United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-1989

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United States of America, *

*

Plaintiff/Appellee, *

*

v. * Appeal from the United States

* District Court for the

Robert Dean White, * District of Minnesota.

*

Defendant, *

*

Robyn White, *

*

Petitioner/Appellant. *

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Submitted: November 18, 2011

Filed: April 2, 2012

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Before WOLLMAN, MURPHY, and BENTON, Circuit Judges.

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WOLLMAN, Circuit Judge.

Robyn White (White) appeals the district court’s dismissal of her petition 1

seeking half the proceeds of the sale of stock that was ordered forfeited in her exhusband’s conviction for mail fraud and money laundering in connection with the

The Honorable Richard H. Kyle, United States District Judge for the District 1

of Minnesota.
Thomas Petters Ponzi scheme. We conclude that White does not allege a legal

interest in the stock proceeds sufficient to confer standing, and that, even if she did,

her petition fails on the merits. Accordingly, we affirm.

I.

Robert Dean White (Defendant) founded ZINK Imaging, LLC (ZINK) in 2

2005. Between approximately October 24, 2005, and January 19, 2006, Defendant

invested $2,550,000 in ZINK. Months later, in September 2006, White was hired as 3

a marketing consultant for ZINK. After beginning a romantic relationship with

Defendant in January 2007, White no longer received compensation for her work. 

She alleges that she continued working for the company because Defendant orally

agreed to give her one-half the increase in value of his shares of ZINK stock. White

and Defendant were married on February 22, 2008. 

The Federal Bureau ofInvestigation (FBI) conducted a raid of Thomas Petters’

enterprisesin September 2008, and White ceased working for ZINK thatsame month. 

On October 8, 2008, Defendant pled guilty to one count of mail fraud and one count

of money laundering for his role in the Pettersscheme. Defendant’s entire investment

in ZINK was traced by a FBI forensic accountant to transfers from Petters Company,

Inc. (PCI). Defendant admitted in his plea agreement that all funds he received from

PCI were proceeds of the Petters fraud. Defendant further admitted that the fraud

spanned more than thirteen years, during which time he fabricated documents for the

purpose of defrauding third parties into loaning PCI billions of dollars. 

In 2007, ZINK Imaging, LLC merged into ZINK Imaging, Inc. 2

In August 2007, ZINK underwent a recapitalization. The recapitalization

3

agreement stated that Defendant’s investments in ZINK were deemed to be in

exchange for his shares of ZINK stock.

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Defendant transferred his ZINK stock to his counsel, Joe Friedberg, “at about

the time of the search warrant raid on Petters Company.” Robert White Dep. 61:9-

64:19. Shortly after taking control of the ZINK stock, Friedberg received an offer of

$3 million for the stock. ZINK’s chief executive officer told Friedberg that if he sold

the stock within the next four or five days, the purchaser would loan ZINK an

additional $5 million needed to keep the company operating. Friedberg then sold the

stock for $3 million and transferred the proceeds to the Receiver in the Petters

bankruptcy proceeding.

On September 13, 2010, the district court ordered that all of Defendant’s

property derived from or traceable to the fraud be forfeited to the United States. On

or about September 20, 2010, White filed for divorce fromDefendant. In the divorce

proceeding, White sought an award of one-half the proceeds of the ZINK stock,4

alleging that the proceeds were marital property under Minnesota law.

On October 13, 2010, following the entry of a preliminary order of forfeiture,

which did not specifically forfeit the ZINK stock, White filed her initial forfeiture

petition, in which she claimed a marital interest and “an interest similar to a quantum

meruit claim” in the forfeited proceeds of the ZINK stock. The parties agreed to stay

the district court’s consideration of White’s initial petition because the ZINK stock

had not yet been specifically forfeited. 

On January 6, 2011, the district court entered an order forfeiting the $3 million

in proceeds from the sale of the ZINK stock. The district court concluded that the

government had established the requisite nexus between the fraud and the ZINK stock

proceeds to support a determination that the property was forfeitable to the United

States. Thereafter, White filed an amended third-party petition, again seeking half the

We note that White seeks half the proceeds from the sale of ZINK stock

4

instead of half the increase in value of the stock, as allegedly promised.

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proceeds of the sale of stock in ZINK. White alleged in her amended petition both

a marital and a contractual interest in the ZINK stock proceeds. White also claimed 5

that the district court had erroneously forfeited the ZINK stock proceeds, alleging that

“there is no nexus between” the stock and “the criminal activity upon which

[Defendant] was convicted.” Amended Pet. 2-3.

On April 5, 2011, the Hennepin County District Court entered a judgment and

decree in the Whites’ divorce proceeding. The order adopted a stipulation between

White and Defendant that awarded White one-half the proceeds from the sale of the

ZINK stock. On April 19, 2011, the federal district court dismissed White’s petition,

finding that White could not challenge the forfeiture, that White lacked standing to

claim a portion of the ZINK proceeds, and that even if she had standing, White’s

petition failed on the merits. Because the divorce decree was entered after both of

White’s petitions were filed, the district court did not consider the decree in its order. 

On appeal, White argues that she has a right to challenge the forfeiture, that she has

standing, and that she is a bona fide purchaser for value of the ZINK stock.

II.

We review de novo a district court’s grant of a motion to dismiss a forfeiture

petition. See Cent. Platte Natural Res. Dist. v. U.S. Dept. of Agric., 643 F.3d 1142,

1148 (8th Cir. 2011). Federal Rule of Criminal Procedure 32.2(c)(1)(A) authorizes

the dismissal of a forfeiture petition “for lack of standing, for failure to state a claim,

White’s amended petition alleged four interests in the proceeds of the stock: 5

(1) beneficial and de facto ownership of one-half of Defendant’s ZINK stock; (2) a

marital interest; (3) “an interest similar to quantum meruit;” and (4) an oral

contractual interest. White did not brief her claims of de facto ownership and

quantum meruit, and so we consider only her marital and contractual interest in the

proceeds of the ZINK stock. See Carraher v. Target Corp., 503 F.3d 714, 716 n.2

(8th Cir. 2007).

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or for any other lawful reason.” For the purposes of the motion to dismiss, the facts

set forth in the petition are assumed to be true. Id. “If a third party fails to allege in

its petition all elements necessary for recovery, including those related to standing,

the court may dismiss the petition without providing a hearing.” United States v.

BCCI Holdings (Luxembourg) S.A. (Petitions of GeneralCreditors), 919 F. Supp. 31,

36 (D.D.C. 1996) (quoted with approval in Fed. R. Crim. P. 32.2 advisory

committee’s note to the 2000 amendments subd. (c)). “We may affirm on any basis

supported by the record.” Green Tree Serv., LLC v. DBSI Landmark Towers, LLC,

652 F.3d 910, 913 (8th Cir. 2011) (quoting Schoelch v. Mitchell, 625 F.3d 1041,

1046 (8th Cir. 2010)).

A.

White contendsthatshe has a right to relitigate the factual basis underlying the

government’s forfeiture of Defendant’s ZINK stock. White argues that Defendant

“obtained the subject ZINK shares prior to the infusion of said funds from PCI[.]” 

Appellant’s Br. 13. She further contends that “PCI received in consideration for [the

$2.5 million transfer to ZINK], separate shares of ZINK stock.” Id. In essence,

White argues the ZINK shares of stock were not necessarily the product of

Defendant’s fraud. 

White misunderstands the nature of an ancillary hearing. An ancillary

proceeding allows White to establish her interest in the forfeited property as it

compares to the interests of the government and other petitioners; it does not allow

her to relitigate the nexus between the criminal acts of her ex-husband and the

forfeited proceeds from the sale of the ZINK stock. United States v. Moser, 586 F.3d

1089, 1095 (8th Cir. 2009). In United States v. Porchay, we concluded that “there is

no provision in § 853(n) to relitigate the outcome of [the forfeiture] proceedings.”

533 F.3d 704, 710 (8th Cir. 2008); see also Moser, 586 F.3d at 1095 (following

Porchay). As the district court indicated, the criminal proceedings trace the property

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to criminal activity, and the ancillary hearing under § 853(n) addresses “claims of

ownership and priorities of interest vis-à-visthe government and the petitioners.” D.

Ct. Order of April 19, 2011, at 5 (quoting Moser, 586 F.3d at 1095). Thus, White

cannot challenge the district court’s finding that the proceeds from the sale of ZINK

stock were forfeitable to the United States; she can make her claim of ownership and

priority of interest only in relation to the government and any other petitioners. See

Moser, 586 F.3d at 1095.6

B.

White next contendsthatshe has standing to contest the forfeiture of the ZINK

stock proceeds. “Standing in forfeiture cases has ‘both constitutional and statutory

aspects.’” United States v. Timley, 507 F.3d 1125, 1129 (8th Cir. 2007) (quoting

United States v. One-Sixth Share ofJamesJ. Bulger in All Present & Future Proceeds

of Mass Millions Lottery Ticket No. M246233, 326 F.3d 36, 40 (1st Cir. 2003)

(hereinafter Mass Millions Lottery Ticket)). To establish constitutional standing, “a

party seeking to challenge a forfeiture of property must first demonstrate an

ownership or possessory interest in the seized property . . . .” Id. (quoting Mass

Millions Lottery Ticket, 326 F.3d at 41). An ownership interest sufficient for Article

III standing “can be shown by actual possession, control, title, and financial stake.” 

United States v. Premises Known as 7725 Unity Avenue North, Brooklyn Park,

Minn., 294 F.3d 954, 956 (8th Cir. 2002). Statutory standing under § 853(n) requires

that White demonstrate a legal interest in the proceeds of the ZINK stock. Timley,

507 F.3d at 1129, 1130 n.2. 

We have considered and reject as inapposite, United States v. Farley, 919

6

F.Supp. 276 (S.D. Ohio 1996), which White cites for the proposition that she can

challenge the factual basis of the forfeiture. 

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“Because a legal interest is required to bring a claim under 21 U.S.C. §

853(n)(2), a court must first look to the law of the jurisdiction that created the

property right to determine whether the claimant has a valid interest.” Id. at 1129-30

(citing United States v. One Lincoln Navigator 1998, 328 F.3d 1011, 1013 (8th Cir.

2003)). White claims both a contractual and a marital interest in the stock. We

therefore look to Minnesota state law to determine whether White has a valid legal

interest in the ZINK stock proceeds. “If the claimant has no interest under state law, 7

the inquiry ends, and the claim fails for lack of standing.” Timley, 507 F.3d at 1130.

i.

We turn first to whether White has a legal interest in the stock proceeds under

Minnesota contract law. White contendsthatshe entered into a binding oral contract 8

with Defendant for half the increased value of the ZINK stock in exchange for her

work as a marketing consultant. Oral contracts are valid and enforceable under

Minnesota law. Mages v. Johanns, 431 F.3d 1132, 1141-42 (8th Cir. 2005) (citing

McArdle v. Williams, 258 N.W. 818, 820 (Minn. 1935)). Accepting the facts set

forth in White’s amended petition astrue, we assume that Defendant promised her “a

50% share in the increased value of his ZINK shares of stock.” Supplemental Aff.

of Robyn White 3. 

9

Only the proceeds of the sale of the stock were forfeited to the United States 7

government, not the stock itself.

White also claimed an interest in the stock proceeds based on promissory 8

estoppel. Promissory estoppel is an equitable claim under Minnesota law, Ruud v.

Great Plains Supply, Inc., 526 N.W.2d 369, 372 (Minn. 1995), and thus does not give

rise to a legal interest under § 853. Timley, 507 F.3d at 1129 (defining “legal

interest” to exclude equitable rights). White has abandoned her claim of “an interest

similar to quantum meruit.”

White’s claim that Defendant promised to pay her half the increased value of 9

his ZINK stock was not reflected in her first petition. The district court noted this

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Under Minnesota law, “[t]he formation of a contract requires communication

of a specific and definite offer, acceptance, and consideration.” Commercial Assocs.,

Inc. v. Work Connection, Inc., 712 N.W.2d 772, 782 (Minn. Ct. App. 2006). Parties

to a contract must “agree with reasonable certainty about the same thing and on the

same terms.” Peters v. Mut. Benefit Life Ins. Co., 420 N.W.2d 908, 914

(Minn. Ct. App. 1988); see also Minneapolis Cablesystems v. City of Minneapolis,

299 N.W.2d 121, 122 (Minn. 1980) (There must be a “meeting of the minds

concerning [the alleged agreement’s] essential elements.”). “[A]n alleged contract

which is so vague, indefinite, and uncertain as to place the meaning and intent of the

parties in the realm of speculation is void and unenforceable.” King v. Dalton

Motors, Inc., 109 N.W.2d 51, 52 (Minn. 1961). Assuming all of the facts White

alleged are true, White and Defendant did not enter into a valid contract. 

White’s petition alleges nothing more than that Defendant agreed to give her

one-half the increase value in his ZINK stock in exchange for her continuing to work

for the company without a salary. Importantly, no time frame or term was indicated

in Defendant’s alleged promise to White. One-half the increase in value of the ZINK

discrepancy:

The Court must accept as true White’s assertion that Defendant made

such a promise to her. Fed. R. Crim. P. 32.2(c)(1)(A). Nevertheless, the

Court notes that this promise was nowhere mentioned in White’s initial

Petition; only after she amended her Petition did she claim that there

existed such an express agreement. Courts typically look askance at

belated attempts to add new or additional grounds for relief to thirdparty petitions. See, e.g., United States v. Soreide, 461 F.3d 1351, 1355

(11th Cir. 2006) (per curiam); United States v. Watson, 594 F. Supp.2d

961, 964 (W.D. Mich. 2008); United States v. Strube, 58 F. Supp. 2d

576, 585 (M.D. Pa. 1999). Nevertheless, the Court need not – and does

not – rely upon this ground to deny White relief.

D. Ct. Order of April 19, 2011, at 7 n.5.

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stock is a figure subject to price fluctuations. Accordingly, the amount Defendant

promised cannot be ascertained without an agreed upon end date. Similarly, the

10

agreement between the two did not indicate a length of time or under what conditions

White was to continue working for ZINK without a salary. There is no way to 11

determine from White’s allegations whether she fulfilled her end of the bargain. 

Thus, “the terms of the purported contract are too vague and indefinite to provide a

basis for ascertaining the parties’ rights and obligations.” Navickas v. Quilling, No.

A10-145, 2010 WL 5290552, at *6 (Minn. Ct. App. 2010) (unpublished) (finding a

writing that failed to “establish how and when the ‘equity’ would be calculated” to

be unenforceable); see also Logan v. St. Jude Med., Inc., No. A04-124, 2004 WL

1925875, at *2 (Minn. Ct. App. 2004) (unpublished) (finding that a contract lacking

in terms to determine the valuation ofstock options, “including the exercise price, the

expiration date, and the vesting date of the options[,]” was too vague to be

enforceable). Because White does not have an enforceable contract under Minnesota

law, she also does not have a contract-based legal interest in the proceeds of the

ZINK stock.

Even if we assume that White has pled an oral contract with definite enough

terms to be enforceable, she must also assert a legal interest in the forfeited property. 

White does not allege that Defendant agreed to give her half the increased

10

value of his ZINK stock between the dates of January 2007 and October 2008 when

“she was effectively ousted from her employment by the indictment of

[Defendant][.]” Appellant’s Br. 26.

White alleges thatshe worked from January 2007 to September 2008 without 11

a salary. We note that if the alleged contract could not be performed in less than one

year, it was required to be reduced to a writing to be enforceable under Minnesota’s

statute of frauds. Minn. Stat. § 513.01; but see Eklund v. Vincent Brass and

Aluminum Co., 351 N.W.2d 371, 375-76 (Minn. Ct. App. 1984) (holding that a

contract for employment “so long as he performed satisfactorily” did not violate the

statute of frauds where it was possible for the contract to have been fully performed

within one year). White fails to allege any type of term for her alleged oral contract.

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See 21 § 853(n)(2). A valid contractual interest in a sum of money equal to one-half

the increase in value of the ZINK stock is not the type of legal interest sufficient to

confer standing to contest the forfeiture of the ZINK stock proceeds. Accepting the

facts alleged in the petition as true, White had an oral contract with Defendant for a

sum of money equaling half the increased value of the ZINK shares of stock. Thus,

White’s interest in payment is tied to the stock’s value but is not actually in the stock

or the proceeds thereof. See 21 U.S.C. § 853(n)(2) (requiring an initial showing of

a “legal interest in propertywhich has been ordered forfeited”); see also United States

v. Ribadeneira, 105 F.3d 833, 836 (2d Cir. 1997) (per curiam) (holding that in order

to obtain standing a petitioner must have “an interest in a particular, specific asset”).

 

Any breach by Defendant of the oral contract with White does not confer upon

White a legal interest in the ZINK stock proceeds. As the district court aptly noted,

Defendant did not promise to transfer fifty-percent of his shares of ZINK stock to

White. D. Ct. Order of April 19, 2011, at 7. The ZINK stock was owned by

Defendant and was held in his name. White also does not allege facts to show that

she has a legal interest in the proceeds of the sale of Defendant’s ZINK stock. The

sum of money owed to her, if the oral contract is deemed binding, could come from

any of Defendant’s assets that were not the proceeds of criminal activity.

In DSI Associates LLC v. United States, the Second Circuit held that a

purchase of shares without taking a security interest therein renders the purchaser

merely a general creditor of the seller. 496 F.3d 175, 184 (2d Cir. 2007). A general

creditor does not possess “an interest ‘in’ a ‘particular, specific asset’ that is, or is part

of, the forfeited property,” and “does not meet the statutory requirements for initiating

an ancillary proceeding under section 853(n).” Id. (quoting Ribadeneira, 105 F.3d

at 835-37). We agree with this analysis and hold that a general creditor does not have

standing to claim an interest in a particular forfeited asset. Nowhere in White’s

petition, amended petition, or attached affidavits does she allege that she took a

security interest in the ZINK stock or its proceeds. Thus, even assuming the

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existence of an enforceable oral contract, White’s petition fails to demonstrate that

she has standing to contest the forfeiture of the property based on a contractual

interest in the stock proceeds.

ii.

We turn next to White’s claimof a marital interest in the ZINK stock proceeds. 

White first contends that her marital interest is derived from Minnesota Statutes

section 518.54 (now Minnesota Statutes section 518.003 subdivision 3(b)), which

defines “marital property” and “nonmarital property” for purposes of marital

dissolution. White also contendsthat the divorce decree entered in Hennepin County

DistrictCourt awarding her one-half the proceeds of the ZINK stock confersstanding

upon her. White thus uses divorce law to claim a marital interest in the stock

12

proceeds. Assuming, without deciding, that White has standing based on a marital

13

interest in the ZINK stock proceeds, we need not reverse the district court’s order

denying the hearing because White could not prevail even if one were granted. See

Timley, 507 F.3d at 1131.

White cannot prevail in the forfeiture proceeding unlessshe qualifiesfor relief

under one of the two prongs of § 853(n)(6). She must either demonstrate priority of

ownership in the forfeited property or establish thatshe was a bona fide purchaser for

Both of White’s forfeiture petitions predate the divorce decree. Thus, she

12

could not plead that the divorce decree conferred standing upon her in this forfeiture

proceeding, and the district court did not consider the effect of that decree. 

As the district court noted, we confronted a nearly identical situation in 13

United States v. Cochenour, 441 F.3d 599 (8th Cir. 2006). There, we held that

“[d]ivorce law does not govern a spouse’s claimed interest in forfeited property.” Id.

at 601 (citing United States v. Totaro, 345 F.3d 989, 997-98 (8th Cir. 2003)). To the

extent that White’s claim is arguably distinguishable from that alleged in Cochenour,

her petition fails on the merits. 

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value of the property. 21 U.S.C. §§ 853(n)(6)(A) (superior interest), (n)(6)(B) (bona

fide purchaser); Timley, 507 F.3d at 1130. White does not claim priority of

ownership under § 853(n)(6)(A). She claims instead thatshe is a bona fide purchaser

for value of the ZINK stock proceeds and thus should prevail under § 853(n)(6)(B). 

To qualify as a bona fide purchaser for value, White must show: “(1) . . . a legal

interest in the property; (2) the interest was acquired as a bona fide purchaser for

value; and (3) that the interest was acquired at a time when the claimant was

reasonably without cause to believe that the property was subject to forfeiture.” 

Timley, 507 F.3d at 1130-31.

Assuming she has a legal interest derived from her marriage to and subsequent

divorce from Defendant, White was not reasonably without cause to believe that the

proceeds were subject to forfeiture at the time she acquired her interest. Under

Minnesota divorce law, White’s rights vested, at the earliest, when she commenced

the dissolution proceedings on September 20, 2010. Miller v. Miller, 352 N.W.2d

738, 743 (Minn. 1984). White knew of Defendant’s criminal activity and the

associated forfeiture proceedings before filing for divorce. Defendant was charged

with the fraud and pled guilty on October 8, 2008. Defendant agreed in his plea

agreement that all funds he received from PCI were proceeds of the fraud and subject

to forfeiture. In addition, the district court had ordered the forfeiture of all of

Defendant’s property traceable to the fraud one week before White filed for divorce. 

White thus was not reasonably without cause to believe that the ZINK stock proceeds

were subject to forfeiture at the time she filed for divorce. Accordingly, White cannot

prevail under § 853(n)(6)(B) even if she has a marital interest in the proceeds.

III.

Because White has not alleged a legal interest in the ZINK stock proceeds, she

lacks standing to maintain this action. To the extent that White has alleged a legal

interest in the stock proceeds based on a marital interest, her petition fails on the

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merits. Accordingly, the district court’s judgment dismissing the petition and

amended petition is affirmed.

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