United States District Court, D. Arizona
G. Campbell, United States District Judge.
Dann Riggin has been convicted of being a felon in possession
of ammunition and firearms in violation of 18 U.S.C. §
922(g)(1). Docs. 45, 67. The government seeks forfeiture of
the property involved in these crimes pursuant to 18 U.S.C.
§ 924 and 21 U.S.C. § 853. Doc. 24 at 2-7. The
Court entered a preliminary order of forfeiture, finding that
the government established the requisite nexus between such
property and the offenses to which Defendant pled guilty.
sons, Christopher and Ryan, claim an interest in some of the
property and have filed a petition for a hearing pursuant to
21 U.S.C. § 853(n) and Federal Rule of Criminal
Procedure 32.2(c). Doc. 53. The government has filed a motion
to dismiss, which is fully briefed. Docs. 56, 62, 66. The
Court will deny the motion.
Criminal Forfeitures Under 21 U.S.C. § 853.
ancillary proceeding under this statute, “the sole
legal issue before the court is the ownership interests of
the competing parties, a consideration that is often
irrelevant in an in rem civil forfeiture action,
which turns instead on the culpability of the owner and the
role of the property in the prohibited activity.”
United States v. Nava, 404 F.3d 1119, 1124 (9th Cir.
2005) (citation omitted). Section 853(a) provides that a
person convicted of a felony shall forfeit to the United
States “any of the person's property used . . . to
commit, or to facilitate the commission of, such
violation[.]” 21 U.S.C. § 853(a)(2). Under §
853(n), however, a third party claiming an interest in such
property can request a hearing to show that he had a vested
interest in the property when the defendant committed the
crime, or he was a bona fide purchaser for value of the
property and had no reason to believe that the property was
subject to forfeiture. 21 U.S.C. § 853(n)(6)(A)-(B);
see Nava, 404 F.3d 1125 (noting that “[t]he
petitioner bears the burden of proving his right, title, or
interest under § 853(n)(6)” and this section is
“the exclusive proceeding in which third parties may
claim interests in property subject to criminal
claims ownership to certain property that Defendant allegedly
gave him when he moved back to Arizona to live at the
family's ranch in 2014. Doc. 53 at 2-9. Both Christopher
and Ryan claim ownership of other property that Defendant
allegedly gave them when they were growing up on the ranch
sometime between 1994 and 2000. Id. at 9. They
request a hearing on their claims of ownership and seek to
conduct discovery to identify the property that actually
belongs to them. Id. at 10.
government moves to dismiss the petition on the ground that
even if the facts alleged are true, the petition fails to
state a claim for relief in light of 21 U.S.C. § 853(c)
and its “relation back” doctrine. Doc. 56 at 2.
Section 853(c) concerns a defendant's transfer of
property to third parties after commission of a crime,
providing that “[a]ll right, title, and interest in
property described in subsection (a) vests in the United
States upon the commission of the act giving rise to the
forfeiture[, ]” and any “such property that is
subsequently transferred to a person . . . shall be ordered
forfeited to the United States, ” unless the person
establishes the bona fide purchaser exception. 21 U.S.C.
§ 853(c); see United States v. Arce-Padilla,
981 F.Supp.2d 852, 855 (D. Ariz. 2013).
government contends that Defendant became a prohibited
possessor in 1987 when he was convicted of a felony drug
offense, and that “[b]eginning in 1987, therefore, as
soon as [he] took possession of any firearms or ammunition
they immediately vested with, and belonged to, the United
States.” Doc. 56 at 3. But the vesting of title under
§ 853(c) relates back only to the time of “the
commission of the act giving rise to the forfeiture, ”
and no farther. The superseding indictment charges Defendant
with being a felon in possession on or about May 20 and July
11, 2017, and these are the crimes for which he was
convicted. Docs. 24 at 1-3, Doc. 68 at 1. Under the language
of the statute, title in the subject property vested in the
United States “upon the commission of the[se]
act[s].” 21 U.S.C. § 853(c). Nothing in the
statute suggests that title vested earlier. As the Ninth
Circuit has recognized, the relevant inquiry in a forfeiture
proceeding is whether the third party has established an
interest in the property “at the time of the commission
of the crimes for which [the defendant] was
convicted.” Nava, 404 F.3d at 1129
(emphasis added); see also United States v. Parcel of
Land, 507 U.S. 111, 132 (1993) (Scalia, J., concurring)
(noting that “a judgment of forfeiture relates back to
the date of the offense as proved”) (emphasis
added)); United States v. Daugerdas, No. 09 Cr. 581
(WHP), 2017 WL 1052592, at *1-2 (S.D.N.Y. 2017) (finding that
title vested in the government when the defendant's
fraudulent scheme began in 1994 as alleged in the superseding
indictment); United States v. Serendensky, No. S2 00
CR. 320 (JGK), 2003 WL 21543519, at *4 (S.D.N.Y. July 9,
2003) (“The acts giving rise to the forfeiture took
place . . . as the information alleges, in or about 1996 to
in or about October 2000”); United States v.
Brooks, 112 F.Supp. 1035, 1040 (D. Haw. 2000) (finding
that a drug dealer's wife failed to prove she had a
vested interest in a home purchased in 1996 where her husband
“was found guilty of a conspiracy that the indictment
charged had begun in August 1993”).
Court must accept the facts alleged in the petition as true.
See Fed. R. Crim. P 32.2(c)(1)(A)). Doing so, the
Court cannot conclude that Christopher and Ryan lacked
ownership interests in the subject property when Defendant
committed his § 922(g)(1) violations in 2017.
See 21 U.S.C. § 953(n)(6)(A); Nava,
404 F.3d at 1129 (third party established ownership of two
properties because she “acquired title before July 11,
1997, the earliest date of [the defendant's] charged
offenses”). The motion to dismiss based on §
853(c) and the relation back doctrine is therefore
ruling is not inconsistent with the purpose of the relation
back doctrine. Section 853(c) seeks to prevent a criminal
defendant from “attempt[ing] to avoid criminal
forfeiture by transferring his property to another party
before conviction.” United States v.
Lazarenko, 476 F.3d 642, 647 (9th Cir. 2007) (citing S.
Rep. No. 98-225, at 212 (1983)); see United States v.
McHan, 345 F.3d 262, 272 (4th Cir. 2003) (“[T]he
remedial purpose of § 853 . . . was to thwart efforts by
a defendant to circumvent the economic impact of an
anticipated criminal forfeiture sentence.”); United
States v. Kingsley, 851 F.2d 16, 20 (1st Cir. 1988)
(same). Defendant was not charged with being a felon in
possession until July 2017, and the charged offense (count
one) occurred less than two months earlier. Doc. 1. The
superseding indictment added a second felon in possession
charge (count two) that occurred in mid-July 2017. Doc. 24.
Defendant's alleged transfers of property to his sons
going back as far as 1994 could not have been fraudulent
attempts to avoid the consequences of his conviction on those
Forfeiture of Firearms and Ammunition Under 18 U.S.C. §
reply, the government relies on § 924(d)(1), which
provides that any firearm or ammunition involved in or used
in any knowing violation of [§ 922(g)] . . . shall be
subject to seizure and forfeiture[.]” Doc. 66 at 2.
Under this section, the government contends, “all
firearms and ammunition that defendant Dann Riggin possessed
since he became a prohibited possessor in 1987 are subject to
forfeiture as they were ‘involved in' his
offenses.” Id. (citing United States v.
Approximately 627 Firearms, 589 F.Supp.2d 1129, 1133-34
(S.D. Iowa 2008)). Again, however, the offenses for which
Defendant was charged and convicted occurred on May 20 and
July 11, 2017. The government cites no authority for the
proposition that § 924(d)(1) extends back to ammunition
and firearms involved in earlier offenses to which Defendant
did not plead guilty. See Approximately 627
Firearms, 589 F.Supp.2d 1133 & n.9 (noting that the
defendant “pled guilty to ‘engaging in the
business of dealing firearms, ' not merely the sale of
the specific firearms identified in the plea agreement,
” and the government therefore had “the
opportunity, pursuant to [§ 924(d)(1)], to prove that
the 627 firearms at issue were ‘involved in' the
business that [the defendant] pled guilty to engaging
government's reliance on United States v.
Sanders, No. CR 10-03-BLG-SPW, 2016 WL 2599095 (D. Mont.
May 5, 2016), is misplaced. That case stands for the
unremarkable proposition “that title to property used
to commit a crime (or otherwise traceable to a crime) often
passes to the Government the instant the crime is planned or
committed.” Id. at *2. Sanders makes
clear that even where, as in this case, firearms are subject
to forfeiture under § 924(d)(1) because they were
involved in a § 922(g) violation, “[o]ther
potential claimants [have] an opportunity to show they held a
cognizable property interest in the firearms[.]”
Id. Section 924(d)(1) provides no basis for
dismissing the petition.
Discovery and ...