United States v. Garza
407 F. App'x 322
10th Cir.2011Background
- Garza pleaded guilty to conspiracy to possess with intent to distribute methamphetamine and was ordered to forfeit $750,000 in currency.
- District court found proceeds from the drug conspiracy totaled $750,000 by a preponderance of the evidence and issued a $750,000 forfeiture money judgment.
- The government could not locate the proceeds and moved to amend the forfeiture to include Garza’s Thackerville, Oklahoma real property as substitute property under § 853(p).
- Special Agent Green affidavit stated the Thackerville property was the only liquid asset identified after examining Garza’s financial records.
- The district court granted the amendment, substituting the real property for the missing proceeds; Garza filed a pro se appeal and counsel filed an Anders brief to withdraw.
- The Tenth Circuit, reviewing independently, concluded the appeal would be frivolous and dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substitution of property under § 853(p) was proper | Garza's appeal lacks non-frivolous issues; government proves substitute property appropriate. | Garza contends no substantive issue; government’s substitution is proper under § 853(p) when proceeds cannot be located. | Amended forfeiture order proper; appeal frivolous and dismissed. |
Key Cases Cited
- United States v. Jarvis, 499 F.3d 1196 (10th Cir. 2007) (defining substitute property under § 853(p) and its relation to proceeds)
- United States v. Alamoudi, 452 F.3d 310 (4th Cir. 2006) (mandatory substitution when due diligence cannot locate proceeds)
- United States v. Candelaria-Silva, 166 F.3d 19 (1st Cir. 1999) (evidentiary basis for locating substitute assets under § 853(p))
- Anders v. California, 386 U.S. 738 (1967) (procedural framework for counsel to withdraw and defendant to respond when Anders brief filed)