No. 92-1211, 16 F.3d 412 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 16 F.3d 412 (4th Cir. 1994)

Submitted Oct. 6, 1993. Decided Jan. 26, 1994


Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. Glen M. Williams, Senior District Judge. (CA-90-34-B, CA-91-51-B)

Elic L. Gilliam, Rose Mary Wiggins, appellants pro se.

Jerry Walter Kilgore, Sp. Asst. U.S. Atty., Gate City, VA, for appellee.

W.D. Va.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Before WIDENER, HALL, and PHILLIPS, Circuit Judges.

OPINION

PER CURIAM:


Elic Gilliam and Rose Mary Wiggins appeal from the district court's order granting summary judgment in favor of the Government and forfeiting several tracts of real property, various vehicles, and cash. Elic Gilliam was convicted of conspiring to launder money, money laundering, conspiring to manufacture, distribute, and possess marijuana with intent to distribute, possessing marijuana with intent to distribute, and possessing cocaine with the intent to distribute. Wiggins is Gilliam's ex-wife and has title to several of the tracts of land at issue in the forfeiture.

Our review of the record and the district court's opinion discloses that the appeal is without merit as to Gilliam's claims. Accordingly, we affirm the forfeiture of Gilliam's property on the reasoning of the district court. United States v. Gilliam, Nos. CA-90-34-B; CA-91-51-B (W.D. Va. Jan. 30, 1992).

Wiggins challenged the forfeiture as an innocent owner of the real property listed at Deed Book 375, Pages 584, 579, 574, (the Bowling property) and Deed Book 342, Page 838, (the Jennings property).1  Under 21 U.S.C. § 881(a) (6) (1988), property cannot be forfeited if owned by someone who had no knowledge of the criminal conduct involving the property. An owner is someone with a legal or equitable interest in the property seized, and ownership for forfeiture purposes is not limited to a bona fide purchaser. United States v. 92 Buena Vista Ave., 61 U.S.L.W. 4189, 4192 (U.S.1993); United States v. 6109 Grubb Rd., 886 F.2d 618, 625 (3d Cir. 1989).

Wiggins lived in Nevada during the time when the drug activity occurred, and the Government made no showing that Wiggins knew of Gilliam's illegal activity. Moreover, Wiggins submitted an affidavit asserting that she had title to the properties in question. The district court, properly relying at the time on In re One 1985 Nissan, 889 F.2d 1317, 1320 (4th Cir. 1989), found that Wiggins could not prevail under the innocent owner provision of the statute because she obtained title to the property after the criminal activity began, and thus title had already vested in the Government.2  However, in the interval since the district court's decision, the Supreme Court has held that the innocent owner provision does not require an innocent owner to have obtained her claim prior to the illegal acts. United States v. 92 Buena Vista Ave., 61 U.S.L.W. at 4192. Although Wiggins' claim is not barred by her obtaining title to the properties after the drug activity began, the record is not clear as to whether Wiggins actually has title.

The district court found Wiggins totally incredible. The only evidence in the record supporting her claim to title is an affidavit signed by Wiggins, and her testimony at the forfeiture hearing. In light of the district court's finding of lack of credibility, this showing does not clearly establish her title to the properties. Hence, we remand her claim to the district court for further proceedings to determine if Wiggins does have legal ownership of the properties in question, and if so, to order the properties returned to her under the innocent owner defense.

In conclusion, we affirm the district court's order forfeiting the property except for the four tracts of land in which Wiggins asserts ownership.3  Regarding these properties, we vacate the district court's order of forfeiture and remand the case to the district court for further proceedings. 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.

 1

The record is unclear as to which properties Wiggins has title to, and when she obtained ownership

 2

Because the property was not purchased until after 1981, Wiggins could not have obtained title to the property until after Gilliam's drug activity allegedly started in 1981

 3

We deny Gilliam's motion to stay the sale of the property