United States v. Approximately $417,148.06 in U.S. Currency Seized from Bank of America Account No. 08067-05302

MEMORANDUM *

Lester Simmons, trustee, appeals a summary judgment decreeing forfeiture to the United States of funds nominally held by the Newport Coast Trust and the Viking Trust (“the Trusts”). The district court concluded that, because the Trusts were shams, they lacked standing to challenge the forfeiture. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. 1

We reject Simmons’ argument that he has standing as an individual claimant in this civil forfeiture proceeding. Simmons was not a party to the district court litigation. The amended claims filed in the district court listed the Trusts as claimants, and Simmons appeared only as a trustee of the Trusts. For his own tactical reasons, Simmons did not assert an individual ownership interest in the funds. Because Simmons is a nonparty, he does not have standing to appeal the decision of the district court unless (1) he participated in the proceedings below, and (2) the equities favor hearing the appeal. See Citibank Int’l v. Collier-Traino, Inc., 809 F.2d 1438, 1441 (9th Cir.1987). Simmons meets neither requirement.

The notice of appeal was filed by Simmons as trustee of the Trusts, and it is therefore the…

I respectfully dissent.

Like the majority, I reject Simmons’s argument that he has standing as an individual to challenge the forfeiture of trust assets. His tactical decision to act in the district court only in his trustee capacity means he may not now appeal the judgment as an individual as he was not, individually, a party below.

Nevertheless, the trustee, as such, has standing (and a duty) to litigate on behalf of the beneficiaries. Though Simmons’s purpose was to defraud the government of taxes owed, nevertheless he used unchallenged trust language to create a trust for designated beneficiaries (his children and grandchildren apparently), and deposited a res. It’s their money now. “Where the purpose of the settlor in creating the trust is to defraud creditors or other persons, but the trust is created for the benefit of a third person and not for the benefit of the settlor himself, if the beneficiary at the time of the creation of the trust had no notice of the fraudulent purpose of the settlor, he can enforce the trust, provided that the trust is not illegal for any other reason.” 1 The beneficiaries here have an interest in the money remaining in trust beyond Simmons’s…