                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                         APR 7 2000
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

            Plaintiff - Appellee,
 v.

 ONE PARCEL PROPERTY
 LOCATED AT LOTS 55, 57 AND 59,
 BLOCK 10, ORIENTA PARK
 SECOND ADDITION TO THE CITY
 OF WICHITA, SEDGWICK
 COUNTY, KANSAS, AKA 2827
 WEST MAXWELL, WICHITA,
 SEDGWICK COUNTY, KANSAS,
 WITH ALL APPURTENANCES,                               No. 99-3282
 AND IMPROVEMENTS THEREON,                     (D.C. No. 95-CV-1246-MLB)
                                                   (District of Kansas)
            Defendant,


 TYRONE MAURICE CLARK,

            Claimant - Appellant.

  and

 MARGARET M. CLARK,

            Claimant.


                               ORDER AND JUDGMENT *



        The case is unanimously ordered submitted without oral argument
        *

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
                                                                     (continued...)
Before BALDOCK, HENRY and LUCERO, Circuit Judges.



       Appellant Tyrone Maurice Clark, appearing pro se, challenges the district

court’s final decree of forfeiture against defendant property. This is at least

Clark’s fifth appeal to this court arising out of his drug conviction and the

associated seizure of his assets. See United States v. Clark, No. 99-6087, 1999

WL 979243 (10th Cir. Oct. 28, 1999); United States v. Orienta Park Second, No.

96-3228, 1997 WL 312140 (10th Cir. June 10, 1997) ; United States v. Clark, 84

F.3d 378 (10th Cir. 1996) ; United States v. Clark, No. 95-6051, 1995 WL 445705

(10th Cir. July 28, 1995) .

       Following Clark’s conviction of conspiracy to possess with intent to

distribute cocaine in violation of 21 U.S.C. § 846,   see Clark , 84 F.3d at 378, the

government filed a verified complaint seeking forfeiture of the defendant

property. The district court found probable cause for seizure and forfeiture of

defendant property pursuant to 21 U.S.C. § 881(a).    1
                                                          In response, only Clark and

       *
        (...continued)
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
       1
           The question of whether the forfeiture was pursuant to paragraph (6) or
                                                                       (continued...)

                                           -2-
his mother, Margaret Clark, asserted claims to the property, and the court entered

partial default judgment extinguishing all interests of any other persons.

Following an evidentiary hearing on Margaret Clark’s claim of innocent

ownership, the court found “complete failure to offer evidence of innocent

ownership,” (R. Doc. 86 at 5,) and dismissed Margaret Clark’s claim because of

the lack of standing ensuing from her failure to offer evidence of a legitimate

interest in the property. One week later, the court found “that Tyrone Clark has

failed to assert any cognizable interest in the defendant real property and

therefore has no standing in this action,” and entered a final decree of forfeiture.

(R. Doc. 88 at 2.)

      The complaint in this case and its supporting affidavits alleged, in relevant

part, that Clark “fronted” the purchase of defendant property with large sums of

cash, (R. Doc. 1 Ex. B at 1,) during a period when he and his wife had

insufficient legal income to explain his possession of such sums of cash.     It is

also relevant that Clark was convicted of conspiracy to possess with intent to

distribute cocaine and subjected to seizure of approximately $100,000 in

currency. See Clark , 84 F.3d at 378. To rebut the evidence of probable cause in

the instant case, Clark presented the argument that his mother had received the



      1
       (...continued)
paragraph (7) of 21 U.S.C. § 881(a) is discussed at length below.

                                           -3-
home as a gift from her children. The evidence presented in support of this claim

was Margaret Clark’s testimony at an August 2, 1999, hearing, which the district

court found lacked credibility and characterized as a “complete failure to offer

evidence of innocent ownership,” (R. Doc. 86 at 5,) and therefore rejected as a

basis for standing to challenge the forfeiture.

       Clark previously challenged the instant forfeiture action on double

jeopardy grounds. Pursuant to      Abney v. United States , 431 U.S. 651, 660 (1977),

we considered his appeal of the district court’s denial of his motion to dismiss

prior to the completion of the forfeiture proceedings, and affirmed that denial

pursuant to United States v. Ursery , 518 U.S. 267, 277-79 (1996).      See Orienta

Park Second , 1997 WL 312140 at **1. To the extent that Clark re-urges his

double jeopardy arguments in this appeal, they are barred not only by     Ursery but

also by the doctrine of law of the case.   See McIlravy v. Kerr-McGee Coal Corp.       ,

204 F.3d 1031, 1034-35 (10th Cir. 2000). Insofar as Clark’s brief can be read as

urging exceptions to this doctrine based either on a theory of intervening change

in the law or on a theory the result was “clearly erroneous and would work a

manifest injustice,” id. at 1035 (quoting United States v. Alvarez , 142 F.3d 1243,

1247 (10th Cir.), cert. denied , 525 U.S. 905 (1998)), such arguments are

frivolous. Clark relies on   United States v. Rhodes , 62 F.3d 1449, 1451-52 (D.C.

Cir. 1995), vacated sub nom Rhodes v. United States , 577 U.S. 1164 (1996),


                                           -4-
which was decided prior to both    Ursery and Clark’s initial appeal in this case,

and we cannot see how compliance with the clear instructions of the Supreme

Court can represent clear error. Clark’s arguments that application of

Ursery represented a violation of the Ex Post Facto Clause are likewise entirely

without merit. Additionally, we note that the    Ursery Court, 518 U.S. at 281-82,

expressly declined to extend the holding of     Department of Revenue of Montana

v. Kurth Ranch , 511 U.S. 767 (1994), relied on by Clark, into the context of civil

forfeitures.

      Clark presents an ostensibly jurisdictional argument: Because he was

convicted for a drug offense in the Western District of Oklahoma, jurisdiction is

improper in the District of Kansas for this forfeiture action. This argument

wholly overlooks 28 U.S.C. § 1355(a), which provides that “[t]he district courts

shall have original jurisdiction . . . of any action or proceeding for the recovery

or enforcement of any . . . forfeiture, pecuniary or otherwise, incurred under any

Act of Congress.” That statute clearly establishes subject matter jurisdiction in

the district court for an in rem proceeding pursuant to 21 U.S.C. § 881.

Moreover, insofar as Clark’s argument may be construed as alleging improper

venue, and even assuming arguendo that the “acts or omissions giving rise to the

forfeiture,” 28 U.S.C. § 1355(b)(1)(A), occurred in Oklahoma, Clark’s position

overlooks 28 U.S.C. § 1355(b)(1)(B), which explicitly provides that a forfeiture


                                          -5-
action may be brought in “any other district where venue for the forfeiture action

or proceeding is specifically provided for in section 1395 of this title . . . .”

Reference to that section ends the inquiry: “A civil proceeding for the forfeiture

of property may be prosecuted in any district where such property is found.” 28

U.S.C. § 1395(b). The District of Kansas is plainly such a district with respect to

defendant property.

      It is apparent that Clark’s arguments revolve in significant part around the

assertion that because the government’s complaint (and district court’s order)

cited 21 U.S.C. § 881(a)(7), which covers property used to commit or facilitate

certain drug offenses, jurisdiction and probable cause were improper due to the

fact that the drug offenses in question were committed, and Clark was convicted,

in Oklahoma rather than Kansas.    2




      2
         21 U.S.C. § 881(a)(7) provides that the following property shall be
subject to forfeiture:
          All real property, including any right, title, and interest
      (including any leasehold interest) in the whole of any lot or tract of
      land and any appurtenances or improvements, which is used or
      intended to be used, in any manner or part, to commit, or to facilitate
      the commission of, a violation of this subchapter punishable by more
      than one year’s imprisonment, except that no property shall be
      forfeited under this paragraph, to the extent of an interest of an
      owner, by reason of any act or omission established by that owner to
      have been committed or omitted without the knowledge or consent
      of that owner.

                                          -6-
      While the complaint did cite 21 U.S.C. § 881(a)(7), in the same paragraph

it specified that the government was proceeding against the property as “proceeds

traceable to the exchange of controlled substances in violation of Title II of the

Controlled Substances Act.” (R. Doc. 1 at 1.)   3
                                                    Therefore, the error in citing

paragraph (a)(7) rather than paragraph (a)(6) is patently harmless. The complaint

gave plain notice that the government was proceeding under a “proceeds” theory,

and the May 13, 1995, order finding probable cause for seizure and forfeiture

specifically found the defendant property “constitutes proceeds traceable to the

exchange of controlled substances in violation of Title II of the Controlled

Substances Act.” ( II Supp. R. Doc. 2 at 1.) This language in the order makes

abundantly clear that the erroneous citation of paragraph (a)(7) is harmless

beyond a reasonable doubt.




      3
        21 U.S.C. § 881(a)(6) provides for the forfeiture of the following
property:
          All moneys, negotiable instruments, securities, or other things of
      value furnished or intended to be furnished by any person in
      exchange for a controlled substance or listed chemical in violation of
      this subchapter, all proceeds traceable to such an exchange   , and all
      moneys, negotiable instruments, and securities used or intended to be
      used to facilitate any violation of this subchapter, except that no
      property shall be forfeited under this paragraph, to the extent of the
      interest of an owner, by reason of any act or omission established by
      that owner to have been committed or omitted without the
      knowledge or consent of the owner.
21 U.S.C. § 881(a)(6) (emphasis added).

                                          -7-
      Clark also challenges the district court’s findings of probable cause for

forfeiture. In United States v. $149,442.43 in United States Currency      , 965 F.2d

868, 876 (10th Cir. 1992), we enunciated our standard for reviewing findings of

probable cause for forfeiture:

             In determining whether the district court properly found the
      defendant property subject to forfeiture, the reviewing court must
      affirm findings of fact, unless they are clearly erroneous. United
      States v. One Beechcraft Baron, No. N242BS , 788 F.2d 384, 388
      (6th Cir. 1986); United States v. One Twin Engine Beech Airplane    ,
      533 F.2d 1106, 1107 (9th Cir. 1976). Similarly, factual inferences
      derived from basic facts must be accepted unless clearly erroneous.
      One Twin Engine Beech Airplane , 533 F.2d at 1107-08. However,
      whether the facts produced at a forfeiture proceeding constitute
      probable cause is a question of law which must be reviewed   de novo
      by this court. United States v. One 1987 Mercedes 560 SEL , 919
      F.2d 327, 330 (5th Cir. 1990).

      In $149,422.43 , we affirmed the forfeiture of a pickup truck under 21

U.S.C. § 881(a)(6) despite the absence of evidence tying its purchase to a

specific drug transaction: “Although the government did not tie the vehicle to a

specific drug transaction, both vehicles were purchased with cash during years

when the district court found that claimants had failed to demonstrate legitimate

alternative sources of income large enough to account for their cash

expenditures.”   Id. at 878 (citing One 1987 Mercedes 560 SEL , 919 F.2d at 331;

United States v. Parcels of Land   , 903 F.2d 36, 38 (1st Cir. 1990);   United States

v. Edwards , 885 F.2d 377, 390 (7th Cir. 1989)). Review of the record reveals

that the evidence in this case supports a theory analogous to justifying forfeiture

                                           -8-
in $149,422.43 . 4 The district court’s factual findings are amply supported by the

record and quite obviously amount to facts constituting probable cause under

$149,422.43 , 965 F.2d at 878. Nor did the district court commit clear error in

finding that Margaret Clark had demonstrated no ownership interest in the

property and therefore had no standing to assert an innocent ownership claim.

See id. at 876.   5



      Additionally, Clark asserts that the forfeiture violates the plea agreement in

his criminal case. Clark, however, fails utterly to offer any evidence that his plea

agreement contained any provision prohibiting the government from proceeding

against Orienta Park Second. In that regard, his plea agreement provides only

      4
         Insofar as Clark challenges the evidence on the grounds that statements
by Yolanda Rogers were coerced—a claim we review only for “the most manifest
error” because it was not raised below, Hicks v. Gates Rubber Co. , 925 F.2d 966,
968 (10th Cir. 1991) (citing Gundy v. United States , 728 F.2d 484, 488 (10th Cir.
1984))—he offers no credible evidence in support of his claim of coercion, and
we reject it.
      5
         The government argues additionally that because Clark has failed to
challenge the district court’s conclusion that he lacked standing to challenge the
forfeiture, he has conceded that point and therefore lacks standing to contest the
court’s finding of probable cause. Because the question of standing, however, is
intimately intertwined with factual questions related to the probable cause
determination—the nature of the true ownership interests in defendant
property—we construe liberally Clark’s pro se pleadings to encompass a
challenge to the standing ruling in his arguments regarding probable cause. We
further note that “standing” in this context does not refer to an Article III
jurisdictional requirement, but rather to substantive questions pertaining to the
nature of property interests. These are questions which, unlike threshold
questions of constitutional standing, do not require resolution prior to the
resolution of other issues.

                                        -9-
that “the United States Attorney for the Western District of Oklahoma will not

prosecute defendant, TYRONE MAURICE CLARK , for any other violations of

federal law of a drug-related nature stemming from his activities in the Western

District of Oklahoma, except for perjury or perjury-related offenses.” (R. Doc.

39 Ex. 2 at 2.) This provision plainly applies to “the United States Attorney for

the Western District of Oklahoma,” not to the prosecuting authority in this case,

the United States Attorney for the District of Kansas; there is no evidence the

latter is party to the agreement. Moreover, the provision barring further

prosecutions of appellant Clark cannot be reasonably interpreted to encompass

civil forfeiture proceedings against defendant property, which are well-

recognized as in rem civil proceedings rather than additional criminal penalties

against a criminal defendant.   See Ursery , 518 U.S. at 277-78, 287-88 (discussing

civil forfeitures in the Double Jeopardy context).

      The judgment of the district court is    AFFIRMED . The mandate shall

issue forthwith.


                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




                                          - 10 -
