                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 05-15170                   NOV 16, 2006
                         Non-Argument Calendar            THOMAS K. KAHN
                       ________________________               CLERK


                   D. C. Docket No. 01-00892-CR-CMA

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

MARK CARRIE,

                                                                      Defendant,

LOUIS J. TERMINELLO,


                                                    Interested Party-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                           (November 16, 2006)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:
       In December 12, 2002, a Southern District of Florida grand jury indicted

Mark Carrie (“Carrie”), his parents, Bessie Carrie and Joe Don Carrie, and nine

others with various drug offenses. The indictment included a forfeiture count that

reached several pieces of property including his liquor license for Tipsee, Inc.

Pursuant to a plea agreement, Carrie pled guilty to Count One of the indictment,

alleging a conspiracy to possess with intent to distribute five kilograms or more of

cocaine and fifty grams or more of cocaine base, and forfeited the property

described in the forfeiture count. The plea agreement required him to assist the

Government in any administrative or judicial proceedings required to effect the

forfeitures.

       On August 18, 2004, the district court granted the Government’s motion for

a preliminary order of forfeiture. On September 21, 2004, appellant Louis

Terminello (“Terminello”) filed a verified petition under 21 U.S.C. § 853(n) to

adjudicate the validity of his claim to the liquor licensee for Tipsee, Inc. (The

State of Florida, which had issued the license, was notified of the forfeiture order

but did not file a claim.)

       On April 29, 2005, the Florida Division of Alcoholic Beverages and

Tobacco (“State”) moved to appear amicus curiae, but not to intervene, in the

proceeding on Terminello’s petition. The court denied its motion. A bench trial

was held on May 6, 2005, at which the court heard Terminello’s testimony,

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considered various documents and the parties’ stipulation of facts, and the consent

to forfeiture executed by Bessie and Joe Don Carrie, Carrie’s straw owners of

Tipsee, Inc. and the liquor license. The court, after considering Terminello’s post-

trial memorandum, entered its findings of fact and conclusions of law, Record,

Vol. 4 at 670, and a final order of forfeiture (in favor of the Government)

denying Terminello’s petition. Record, Vol. 4 at 671. Terminello now appeals,

contending that the district court erred in ruling that he failed to establish a

superior claim to the liquor license under § 853(n) and lacked standing to assert a

claim under the Twenty-First Amendment.

      Some background information is necessary to understand the issues on

appeal. In 2001, the State instituted a revocation proceeding against Tipsee, Inc.,

holder of the liquor license at issue since 1997, based on its failure to disclose that

an individual who had an interest in the business was a convicted felon.

Terminello, an attorney, represented the interested party in the State revocation

proceeding. After the State revoked the license, in 2002, the interested party was

federally indicted, in 2004, on drug charges, and in the indictment, the license was

listed as being subject to forfeiture. Terminello claimed that he obtained an

interest in the liquor license from the State in 2003 when he entered into a consent

order with the State to place the revoked license in escrow on his behalf. He also

claimed that any interest his former client had in the license to forfeit had been

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extinguished by the State’s revocation of the license in 2002.

       In his brief to us, Terminello posits that the State had a superior interest in

the license that predated any criminal activity giving rise to the instant forfeiture;

thus, since he received his interest in the license from the State, he comes within a

§ 853(n) exception.

       One who is subject to criminal forfeiture must forfeit to the government,

“irrespective of any provision of state law,” any property derived from proceeds

obtained from the illegal activity giving rise to the forfeiture. 21 U.S.C.

§ 853(a)(1). “Property” includes “tangible and intangible personal property,

including rights, privileges, interests, claims, and securities.” 21 U.S.C.

§ 853(b)(2). All rights in property subject to forfeiture under § 853(a) vest in the

government “upon the commission of the act giving rise” to the forfeiture.

21 U.S.C. § 853(c). Property in which the government has a vested interest that is

subsequently transferred to a person other than the defendant may be the subject of

a special verdict of forfeiture and forfeit to the government, unless the transferee

comes within one of two exceptions. Id.

       A third party must make one of two showings to establish an interest in

forfeited property: (1) that its legal interest in the property was superior to the

defendant’s at the time of the acts giving rise to forfeiture, or (2) that it is a bona

fide purchaser for value without knowledge of the forfeiture. Watkins, 320 F.3d at

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1282 (citing 21 U.S.C. § 853(n)(6)(A), (B)).

      Terminello clearly stated before the district court that he was not claiming to

be a bona fide purchaser for value without knowledge of the forfeiture. Therefore,

any claim he may have had in that capacity was waived. The only issue remaining,

then, is whether his interest, if any, was superior to his former client’s interest

when his former client acquired the license in 1997 with illegal narcotics proceeds

– the time at which the government’s rights in the license vested. See § 853(c). As

he conceded at the evidentiary hearing, he did not have an interest in the license

prior to 1997. He did not acquire any interest in the license until he applied for it

from the State in 2003, after it had been revoked from his former client. Thus, he

failed to establish an interest in the forfeited license under the § 853(n)(6)(A)

superior interest prong.

      Terminello’s assertion that his former client had no interest to forfeit at the

time of the indictment because of the State’s revocation of the license in 2002 may

or may not be accurate, but it is unavailing. Under the plain language of § 853, the

rights of the government vested in the license at the time the former client

committed the offense giving rise to the forfeiture – in 1997. See § 853(c). That

the former client’s interest was later revoked by the State does not change this, as

his interest was arguably forfeitable to the government “irrespective of any

provision of State law,” including the State’s provision providing for revocation of

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the license. See § 853(a). Even if the former client’s rights in the license were

taken by the State through administrative revocation, however, and not divested via

forfeiture, Terminello still did not receive any interest in those rights from the State

prior to 1997. In sum, the district court’s ruling that Terminello had no interest in

the license at relevant times is correct in either case.

      Terminello also asserts that the State had a superior interest in the license

that predated his former client’s criminal activity, and, thus, because he acquired

his interest from the State, he comes within the § 853(n) exception. This argument

does not comport with the plain language of § 853(c). Under § 853(c), the license

became forfeitable to the federal government in 1997. Any subsequent transferee

claiming an interest in the license after that date had to prove its statutory

entitlement to the property. The statute makes no distinction as to whom a

subsequent transferee received the property from, whether it be the defendant or

someone else. Accordingly, that Terminello may have received an interest from

the State, and not his former client, did not relieve him of the statutory obligation

of demonstrating the he had a superior interest in the license predating his former

client’s. He failed to do this; hence, the district court did not err in ordering the

license forfeited to the United States. Having disposed of this issue, we turn to

Terminello’s constitutional argument.

      Article III of the US Constitution limits federal courts to the adjudication of

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actual “cases” and “controversies.” See U.S. Const. art. III. Under this case-

or-controversy requirement, a litigant must have standing to raise his claims in a

federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130,

2136, 119 L.Ed.2d 351 (1992). Standing requires: (1) an actual or threatened

concrete injury; (2) that is fairly traceable to the challenged action of the

defendant; and (3) it is likely, as opposed to merely speculative, that the injury will

be redressed by a favorable decision. Pittman v. Cole, 267 F.3d 1269, 1282

(11th Cir. 2001).

       Three prudential principles also counsel for judicial restraint in considering

the plaintiff’s claim: “(1) whether the plaintiff’s complaint falls within the zone of

interests protected by the statute or constitutional provision at issue; (2) whether

the complaint raises abstract questions amounting to generalized grievances which

are more appropriately resolved by the legislative branches; and (3) whether the

plaintiff is asserting his . . . own legal rights and interests rather than the legal

rights and interest of third parties. Saladin v. City of Milledgeville, 812 F.2d 687,

690 (11th Cir.1987) (citing Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315,

3325, 82 L.Ed.2d 556 (1984))).

       To have standing to litigate the rights of third parties, a plaintiff must show

that he has suffered injury-in-fact, that he has a close relationship with the third

party, and that there is a hindrance to the third party’s ability to protect his or her

                                             7
own interest. Harris v. Evans, 20 F.3d 1118, 1122-1124 (11th Cir. 1994).

      The Twenty-First Amendment provides that “[t]he transportation or

importation into any State, Territory, or possession of the United States for

delivery or use therein of intoxicating liquors, in violation of the laws thereof, is

hereby prohibited.” U.S. Const. amend. XXI, § 2. Terminello lacks standing to

claim that the government’s actions in obtaining forfeiture of the liquor license

violated the State’s ability to regulate alcoholic beverages pursuant to the Twenty-

First Amendment. In his verified petition, Terminello claimed that he should not

have to forfeit the license to the government under § 853. Thus, any injury he may

have suffered stemmed from his failure to establish a right to the license in the first

instance – a purely statutory matter – not the State’s inability to regulate alcoholic

beverages within its borders. So, even if the district court had ruled that the

government’s actions violated the Twenty-First Amendment, this ruling would not

redress his injury, since he would still have to prove his third-party claim under §

853(n).

      Other concerns militate against addressing Terminello’s constitutional claim.

As noted above, his claim to the license fell under § 853, and thus, out of the zone

of interests protected by the Twenty-First Amendment – the State’s interests. See

Saladin, 812 F.2d at 690. Next, since his claim related only to his interest in the

license, and not the State’s, his concerns over the State’s ability to regulate

                                            8
alcoholic beverages under the Twenty-First Amendment is an abstract question not

properly resolved by the courts. Id. Finally, to the extent that he is attempting to

assert the interests of the State, he fails to meet the requirements of third party

standing. Though he may have suffered an injury in fact to the extent he is now

precluded from obtaining the license from the State, he has not shown that he had a

close relationship with the State or how the State was hindered in its ability to

protect its own interest. In fact, the record shows the contrary – the State had the

opportunity timely to intervene and assert its interest. The State did inform the

district court of its position with respect to the Twenty-First Amendment when it

moved to file an amicus curiae brief, but expressly declined to seek leave to

intervene as a party. Thus, the district court properly found that Terminello lacked

standing to bring a claim based on the State’s interests under the Twenty-First

Amendment.

      AFFIRMED.




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