F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

APR 7 2000

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,
AND IMPROVEMENTS THEREON,
Defendant,

No. 99-3282
(D.C. No. 95-CV-1246-MLB)
(District of Kansas)

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
courts final decree of forfeiture against defendant property. This is at least
Clarks 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 Clarks 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).

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judgment is not binding precedent, except under the doctrines of law of the case,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.
*

The question of whether the forfeiture was pursuant to paragraph (6) or

(continued...)
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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 Clarks claim of innocent
ownership, the court found complete failure to offer evidence of innocent
ownership, (R. Doc. 86 at 5,) and dismissed Margaret Clarks 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

(...continued)
paragraph (7) of 21 U.S.C. 881(a) is discussed at length below.
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home as a gift from her children. The evidence presented in support of this claim
was Margaret Clarks 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 courts 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
also by the doctrine of law of the case.

Ursery but

See McIlravy v. Kerr-McGee Coal Corp.

204 F.3d 1031, 1034-35 (10th Cir. 2000). Insofar as Clarks 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),
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which was decided prior to both

Ursery and Clarks initial appeal in this case,

and we cannot see how compliance with the clear instructions of the Supreme
Court can represent clear error. Clarks arguments that application of
Ursery represented a violation of the Ex Post Facto Clause are likewise entirely
without merit. Additionally, we note that the
expressly declined to extend the holding of

Ursery Court, 518 U.S. at 281-82,

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 Clarks 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, Clarks position
overlooks 28 U.S.C. 1355(b)(1)(B), which explicitly provides that a forfeiture
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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 Clarks arguments revolve in significant part around the
assertion that because the governments complaint (and district courts 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.

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 years 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.
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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.)

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.

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).
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Clark also challenges the district courts 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
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in $149,422.43 . 4 The district courts 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.

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
Insofar as Clark challenges the evidence on the grounds that statements
by Yolanda Rogers were coerceda 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.
4

The government argues additionally that because Clark has failed to

challenge the district courts conclusion that he lacked standing to challenge the
forfeiture, he has conceded that point and therefore lacks standing to contest the
courts finding of probable cause. Because the question of standing, however, is
intimately intertwined with factual questions related to the probable cause
determinationthe nature of the true ownership interests in defendant
propertywe construe liberally Clarks 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.
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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 wellrecognized 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

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