1

The Honorable J. Leon Holmes, Chief Judge, United States District Court for

the Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2639/07-2787

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United States of America, * 

* 

Appellee, * 

* Appeals from the United States

v. * District Court for the 

* Eastern District of Arkansas.

Jackie E. Porchay, * 

* 

Appellant. *

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Submitted: February 12, 2008

Filed: July 17, 2008

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Before LOKEN, Chief Judge, RILEY and SMITH, Circuit Judges.

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SMITH, Circuit Judge.

Jackie Porchay and others were indicted on drug and money laundering charges

after police found drugs and a large quantity of cash in Porchay's car during a traffic

stop. The charges against Porchay were eventually dismissed. Porchay then moved to

recover property seized from her car and residence and for attorneys' fees; the district

court1

 denied her motions. Porchay appeals, alleging that the district court erred by (1)

prematurely ruling on her 21 U.S.C. § 853(n) motion at a Federal Rules of Criminal
2

Kelley was traveling with a female companion who is not a party to this

appeal. 

3

There was some dispute whether this was Kelley's residence. Kelley alleged

that he had multiple residences, but neither he nor Porchay presented any evidence of

these residences. One of Kelley's driver's licenses, however, indicated that his

residence was the Bradley Drive address.

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Procedure Rule 41(g) hearing; (2) finding that her § 853(n) claim failed as a matter

of law; and (3) failing to award her attorneys' fees. We affirm.

I. Background

Porchay's boyfriend, Harold Jerome Kelley, was arrested after a traffic stop

while driving Porchay's vehicle. In the search of the vehicle and its passengers,2

officers recovered crack cocaine, a crack pipe, and over $200,000 in cash.

Approximately two months after Kelley's arrest, officers applied for and obtained a

search warrant to search 10005 Bradley Drive, Little Rock, AR—a residence Kelley

shared with Porchay.3

At the time of the warrant application, officers knew that Kelley sold controlled

substances and transported drugs from Dallas for distribution in Little Rock. Officers

also had information from Kelley's co-conspirators that Kelley had firearms in his

residence. Prior to applying for the warrant, officers also investigated Kelley's and

Porchay's financial histories and assets. They discovered that Kelley did not own any

property or report any income to the government and that while Porchay earned

approximately $13,270 per year, she owned a $118,000 home in Benton, a 2000

Honda Accord, a 2001 Chevrolet Monte Carlo, a 2004 Cadillac Escalade, and a

Suzuki motorcycle. Officers presented this information in their application, and a

magistrate judge issued a search warrant for the residence. The warrant authorized the

search and seizure of any material evidence of a violation of 21 U.S.C. § 846 and 18

U.S.C. § 841(a)(1). After executing the warrant, officers seized a Honda, a
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motorcycle, $191,612 in U.S. currency from the shared residence, and $2,000 in U.S.

currency from a safety deposit box.

Porchay, Kelley, and a third defendant, Samuel Briones, were charged in a

one-count indictment with conspiring to possess with intent to distribute five or more

grams of crack cocaine. Kelley entered into a plea agreement with the government. In

his plea, Kelley asserted that he owned the property seized at the Bradley Drive

residence (a claim he reaffirmed at his sentencing hearing), agreed to the forfeiture of

this property, and promised that he would testify as to his ownership if any other

individuals asserted an interest in the property. On April 13, 2007, the court entered

an order of forfeiture regarding the vehicles and the U.S. currency. 

After failing to obtain a continuance in the proceedings, the government

dropped its charges against Porchay. Porchay then moved for a return of the property

seized from her residence, pursuant to Federal Rule of Criminal Procedure 41(g), and

sought attorneys' fees under the Hyde Amendment. The court, after holding a hearing,

determined that Porchay must assert her claim under 21 U.S.C. § 853(n). Porchay no

longer faced criminal charges, consequently the court held that she could only assert

third-party rights to the forfeited property. Her only recourse was to assert a superior

ownership right in the seized property to that of Kelley. The district court concluded

that Porchay's admission that she did not own the property foreclosed such a claim.

Prior to its ruling, the district court provided Porchay an opportunity to testify about

her interest in the seized property, but she declined. 

Following the district court's ruling, Porchay filed a petition pursuant to §

853(n) claiming that she has a possessory interest in the seized property. The district

court viewed this petition as a "thinly-disguised attempt to circumvent the Court's

June 22 Opinion and Order and reopen a matter already decided." The district court

denied the petition without a hearing, stating that Porchay had already had an

opportunity to testify and present evidence in support of her petition. The district court
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also denied Porchay's motion for attorneys' fees, finding that Porchay was a prevailing

party but that she could not demonstrate that the government's case against her was

frivolous, in bad faith, or vexatious.

II. Discussion

Porchay appeals, alleging that the district court erred by: (1) prematurely ruling

on her 21 U.S.C. § 853(n) motion at a Rule 41(g) hearing; (2) finding that her § 853(n)

claim failed as a matter of law; and (3) failing to award her attorneys' fees. We affirm.

A. Porchay's § 853(n) Claim and Rule 41(g)

Porchay argues that the district court erred in ruling on her criminal forfeiture

claim asserted under 21 U.S.C. § 853(n) at a hearing to decide her Rule 41(g) criminal

property return claim. Because Porchay did not assert this as an error below, this

argument is reviewed for plain error. See United States v. Lucas, 499 F.3d 769, 780

(8th Cir. 2007) (reviewing for plain error an argument that the defendant failed to

make to the district court). "Plain error review is narrow and confined to the

exceptional case where error has seriously affected the fairness, integrity, or public

reputation of the judicial proceedings." Olson v. Ford Motor Co., 481 F.3d 619, 627

(8th Cir. 2007) (punctuation omitted). Reversal under the plain error standard is

warranted where an "error has prejudiced the substantial rights of a party and would

result in a miscarriage of justice if left uncorrected." Id.

Porchay has not shown prejudice, and we thus conclude that the district court

did not commit plain error. Porchay argues that the district court ruled on her § 853(n)

claim prematurely because she had not yet asserted such a claim. The district court,

however, converted her Rule 41(g) claim into a § 853(n) claim because the court

found that she had no standing to assert a Rule 41(g) claim as she was no longer a

criminal defendant. 
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To prevail in the § 853(n) claim, Porchay had to demonstrate by a

preponderance of the evidence that she had a superior right, title, or interest in the

seized property, 21 U.S.C. § 853(n)(6); this evidentiary burden is relatively

comparable to the Rule 41(g) claim burden. See Jackson v. United States, 526 F.3d

394, 397 (8th Cir. 2008) (stating that "[a] Rule 41(g) motion 'is properly denied if the

defendant is not entitled to lawful possession of the seized property, the property is

contraband or subject to forfeiture or the government's need for the property as

evidence continues.'") (quoting United States v. Vanhorn, 296 F.3d 713, 719 (8th Cir.

2002)); see also Fed. R. Crim. P. 41(g) (stating that "[t]he court must receive evidence

on any factual issue necessary to decide the motion"). Although she was given the

opportunity to present evidence demonstrating her interest in the property, she did not.

The district court's decision to convert Porchay's Rule 41(g) claim into a § 853(n)

claim did not prevent Porchay from adducing evidence of ownership. Consequently,

Porchay has not demonstrated that the district court's decision to resolve her § 853(n)

claim at the Rule 41(g) hearing was plain error. 

B. Merits of Porchay's § 853(n) Claim

Porchay challenges the district court's determination on the merits, arguing that:

(1) her concession regarding ownership of the property was insufficient to defeat her

claim; (2) the government failed to meet its burden of proof; and (3) the underlying

search and seizure violated the Fourth Amendment.

1. Ownership of the Property

Porchay next argues that the district court erred in holding that her § 853(n)

claim failed as a matter of law because she conceded that she was not the owner of the

property. To prevail in a § 853(n) claim, a petitioner must demonstrate by a

preponderance of the evidence that the petitioner is either a bona fide purchaser for

value or that the petitioner possesses a right, title, or interest in the seized property that

is superior to the defendant's right title, or interest in the property. 21 U.S.C. §

853(n)(6). Porchay's § 853(n) claim hinged on whether she had a superior interest in
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the seized property to Kelley. See 21 U.S.C. § 853(n)(6) (setting out the burden of

proof on the petitioner). Porchay acknowledges that she does not own the seized

property but contends that she can show a superior interest to Kelly in other ways.

Porchay, however, asserts this vague possessory interest in the property without

evidence or explanation. Porchay frames her argument as a question of standing and

suggests that she does not have to demonstrate that she can prevail on the merits. The

district court, however, did not decide this case simply as a matter of standing. Rather,

given Porchay's concession that she did not own the property, the district court held

that Porchay could not prevail on the merits and, therefore, denied her claim.

Porchay's failure to present ownership evidence in support of her claim irreparably

crippled her claim. Consequently, the district court did not err in denying her § 853(n)

petition.

2. Connection to Criminal Activity.

Porchay next argues that the district court erred in failing to require the

government to meet its burden of proof. She alleges that the government cannot show

that she was aware of Kelley's criminal activities or that there was probable cause for

the government to seize the items. We disagree.

First, these arguments rely on a false premise—that the government has not

satisfied its burden of proof. The government adduced its property forfeiture proof in

its case against Kelley, and there is no provision in § 853(n) to relitigate the outcome

of those proceedings. Second, Porchay's arguments focus on the legality of the seizure

of the property, but Porchay was a third party to the forfeiture and has no standing to

challenge the legality of the seizure under the Fourth Amendment. United States v.

Kiser, 948 F.2d 418, 424 (8th Cir. 1991) (recognizing that Fourth Amendment rights

are personal and cannot be vicariously asserted); see also 21 U.S.C. § 853(k)

(expressly stating that the forfeiture statute does not grant third parties the right to

intervene in the criminal proceeding except as outlined in subsection (n)). Section

853(n) does not give a third party the right to challenge the legality of the seizure; the
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plain language of the subsection indicates that its purpose is to ensure that the property

is not taken from someone with a right to the property that is superior to the

defendant.

3. Porchay's Fourth Amendment Claim

Porchay argues that when the officers applied for the search warrant, they did

not have probable cause because they were relying on mere suspicion.

Porchay's arguments concerning probable cause for the underlying search do

not address any issues in this § 853(n) case. The issue in this appeal is not whether the

government had a right to seize the property at issue. Rather, our sole inquiry with

regard to Porchay's § 853(n) claim is whether the district court erred in finding that

Porchay did not have a superior interest in the seized property. Accordingly, we state

no opinion regarding the legality of the underlying search and seizure.

C. Attorneys' Fees

Porchay next argues that the district court committed error in (1) dismissing her

petition for attorneys' fees without a hearing; and (2) its determination on the merits

of her Hyde Amendment claim. 

The Hyde Amendment authorized federal courts to "award to a prevailing party

[in a criminal case], other than the United States, a reasonable attorney's fee and other

litigation expenses, where the court finds that the position of the United States was

vexatious, frivolous, or in bad faith, unless the court finds that special circumstances

make such an award unjust." Pub. L. 105–119, Title VI § 617, 111 Stat. 2519

(reprinted in 18 U.S.C. § 3006A, historical and statutory notes).

1. Hearing on Hyde Amendment Claim

Porchay argues that she was entitled to a hearing on her Hyde Amendment

claim. "[W]e have held that '[w]hen serious factual disputes surround an application
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for attorney's fees, a hearing is required.'" Hardman v. Board of Educ. of Dollarway,

Arkansas Sch. Dist., 714 F.2d 823, 825 (8th Cir. 1983) (quoting Herrera v. Valetine,

653 F.2d 1220, 1233 (8th Cir. 1981)). Porchay does not cite any material factual

disputes regarding her petition for fees; therefore, we conclude that the district court

was not mandated to hold a hearing on this matter.

2. Merits of Hyde Amendment Claim

In her final argument, Porchay contends that the district court erred in its

assessment of her Hyde Amendment claim.

First, Porchay claims that the district court ignored her evidence of the

government's bad faith. To prove that she was prosecuted in bad faith, Porchay cites

the following evidence: (1) the government's unwillingness to return her property; and

(2) the dismissal of the indictment against Porchay after she refused to testify against

Kelley. Porchay also argues that the district court should have addressed her frivolous

prosecution claim. We review the district court's decision to deny attorneys' fees under

the Hyde Amendment for an abuse of discretion. United States v. Beeks, 266 F.3d 880,

883 (8th Cir. 2001).

We conclude that Porchay has failed to adduce evidence of bad faith. Rather,

the evidence shows that the government simply did not return the property to Porchay

because she did not show that she had a right to the property. Porchay also does not

show that the government dismissed her indictment because she refused to testify.

Porchay must show more than that one event occurred after the other to establish bad

faith.

We further conclude that attorney's fees were not warranted based on Porchay's

allegations of frivolous or vexatious prosecution. The government acts vexatiously

within the meaning of the Hyde Amendment when it acts without "reasonable or

probable cause or excuse." United States v. Gilbert, 198 F.3d 1293, 1299 (11th Cir.
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1999). The government prosecutes an individual frivolously when the government's

"position is utterly without foundation in law or fact." United States v. Bowman, 380

F.3d 387, 390 (8th Cir. 2004). Once probable cause to proceed against Porchay was

established the district court need not have proceeded further to address Porchay's

frivolous or vexatious prosecution claims. See United States v. Anderson, 339 F.3d

720, 723 (8th Cir. 2003) (defining probable cause, in context of an arrest, as reliable

belief that a crime has been committed and that the defendant committed it). Here,

there was probable cause to believe that Porchay was linked to Kelley's crimes—he

was driving her car when he was arrested, they shared a home whose value belied their

reported financial means, and there was nearly $192,000 under their mattress. Armed

with this evidence, the government was not acting frivolously or vexatiously when it

chose to prosecute her. 

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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