United States v. Victor Robert Nava, Sr., AKA Big Vic, and Victoria Nava

Opinion by Judge BYBEE; Dissent by Judge RYMER.

Victor “Big Vic” Nava, Sr., was convicted of conspiracy to distribute and possession with intent to distribute methamphetamine. The jury also rendered a special verdict that several properties were used to facilitate Ms crimes or were proceeds of them and should be forfeited to the government pursuant to 21 U.S.C. § 853 . Victor’s daughter, Victoria Nava, petitioned the district court claiming that she held legal title to two of the properties. The district court denied Victoria’s petition to set aside the forfeiture.

We must decide whether forfeiture was proper where Victor has never held title to the two forfeited properties. We reverse and remand.

I. BACKGROUND AND PROCEEDINGS

A

The government may seek the forfeiture of property in either a civil or a criminal proceeding. The principal civil drug forfeiture provision, 21 U.S.C. § 881 , operates in rem against the property itself on the theory that the property itself is guilty of wrongdoing. See Austin v. United States, 509 U.S. 602, 614-18 , 113 S.Ct. 2801 , 125 L.Ed.2d 488 (1993); United *1124 States v. Lester, 85 F.3d 1409 , 1414 n. 8 (9th Cir.1996) (“[A] civil forfeiture…

dissenting.

I part company with the majority because I do not believe that forfeiture pursuant to 21 U.S.C. § 853 turns on who holds bare legal title. Otherwise, forfeiture could always be avoided by putting property in the name of a nominee. Recognizing that § 853(o) imposes upon us the obligation to construe § 853 liberally, I would hold that property of a defendant whose title is held by a straw or nominal owner may be forfeited.

I also part company with the majority’s suggestion that, when the claimant to forfeited property holds bare legal title, the burden shifts to the government to show that the property is held as a resulting or constructive trust for the defendant pursuant to state law. Section 853(n)(6)(A) in plain language puts the burden on the petitioner to show by a preponderance of the evidence that the petitioner’s right, title or interest was vested in the petitioner rather than the defendant. Absent particular circumstances warranting it (and here, absent any facts or argument justifying it), there is no reason for the validity of the petitioner’s alleged interest in the property to turn on the state law of trusts. Instead, when the character of the interest…

404 F.3d 1119 UNITED STATES of America, Plaintiff-Appellee, v. Victor Robert NAVA, Sr., aka Big Vic, Defendant, and Victoria Nava, Defendant-Appellant. No. 03-30010. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 5, 2004. Filed April 18, 2005. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Jack E. Sands, Attorney at Law, Billings, MT, for the appellant. William W. Mercer and James E. Seykora, U.S. Attorney's Office, Billings, MT, for appellee United States of America. Appeal from the United States District Court for the District of Montana; Jack D. Shanstrom, District Judge, Presiding. D.C. No. CR-00-00121-JDS. Before: O'SCANNLAIN, RYMER, and BYBEE, Circuit Judges. Opinion by Judge BYBEE; Dissent by Judge RYMER. BYBEE, Circuit Judge: 1 Victor "Big Vic" Nava, Sr., was convicted of conspiracy to distribute and possession with intent to distribute methamphetamine. The jury also rendered a special verdict that several properties were used to facilitate his crimes or were proceeds of them and should be forfeited to the government pursuant to 21 U.S.C. § 853 . Victor's daughter, Victoria Nava, petitioned the district…