UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. 1997 INTERNATIO NAL 9000 SEMI TRUCK VIN: 1HSRUAER8VH409632, Defendant, and BRIAN A. WILSON, Claimant, WENDELL SHABAZZ, Claimant - Appellant. No. 10-2111 (D. N.M.) (D.C. No. 1:07-CV -00270-LH-LFG)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Circuit Judge, TACHA and O'BRIEN , Circuit Judges.

* The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is submitte d for decision on the briefs. This order and judgment is an unpublishe d decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### February 10, 2011
Elisabeth A. Shumaker Clerk of Court- 2 - Wendell Shabazz, pr oceeding pro se, 1 appeals from the district court’s judgment, following a trial, in favor of the govern ment in a civil forfeiture proceeding. See 21 U.S.C. § 881(a)(4)&(6). He claims he had a valid security interest in a semi-truck, seized while transporting marijuana, and he was unaw are of the owner’s crim inal activity. The district court concluded otherwise and rejected his claim of a valid ownership interest.
We AFFIRM. 2
I. BACKGROUND On September 1, 2006, Brian Wilson was a rrested for transporting marijuana in a 1997 International 9000 semi-truck (the tr uck) in Lordsburg, New Mexico. Following Wilson’s arrest, the government filed an action for civil forfeiture of the truck. 3 Shabazz filed an answer objecting to the forfeiture. He claimed he had an ow nership interest in the truck via a security interest ex ceeding the truck’s current value. Both the government and Sh abazz filed cross-motions for summary judgment. 4

1 Because Shabazz is appearing pro se, we construe his pleadings and papers liberally but “our role is not to act as his advocate.” See Gallagher v. Shelton , 587 F.3d 1063, 1067 (10th Cir. 2009).

2 Our jurisdiction derives from 28 U.S.C. § 1291.

3 Wilson eventually pled gu ilty to possession with intent to distribute more than 100 kilograms of marijuana. He did not challenge forfeiture of the semi-truck.

4 The government also filed a motion to dismiss Shabazz’s counterclaims for monetary damages resulting from his attempts to take possession of the semi-truck. The district court dismissed his counterclaims, concluding it had no jurisdiction under the doctrine of sovereign immunity. The dismissal of Shabazz’s counterclaims is not at issue on appeal.- 3 - The government claimed the undisputed facts es tablished the truck was used in criminal activity and Shabazz had failed to provide admissible evidence of his security interest in or innocent ownership of the truck. For his part, Shabazz claimed he loaned Wilson part of the money to purchase the truck and took a purchase money secur ity interest in the truck to secure the loan. A ttached to Shabazz’s motion was his affidavit averring he had no knowledge of Wilson’s crimin al activity. In his response to the government’s motion for summary judgment, Shabazz attached a copy of a security agreement, signed by Wilson, which purported to secure his $7,50 0 loan to Wilson. He also attached a “replacement” Georgia Certificat e of Title, issued January 3, 2007 (several months after Wilson’s arrest), showing him as a first lien holder. The di strict court concluded the government had established the truck was used in criminal ac tivity and thus forfeitable. However, it denied the parties’ cross-motions for summary judgment because a material issue of fact existed as to Shabazz’s ownership interest. The matter was tried to the court. Sh abazz submitted two “replacement” Georgia Certificates of Title for the truck, one date d January 3, 2007, and the other October 26, 2009, naming him as first lien holder on the truck. (Supp. R. Vol. 1 at 7, Supp. R. Vol. 2 Ex. A.) Shabazz testified he had withdrawn $5,000 from his account to provide Wilson a certified check as part of the purchase money for the truck. In support of his testimony a bank statement from the accoun t of Wendell Shabazz/Deen Realtors, L.L.C. for the month of March 2005, was adm itted; it showed an electronic withdrawal of $5,000 on March 28, 2005. He also attempted to su bmit his affidavit filed with his summary judgment motion but the court explained it was “not an item of evid ence for the issues- 4 - before the Court [that day].” (Supp. R. Vol. 1 at 17.) Shab azz replied: “Okay. So I’ll give my testimony, then.” ( Id .) However, Shabazz did not tes tify further because at this point, Wilson arrived in court. Shabazz te rminated his own testimony and immediately proceeded to ex amine Wilson. Wilson identified a $15,000 receipt fro m William Baker of Bill’s Lawn and Garden Maintenance for a truck purchased on March 30, 2005. Th e receipt indicated a payment of $10,000 in cash and a $5,000 certifie d check for the truck. The receipt stated the truck’s VIN number and mileage and noted th e sale was “AS-IS.” (Supp. R. Vol. 2, Ex. B.) Wilson testified he received the cer tified check and $2,500 in cash from Shabazz for the truck’s purchase. He also identified a “Note” date d March 28, 2005, from him to Shabazz. Shabazz presented no other evidence. On cross-examination, Wilson admitted to pleading guilty to possession with intent to distribute more than 100 kilogram s of marijuana and his use of the truck to commit his crime. The pros ecutor then explored the connection between Wilson and Shabazz: Q. Were you at Mr. Shabazz’s hous e or at your house [when you signed the promissory note]? A. . . . I was at his house . . . . Q. How long have you known Mr. Shabazz? A. Pretty much all my life. Q. And your family [sic] ar e all friends; is that right? A. Yes. Q. And so you would say that . . . you and he each know each other very- 5 - well; is that correct? A. Yes, sir. (Id. at 23-24.) Wilson previously shared an address with Sh abazz in New York where he lived with Shabazz, Sh abazz’s wife, Wilson’s mother and W ilson’s sister. At some later time, both men moved to Stone Mountain, Georgia, where they resided at separate addresses when Wilson purchased the truck. Wilson testified he had seen the truck for sale on the Internet and drove to Pennsylvania to make the purchase. Later in the proceedings, the prosecut or established Wilson’s prior trucking business, BMW Trucking, was registered at th e same address in New York where he had lived with Shabazz. When asked if he knew where Sh abazz obtained the cash for the loan to Wilson, Wilson stated : “I would imagine from work [ i.e. , Deen Realtors].” ( Id . at 26.) According to Wilson, Shaba zz sold real estate in Georgi a. But when the prosecutor informed Wilson that Sh abazz’s realty business was register ed at the New York address, Wilson said he was surprised to know that. ( Id. at 30.) According to Wilson, the two did not converse much about their businesses. He stated Shabazz had never worked with him in his trucking business and th ey had done no other business together. The prosecutor then returned to the natu re of their relationship: Q. How is it you know [Shaba zz]? How did you meet him? A. Through my family. Q. Through your family, how so? A. He’s my brother . . . . The Court: He’s your brother?- 6 - The Witness: Yes. The Court: Mr. Shabazz is? The Witness: Yes. ( Id . at 34-35.) The Note submitted as evidence of the loan contained several obvious irregularities. It stat ed in pertinent part: For VALUE RECEIVED, BRIAN A. WI LSON, . . . hereby covenants and promises to pay WENDELL SHABAZZ, Seventy Five Thousand Dollars ($7,500.00) . . . which principle shall be payable without in terest, in thirtysix (36) monthly installments of Tw o Hundred Dollars and Ninety Seven Cents (244.97) each month, commencing on the 1 st day of April, 2005, and finally on to the first day of Marc h 1, 2008, one (1) payment of the remaining principal balance of $244.97 shall become due and payable. (R. Supp. Vol. 2 at Ex. C.) The Note also stated the loan to Wilson consisted of $2,500.00 cash and a $5,000.0 0 bank check (payable to W illiam Baker) which was to be secured by a first lien on a “1997 In ternational 9000 Series Truck.” ( Id .) It required Wilson to file a certificate of title listing Shabazz as a first lien holder. When questioned about the discrepanc y between the written and numeric amount owed on the Note, Wilson stated it was a “typo.” (R. Supp. Vol. 1 at 27.) He had seen the error “but it had the correct amount right next to it in parentheses, so” he just ignored it. ( Id .) Wilson stated the discrepancy in the monthly payment was also a typo, but the intent was to pay $244.97 per month. The pr osecutor pointed out that the loan purported to be without interest but, when the intende d monthly payments were added together, the final reimbursement to Shabazz would exce ed the loan, totali ng “8,818.92.” ( Id. ) Wilson responded, “I guess I never added it up.” ( Id .) The April date for the first payment was- 7 - also incorrect; Wilson said “it’ s supposed to say May.” ( Id . at 28.) Wilson stated he had placed Shabazz’s name on the title as first lien holder when he obtain ed a Certificate of Title 5 but he was not required to present the not e or any proof of Shabazz’s interest in order to do so. Rather, he simply filled out the form naming Shabazz as first lien holder. 6 Finally, Wilson conceded he had not used the services of a notary public to verify the date he signed the agreement. As far as repayment, Wils on testified he had paid back none of the money loaned by Shabazz. 7 When asked why not, Wilson claimed he had not done so because he “got [himself] jammed up” by “getting arrested.” ( Id . at 35.) However, he conceded there was almost eighteen months between the tim e he was to begin repaying the money and the time of his arrest. ( Id .) He testified Shabazz called hi m once but took no legal action for repayment. The prosecutor then asked W ilson about the criminal activity leading to his arrest. While Wilson could remember how much he was being paid to transport the marijuana ($15,000), he could not recall who was paying him.

5 Under Georgia law, one way to perfect a security interest on a vehicle is to list the interest on the Certificate of Title. See Ga. Code Ann. § 40-3-24.

6 Georgia law requires an application for a certificate of title for a vehicle previously registered in another state to contain or be accompanied by “any . . . information and documents the commissioner or authorized county tag agent reasonably requires to establish the ownership of the ve hicle and the existence or nonexistence of security interests in it a nd liens against it.” Ga. Co de Ann. § 40-3-21(c)(1)(B).

7 Shabazz’s proposed exhibit lis t provided prior to trial id entified five exhibits. Along with the certificates of title, the “bill of sale,” th e Note and the bank check, Shabazz stated he woul d provide “Payment Records on Note securing debt on [the] 1997 International Truck . . . .” (R. Vol. 1 at 211.)- 8 - The district court found there was no reliable documentary evidence of an ownership interest prior to Wilson’s arrest and Wilson’s testimony allegedly authenticating the Note was simp ly not credible. It held: The totality of the evidence indicates th at the execution of the Note was a sham transaction that did not create a valid security inte rest in the Semi Truck. Claimant thus did not prove by a preponderance of the evidence that he held a legitimate leasehold, lien, mortgage, recorded security interest, valid assignment of an ownership interest, or any other legitimate ownership interest in the Semi Truck. Claimant’s interest, if any, was that of a mere nominee who exercised no dom inion or control over the Semi Truck. Claimant therefore failed to pr ove that he is an owner of the Semi Truck within the meaning of 18 U.S.C. § 983(d)(6)(A) . . . . Claimant also failed to prove that he did not know of the conduct giving rise to the forfeiture or that, upon learning of such conduct, he did all that reasonably could be expected under the circumstan ces to terminate such use of the Semi Truck. (R. Vol. 1 at 229.) Because Shabazz had fa iled to show by a preponderance of the evidence that he held a bona fide security inte rest in the truck, it was subject to forfeiture.
II. DISCUSSION “All conveyances, including . . . vehicles . . . which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment” of controlled substances are subj ect to forfeiture. 21 U.S.C. § 881(4). “[T]he burden of proof is on the G overnment to establish, by a preponderance of the evidence, that the pr operty is subject to forfeitu re.” 18 U.S.C. § 983(c)(1). However, “[a]n innocent owner’s interest in property shall not be forfeited under any civil forfeiture statute.” 18 U.S.C. § 983(d)(1 ). “The claimant shal l have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence.” ( Id. ) In this instance, Shabazz cl aims he had a valid security interest in the truck at the- 9 - time the illegal conduct took place. Whether a cl aimant has a valid property interest is determined by the law of the st ate in which the ownership inte rest exists, here, Georgia. See United States v. One Lincoln Navigator 1998 , 328 F.3d 1011, 1013 (8th Cir. 2003). Once a valid ownership interest is shown, an innocent owner also mu st show he “did not know of the conduct giving rise to forfeiture; or upon learning of the conduct giving rise to the forfeiture, did all that reasonably coul d be expected under the circumstances to terminate such use of the property.” 18 U.S.C. §§ 983(d)(2)(A)(i)&(ii). There is “one important exception” when establishing innocent ownership, however. One Lincoln Navigator , 328 F.3d at 1015. Federa l law prohibits “a nominee who exercises no dominion or control ov er the property” from claiming innocent ownership. 18 U.S.C. § 983(d)(6)(B)(iii). 8 “[T]hings are often not what they appear to be, especially in the worl d of drug trafficking.” United States v. On e 1990 Beechcraft , 619 F.3d 1275, 1278 ( 11th Cir. 2010) (quotation and c itation omitted). “[T]he very premise of requiring both an ownership inte rest and dominion or control is that people engaged in illegal activities often attempt to dis guise their interests in property by placing title in someone else’s name.” Id . (quotation and citation omitted). Shabazz claims the district court failed to correctly apply Ge orgia law regarding

8 We need not determine th e relative roles of state and federal law when deciding whether Shabazz is a nominee because Geor gia law does not give effect to sham transactions. However, we note there is some disagreement between the Circuits on this issue. See United States v. Nava , 404 F.3d 1119, 1128 (9th Cir. 2005) (rejecting the approach taken in United States v. Morgan , 224 F.3d 339, 343 (4th Cir. 2001), wherein a sham transaction is a matter of federal la w irrespective of whether the state would recognize the legal interest).- 10 - security agreements, disregarded his affidav it denying knowledge of criminal activity and wrongly determined Wilson’s testimony was not credible. We review a district court’s conclusions of law de novo. Creative Consumer Concepts, Inc. v. Keisler , 563 F.3d 1070, 1078 (10th Cir. 2009). We review the district court’s findings of fact for clear error, applying a highly deferential standard and “giving due regard to the court’s opportunity to judge the cr edibility of witnesses.” Id. ; see Fed. R. Civ. P. 52(a)(6). Shabazz argues the court erred when it faile d to apply Georgia statutory law or a constructive trust to recognize his security in terest in the truck. However, the court was not required to do so once it determined th e transaction was a sham and Shabazz was a mere nominee. See One Lincoln Navigator , 328 F.3d at 1015. Even if Georgia law were applied, however, “it is impermissible to engage in sham transactions designed to camouflage the actual situation.” Hayes v. Hayes , 620 S.E.2d 806, 807 (Ga. 2005) (quotations and citations omitted); see also Clay v. Oxendine , 645 S.E.2d 553, 557 (Ga. App. 2007) (“totality of the circumstances” an alyzed to determine wh ether transaction is sham); see also Ga. Code Ann. § 11-1-203 (“Every contract or duty within this title imposes an obligation of good faith in its performance or enforcement.”). Thus, if the district court’s factual findings are supporte d by the record, there was no valid agreement to which the Georgia statutor y provisions cited by Shabazz would apply. Moreover, under these circumstances, Georgia law would no t allow equity to pr ovide Shabazz relief. See Hayes , 620 S.E.2d at 806-07. Shabazz contends the district court erre d when it found he failed to present any evidence that he did not know of Wilson’s illega l activities. Specifically, he points to his- 11 - affidavit submitted with his motion for su mmary judgment claiming his lack of knowledge. But as the court explained to Shabazz during the bench trial, his affidavit was of no evidentiary consequence in th e final proceeding and he was required to establish every element of his claim at trial. While Shabazz said he would testify later to his lack of knowledge of crimin al activity, he never did so. As a result, the district court correctly found Shabazz failed to meet his burde n of proof when he offered no evidence of his ignorance regarding Wilson’s illegal activity. Shabazz also argues the district court had no reason to find Wilson was not credible or that he attempted to hide his fa milial relationship with Shabazz. He claims the belated revelation that both men shared the same mother was due solely to the prosecutor’s inept questions. While it is true the prosecutor’s question did not directly ask if the two men were related, this did not prevent Wilson fro m clarifying the situation. Even if Wilson did not deliberately mislead the court about his familial relationship with Shabazz, his credibility was suspect at numerous points in his testimony. For example, Wilson “unconvinc ingly” could not reme mber who had paid him to deliver the marijuana. (R. Vol. 1 at 225.) It is also highly questionable that brothers with no interest or knowledge of e ach other’s business dealings before his arrest would arrange a major loan without correcti ng the Note’s obvious errors. And perhaps most telling, Wilson’s explanation for faili ng to make any payment for over seventeen months would strain belief fo r even the most credulous. In contrast, the district court expresse d solid reasons for its conclusion that the Note was a sham transaction. It pointed to th e lack of proof of the date of the Note and- 12 - the parties’ failure to correct key provisions. Shabazz’s failure to ta ke any legal steps to collect any repayment, even though his “loan” was in default for almost eighteen months is persuasive evidence he chose not to ex ercise dominion or control over his alleged security. See Oxendine , 645 S.E.2d at 558 (failure to offer any evidence of inspection of property to determine its cond ition at the time of the trans action or efforts to acquire possession of the property after default indi cated the transaction was a sham). Even without deference to its fact finding, we w ould be hard-pressed to question the district court’s conclusion that Shabazz was not an innoc ent owner of a valid security interest in the truck.
AFFIRMED. Entered by the Court: Terrence L. O’Brien United States Circuit Judge