IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50867

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAIME TORRES,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:06-CR-76-1

Before KING, JOLLY, and GRAVES, Circuit Judges.

PER CURIAM:*

Jaime Torres seeks leave to proceed in forma pauperis (IFP) on appeal

from the district court’s orders denying his motions for return of property

pursuant to Federal Rule of Criminal Procedure 41(g), entering a final judgment

of forfeiture as to assets and a cash amount listed in Torres’s criminal judgment,

and entering a final judgment of forfeiture as to substitute assets. In his brief,

Torres declares that he does not seek the return of any of the property listed in

the jury’s forfeiture verdict, as he understands that he must seek return of that

United States Court of Appeals

Fifth Circuit

F I L E D

November 16, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 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 5TH CIR.

R. 47.5.4.

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No. 10-50867

property through a direct appeal and not through a Rule 41(g) motion. However,

he does seek return of the items that were not listed in the jury’s verdict but that

were ordered forfeited. He argues that the Government was not entitled to those

items because they were obtained through legitimate means, something he

alleges was demonstrated in his district court proceedings. He contends that 21

U.S.C. § 853 allows for the forfeiture of substitute property only when a

defendant’s actions have caused the originally forfeited property to become

unavailable, diminished in value, or commingled with other property. In his

case, however, the assets listed in the verdict were available and actually were

obtained by the Government, rendering the forfeiture of substitute property in

violation of the forfeiture statute.

A movant seeking leave to proceed IFP on appeal in a civil case must show

that he is a pauper and that the appeal raises nonfrivolous issues. See Carson

v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). A movant seeking leave to proceed

IFP in a criminal case must make the same showing. See United States v.

Boutwell, 896 F.2d 884, 888-90 (5th Cir. 1990) (one-judge order circulated to

entire court). To meet the financial requirement for IFP status, a movant need

not show absolute destitution. Adkins v. E.I. Du Pont de Nemours & Co., 335

U.S. 331, 339 (1948). Rather, the central question is whether the movant can

afford the costs of a particular litigation without undue hardship or deprivation

of the necessities of life. Id. at 339-40. “An investigation into the [IFP] movant’s

objective good faith, while necessitating a brief inquiry into the merits of the

appeal, does not require that probable success be shown. The inquiry is limited

to whether the appeal involves legal points arguable on their merits (and

therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)

(internal quotation marks and citation omitted). Torres satisfies the financial

criterion to proceed IFP. See Adkins, 335 U.S. at 339.

Torres’s property interests in the assets listed in the verdict were

extinguished upon the entry of the preliminary order of forfeiture at the time of

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the criminal judgment. See United States v. De Los Santos, 260 F.3d 446, 448

(5th Cir. 2001). He lacks standing to challenge the forfeiture of those assets in

an appeal from the order granting a final order of forfeiture of the assets listed

in the criminal judgment. See id. To the extent that Torres is appealing from

the denial of the final judgment of forfeiture as to the assets listed in the

criminal judgment, we lack jurisdiction over the appeal.

To the extent that the Rule 41(g) motions sought return of the property

listed in the verdict and judgment, Torres acknowledges that his remedy was a

direct criminal appeal. He has abandoned his Rule 41(g) contentions as to those

assets. See In re Municipal Bond Reporting Antitrust Litigation, 672 F.2d 436,

439 n.6 (5th Cir. 1982).

Relief under Rule 41(g) or in a 28 U.S.C. § 1331 action is unavailable if the

litigant has an adequate remedy at law and will not suffer irreparable injury if

relief is denied. See Industrias Cardoen, LTDA v. United States, 983 F.2d 49, 51-

52 (5th Cir. 1993); Richey v. Smith, 515 F.2d 1239, 1243-44 (5th Cir. 1975). The

rule governing forfeiture proceedings explicitly provides that a defendant may

take a direct appeal from an order directing the forfeiture of substitute property. 

FED.R.CRIM.P. 32.2(b)(4)(C), (e). Because Torres could--and did--appeal directly

and timely from the forfeiture order as to substitute assets, he had an adequate

remedy at law and no irreparable injury, and Rule 41(g) relief was unavailable. 

See Industrias Cardoen, 982 F.2d at 51-52.

The Government sought forfeiture of substitute assets in order to satisfy

the money judgment component of Torres’s criminal sentence. Torres did not

object to the government’s motion for forfeiture of substitute assets, and he did

not contend in his second Rule 41(g) motion that the substitution was improper

because the money was available. On appeal, he alleges that the assets listed

in the verdict were available and were obtained by the Government, but he does

not contend specifically that substitution was improper because the money was

available to satisfy the cash forfeiture order.

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Section 853 allows for forfeiture of substituted property if “any property

[that has been ordered forfeited], as a result of any act or omission of the

defendant . . . cannot be located on the exercise of due diligence.” § 853(p)(1)(A),

(p)(2). Because Torres does not contend that substitution was improper because

the money to satisfy the money judgment component was available, he has failed

to brief the relevant issue for appeal on direct appeal from the final forfeiture

judgment as to substitute property. See Brinkmann v. Dallas County Deputy

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

Torres has failed to raise any nonfrivolous issues for appeal. See Howard,

707 F.2d at 220.

IFP DENIED; APPEAL DISMISSED

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