                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 03 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50078

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00475-GHK-1

  v.
                                                 MEMORANDUM*
AVEDIS DJEREDJIAN,

               Defendant,

  and

ASHKEN DJEREDJIAN,

              Claimant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                  George H. King, Chief District Judge, Presiding

                      Argued and Submitted February 4, 2013
                               Pasadena, California

Before: CALLAHAN, IKUTA, and HURWITZ, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Defendant Avedis Djeredjian (“Defendant”) was convicted of conspiring to

violate the Contraband Cigarette Trafficking Act (“CCTA”), 18 U.S.C. § 2342, and

for structuring currency transactions to avoid reporting requirements in violation of

31 U.S.C. § 5324.1 Ashken Djeredjian (“Petitioner”), Defendant’s mother and the

occupant of a residence, 1633 Greenbriar Road, Glendale, California

(“Greenbriar”), appeals from a summary judgment entered by the district court in

favor of the Government as to her third-party petition, which sought to avoid the

forfeiture of Greenbriar in satisfaction of a personal money judgment entered

against Defendant. Petitioner complains that the district court improperly

determined that: (a) Defendant maintained a forfeitable interest in Greenbriar; (b)

Petitioner did not maintain a legal interest in the residence; and (c) absent her own

legal interest, Petitioner was not otherwise in a position to challenge the forfeiture

of Defendant’s property interest. We have jurisdiction pursuant to 28 U.S.C. §

1291, and we reverse.2

      “Upon a finding that the property involved is subject to forfeiture, a court

must promptly enter a preliminary order of forfeiture without regard to a third

party’s interests in the property.” United States v. Lazarenko, 476 F.3d 642, 648

      1
          We have today affirmed those convictions in a separate memorandum.
      2
        Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
                                           2
(9th Cir. 2007). “[A] court adjudicates a third party’s interest in the forfeited

property in an ancillary proceeding after concluding the criminal case and entering

a preliminary order of forfeiture.” 21 U.S.C. § 853(n). “Any person, other than

the defendant, asserting a legal interest in property which has been ordered

forfeited to the United States . . . may . . . petition the court for a hearing to

adjudicate the validity of his alleged interest in the property.” 21 U.S.C.

§ 853(n)(2). The court shall amend any forfeiture order if a third party establishes

she “has a legal right, title, or interest in the property” that “was vested in the

petitioner rather than the defendant or was superior to any right, title, or interest of

the defendant at the time of the commission of the acts which gave rise to the

forfeiture of the property . . . .” Id. § 853(n)(6)(A).

       Ashken claims a legal interest in Greenbriar as the beneficiary of an oral

trust. Under California law, “an oral trust in real property” is enforceable when the

trustee recognizes the trust as valid and voluntarily carries out the trust obligations.

See Cardoza v. White, 219 Cal. 474, 476 (1933); see also 13 Witkin, Summary of

California Law, Trusts § 28, at 599 (10th ed. 2012) (“An oral trust in real property

is not void, but only unenforceable when its invalidity is urged by the party to be

charged. Hence, only the trustee and the trustee’s successors may take advantage

of the statute [of frauds]” to establish its invalidity.). There is evidence in the


                                             3
record that the trustee willingly performed his duties under the oral trust. Indeed,

the only party disputing the existence and timing of the trust is the Government.

Accordingly, there are genuine issues of material fact as to whether Ashken has the

requisite legal interest in the Greenbriar property under California law, and the

district court erred in rejecting her petition on summary judgment.

      REVERSED.




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