’s failure
to answer the subject special interrogatories is GRANTED.”
4. Application of the law to the facts of this case
Although the district court did not expressly hold that
Pickle’s failure to comply with Rule G(6) eviscerated his
statutory standing, its analysis suggests that it agreed with the
government’s argument that noncompliance with Rule G(6)
amounts to a per se statutory standing defect, precluding the
court from taking any action in the case. First, the only facts
the court addressed in its order related to the dates on which
the government served its special interrogatories and on
which Pickle’s responses were due. Additionally, the court
struck Pickle’s claim without further discussion after
concluding that his motion to stay was “an ineffective
response to the special interrogatories,” citing two cases from
other districts that had summarily stricken claims for failure
to comply with Rule G(6). Finally, the court struck Pickle’s
claim without first ordering Pickle to provide adequate
discovery responses or imposing some less severe, non-
terminating sanction, as courts routinely do when confronted
with discovery violations.
These factors signal that the court viewed the Rule G(6)
deficiency as something more substantial than a discovery
violation. Indeed, if the district court had concluded that
striking Pickle’s claim was warranted as a discovery sanction,
without giving Pickle an opportunity to cure or reasoning
why such opportunity would be futile, we would conclude
16 UNITED STATES V. PICKLE
that decision was an abuse of discretion. See Rule G(8)
advisory committee’s note (“[T]he court should strike a claim
or answer [under Rule 8(c)(i)(A)] only if satisfied that an
opportunity should not be afforded to cure the defects . . . .”);
see also United States v. $154,853.00 in U.S. Currency,
744 F.3d 559, 564 (8th Cir. 2014) (holding that the district
court abused its discretion in striking a claim for sole reason
that claimant failed adequately to respond to G(6) special
interrogatories); cf. Toth v. Trans World Airlines, 862 F.2d
1381, 1385 (9th Cir. 1988).
Rather, the court appears to have concluded that because
“[t]he government’s special interrogatory discovery probes
Pickle’s connection to the defendant property,” the court was
constrained by standing principles to strike Pickle’s claim
forthwith once it determined that he had not strictly complied
with Rule G(6). That conclusion is at odds, however, with
the both the text of Rule G(8) and the decisions of the several
courts of appeals that have applied this provision in cases
where, as here, the claimant’s genuine ownership of the
property was not legitimately in dispute.
First, the structure of Rule G(8)—which contains two
distinct subparts, each authorizing specifically defined
substantive bases on which the government may move to
strike—counsels against the interpretation that a claimant’s
failure to abide by Rule G(6) necessarily constitutes a
standing defect. As noted above, Rule G(8)(c)(i)(B)—the
subpart not invoked by the government in this case—
explicitly authorizes motions to strike “because the claimant
lacks standing.” By contrast, Rule G(8)(c)(i)(A)—the section
the government asserts—authorizes such motions “for failing
to comply with Rule G(5) or G(6).” Construing a claimant’s
failure to comply with Rule G(5) or G(6) to require automatic
UNITED STATES V. PICKLE 17
dismissal, as if it were a statutory standing defect, would
appear to render subpart (B) of Rule G(8)(c)(i) redundant,
violating a fundamental canon of construction. Christensen
v. Comm’r, 523 F.3d 957, 961 (9th Cir. 2008) (“We should
avoid an interpretation that would render the subsections
redundant.”).2
It is true, as noted above, that courts frequently refer to
compliance with Rule G as a whole as a “statutory standing”
requirement under CAFRA. Additionally, the Advisory
Committee Note to Rule G(8)(c)(i)(A) emphasizes the
“special role” of Rule G(6) “in determining claim standing,”
and courts including this one have held that the “purpose” of
Rule G(6) special interrogatories is “to gather information
that bears on the claimant’s standing.” $133,420.00, 672 F.3d
at 635. While these statements undoubtedly fuel a perception
that a claimant’s compliance with Rule G(6) as a whole is a
sine qua non to establish his statutory standing, we believe
that the better view is the one expressed by our Seventh
Circuit colleagues in United States v. Funds in the Amount of
$574,840, 719 F.3d 648, 653 (7th Cir. 2013): Rule G(8)(c)’s
“use of the term ‘standing’ is unfortunate because striking a
claim is a decision on the merits. It is not a determination
2
We respectfully disagree with the dissent’s view that our decision
“renders meaningless” the text of Rule G(8), which “unequivocally
provides that the government may move to strike a claim due to the
claimant’s failure to comport with the requirements of Rule G(6).”
Dissent, p. 35–36. Rule G(8) indeed authorizes the government to file a
motion on this basis, but it does not compel the court to grant the motion
upon finding non-compliance with Rule G(6). To the contrary, as the
Advisory Committee Note to Rule G(8) makes explicit, “the court should
strike a claim or answer only if satisfied that an opportunity should not be
afforded to cure the defects under Rule 15. Not every failure to respond
to subdivision (6) interrogatories warrants an order striking the claim.”
18 UNITED STATES V. PICKLE
that the claimant has failed to show that the court has
jurisdiction and so he should seek relief by an alternative
path; it is a determination that he has no interest in the
property.”
Other courts of appeals have similarly observed that the
distinction between Article III standing and statutory standing
is easily blurred, especially where, as here, the claimant
asserts an “innocent owner” affirmative defense to forfeiture.
For example, the Eighth Circuit has explained:
To qualify as an innocent owner, each
claimant must prove she has an ownership
interest as defined in the statute. As relevant
here, the statute defines the term “owner” to
include “a person with an ownership interest
in the specific property sought to be
forfeited,” and to exclude “a nominee who
exercises no dominion or control over the
property.” 18 U.S.C. § 983(d)(6). Although
many cases refer to this issue as part of the
“standing” inquiry, it is in fact an element of
the innocent owner’s claim on the merits.
When claimants have Article III standing but
fail to prove an ownership interest that meets
these statutory criteria, the “statement that
Claimants lacked ‘standing’ is simply another
way of stating that Claimants had failed to
establish on the merits a property interest
entitling them to relief.”
United States v. One Lincoln Navigator 1998, 328 F.3d 1011,
1014 (8th Cir. 2003) (quoting United States v. Hooper, 229
F.3d 818, 820 n. 4 (9th Cir. 2000)); see also United States v.
UNITED STATES V. PICKLE 19
One 1990 Beechcraft, 1900 C Twin Engine Turbo-Prop
Aircraft, 619 F.3d 1275, 1277 n. 3 (11th Cir. 2010).
In this case, Pickle’s affirmative defense alleges that
Pickle “has an innocent possessory and/or ownership interest
in” the defendant property. To avoid forfeiture on that basis,
Pickle must ultimately establish the innocent nature of his
interest in the defendant property, and his answers to the
government’s special interrogatories are presumably relevant
to that issue. But because it cannot reasonably be disputed
that Pickle’s interest in the defendant property was sufficient
to establish his statutory standing at the inception of the
proceedings—recall that both parties alleged that Pickle was
the “recorded owner” of the defendant property, and the
government further alleged that Pickle and his son both
resided on the property—Pickle’s failure to respond to the
government’s special interrogatories did not alone vitiate his
ability to maintain his claim. See $133,420.00, 672 F.3d at
638 (at motion to dismiss stage, “unequivocal assertion of an
ownership interest in the property is sufficient by itself to
establish standing.”).
We thus agree with the conclusion drawn by other courts
of appeals that where a claimant’s Article III and statutory
standing are not reasonably in dispute, his failure to respond
to Rule G(6) special interrogatories does not, in itself, warrant
striking his claim. In United States v. $154,853.00 in U.S.
Currency, the Eighth Circuit reversed a lower court’s order
striking a claim for noncompliance with Rule G(6) where the
claimant had adequately claimed to have earned the defendant
funds through legitimate employment. 744 F.3d at 564, 562.
The court reasoned that this allegation about the source of the
funds was “sufficient to state a colorable ‘ownership
interest’” under CAFRA, and observed that the government
20 UNITED STATES V. PICKLE
had in fact conceded the claimant’s statutory standing to
pursue his claim to those funds. Id. at 564 (quoting 18 U.S.C.
§ 983(d)(6)(A)). Accordingly, the court held that “no special
interrogatories were necessary to determine standing,” and
that the district court had abused its discretion in striking the
claim. Id. Similarly—and despite the fact that it does not
share our view that an unequivocal assertion of ownership is
sufficient, at the motion to dismiss stage, to establish
statutory standing—the Fifth Circuit has held that, where the
government had admitted facts sufficient to establish the
claimant’s interest in the defendant property, the claimant
“need not have supplemented his claim with additional
evidence” to establish his statutory standing. $38,570,
950 F.2d at 1113.3
Our dissenting colleague’s view that our decision today
conflicts with United States v. $133,420.00 in U.S. Currency,
672 F.3d 629 (9th Cir. 2012), appears to flow from her belief
that there was a legitimate dispute over Pickle’s genuine
ownership of the defendant property. Recalling our
observation in $133,420 that standing is subject to
“adversarial testing,” the dissent faults us for “tak[ing] Pickle
at his conclusory word.” Dissent, pp. 36–37. But this
criticism overlooks that Pickle’s unequivocal assertion of
ownership in his verified claim echoes the government’s own
verified allegations, which likewise assert Pickle’s ownership
3
Although the court concluded that the claimant had standing to
challenge the forfeiture proceeding, it upheld the district court’s decision
to strike his claim and answer on the basis that they were untimely.
UNITED STATES V. PICKLE 21
of the defendant property and additionally assert that Pickle
resides on the property.4
The dissent’s view that $133,420 compels an outcome
contrary to the one we reach is perplexing for additional
reasons. First, the central issue in $133,420 was the
claimant’s Article III standing; the government’s motion to
strike asserted Rule G(8)(c)(i)(B), and the district court
explicitly noted that the claimant’s procedural compliance
was unchallenged. U.S. v. 133, 420, No. CV-09-8096-PCT-
NVW, 2010 WL 2594304, at *4 (D. Ariz. June 23, 2010).
Second, the standing issue was before the court on a motion
for summary judgment. 672 F.3d at 637. Our analysis thus
focused on whether the evidence of record was sufficient to
sustain the claimant’s burden to establish his Article III
standing at that stage of the proceedings. See id. at 639.
After concluding that the district court correctly discounted
the evidentiary value of the claimant’s verified claim because
it ambiguously asserted “an ownership and/or a possessory
interest in” the defendant property,” id. at 636,5 and that the
4
Nor does our decision deprive the government of its entitlement to
“adversarial testing” of Pickle’s continued standing. See dissent, p. 37;
$133,420, 672 F.3d at 642. The government could have moved to compel
substantive answers to its special interrogatories, which the court could
have granted notwithstanding Pickle’s Fifth Amendment objection, as our
discussion in $133,420 suggests. See id. at 637, 643–44. Indeed, our
decision in no way divests district courts of their authority to compel
compliance with Rule G(6) or, indeed, to strike a claim pursuant to Rule
G(8)(c)(i)(A) based on a claimant’s persistent failure to do so.
5
Specifically, although we held that the claimant’s verified claim
“constitutes evidence for purposes of opposing the government’s motion
for summary judgment,” we concluded that its use of the“and/or”
formulation made it insufficiently specific regarding the nature of the
asserted interest to establish Article III standing. 672 F.3d at 640 (citation
22 UNITED STATES V. PICKLE
court permissibly struck the claimant’s interrogatory
responses, which contained his only unambiguous assertion
of ownership, id. at 640–41, we affirmed the court’s
conclusion that the remaining evidence of standing–the
claimant’s unexplained physical possession of the currency
at the time of seizure–was insufficient to withstand the
government’s summary judgment challenge. Id. at 644.
Nothing about that conclusion is at odds with our decision
today.
United States v. $104,250.00 in U.S. Currency, 947 F.
Supp. 2d 560 (D. Md. 2013), likewise is not contrary to our
holding. In that case, the funds subject to forfeiture were
recovered from the claimant’s airplane carry-on bag, where
they were discovered inside a suspiciously wrapped package
to which a drug-detection dog alerted. Id. at 561–62. The
claimant’s verified claim “stated only that ‘he[r] interest in
the property herein is an ownership and possessory interest.”
Id. at 562 (alteration in original). She later amended her
claim to add that “[t]his money . . . is proceeds of my
personal investments in the entertainment industry, and
proceeds from my mother’s estate.” Id. (omission in
original). The court concluded that this assertion of her
interest in the property did not comply with Rule G(5) and
granted the government’s motion to strike her claim on that
basis. Although the government had not issued special
interrogatories pursuant to Rule G(6), the court observed that
“[i]n cases like this one, the Government needs to use the
special interrogatories to test the Claimant’s assertion that she
omitted). The dissent mistakenly states that Pickle’s verified claim
employs the same “and/or” formulation. Dissent, p. 37 and 42 n. 7. In
fact, Pickle’s verified claim states unambiguously, “Byron Pickle is the
recorded owner of the defendant real property.”
UNITED STATES V. PICKLE 23
is the true owner of the defendant property and not merely a
courier for a third party. But to do that, the Government must
know what assertion of ownership the Claimant is making.”
Id. at 565.
The court’s discussion in $104,250.00 simply illustrates
the unremarkable proposition that Rule G(6) interrogatories
may be necessary to ascertain whether a claimant’s interest is
sufficient to establish his statutory standing to contest a
forfeiture, particularly when the claim itself offers little
explanation of the claimant’s connection to the property. But
neither $104,250.00, nor any other case we have reviewed,
persuades us that in the circumstances of this case, Pickle’s
statutory standing was contingent on his compliance with
Rule G(6).
Finally, we note that the government now argues, for the
first time, that Pickle did not comply with Rule G(5), and that
his “bare assertion of ownership” was inadequate to establish
his statutory standing. Even assuming that these arguments
accurately reflect the law of this circuit, as opposed to that of
the Fifth Circuit, from which defendant’s only citation
emanates, see $38,570 U.S. Currency, 950 F.2d at 1111, and
with which at least one other circuit has expressly disagreed,
see United States v. $196,969.00 U.S. Currency, 719 F.3d
644, 645–46 (7th Cir. 2013) (a “bald assertion” of ownership
strictly complies with Rule G(5)), the government has given
us no reason to deviate from our general practice of declining
to consider arguments raised for the first time on appeal.
United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir.
1990).
24 UNITED STATES V. PICKLE
CONCLUSION
Because the district court’s decision to strike Pickle’s
claim was based on the legally erroneous belief that Pickle’s
failure to comply with Rule G(6) vitiated his statutory
standing to contest the forfeiture and required dismissal of his
claim forthwith, and because Pickle’s failure to answer the
G(6) interrogatories would not have warranted striking his
claim as a discovery sanction without giving him an
opportunity to cure his lack of response, we REVERSE the
judgment of default and final judgment of forfeiture and
REMAND for further proceedings consistent with this
opinion.
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent. The majority’s misinterpretation of
the rules applicable to forfeiture actions conflicts with our
precedent and the decisions of nearly every other court to
consider the issue we decide.
The rules governing civil forfeiture actions operate in a
unique manner in discerning a claimant’s standing. In
particular, the rules establish a special role for discovery in
determining whether a claimant has standing to challenge a
forfeiture action. At issue in this case is the application of
Rule G of the Supplemental Rules of the Federal Rules of
Civil Procedure for Admiralty or Maritime Claims and Asset
Forfeiture Actions (Rule G).
Rule G(8)(c)(i) provides:
UNITED STATES V. PICKLE 25
(i) At any time before trial, the government
may move to strike a claim or answer: (A) for
failing to comply with Rule G(5) or (6), or (B)
because the claimant lacks standing.
Rule G(8)(c)(i) is not complex in its application. It
expressly provides that “[a]t any time before trial,” the
government may file a motion to strike a claim because the
claimant failed to comply with Rule G(5) or (6) or because
the claimant otherwise “lacks standing.” Id. Rule G(6) is
equally straightforward regarding the government’s
utilization of special interrogatories in determining the
claimant’s standing:
The government may serve special
interrogatories limited to the claimant’s
identity and relationship to the defendant
property without the court’s leave at any time
after the claim is filed and before discovery is
closed. But if the claimant serves a motion to
dismiss the action, the government must serve
the interrogatories within 21 days after the
motion is served.
Rule G(6)(a). It is readily apparent from the language of Rule
G(6)(a) concerning the scope of the special interrogatories
that the claimant’s standing is implicated in any responses.
It is for that very reason that the special interrogatories are
“limited to the claimant’s identity and relationship to the
defendant property. . .” Id. Consistent with the near
unanimous interpretation of Rule G(6)(a), we have articulated
that:
26 UNITED STATES V. PICKLE
Unlike in typical civil proceedings, the
government may commence limited discovery
immediately after a verified claim is filed.
Supplemental Rule G(6)(a) provides that the
government may serve special interrogatories
limited to the claimant’s identity and
relationship to the defendant property without
the court’s leave at any time after the claim is
filed and before discovery is closed. The
purpose of the rule is to permit the
government to file limited interrogatories at
any time after the claim is filed to gather
information that bears on the claimant’s
standing. . . .
United States v. $133,420.00 in U.S. Currency, 672 F.3d 629,
635 (9th Cir. 2012) (citation, alteration, footnote reference,
and internal quotation marks omitted) (emphasis added). “At
any time before trial, the government may move to strike the
claimant’s claim or answer on the basis that the claim or
answer does not comply with Supplemental Rule G(5), that
the claimant has not responded to special interrogatories
propounded pursuant to Rule G(6)(a), or that the claimant
lacks standing. . . .” Id. (citation and footnote reference
omitted) (emphasis added).
“The issue of standing is subject to adversarial testing
under Supplemental Rule G(6)(a), which gives the
government the right to question the claimant regarding the
claimant’s identity and relationship to the defendant property
and to gather information that bears on the claimant’s
standing[.]” Id. at 642 (citations and internal quotation marks
omitted). Indeed, “the text of Rule G(6)(a) itself . . . broadly
allows the government to collect information regarding the
UNITED STATES V. PICKLE 27
claimant’s relationship to the defendant property. . . .” Id.
(internal quotation marks omitted). Despite such clarity, the
majority strays from our precedent and that of nearly every
other court in holding that the district court erred in striking
Pickle’s claim because he failed to answer the special
interrogatories relevant to his standing.
Although this appeal is governed by an abuse of
discretion standard of review,1 see United States v.
$154,853.00 in U.S. Currency, 744 F.3d 559, 562 (8th Cir.
2014), the majority curiously faults the district court for
applying the express language of Rules G(6) and G(8) in
accordance with existing precedent. “A district court abuses
its discretion when it makes an error of law, when it rests its
decision on clearly erroneous findings of fact, or when we are
left with a definite and firm conviction that the district court
committed a clear error of judgment. . . .” United States v.
Coeur d’Alenes Co., 767 F.3d 873, 879 (9th Cir. 2014)
(citation, alteration, and internal quotation marks omitted).
The district court committed none of these infractions.
It is telling that the majority recognizes that:
the Advisory Committee Note to Rule
G(8)(c)(i)(A) emphasizes the special role of
1
If we were independently reviewing whether Pickle had standing to
challenge the forfeiture action, our review would be de novo. See United
States v. Real Property Located at 475 Martin Lane, 545 F.3d 1134, 1140
(9th Cir. 2008). However, in this appeal, we review the district court’s
grant of the motion to strike Pickle’s claim for an abuse of discretion. See
$133,420.00, 672 F.3d at 637. In any event, based on the weight of
authority establishing that Rule G(6)(a) relates to standing and that a claim
may be stricken based on the claimant’s failure to comport with the rule’s
requirements, the outcome would be the same under de novo review.
28 UNITED STATES V. PICKLE
Rule G(6) in determining claim standing, and
courts including this one have held that the
purpose of Rule G(6) special interrogatories is
to gather information that bears on the
claimant’s standing.
Majority Opinion, p. 17 (internal quotation marks omitted).
The majority also candidly acknowledges that “courts
frequently refer to compliance with Rule G as a statutory
standing requirement under CAFRA” and that the statements
in the advisory committee note and court cases “undoubtedly
fuel a perception that a claimant’s Rule G(6) compliance is a
sine qua non to establish his standing . . .” Id. Once the
majority recognized that the district court’s decision
comported with Rule G, its Advisory Committee Note,2 our
precedent, and the precedent of other courts, an affirmance of
the district court’s decision should have followed. The
majority nevertheless concludes that the district court erred in
striking Pickle’s claim because his failure to respond to the
special interrogatories as required by Rule G(6) was
ostensibly irrelevant to Pickle’s standing. See id. at 16.
2
The Advisory Committee Note for Rule G(6) provides:
It remains useful . . . to permit the government to file
limited interrogatories at any time after a claim is filed
to gather information that bears on the claimant’s
standing. Subdivisions (8)(b) and (c) allow a claimant
to move to dismiss only if the claimant has standing,
and recognize the government’s right to move to
dismiss a claim for lack of standing. Subdivision (6)
interrogatories are integrated with these provisions in
that the interrogatories are limited to the claimant’s
identity and relationship to the defendant property. . . .
Supp. R. G advisory committee note (subdivision (6)).
UNITED STATES V. PICKLE 29
I disagree. I would hold that the district court acted
within its discretion in striking Pickle’s claim on a basis that
is unquestionably recognized by our precedent, numerous
rulings from other courts, the language of Rule G, and the
Advisory Committee Note. See $133,420.00, 672 F.3d at 642
(“The issue of standing is subject to adversarial testing under
Supplemental Rule G(6)(a), which gives the government the
right to question the claimant regarding the claimant’s
identity and relationship to the defendant property and to
gather information that bears on the claimant’s standing[.]”)
(citations and internal quotation marks omitted); see also
$154,853.00, 744 F.3d at 563 (observing that the purpose of
Rule G(6)(a) “is to permit the government to file limited
interrogatories at any time after the claim is filed to gather
information that bears on the claimant’s standing”) (citing
$133,420) (internal quotation marks omitted); United States
v. $25,982.28 in U.S. Currency, No. 5:14 CV 150, 2015 WL
410590, at *2 (N.D. Ohio Jan. 29, 2015) (“While it is
claimant’s burden to establish standing, Rule G(6) entitles the
government to serve special interrogatories to determine
whether the claimant has a sufficient interest in the seized
property to contest the forfeiture, that is, whether the claimant
has standing. . . .”) (citations and footnote reference omitted);
United States v. Vehicle 2007 Mack 600 Dump Truck,
680 F. Supp. 2d 816, 822 (E.D. Mich. 2010) (noting that
“[s]tatutory standing is established through strict compliance
with Supplemental Rules G(5) and G(6)”) (citation omitted)
(emphasis added); United States v. $104,250.00 in U.S.
Currency, 947 F. Supp. 2d 560, 565 (D. Md. 2013) (“To
facilitate the Government’s ability to challenge claims on
standing grounds, Rule G(6) permits the Government to serve
the Claimant with special interrogatories that focus on the
Claimant’s identity and her interest in the defendant property.
Indeed, the importance of the standing issue and of the role of
30 UNITED STATES V. PICKLE
the special interrogatories is underscored by Rules G(6)(c)
and G(8)(c)(ii)(A) which provide that the claimant must
respond to the special interrogatories, and [the] court must
determine whether the claimant has standing to contest the
forfeiture, before [the] court addresses any other issue that the
claimant may raise.”) (citations and internal quotation marks
omitted); United States v. Eleven (11) New Utility Vehicles,
No. 13-1776(GAG), 2014 WL 4385734, at *2 (D. P. R. Sept.
4, 2014) (“To establish statutory standing to contest a
forfeiture action, a claimant must file a claim that complies
with Supplemental Rules G(5) and G(6). A court may strike
the claim of any claimant who fails to follow the
Supplemental Rules’ procedural dictates.”) (citations
omitted); United States v. All Assets Held at Bank Julius Baer
& Co., Ltd., 664 F. Supp. 2d 97, 101 (D.D.C. 2009) (“Because
the procedures prescribed by the Supplemental Rules play an
important role in structuring forfeiture suits and ensuring that
they proceed efficiently, a court is authorized to strike the
claim and/or answer of any claimant who fails to follow the
Rules’ procedural dictates. Courts generally expect claimants
to adhere strictly to those requirements. . . .”) (citations
omitted) (emphasis added). The majority’s unsupported
deviation from this overwhelming weight of authority
transforms the straightforward application of an unambiguous
rule into an immeasurably confusing venture.
The majority cites not a single persuasive decision
reversing a district court’s striking of a cl`aim based on the
claimant’s obdurate refusal to comply with Rule G(6).
Rather, the majority relies on the Seventh Circuit’s approach
in United States v. Funds in the Amount of $574,840,
719 F.3d 648, 653 (7th Cir. 2013). See Majority Opinion, p.
17. However, the Seventh Circuit’s decision is not helpful,
UNITED STATES V. PICKLE 31
because the court never considered the role of Rule G(6) in
striking a forfeiture claim.
In $574,840, the claimants sought a stay of the forfeiture
proceedings based on their ongoing criminal proceedings.
See 719 F.3d at 650. After denying the motion to stay, the
district court ordered the claimants to respond to the
government’s special interrogatories, including an
interrogatory asking the claimants “to state the sources of the
cash they claimed to own . . .” Id. The district court granted
the government’s motion to strike and held that it lacked
Article III jurisdiction because the claimants refused to
respond to the interrogatories. See id. The Seventh Circuit
determined that the district court erred because “[a]t the
pleading stage Article III standing is something to be alleged,
not proved,” and the Rule G(5)3 requirement was in addition
to the pleading necessary to establish Article III standing. Id.
at 651. The Seventh Circuit concluded that “[t]he
government jumped the gun. It gave no reason for opposing
a stay that would defer the litigation of its forfeiture case until
the criminal prosecution of the claimants was resolved. . . .”
Id. at 653–54. In this context, the Seventh Circuit observed
that Rule G(8)’s “use of the term standing is unfortunate
because striking a claim is a decision on the merits. It is not
3
Pursuant to Rule G(5):
A person who asserts an interest in the defendant
property may contest the forfeiture by filing a claim in
the court where the action is pending. The claim must:
(A) identify the specific property claimed; (B) identify
the claimant and state the claimant’s interest in the
property; (C) be signed by the claimant under penalty
of perjury; and (D) be served on the government
attorney . . .
32 UNITED STATES V. PICKLE
a determination that the claimant has failed to show that the
court has jurisdiction and so he should seek relief by an
alternative path; it is a determination that he has no interest in
. . . .property. . . .” Id. at 653 (internal quotation marks
omitted). Thus, the Seventh Circuit never espoused any rule
applicable to this appeal. Rather, the Seventh Circuit was
applying Rule G(8)(c)(i)(B), which “provides an escape hatch
for the government by allowing it to respond to the claim
with a motion to strike” because the claimant lacks standing.
Id.; see also Rule G(8)(c)(i)(B).4 The Seventh Circuit did not
consider a motion to strike premised on Rule G(8)(c)(i)(A) –
the provision at issue in this appeal – based on a claimant’s
failure to comply with Rule G(6).5
Notably, in the companion case to $574,840, the Seventh
Circuit emphasized that the government could rely on the
claimant’s failure to comply with Rule G(6) in seeking
dismissal of a forfeiture claim. See United States v.
$196,969.00 U.S. Currency, 719 F.3d 644, 647 (7th Cir.
2013). The government sought to strike a forfeiture claim
because the claimant failed to “spell out his interest in the
property at the outset . . .” Id. In rejecting this assertion, the
Seventh Circuit opined:
4
Significantly, Rule G(8)(c)(i)(A) does not use the term “standing” and
the Seventh Circuit never rejected longstanding precedent holding that
compliance with Rule G(6) is necessary to establish statutory standing.
Interpreting the court’s silence on this point as negating the need to adhere
to the requirements of Rule G(6) is unprecedented.
5
As the majority acknowledges, “[t]he government’s motion did not
assert that Pickle had failed to comply with Rule G(5), nor did it claim that
Pickle lacked Article III standing. . . .” Majority Opinion, p. 13.
UNITED STATES V. PICKLE 33
[W]e are given no grounds for thinking that a
claimant’s failure to particularize the nature of
his claimed interest beyond what Rule G(5)
requires burdens the government or the courts
unduly. The government can depose the
claimant or serve an interrogatory on him
without leave of court, as expressly authorized
by Rule G(6)(a). If the claimant is
unresponsive, the government can move for
dismissal of the claim and for entry of a
judgment of forfeiture. . . .
Id. (emphasis added). Indeed, the Seventh Circuit’s rationale
is in lockstep with our precedent. See $133,420, 672 F.3d at
635 (“At any time before trial, the government may move to
strike the claimant’s claim or answer on the grounds that . . .
the claimant has not responded to special interrogatories
propounded pursuant to Rule G(6)(a) . . .”).
The Eighth Circuit’s decision in $154,853.00 is equally
unhelpful to the majority. In that case, the claimant filed an
amended verified claim in which he asserted that $4,500 in
seized money was earned though his employment. See
744 F.3d at 562. During oral argument, the government
conceded that the claimant had statutory standing with respect
to the claimed funds. See id. at 564. The Eighth Circuit
concluded that the district court abused its discretion in
striking the claim because “[i]f [the claimant] had already
established standing as to the $4,500, as the government
concedes, then special interrogatories were unnecessary to
determine his standing as to that currency. . . .” Id. Thus, the
district court abused its discretion in striking a claim for
failure to answer special interrogatories that were wholly
unnecessary. In this case, far from conceding standing, the
34 UNITED STATES V. PICKLE
government explicitly and emphatically argued that Pickle
did not satisfy the requirements for statutory standing,
emphasizing that Pickle’s “out-right refusals to respond to
Rule G(6) special interrogatories frustrate any examination
into whether he is a straw owner, nominee, or received the
property via a fraudulent transfer.” Clearly, the Eighth
Circuit’s decision addressed markedly different facts.
The majority’s equating of Pickle’s refusal to answer the
special interrogatories to a discovery issue is discordant. See
Majority Opinion, p. 15 (criticizing the district court for
“view[ing] the Rule G(6) deficiency as something more
substantial than a discovery issue. . . .”). However, the
district court is in good company. A panel of this court has
also characterized the interrogatory process in forfeiture
proceedings as “unlike . . . typical civil proceedings.”
$133,420, 672 F.3d at 635. Rather than raising a run-of-the-
mill discovery issue, a claimant’s adherence to Rule G(6)(a)
goes to the heart of the claimant’s assertion that he has
standing to challenge the forfeiture action. See id. (“The
purpose of the rule is to permit the government to file limited
interrogatories at any time after the claim is filed to gather
information that bears on the claimant’s standing. . . .”)
(citation and internal quotation marks omitted); see also id. at
642 (“The issue of standing is subject to adversarial testing
under Supplemental Rule G(6)(a), which gives the
government the right to question the claimant regarding the
claimant’s identity and relationship to the defendant property
and to gather information that bears on the claimant’s
standing[.]”) (citations and internal quotation marks omitted);
$574,840, 719 F.3d at 650 (stating that “[t]he purpose of such
interrogatories is to smoke out fraudulent claims—claims by
persons who have no colorable claims”); $196,969.00,
719 F.3d at 647 (“The government can depose the claimant or
UNITED STATES V. PICKLE 35
serve an interrogatory on him without leave of court, as
expressly authorized by Rule G(6)(a). If the claimant is
unresponsive, the government can move for dismissal of the
claim and for entry of a judgment of forfeiture. . . .”).
The majority reasons that “the structure of Rule G(8) –
which contains two distinct subparts, each authorizing
specifically defined substantive bases on which the
government may move to strike – counsels against the
interpretation that a claimant’s failure to abide by Rule G(6)
necessarily amounts to a standing defect. . . .” Majority
Opinion, p. 16. However, this reading of Rule G(8) directly
conflicts with our precedent and with a plain reading of the
rule. Rule G(8)(c) provides that:
(i) At any time before trial, the government
may move to strike a claim or answer: (A) for
failing to comply with Rule G(5) or (6), or (B)
because the claimant lacks standing.
These subparts are not substantively distinct. Rather, the
subparts relate to potential defects in the claimant’s standing
that may arise during different phases of the forfeiture action.
Although a claimant, unlike Pickle, may have fully answered
the special interrogatories pursuant to Rule G(6), the claimant
may nonetheless lack standing at some “time before trial,”
such as during the summary judgment stage. See id.; see also
$133,420.00, 672 F.3d at 638 (concluding that “a claimant’s
bare assertion of an ownership or possessory interest, in the
absence of some other evidence, is not enough to survive a
motion for summary judgment”).
In any event, Rule G(8) unequivocally provides that the
government may move to strike a claim due to the claimant’s
36 UNITED STATES V. PICKLE
failure to comport with the requirements of Rule G(6). See
Rule G(8)(c)(i)(A). By holding that Pickle could continue to
contest the forfeiture despite his non-compliance with the
mandates contained in Rule G(6), the majority renders
meaningless this clearly bestowed option to move to strike a
claim. See Majority Opinion, p. 20–21; cf. $133,420.00,
672 F.3d at 635 (“At any time before trial, the government
may move to strike the claimant’s claim or answer on the
grounds that the claim or answer does not comply with
Supplemental Rule G(5), that the claimant has not responded
to special interrogatories propounded pursuant to Rule
G(6)(a), or that the claimant lacks standing. . . .”) (citation
and footnote reference omitted) (emphasis added). Although
the majority appears nonplussed by use of the term
“standing” in Rule G(8)(c)(i)(B), we have nonetheless
articulated that “the purpose of [Rule G(6)(a)] is to permit the
government to file limited interrogatories at any time after the
claim is filed to gather information that bears on the
claimant’s standing. . . .” $133,420.00 at 635 (citation and
internal quotation marks omitted) (emphasis added). “The
issue of standing is subject to adversarial testing under
Supplemental Rule G(6)(a), which gives the government the
right to question the claimant regarding the claimant’s
identity and relationship to the defendant property and to
gather information that bears on the claimant’s standing[.]”
Id. at 642 (citations and internal quotation marks omitted).
The majority’s relegation of Rule G(6)(a) to a mere discovery
request unrelated to the claimant’s standing directly conflicts
with our precedent and creates an unwarranted split with
every court that has recognized the relevance of the rule to
the determination of a claimant’s standing, and the
government’s right to use the rule to subject a claim to
adversarial testing.
UNITED STATES V. PICKLE 37
The majority also maintains that the district court erred
because “the claimant’s genuine ownership of the property
was not legitimately in dispute. . . .” Majority Opinion, p. 16.
It is unclear how the majority reaches such a conclusion given
Pickle’s refusal to respond to the special interrogatories,
including the most basic questions concerning his relationship
to the property, and the government’s continuing challenge to
his status. Pickle’s bare assertion in his verified claim that he
“has an innocent possessory and/or ownership in [the]
property” is not dispositive. Rather, the entire point of the
Rule G(6) special interrogatories is to probe the claimant’s
property interest as asserted in his claim. See $574,840,
719 F.3d at 653–54 (observing that “[i]t’s all too easy for
someone who has no colorable claim to property in
government hands to file a claim in the forfeiture
proceeding. . . . Rule G provides an escape hatch for the
government by allowing it to respond to the claim with a
motion to strike . . .”). After all, there would be no point in
providing for special interrogatories if the claimant could
simply assert that he is a record owner in lieu of complying
with Rule G(6). See $133,420.00, 672 F.3d at 642 (“The
issue of standing is subject to adversarial testing under
Supplemental Rule G(6)(a), which gives the government the
right to question the claimant regarding the claimant’s
identity and relationship to the defendant property, and to
gather information that bears on the claimant’s standing[.]”)
(citations and internal quotation marks omitted) (emphasis
added). The majority deprives the government of the
adversarial testing to which it is entitled and simply takes
Pickle at his conclusory word.
Tellingly, forfeiture claims framed in terms of “and/or”
property interests have met with skepticism in our circuit.
For instance, in $133,420.00, we cautioned that:
38 UNITED STATES V. PICKLE
Although [the claimant’s] verified claim was
admissible evidence, its statement that [the
claimant] had an ownership and/or a
possessory interest in the defendant property
is not sufficient to establish his standing. As
we have explained, the claimant must make
clear whether he is asserting a possessory
interest, an ownership interest, or something
else. Because [his] claim used and/or, it was
not sufficiently specific regarding the nature
of [his] claimed interest in the property. More
important, the term and/or left open the
possibility that [the claimant] was claiming
only a possessory interest . . . and an
unexplained possessory interest is insufficient
to establish standing at any stage of a
forfeiture proceeding. . . .
672 F.3d at 640 (citations and internal quotation marks
omitted). The majority, therefore, assumes too much when it
concludes that there was no legitimate dispute concerning
Pickle’s “genuine ownership of the property” despite Pickle’s
refusal to answer the special interrogatories. Majority
Opinion, p. 16.6
6
The majority’s approach appears to intermingle the requirements for
Article III standing and those of statutory standing in forfeiture actions.
See, e.g., Majority Opinion, pp. 17–18. “In order to meet the
case-or-controversy requirement of Article III, a plaintiff (including a civil
forfeiture claimant) must establish the three elements of standing, namely,
that the plaintiff suffered an injury in fact, that there is a causal connection
between the injury and the conduct complained of, and that it is likely the
injury will be redressed by a favorable decision.” $133,420.00, 672 F.3d
at 637 (citations omitted). “Claimants in civil forfeiture actions can satisfy
this test by showing that they have a colorable interest in the property,
UNITED STATES V. PICKLE 39
Additionally, the majority’s conclusion that special
interrogatories were unnecessary because Pickle’s bare
assertion that he was a record owner automatically conferred
standing is unsubstantiated. See Majority Opinion, pp.17–18
In his motion for stay, Pickle asserted that he was “[t]he
recorded owner” of the property. The government
nonetheless sought special interrogatories to determine if
Pickle was “a straw owner, nominee, or received the property
via a fraudulent transfer. . . .” The government’s efforts to
discern Pickle’s precise property interest were entirely
warranted. “Possession of mere legal title by one who does
not exercise dominion and control over the property is
insufficient even to establish standing to challenge a
forfeiture.” United States v. Vacant Land, 15 F.3d 128, 130
(9th Cir. 1994), as amended (citations and alteration omitted).
Such forfeiture cases may “turn on a finding that the title
holder is a strawman holding nominal title as a subterfuge for
a drug trafficker, rather than being a true owner of an interest
in the property. . . .” Id. Under the majority’s approach, Rule
G(6)(a) becomes meaningless as long as a claimant refuses to
which includes an ownership interest or a possessory interest[.]” Id.
(citations and internal quotation marks omitted). “At the motion to
dismiss stage, a claimant’s unequivocal assertion of an ownership interest
in the property is sufficient by itself to establish standing.” Id. at 638
(citations omitted) (emphasis added). “If the claimant instead asserts a
possessory interest at the motion to dismiss stage, the claimant must offer
some factual allegations regarding how the claimant came to possess the
property, the nature of the claimant’s relationship to the property, and/or
the story behind the claimant’s control of the property. . . .” Id. (citation
and internal quotation marks omitted). In contrast, a claimant’s statutory
standing is independently subject to the claimant’s compliance with Rule
G(6). See id. at 634; see also Vehicle 2007 Mack 600 Dump Truck, 680
F. Supp. 2d at 822 (observing that “[s]tatutory standing is established
through strict compliance with Supplemental Rules G(5) and G(6)”)
(citation omitted).
40 UNITED STATES V. PICKLE
answer the special interrogatories and summarily declares
that he is a record owner. Affording a claimant such an
unwarranted escape from the strictures of Rule G(6)(a) is
contrary to the rule’s purpose of permitting the government
to test a claimant’s assertion of a property interest through
special interrogatories. See $133,420.00, 672 F.3d at 634,
642.
Contrary to the majority’s approach, we have emphasized
the importance of compliance with Rule G(6) even in cases
where the claimant has asserted his Fifth Amendment rights.
In $133,420.00, we observed that the claimant’s assertion of
his Fifth Amendment privilege against self-incrimination was
an attempt to thwart the adversarial testing contemplated by
Rule G(6)(a). We concluded that the claimant’s reliance on
the Fifth Amendment to avoid answering the special
interrogatories “frustrat[ed] the government’s attempts to test
the veracity of his claim of ownership” and that “his claim of
privilege . . . raises the core concern that his testimony may
furnish one side with what may be false evidence and deprive
the other of any means of detecting the imposition.” 672 F.3d
at 642.
The majority’s approach, therefore, is in clear conflict
with our precedent establishing that Rule G(6)(a) implicates
the claimant’s standing and the government has a right to file
a motion to strike a claim when the claimant does not respond
to the special interrogatories. See id. (“The issue of standing
is subject to adversarial testing under Supplemental Rule
G(6)(a), which gives the government the right to question the
claimant regarding the claimant’s identity and relationship to
the defendant property, and to gather information that bears
on the claimant’s standing[.]”) (citations and internal
quotation marks omitted); see also id. at 635 (“At any time
UNITED STATES V. PICKLE 41
before trial, the government may move to strike the
claimant’s claim or answer on the grounds that the claim or
answer does not comply with Supplemental Rule G(5), that
the claimant has not responded to special interrogatories
propounded pursuant to Rule G(6)(a), or that the claimant
. . . .standing. . . .”) (citation and footnote reference omitted)
(emphasis added).
Relying on United States v. One Lincoln Navigator 1998,
328 F.3d 1011 (8th Cir. 2003) and United States v. One 1900
Beechcraft, 1900 C Twin Engine Turbo-Prop Aircraft,
619 F.3d 1275, 1277 n.3 (11th Cir. 2010), the majority
attempts to justify its deviation from our binding precedent by
suggesting that standing and the merits of the forfeiture action
are blurred when the claimant asserts an innocent owner
defense. See Majority Opinion, pp. 17–18. “An innocent
owner is an owner who (i) did not know of the conduct giving
rise to forfeiture; or (ii) upon learning of the conduct giving
rise to the forfeiture, did all that reasonably could be expected
under the circumstances to terminate such use of the
property. . . .” United States v. Ferro, 681 F.3d 1105, 1113
(9th Cir. 2012) (citation and internal quotation marks
omitted). The majority’s innocent owner suggestion is
immeasurably confusing given that Pickle asserted that a stay
was warranted due to pending accusations of “possessing
marijuana for sale, cultivation of marijuana, and other
violations of [California law] pertaining to marijuana.” Pickle
also affirmed that he was “subject to a parallel criminal
investigation” and that he declined to respond to the
42 UNITED STATES V. PICKLE
government’s interrogatories based on his Fifth Amendment
rights.7
In any event, One Lincoln Navigator 1998 and One 1900
Beechcraft did not involve the claimant’s lack of statutory
standing premised on the claimant’s failure to comply with
Rule G(6)(a). Rather, those cases involved an assertion of an
innocent owner defense pursuant to 18 U.S.C. § 983(d)(1)8
and have no relevance to this appeal involving Pickle’s
refusal to provide any support for his asserted property
interest in response to the government’s special
interrogatories. See One Lincoln Navigator 1998, 328 F.3d
at 1014; see also One 1990 Beechcraft, 619 F.3d at 1277 n.3
(clarifying that “[a]lthough many cases refer to the statutory
definition of ownership as part of the standing inquiry, it is in
fact an element of the innocent owner’s claim on the merits”)
(citation, alteration, and internal quotation marks omitted).
In contrast to Pickle’s blanket refusal to comply with Rule
G(6) and provide support for his assertion of a property
interest, the claimants in One Lincoln Navigator 1998 and
One 1990 Beechcraft provided evidence during evidentiary
hearings in support of their claims. See One Lincoln
Navigator 1998, 328 F.3d at 1012–13; One 1990 Beechcraft,
619 F.3d at 1276–77. The majority’s parsing of inapposite
innocent owner cases does not support reversal of the district
7
In his verified claim, Pickle maintained that he had “an innocent
possessory and/or ownership in [the] property.” In his motion for a stay,
he asserted only that he was “[t]he recorded owner” of the property.
8
Pursuant to 18 U.S.C. § 983(d)(1), “[a]n innocent owner’s interest in
property shall not be forfeited under any civil forfeiture statute. The
claimant shall have the burden of proving that the claimant is an innocent
owner by a preponderance of the evidence.”
UNITED STATES V. PICKLE 43
court’s striking of Pickle’s claim, particularly in light of our
contrary precedent. See $133,420.00, 672 F.3d at 634, 642.
Based on its assertion that courts “typically” afford
claimants an opportunity “to cure defective Rule G(6)
responses,” the majority faults the district court for not
providing Pickle a similar opportunity. Majority Opinion, pp.
11–12. However, the record belies any credible claim that an
opportunity to cure was appropriate. This action did not
involve a claimant’s defective responses to the special
interrogatories, but a complete refusal to abide by Rule G(6).
In this protracted action, which commenced in 2009, the
district court granted numerous stays based on pending
criminal proceedings against Pickle’s relatives. Once it
became apparent that Pickle was not the subject of any
criminal prosecution,9 the district court ordered that discovery
be completed by February 16, 2012, and the parties proposed
a September 10, 2012, trial date. Although it was evident that
Pickle was not subject to any criminal proceedings, Pickle
nevertheless refused to answer the special interrogatories and
responded with another motion to stay based on a purported
criminal prosecution that never materialized.10 Pickle refused
to respond to any of the government’s interrogatories,
requests for admission, or requests for production, informed
9
Pickle was unable to demonstrate that he was “the subject of a related
criminal investigation or case” or that his Fifth Amendment rights were
implicated, because the criminal investigation into his activities had been
closed. 18 U.S.C. § 981(g)(2)(A)&(C).
10
Pickle’s motion to stay filed in 2011 was premised on a 2008 police
report stating that a case against Pickle would be forwarded to the Trinity
County District Attorney’s Office. However, that report also confirmed
that “[n]o charges were filed against Byron Pickle and the case against
him was closed on August 14, 2009.”
44 UNITED STATES V. PICKLE
the government that he was asserting his Fifth Amendment
rights, refused to attend his scheduled deposition, and filed an
untimely opposition to the government’s motion to strike.
Pickle’s refusal to respond to the special interrogatories based
on his specious assertion of an ongoing criminal investigation
is entirely distinguishable from the cases cited by the
majority. Considering Pickle’s conduct, the district court was
not compelled to afford Pickle any additional opportunities to
satisfy his obligations under Rule G(6).
The majority’s holding that the district court erred in
striking Pickle’s claim because Pickle’s failure to comply
with Rule G(6) did not implicate his standing is legally
untenable and conflicts with our precedent, as well as that of
nearly every other court considering Rule G(6). The district
court did not abuse its discretion in striking Pickle’s claim
because he refused to respond to the government’s special
interrogatories as required by Rule G(6). Once Pickle’s claim
was stricken, Pickle no longer possessed any standing to
contest the forfeiture. See 18 U.S.C. § 981(g)(2)(B)
(providing that, for a stay, the claimant must have “standing
to assert a claim in the civil forfeiture proceeding”). Thus,
the district court’s denial of Pickle’s motion to stay due to
lack of standing was entirely proper. I respectfully dissent
from the majority’s contrary holding.