
USCA1 Opinion

	




          May 23, 1994          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1002                                          UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                 CERTAIN REAL PROPERTY LOCATED AT RIVER ROAD, ELIOT,                                 YORK COUNTY, MAINE,                                 Defendant, Appellee,                                   ________________                                DANA B. SNODGRASS, JR.                                 Claimant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ___________________                                        Before                             Torruella, Selya and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Thomas Van Houten on brief for appellant.               _________________               Jay  P. McCloskey,  United States  Attorney, and  Michael M.               _________________                                 __________          DuBose, Assistant United States Attorney, on brief for appellee.          ______                                  __________________                                  __________________                 Per Curiam.   Dana B.  Snodgrass, Jr.  appeals from  the                 __________            district court's order dismissing  his claim to the defendant            property  for  lack of  standing  and  from the  judgment  of            forfeiture for the United States.  We affirm.                                      BACKGROUND                 On  January 26,  1993, plaintiff  United States  filed a            complaint of forfeiture in  rem against defendant property, a            Maine   residence,   pursuant   to   21  U.S.C.       881(7).            Approximately two months later,  Dana B. Snodgrass, Jr. filed            a  claim to the property stating that he is its "legal titled            owner."  In his answer to the complaint, claimant asserted an            "innocent owner" defense to the forfeiture.                 On November  9, 1993, with the consent  of both counsel,            the district court held  a preliminary evidentiary hearing on            the issue of claimant's standing to challenge the forfeiture.            On November 10,  1993, the district court issued a memorandum            of  decision and  order concluding  that claimant  is without            standing  to assert his claim of ownership.  United States v.                                                         _____________            Certain  Real Property Located at  River Rd., 839  F. Supp. 1            ____________________________________________            (D.  Me. 1993).   The district court  ordered that Snodgrass,            Jr.'s  claim be  dismissed and  that judgment  enter for  the            plaintiff.  A final decree of forfeiture entered on  November            15, 1993.                 The  district court's  factual  findings are  set  forth            fully  in its memorandum and  are not challenged.   In brief,                                         -2-            the  district court  found  that claimant's  father, Dana  B.            Snodgrass,  Sr., had conveyed  defendant property to claimant            after   learning  that   he,   Snodgrass,  Sr.,   was   being            investigated for drug  trafficking.1  Although  not reflected            in the deed of conveyance, Snodgrass, Sr. retained all rights            to the occupancy and  use of the property and  the obligation            to tend to and fund its upkeep and maintenance.   At the time            of  the transfer, Snodgrass,  Sr. had had  no relationship of            substance for  seventeen years with claimant,  who resided in            Seattle, Washington.  The court found that the transaction of            conveyance was  intended solely  by Snodgrass, Sr.  to shield            the property from  forfeiture and was not  intended to convey            any right of dominion or control over, or even any beneficial            interest in, the defendant property.                                        DISCUSSION                 In a  civil forfeiture  action, once the  government has            met  its burden of showing  probable cause to  believe that a            substantial  connection  exists between  the  property to  be            forfeited and the illegal exchange of a controlled substance,            the burden shifts to  the claimant to show that  the property            is not subject to  forfeiture.  United States v.  116 Emerson                                            _____________     ___________            St., 942 F.2d 74, 79 (1st Cir. 1991).  As an element  of this            ___            burden, a  claimant must  prove an  interest in  the property                                            ____________________            1.  The parties stipulated that probable cause exists to find            that  the  defendant  property   was  used  to  facilitate  a            violation of 21 U.S.C.   841(a)(1).                                         -3-            sufficient to establish  standing to contest the  forfeiture.            United States v.  526 Liscum  Drive, 866 F.2d  213, 216  (6th            _____________     _________________            Cir.  1989).    "[C]ourts  have  uniformly  rejected standing            claims  put  forward by  nominal  or straw  owners."   United                                                                   ______            States v.  Contents of Accounts Nos.  3034504504 & 144-07143,            ______     _________________________________________________            971 F.2d 974,  985 (3d  Cir. 1992) (quoting  David B.  Smith,            Defense and Prosecution  of Forfeiture Cases,    9.04, at  9-            ____________________________________________            58.6  (1985 &  Supp. 1991)),  cert. denied,  113 S.  Ct. 1580                                          ____________            (1993).  Thus, possession of mere legal title by one who does            not exercise dominion  and control over  the property may  be            insufficient to establish standing to challenge a forfeiture.            Id.;  see also United States  v. Vacant Land  Located at 10th            __    ___ ____ _____________     ____________________________            St.  &  Challenger Way,  15 F.3d  128,  130 (9th  Cir. 1993);            ______________________            United States v. 5000 Palmetto Drive, 928 F.2d 373, 375 (11th            _____________    ___________________            Cir.  1991); 526 Liscum Drive, 866 F.2d at 217; United States                         ________________                   _____________            v.  One 1945 Douglas C-54 (DC-4) Aircraft, 604 F.2d 27, 28-29                _____________________________________            (8th  Cir.   1979);  United  States  v.   New  Silver  Palace                                 ______________       ___________________            Restaurant, Inc., 810 F. Supp. 440, 444 (E.D.N.Y. 1992).            ________________                 In the  instant case,  the evidence amply  supported the            district  court's   conclusion   that  the   transaction   of            conveyance  was  a  facially  transparent sham.    After  the            conveyance, Snodgrass, Sr. continued to live on the property.            With the exception  of one  visit to Maine,  during which  he            stayed in a hotel,  claimant remained in Seattle, Washington.            Snodgrass,  Sr. paid the mortgage  and taxes on the property.                                         -4-            Claimant  did  not know  the amount  of  the mortgage  or the            identity  of the mortgage  holder.  Snodgrass,  Sr. also made            improvements to the property without consulting claimant.  In            sum, there was no evidence whatsoever that claimant exercised            any  dominion or  control  over the  property.   Indeed,  the            evidence pointed  inexorably to the conclusion  that claimant            was nothing more than a nominal or straw owner.  Accordingly,            the district court  properly concluded  that claimant  lacked            standing to contest the forfeiture.                 Claimant argues that a  rule requiring him to  show more            than  legal  title  to  establish  standing  to  challenge  a            forfeiture   is  inconsistent   with  Article   III  standing            jurisprudence.  We disagree.   The rationale for the  rule is            that  things are often not what they appear to be, especially            in  the world of drug  trafficking. See United  States v. 900                                                ___ ______________    ___            Rio Vista Blvd., 803  F.2d 625, 630 (11th Cir.  1986); United            _______________                                        ______            States  v. One  1977 36  Foot Cigarette  Ocean Racer,  624 F.            ______     _________________________________________            Supp.  290,  294-95  (S.D. Fla.  1985).    People  engaged in            illegal  activites often  try to  disguise their  interest in            property  by placing title in  someone else's name.   900 Rio                                                                  _______            Vista  Blvd., 803 F.2d at 630.  Article III standing requires            ____________            that a claimant  suffer an injury in fact.   Adams v. Watson,                                                         _____    ______            10 F.3d 915, 918 (1st Cir. 1993).  A  straw owner has no real            interest in the seized  property and, accordingly, suffers no            genuine injury.                                           -5-                 Claimant also suggests that  the district court erred in            not allowing him to prove  ownership to a jury as  an element            of  his claim.    We  deem  this  argument  waived.    Having            consented to an evidentiary hearing to determine his standing            to assert a claim of  ownership, claimant cannot now complain            of  the manner  of proceeding  below.   See United  States v.                                                    ___ ______________            Palmer, 956 F.2d 3, 6 (1st Cir. 1992) (an issue not presented            ______            to the trial  court cannot  be raised for  the first time  on            appeal).                   Affirmed.  See 1st Cir. R. 27.1.                 ________   ___                                         -6-
