                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 7 2002
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk
 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.
                                                        No. 02-2145
 $14,344.50 IN U.S. CURRENCY                  (D.C. No. CIV-01-357-LH/LFG)
 and 14 FIREARMS,                                    (D. New Mexico)

                Defendants,

          and

 MIGUEL MONTOYA,

                Claimant - Appellant,

          and

 BERTHA MONTOYA,

                Claimant.


                              ORDER AND JUDGMENT        *




Before EBEL , LUCERO , and HARTZ , Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the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.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On March 29, 2001, the United States filed a Verified Complaint for

Forfeiture in Rem, alleging that $14,344.50 and 14 firearms were subject to

forfeiture under 21 U.S.C. § 881(a)(6). On May 14, 2001, appellant pro se

Miguel Montoya filed an Answer to the complaint, in which he identified himself

as a claimant and asserted an interest in the $14,344.50 that the Government

sought to forfeit. In a motion filed November 29, 2001, the Government moved

the district court to dismiss and/or strike Mr. Montoya’s answer for lack of

standing. On April 9, 2002, the district court entered an order granting the

Government’s motion to dismiss, and on April 17, 2002, the district court entered

a Final Judgment and Order of Forfeiture. Mr. Montoya appeals the district

court’s decisions to dismiss him from this forfeiture action and to order the

forfeiture of the $14,344.50 to the Government.

      Federal and local agents found the money and firearms during a search of

Mr. Montoya’s home on July 1, 1998. After being charged with various offenses

relating to drug distribution, Mr. Montoya entered into a plea agreement on

July 28, 1999. The agreement included a provision stating that Mr. Montoya


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would “forfeit to the United States all of his right, title, and interest in” the cash

and weapons found during the July 1, 1998, search.

      The district court found that Mr. Montoya had waived his interest in the

property through the terms of his plea agreement and therefore lacked standing to

challenge the forfeiture. Given that the parties do not dispute the central fact

relevant to standing in this case—Mr. Montoya’s entry into a plea agreement

containing a forfeiture provision—we review the district court’s determination de

novo. See Guides, Ltd. v. Yarmouth Group Prop. Mgmt, Inc., 295 F.3d 1065,

1072 (10th Cir. 2002) (“We review issues of standing de novo.”); Locke v. Saffle,

237 F.3d 1269, 1270-1271 (10th Cir. 2001) (“Because the parties do not dispute

the facts, we have before us a purely legal question, and thus we review the

matter de novo.”).

      A party challenging a forfeiture must show “‘a facially colorable interest in

the proceedings sufficient to satisfy the case-or-controversy requirement and

prudential considerations defining and limiting the role of the court.’”

United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1204 (10th Cir. 2001),

quoting United States v. 116 Emerson St., 942 F.2d 74, 78 (1st Cir. 1991). “[A]n

allegation of ownership and some evidence of ownership are together sufficient

. . . .” United States v. U.S. Currency, $81,000, 189 F.3d 28, 35 (1st Cir. 1999).




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      Here, however, whatever interest Mr. Montoya once had in the currency, he

relinquished in his plea agreement. This court has recognized that defendants can

surrender their claims to seized property by assenting to forfeiture provisions

included in plea agreements. In United States v. Le, 173 F.3d 1258, 1263 (10th

Cir. 1999), a criminal defendant entered into a plea bargain under which he

“agree[d] to forfeit and otherwise waive any ownership right he might possess in

all items seized during the investigation of any of the acts alleged.” The

defendant then filed a motion for the return of his property under Federal Rule of

Criminal Procedure 41(e), and the district court denied the motion. Id. We

affirmed the district court’s decision, observing that “[t]he district court was

entirely correct in denying Le’s motion because Le . . . relinquished any

ownership rights he may have had in the property.” Id. at 1278. See also

United States v. Grover, 119 F.3d 850, 852 (10th Cir. 1997) (holding that a Rule

41(e) claimant “relinquished any possessory claim he had to the property” when

he signed a forfeiture agreement at the time he entered into a plea bargain).

      On appeal Mr. Montoya suggests that he should not be bound by his

promise to forfeit the $14,344.50, because his due process rights were violated

when he entered into the plea agreement with the United States. Mr. Montoya

alleges that at the time of his plea, he was not given an adequate opportunity to

object to the provision under which he abandoned his ownership interest in the


                                          -4-
money. But the record shows that Mr. Montoya failed to raise this argument

before the district court. “Generally, an appellate court will not consider an issue

raised for the first time on appeal.” Tele-Communications, Inc. v. Commissioner,

104 F.3d 1229, 1232 (10th Cir. 1997).

      Therefore, for substantially the reasons cited by the district court, we

conclude that Mr. Montoya lacks standing to contest this forfeiture action. The

district court’s order granting the United States’ motion to dismiss and the Final

Judgment and Order of Forfeiture are AFFIRMED.

                                               Entered for the Court


                                               Harris L Hartz
                                               Circuit Judge




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