UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PATRICIA HOLMES,

Claimant-Appellant, No. 96-1690

and

KENNETH HAWKINS, a/k/a Kenny,

a/k/a January,

Defendant.

Appeal from the United States District Court

for the District of South Carolina, at Greenville.

G. Ross Anderson, Jr., District Judge.

(CR-94-32-8-33)

Submitted: October 7, 1997

Decided: January 15, 1998

Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

C. Rauch Wise, WISE & TUNSTALL, Greenwood, South Carolina,

for Appellant. J. Rene Josey, United States Attorney, Marvin J.

Caughman, Assistant United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Kenneth Hawkins pled guilty to his involvement in a massive drug

conspiracy under 21 U.S.C. § 846 (1994), which spanned five years

and amassed approximately five million dollars in illegal proceeds.

As part of his plea agreement, Hawkins agreed to voluntarily forfeit

his interest in numerous vehicles and real property under 21 U.S.C.

§ 853 (1994), as listed in his indictment.

Patricia Holmes, Hawkins' girlfriend, filed a third-party claim

under 21 U.S.C. § 853 (1994), alleging that she was the actual owner

of a 1987 convertible BMW and 1939 and 1985 Cadillacs subject to

forfeiture. A magistrate judge held a § 853 hearing regarding Holmes'

claim to the vehicles. The relevant facts adduced at the hearing are

not in dispute. Holmes testified that she met Hawkins in 1987 and

started seeing him in 1989 and that he was the father of her daughter

born in 1991. She testified that he was a mechanic and that she had

no knowledge of his illegal drug activities.

With respect to the 1987 convertible BMW, Holmes purchased the

vehicle in September 1991 for $18,000 in cash from a car dealer. She

alleged that she saved the money from various jobs beginning when

she was age fourteen. At the time of the hearing she was age thirtytwo. During that time period she stated that her highest annual salary

was between $17,000 and $25,000--which she had earned only in the

past several years. She produced a receipt for the BMW and title, tax,

insurance, and repair bill documents indicating that she owned the

car.

The salesman who sold the BMW testified that Hawkins had

accompanied Holmes to purchase the car and that he had negotiated

the price, although he told the salesman to title the vehicle in Holmes'

name. The salesman further testified that the $18,000 in cash was

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contained in an old wrinkled bag, with the money bundled by rubber

bands, and was damp and gave off a strong odor. Holmes testified that

she had first kept the cash under a rug and then later placed it in a

fireproof safe. She also stated that she had received an unspecified

lump sum payment after she stopped working for the state. Holmes

affirmed that the BMW was maintained at Hawkins' sister's house

because her cat had damaged the convertible top while it was parked

at her house.

As for the Cadillacs, Holmes' testimony was as follows. She purchased the 1939 model from a man in Asheville, North Carolina, for

$300 or $400, at which point it was a rusty shell with no tires. Thereafter, Hawkins restored the car for her, free of charge, with parts she

had purchased. The personalized license tag reads"HAWK," which

indicated that she was proud of how well Hawkins had restored the

car. Holmes could not, however, explain the Government's affidavit

which reflected that the vehicle was purchased from a man in Florida

for zero dollars. With regard to the 1985 Cadillac, Holmes testified

that she bought it for her mother because her mother was having problems with her car. She stated that she and her mother each paid $2500

toward the car and that because her mother was forgetful the car was

titled in her name to ensure the taxes and insurance were paid.

Holmes' testimony was corroborated by testimony from her mother

and sister, which was received by stipulation.

The magistrate judge entered a final order of forfeiture finding

Holmes "to be less than credible" and that she was merely a "`straw

owner' of the vehicles, as she allowed Kenneth Hawkins to title the

vehicles in her name in order to conceal his assets obtained with the

profits of the drug trade."* The magistrate judge denied Holmes'

motion for reconsideration, and the district court upheld the final

order of forfeiture and the denial of the motion for reconsideration.

In her appeal, Holmes attacks the criminal forfeiture statute as unconstitutional and alleges that the district court erred in finding that the

three vehicles were properly forfeited to the Government. For the reasons that follow, we affirm.

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*(Joint Appendix "J.A." at 186).

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Holmes alleges that 21 U.S.C. § 853 is unconstitutional as applied

to a third-party claimant because it: (1) deprives the third party of a

jury trial, in violation of the Sixth Amendment; (2) requires a third

party to prove that the property should not be forfeited, and

(3) provides greater protection to the indicted criminal defendant than

to the third party, in violation of the Fifth Amendment.

Holmes' constitutional arguments are misplaced. A criminal forfeiture involves an in personam proceeding against a defendant charged

with a specific crime. When a forfeiture provision is embodied in a

plea agreement, the forfeiture is an element of the sentence imposed

following conviction, or as here, a guilty plea. See Libretti v. United

States, ___ U.S. ___, 64 U.S.L.W. 4005, 4008-09 (U.S. Nov. 7, 1995)

(No. 94-7427) (holding that because a forfeiture provision contained

in a plea agreement only is part of a criminal defendant's sentence,

Fed. R. Crim. P. 11(f), requiring a district court to determine that

there is a factual basis before accepting the plea, is inapplicable). The

text of the criminal forfeiture statutes makes clear that Congress conceived of forfeiture as punishment for the commission of various drug

and racketeering crimes. Id. (citing 21 U.S.C. § 853(a)). In this context, the criminal forfeiture is simply an aspect of the punishment

imposed following conviction of a substantive criminal offense. Id.

The Court in Libretti also noted that third-party claimants' rights were

adequately protected under a § 853(n) hearing even though such hearing "deprives third-party claimants of the right to a jury trial and

reverses the burden of proof." Id. at 4009. Thus, Libretti forecloses

Holmes' constitutional attacks.

In her remaining issues, Holmes alleges that the district court erred

in denying her claims to the vehicles because it allowed the Government to forfeit the 1939 Cadillac as illegal proceeds, when the indictment alleged that the car had been used to facilitate illegal activity,

and because the evidence at the hearing was insufficient to defeat

Holmes' claim to the 1985 Cadillac and 1987 BMW. Factual findings

of the district court are overturned only if clearly erroneous. See

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985).

When factual findings are based upon the credibility determinations

of the trial court, an appellate court should allow even greater deference "for only the trial judge can be aware of the variations in demea-

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nor and tone of voice that bear so heavily on the listener's

understanding of and belief in what is said." Id. at 575.

Holmes is correct that the indictment sought forfeiture of the 1939

Cadillac on the ground that it was used to facilitate Hawkins' drug

trafficking. See 21 U.S.C. § 853(a)(2). The statute, however, provides

for forfeiture of any property derived from or used to facilitate criminal activity upon a defendant's conviction. See 21 U.S.C. § 853(a);

United States v. Moffitt, Zwerling & Kemler, 83 F.3d 660, 668-69 (4th

Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3501 (U.S. Jan.

21, 1997) (No. 96-356). Further, the statute "is to be liberally construed to effectuate its remedial purposes," i.e."to ease the government's ability to track down the proceeds of crime," and to "prevent[ ]

defendants from shielding their assets from forfeiture simply by transferring an asset to a third party." Moffitt, Zwerling & Kemler, 83 F.3d

at 669 (citations and internal quotations omitted). Therefore, whether

the property was forfeited because it facilitated Hawkins' drug activities or was purchased from drug proceeds is irrelevant, as either prong

justifies the forfeiture. See 21 U.S.C.§ 853(a).

We review the district court's determination that Holmes failed to

meet her statutory burden and that the property was subject to forfeiture, for clear error. See United States v. Reckmeyer, 836 F.2d 200,

204 (4th Cir. 1987) (rejecting government's argument that the district

court clearly erred in determining that third-party purchaser was reasonably without cause to believe that property was subject to forfeiture). Once the government has secured a stipulation as to

forfeitability from a defendant, third-party claimants may establish

their entitlement to return of the assets only by means of a § 853(n)

hearing. Libretti, 64 U.S.L.W. at 4009. When a forfeiture order is

entered, the government's title dates back in time to the criminal

activity giving rise to the forfeiture. See Moffitt, Zwerling & Kemler,

83 F.3d at 670. Such property, if not in the hands of an "innocent

transferee," is forfeitable. Id. Only two classes of third-party claimants are protected: those whose legal interests in the property were

superior to the defendant's at the time the interest of the United States

vested and "bona fide purchasers for value without knowledge of the

forfeitability of the defendant's assets." Reckmeyer, 836 F.2d at 204

(citing § 853(n)(6)). These claimants are required to demonstrate their

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status "by a preponderance of the evidence." See 21 U.S.C.

§ 853(n)(6).

We do not find that the district court clearly erred in determining

that Holmes failed to demonstrate, by a preponderance of the evidence, that her interests were superior to the Government's or that she

was a bona fide purchaser for value. See 21 U.S.C. § 853(n)(6);

Reckmeyer, 836 F.2d at 204. Holmes' testimony that she purchased

and maintained the BMW and 1939 Cadillac was not supported by the

evidence. This, in turn, led the magistrate judge to conclude that with

respect to the 1985 Cadillac, that Holmes' "testimony could arguably

support her claim" but that "when viewed in conjunction with her

incredulous testimony relating to the 1939 Cadillac and 1987 BMW,

I find her testimony unbelievable." (J.A. at 186). To the extent we

may review this conclusion, we do not find that the magistrate judge

clearly erred. See Anderson, 470 U.S. at 575 (noting that appellate

courts must give great deference to the trial judge's credibility determinations).

Accordingly, we affirm the orders of the district court. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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