     Case: 10-50867     Document: 00511667284         Page: 1     Date Filed: 11/16/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 16, 2011
                                     No. 10-50867
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JAIME TORRES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:06-CR-76-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Jaime Torres seeks leave to proceed in forma pauperis (IFP) on appeal
from the district court’s orders denying his motions for return of property
pursuant to Federal Rule of Criminal Procedure 41(g), entering a final judgment
of forfeiture as to assets and a cash amount listed in Torres’s criminal judgment,
and entering a final judgment of forfeiture as to substitute assets. In his brief,
Torres declares that he does not seek the return of any of the property listed in
the jury’s forfeiture verdict, as he understands that he must seek return of that

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 10-50867

property through a direct appeal and not through a Rule 41(g) motion. However,
he does seek return of the items that were not listed in the jury’s verdict but that
were ordered forfeited. He argues that the Government was not entitled to those
items because they were obtained through legitimate means, something he
alleges was demonstrated in his district court proceedings. He contends that 21
U.S.C. § 853 allows for the forfeiture of substitute property only when a
defendant’s actions have caused the originally forfeited property to become
unavailable, diminished in value, or commingled with other property. In his
case, however, the assets listed in the verdict were available and actually were
obtained by the Government, rendering the forfeiture of substitute property in
violation of the forfeiture statute.
      A movant seeking leave to proceed IFP on appeal in a civil case must show
that he is a pauper and that the appeal raises nonfrivolous issues. See Carson
v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). A movant seeking leave to proceed
IFP in a criminal case must make the same showing. See United States v.
Boutwell, 896 F.2d 884, 888-90 (5th Cir. 1990) (one-judge order circulated to
entire court). To meet the financial requirement for IFP status, a movant need
not show absolute destitution. Adkins v. E.I. Du Pont de Nemours & Co., 335
U.S. 331, 339 (1948). Rather, the central question is whether the movant can
afford the costs of a particular litigation without undue hardship or deprivation
of the necessities of life. Id. at 339-40. “An investigation into the [IFP] movant’s
objective good faith, while necessitating a brief inquiry into the merits of the
appeal, does not require that probable success be shown. The inquiry is limited
to whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citation omitted). Torres satisfies the financial
criterion to proceed IFP. See Adkins, 335 U.S. at 339.
      Torres’s property interests in the assets listed in the verdict were
extinguished upon the entry of the preliminary order of forfeiture at the time of

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                                  No. 10-50867

the criminal judgment. See United States v. De Los Santos, 260 F.3d 446, 448
(5th Cir. 2001). He lacks standing to challenge the forfeiture of those assets in
an appeal from the order granting a final order of forfeiture of the assets listed
in the criminal judgment. See id. To the extent that Torres is appealing from
the denial of the final judgment of forfeiture as to the assets listed in the
criminal judgment, we lack jurisdiction over the appeal.
      To the extent that the Rule 41(g) motions sought return of the property
listed in the verdict and judgment, Torres acknowledges that his remedy was a
direct criminal appeal. He has abandoned his Rule 41(g) contentions as to those
assets. See In re Municipal Bond Reporting Antitrust Litigation, 672 F.2d 436,
439 n.6 (5th Cir. 1982).
      Relief under Rule 41(g) or in a 28 U.S.C. § 1331 action is unavailable if the
litigant has an adequate remedy at law and will not suffer irreparable injury if
relief is denied. See Industrias Cardoen, LTDA v. United States, 983 F.2d 49, 51-
52 (5th Cir. 1993); Richey v. Smith, 515 F.2d 1239, 1243-44 (5th Cir. 1975). The
rule governing forfeiture proceedings explicitly provides that a defendant may
take a direct appeal from an order directing the forfeiture of substitute property.
FED. R. CRIM. P. 32.2(b)(4)(C), (e). Because Torres could--and did--appeal directly
and timely from the forfeiture order as to substitute assets, he had an adequate
remedy at law and no irreparable injury, and Rule 41(g) relief was unavailable.
See Industrias Cardoen, 982 F.2d at 51-52.
      The Government sought forfeiture of substitute assets in order to satisfy
the money judgment component of Torres’s criminal sentence. Torres did not
object to the government’s motion for forfeiture of substitute assets, and he did
not contend in his second Rule 41(g) motion that the substitution was improper
because the money was available. On appeal, he alleges that the assets listed
in the verdict were available and were obtained by the Government, but he does
not contend specifically that substitution was improper because the money was
available to satisfy the cash forfeiture order.

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                                  No. 10-50867

      Section 853 allows for forfeiture of substituted property if “any property
[that has been ordered forfeited], as a result of any act or omission of the
defendant . . . cannot be located on the exercise of due diligence.” § 853(p)(1)(A),
(p)(2). Because Torres does not contend that substitution was improper because
the money to satisfy the money judgment component was available, he has failed
to brief the relevant issue for appeal on direct appeal from the final forfeiture
judgment as to substitute property. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Torres has failed to raise any nonfrivolous issues for appeal. See Howard,
707 F.2d at 220.
      IFP DENIED; APPEAL DISMISSED




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