United States v. One 1990 Ford Ranger ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50031
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ONE 1990 FORD RANGER PICKUP TRUCK,
VIN: 1FTCR10A5LPB67841,
Defendant,
JOHNNY MASCORRO,
Claimant-Appellant.
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Appeal from the United States District Court for
the Western District of Texas
(SA-94-CV-863)
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October 23, 1996
Before REAVLEY, JONES and SMITH, Circuit Judges.
PER CURIAM:*
In this forfeiture action, appellant Johnny Mascorro appeals
a judgment of forfeiture against a 1990 Ford Ranger pickup truck.
We affirm.
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
The government sought forfeiture of the truck on grounds
that it was property purchased with the proceeds of illegal drug
transactions under 21 U.S.C. § 881(a)(6). Mascorro filed a claim
and answer, alleging that he is the owner of the pickup and that
the government lacked probable cause to seize the vehicle.
The government moved to dismiss or alternatively for summary
judgment, arguing that Mascorro was not the owner of the pickup
and therefore lacked standing to challenge the forfeiture. The
government argued in the alternative that on the merits the
property was subject to forfeiture under the statute even if
Mascorro had standing. After Mascorro failed to respond to the
motion, the court dismissed his claim for lack of standing.
Mascorro then filed a motion for reconsideration and to set aside
judgment, arguing that the evidence in the record raised an issue
of material fact as to whether he had an interest in the truck
sufficient to establish standing. The motion did not address the
alternative ground on which the government sought summary
judgment, namely that on the merits the truck was subject to
forfeiture under § 881(6). The court entered an order granting
the request for reconsideration, but ruled in favor of the
government. The court again ruled that Mascorro lacked a
sufficient ownership interest to confer standing, and also ruled
in the alternative that he had failed to establish a defense to
forfeiture even if he had standing.
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Without reaching the standing issue, we affirm the judgment
on the ground that the government established probable cause to
seek forfeiture of the vehicle and Mascorro raised no valid
defense to forfeiture. Mascorro points out that the district
court did not amend the judgment to indicate this alternative
ground for granting summary judgment, and that the judgment
states only that judgment is granted against Mascorro for lack of
standing. However, the district court, in ruling on the motion
for reconsideration, plainly found that either ground was
sufficient to grant summary judgment for the government.
Further, we may affirm a summary judgment on any legally
sufficient ground, even one not relied upon by the district
court. Jones v. Sheehan, Young & Culp, P.C., 82 F.3d 1334, 1337
(5th Cir. 1996).
Section 881(6) subjects the truck to forfeiture as a thing
of value traceable to the proceeds of the sale of illegal drugs.
Under this statute the government bears the initial burden of
demonstrating probable cause that a substantial connection exists
between the property to be forfeited and a crime under Title 21
of the United States Code. United States v. One 1986 Nissan
Maxima GL., 895 F.2d 1063, 1064 (5th Cir. 1990). Probable cause
means less than prima facie proof but more than mere suspicion.
Id. Probable cause can be established by circumstantial or
hearsay evidence. United States v. One 1987 Mercedes 560 SEL,
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919 F.2d 327, 331 (5th Cir. 1990). Once the government
establishes probable cause the burden shifts to the claimant to
prove that the factual predicates for forfeiture have not been
met or that a defense to forfeiture applies. United States v.
1988 Oldsmobile Cutlass Supreme 2 Door, 983 F.2d 670, 674 (5th
Cir. 1993).
The government established probable cause for forfeiture
with affidavit testimony that (1) Mascorro told the law
enforcement officers that the truck belonged to Johnny’s Auto
Sales; (2) the truck had been sold to Johnny’s Auto Sales, (3)
Johnny’s Auto Sales is a used car business owned by Johnny Trejo;
(4) Trejo, who was indicted along with Mascorro on drug charges
in another proceeding, spent cash far in excess of the
legitimate, marginal revenues of the car business; (5) Trejo was
engaged in the distribution and sale of large quantities of
cocaine; (6) financial records indicated that the business was
shored up from an influx of outside funds; and (7) the truck had
been purchased by Trejo and Johnny’s Auto Sales during the period
that Trejo was involved in illegal narcotics trafficking. Having
established probable cause, the burden shifted to Mascorro to
offer proof that the truck was not subject to forfeiture because
the factual predicates for forfeiture were not present or because
he had a personal defense to forfeiture. Mascorro did not
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present competent summary judgment evidence that the truck was
not subject to forfeiture as purchased with drug proceeds.
Mascorro claimed in his motion to reconsider that he had
purchased the truck from Trejo. However, he conceded in his
deposition that record title had never been transferred to his
name, and alleged in his verified answer that instead the sale to
him was “through the name Johnny’s Auto Sales.” The latest title
document in the record indicates a transfer of title from
Dominique Motor Co. to Johnny’s Auto Sales. In United States v.
1977 Porsche Carrera 911, 946 F.2d 30 (5th Cir. 1991), we held
that, absent a formal transfer of title in compliance with Texas
law, the alleged purchaser of an automobile has at most an
equitable possessory interest which does not affect the rights of
third parties, and that this interest is subordinate to the
government’s forfeiture interests. Id. at 34.
AFFIRMED.
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