United States v. One-Sixth Share of Bulger in All Present & Future Proceeds of Mass Millions Lottery Ticket No. M246233

United States Court of Appeals
For the First Circuit

Nos. 02-1510
02-1557
02-1651

UNITED STATES,

Plaintiff, Appellee,

v.

ONE-SIXTH SHARE OF JAMES J. BULGER IN
ALL PRESENT AND FUTURE PROCEEDS OF
MASS MILLIONS LOTTERY TICKET NO. M246233,
REGISTERED IN THE NAME OF MICHAEL LINSKEY,

Defendant.

OLGA DAVIS; MARION HUSSEY; JOHN P. BULGER,

Claimants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.

Robert S. Sinsheimer, with whom Sinsheimer & Associates
was on the brief, for appellant Olga Davis.

Ann M. Donovan, with whom Law Office of Ann M. Donovan
was on the brief, for appellant Marion Hussey.
 George F. Gormley, with whom Christie M. Charles and
George F. Gormley, P.C. were on brief, for appellant John P.
Bulger.

Richard L. Hoffman, Assistant United States Attorney,
with whom Michael J. Sullivan, United States Attorney, was on the
brief, for appellee.

April 14, 2003
 LYNCH, Circuit Judge. Three individuals moved to

intervene in a long-closed civil forfeiture action. They sought to

assert claims to a one-sixth share of a $14.3 million winning state

lottery ticket, still in payout, which had belonged to James

"Whitey" Bulger. Two of the claimants, Olga Davis and Marion

Hussey, are mothers of young women whom Whitey Bulger allegedly

murdered in the 1980s; the other is one of his brothers, John

Bulger.

In 1995, Whitey Bulger was indicted for crimes related to

his alleged leadership of the Winter Hill Gang in Boston. He went

into hiding and is on the FBI's list of the "ten most wanted"

fugitives. Later that year, the government brought an in rem civil

forfeiture action against Bulger's share of the prize, based upon

the theory that he had purchased the ticket as a money-laundering

device. The district court entered a default judgment forfeiting

the property in January 1996.

In 2001, the government, to its credit, filed a

submission with the district court based on new information about

the lottery ticket which cast doubt on its money-laundering theory.

In its submission, the government argued that the forfeiture

remained valid and should not be disturbed. Later that year, the

three claimants, none of whom was previously involved in the

forfeiture proceedings, moved to intervene and to reopen the case.

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Davis and Hussey also brought wrongful death actions in state court

against Whitey Bulger in 2001.

The district court found that the motions were filed on

the basis of newly-discovered evidence, and therefore were barred

by the one-year limit for moving to vacate a judgment on this

basis. See Fed. R. Civ. P. 60(b). We do not reach the Rule 60

issue. Instead, we hold that none of the claimants has either

standing to intervene or a viable claim, and so affirm.

I.

The lottery ticket was a "season ticket," which enters

the owner's selected numbers into every drawing for a year. In

July 1991, the ticket won a $14.3 million jackpot, payable in

twenty annual installments. The registered owner, Michael Linskey,

claimed the prize. He also submitted to the Massachusetts State

Lottery Commission a written agreement between himself and three

partners whom he said had contributed to the $100 price of the

ticket and co-owned it. According to the agreement, Michael

Linskey owned half of the ticket. The other half was evenly

divided between his brother, Patrick Linskey; Kevin Weeks; and

Whitey Bulger. All three of these men were allegedly affiliated

with the Winter Hill Gang, whose criminal activities are described

in greater detail in United States v. Flemmi, 225 F.3d 78 (1st Cir.

2000), and United States v. Salemme, 91 F. Supp. 2d 141 (D. Mass.

1999).

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 From 1991 through 1994, annual winnings and the attendant

tax liability were duly apportioned to the four co-owners of the

ticket. The Lottery Commission paid the winnings to Michael

Linskey, who arranged for the South Boston Savings Bank to disburse

the funds among the four owners. Under this arrangement, Whitey

Bulger's share, $119,408 a year before taxes, was deposited in a

joint account he held at that bank with John Bulger. The total

amount of the payments due to Whitey Bulger from 1995 through the

final payment in 2010 was nearly two million dollars before taxes.

In January 1995, Whitey Bulger was indicted for

racketeering and other offenses related to his alleged organized

crime activities. He disappeared and has not been apprehended. On

July 17, 1995, the federal government brought a verified in rem

complaint for civil forfeiture of Whitey Bulger's share of the

ticket under 18 U.S.C. § 981(a)(1)(A) (1994) (amended 2000). A

supporting affidavit provided information from two confidential

informants who said that Whitey Bulger paid Michael Linskey

$700,000 in cash for his share of the ticket after it won the

jackpot, thus laundering illegal criminal proceeds by replacing the

tainted funds with apparently legitimate payments from the Lottery

Commission. A magistrate judge found that this complaint

established probable cause and issued a warrant and monition

authorizing the seizure from the Lottery Commission of "such one-

sixth share of the gross amount otherwise due and payable to

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Michael Linskey." Both the complaint and the warrant defined the

defendant res as "the one-sixth share of James J. Bulger in all

present and future proceeds of Mass Millions Lottery Ticket No.

M246233, registered in the name of Michael Linskey." The seizure

was widely reported in the media and was front-page news in both of

Boston's major newspapers.

Whitey Bulger never appeared to contest the lottery

forfeiture. Later evidence established his awareness of the

forfeiture action. His sister, Jean Holland, filed a claim to the

one-sixth share on behalf of herself and his other heirs. She also

asked the state probate court to appoint her as his receiver, but

the request was rejected. Since she was not his receiver, the

federal court dismissed Holland's claim for lack of standing. This

court affirmed the dismissal for lack of standing in an unpublished

opinion. United States v. One-Sixth Share, 101 F.3d 106 (table),

1996 WL 662459 (1st Cir. 1996) (per curiam). Holland pursued her

state litigation to be appointed as Whitey Bulger's receiver for

several more years; it was finally dismissed with prejudice by the

Supreme Judicial Court in October 2000. John Bulger was not a

party in either of these state or federal cases.

Two weeks after dismissing Holland's claim, and in the

absence of any other claimants in the six months since the case was

filed, the district court entered a default judgment ordering the

one-sixth share forfeited to the government on January 26, 1996.

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The order defined the res, or "Defendant Property," in exactly the

same language as the complaint and the warrant. It stated that

"all other persons and entities claiming any right, title or

interest in or to the Defendant Property . . . are held in

default." It also stated, "This shall be, and is, the full and

final disposition of this civil forfeiture action with regard to

the Defendant Property."

The United States sought forfeiture of Whitey Bulger's

other assets as well. It secured an in rem default judgment

against his Florida condominium. The government also seized the

funds in the account at the South Boston Savings Bank held jointly

in the names of both John and Whitey Bulger; John Bulger filed a

timely claim in that litigation. This court ultimately found that,

because John Bulger had possession of the funds and exercised

sufficient dominion and control over the joint account, he had

standing to contest this forfeiture. United States v. $81,000, 189

F.3d 28, 39 (1st Cir. 1999). John Bulger later reached a

settlement dividing the money in the account equally between

himself and the government.

The lottery ticket forfeiture case remained closed for

over five years. During that time, ticket co-owner Weeks was

indicted, pled guilty, and entered into a cooperation agreement

with the government. In his debriefings, Weeks stated that he and

Whitey Bulger had never paid anything for their shares of the

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winning ticket. Rather, Weeks said, they had spread the story that

they were laundering money in order to assuage the temper of

another criminal associate, Stephen Flemmi, who was angry at being

excluded from the lottery winnings. This new information

undermined the government's money-laundering theory, which it had

used to demonstrate probable cause for seizure and to justify

forfeiture. In February 2001, the government filed a submission

with the district court which reported this new evidence, but also

argued that Weeks's revelation was not a basis for disturbing the

default judgment. Among other reasons, it made arguments (which we

do not resolve) that there were alternative bases for civil and

criminal forfeiture of the one-sixth share.

Weeks also implicated Whitey Bulger in a number of

murders, including those of Davis's daughter in 1982 and Hussey's

daughter in 1985. Weeks provided information that led the

authorities to their bodies. A superseding indictment unveiled in

September 2000 charged Whitey Bulger with these homicides. Davis

and Hussey filed wrongful death actions against Whitey Bulger in

state court in February 2001. Whitey Bulger has now been

implicated in a total of nineteen murders.

Within a few months of the government's 2001 submission

concerning the Weeks debriefings, Davis, Hussey, and John Bulger

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each moved in district court to set aside the default judgment

forfeiting the lottery proceeds payable to Whitey Bulger.1

The day before oral argument on these motions in the

district court, Davis and Hussey went before the state judge

presiding over their wrongful death actions and secured what is

styled an equitable lien, subject to some limitations, on the one-

sixth share. The United States was not a party in the state

proceeding and did not appear, although the state court took

judicial notice of the federal civil forfeiture. The state court

found Davis and Hussey "are entitled to as strong an equitable lien

on said proceeds as this Court, pursuant to its general equitable

powers, may grant." It ordered the Lottery Commission to hold

future payments to Whitey Bulger in escrow "to the extent

permissible with the civil forfeiture currently in place." It made

the same order, nunc pro tunc, with respect to prior payments going

back to 1995, "to the extent possible with the civil forfeiture

currently in place."

The federal district court denied the claimants' motions.

United States v. One-Sixth Share, No. 95-11513, 2002 WL 550405 (D.

Mass. March 28, 2002). While the court noted the potential lack of

1
The three motions were based on slightly different
procedural mechanisms. Davis moved to intervene under Fed. R. Civ.
P. 24. Hussey styled her motion as a request for an extension of
the deadline to file a claim and a motion to set aside the default
judgment under Rule 60(b). John Bulger moved both to intervene and
to set aside the judgment. For purposes of the standing analysis,
these differences are not relevant.

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standing, it did not consider that issue and rested its judgment on

the untimeliness of the motions. Id. at *3-*4.2 The claimants

appealed.

II.

Standing is a threshold consideration in all cases,

including civil forfeiture cases. See United States v. Cambio

Exacto, S.A., 166 F.3d 522, 526 (2d Cir. 1999); see also McInnis-

Misenor v. Me. Med. Ctr., 319 F.3d 63, 67 (1st Cir. 2003). Because

civil forfeiture is an in rem proceeding, the property subject to

forfeiture is the defendant. Thus, defenses against the forfeiture

can be brought only by third parties, who must intervene.

Generally, an intervenor must have independent standing if the

intervenor would be the only party litigating a case. See

Arizonans for Official English v. Arizona, 520 U.S. 43, 64-65

(1997); Mangual v. Rotger-Sabat, 317 F.3d 45, 61 & n.5 (1st Cir.

2003).

2
Motions for relief from judgment must be made within a
"reasonable time," which is limited to one year in certain
circumstances, including newly-discovered evidence. See Fed. R.
Civ. P. 60(b). The district court held that the motions were based
on newly-discovered evidence, the Weeks information, and that no
"exceptional circumstances" justified an extension of the resulting
one-year deadline. One-Sixth Share, 2002 WL 550405, at *4-*5.
Normally we would reverse these determinations only if the court
had abused its wide discretion to so decide. See Farm Credit Bank
v. Ferrera-Goitia, 316 F.3d 62, 65 (1st Cir. 2003). Because we
base our ruling on standing alone, we do not review them.

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 Standing in such cases has both constitutional and

statutory aspects. See Cambio Exacto, 166 F.3d at 526; United

States v. One 1985 Cadillac Seville, 866 F.2d 1142, 1148 (9th Cir.

1989); 1 D.B. Smith, Prosecution and Defense of Forfeiture Cases

¶ 9.04(2)(a), at 9-68 (2002). But cf. United States v.

$557,933.89, 287 F.3d 66, 79 & n.9 (2d Cir. 2002) (questioning

whether claimant needs to demonstrate Article III standing since

plaintiff typically bears burden to show standing and government is

plaintiff).

The federal forfeiture statute defines rules as to who

may intervene and when they must do it. By virtue of the roots of

in rem jurisdiction in admiralty law, the procedures for

intervention in civil forfeitures are governed by the Supplemental

Rules for Certain Admiralty and Maritime Claims. See 18 U.S.C. §

981(b)(2) (1994) (amended 2000); United States v. One Dairy Farm,

918 F.2d 310, 311 (1st Cir. 1990). Supplemental Rule C(6), as it

read in 1995, required a party to submit a "claim" to the property

within ten days.3 "A party who fails to file a claim normally

3
A substantial overhaul of federal civil asset forfeiture
laws was enacted in 2000. See Civil Asset Forfeiture Reform Act of
2000 (CAFRA), Pub. L. 106-185, 114 Stat. 202. These changes took
effect long after the events at issue in this case. See id. § 21,
114 Stat. at 225 (effective date). Among its changes, CAFRA
extended the time limit for claimants to file, leading to amendment
of the Supplemental Rules. Another change is one of nomenclature:
the "claim" is now called a "statement of interest or right." We
apply both the rules and the terminology that were in force at the
time of the forfeiture.

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lacks standing to contest a forfeiture." One Dairy Farm, 918 F.2d

at 311; see, e.g., United States v. 3,888 Lbs. of Atlantic Sea

Scallops, 857 F.2d 46, 49 (1st Cir. 1988) (failure to file timely

claim disqualifies would-be intervenor); see also United States v.

One Urban Lot, 885 F.2d 994, 998-1000 (1st Cir. 1989) (allowing

standing without claim where verified answer was timely filed and

there was no prejudice to government from delay, but dismissing

where claimant filed neither claim nor answer).

As to constitutional standing, "It is well established

that a party seeking to challenge a forfeiture of property must

first demonstrate an ownership or possessory interest in the seized

property in order to have standing to contest the forfeiture."

United States v. 116 Emerson St., 942 F.2d 74, 78 (1st Cir. 1991)

(quotation omitted). Courts should not, however, conflate the

constitutional standing inquiry with the merits determination that

comes later. See United States v. 5 S 351 Tuthill Rd., 233 F.3d

1017, 1023-24 (7th Cir. 2000) (criticizing tests of straw ownership

that deny standing rather than denying claims on their merits).

At the initial stage of intervention, the requirements

for a claimant to demonstrate constitutional standing are very

forgiving. In general, any colorable claim on the defendant

property suffices. $81,000, 189 F.3d at 35 ("Courts generally do

not deny standing to a claimant who is either the colorable owner

of the res or who has any colorable possessory interest in it.");

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see United States v. 7725 Unity Ave. N., 294 F.3d 954, 957 (8th

Cir. 2002) ("The claimant need only show a colorable interest in

the property, redressable, at least in part, by a return of the

property."); 5 S 351 Tuthill Rd., 233 F.3d at 1023 (claimant must

show only "actual stake in the outcome" of forfeiture); Cambio

Exacto, 166 F.3d at 527 ("[W]hile ownership and possession

generally may provide evidence of standing, it is injury to the

party seeking standing that remains the ultimate focus."); United

States v. One 18th Century Colombian Monstrance, 797 F.2d 1370,

1375 (5th Cir. 1986) (claimant "must be able to show at least a

facially colorable interest in the proceedings sufficient to

satisfy the case-or-controversy requirement and prudential

considerations") (internal quotation omitted); see also United

States v. 221 Dana Ave., 261 F.3d 65, 71 & n.5 (1st Cir. 2001)

(noting congressional intent that ownership be broadly defined to

include anyone with legal or equitable interest in property).

Although these tests are forgiving, the United States

argues that all three claimants lack both types of standing.

A. John Bulger

John Bulger's failure to file a timely claim as required

by Supplemental Rule C(6) -- or indeed any claim at all until years

after the judgment -- is sufficient on its own to disqualify him

from intervention now. There is no reason to forgive that failure.

He filed a timely claim in the forfeiture action against the joint

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bank account, litigated that case vigorously, and ultimately

reached a settlement with the government. It is beyond serious

dispute that he was aware of the parallel forfeiture action against

the lottery proceeds. See $81,000, 189 F.3d at 32 (describing how

John Bulger learned of the lottery forfeiture complaint and

withdrew cash from the joint account, "motivated by a concern that

further forfeiture proceedings might be in the offing"). Yet he

did not submit a similar claim in the lottery case, or even

participate in his sister's efforts to intervene. His knowing

failure to file anything at that time, whether because he chose not

to do so or because he recognized his lack of standing, leaves him

with no good excuse for his tardiness. See One Urban Lot, 885 F.2d

at 999 (dismissing where neither claim nor answer was filed).

John Bulger actually concedes that he lacked

constitutional standing to bring the case in 1995, in order to

explain why he could not appeal from the original default judgment

and to thereby distinguish his case from United States v. One Rural

Lot, 238 F.3d 76 (1st Cir. 2001) (per curiam).4 He suggests that

the intervening event that cured this admitted lack of standing was

the Weeks evidence. This effort fails. Nothing about the Weeks

4
In that case, claimants' failure to appeal the original
judgment was held to bar relief under Rule 60(b)(4), because it was
their own choice not to appeal. Id. at 79; see also Cotto v.
United States, 993 F.2d 274, 277-78 (1st Cir. 1994) (finding that
a failure to appeal barred Rule 60 relief). Here, John Bulger
chose to make no attempt whatsoever to intervene in the case at the
appropriate time.

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evidence changed John Bulger's relationship to the forfeited

property or the injury he suffered as a result of forfeiture. The

new information may have affected the arguments he could make, but

not his standing to make them.

He advances a final argument, saying that since he had

standing to contest the forfeiture of the joint bank account, see

$81,000, 189 F.3d at 39, he must have standing here. Not so. In

this case, as in that one, he relies on his connection to the joint

bank account as the basis for his claim of interest. He argues

here that, because the annual payments were deposited into the

joint account, they would have come under his control shortly after

their disbursement. He also argues that, but for the forfeiture of

the lottery proceeds, the joint account would have contained an

additional $480,020.16 in lottery payments at the time of his May

2000 settlement with the government in the $81,000 litigation,

presumably resulting in a larger share for him.

In $81,000, this court meticulously reviewed facts

pointing in different directions to conclude that, on balance, John

Bulger had standing to contest the forfeiture of money that was

already in the joint bank account, despite numerous indications

that it actually belonged to Whitey Bulger, because John Bulger had

possession of that money and dominion and control over it. See id.

at 36-39. In contrast, here John Bulger never possessed any of the

lottery payments after 1994. He had no influence whatsoever over

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the payments, at least until they were deposited into the account.

By seizing the funds before they made their way into the joint

account, the government removed any possession or control John

Bulger had over them, thus tipping the $81,000 analysis against

him. See 18 U.S.C. § 981(f) (2000) (giving United States "[a]ll

right, title, and interest" in forfeited property).

B. Davis and Hussey

Davis and Hussey are in a more sympathetic position.

Unlike John Bulger, at the time of the default judgment, they did

not know that they might possess any relevant right or interest in

the lottery forfeiture case. The whole theory of their current

attempt to intervene is that this court should forgive their

failure to establish statutory standing at that time and should

turn back the clock to allow them to file claims now. It is true

that this court has used its equitable powers to read the

requirements for filing claims somewhat broadly in the interests of

justice. See 116 Emerson St., 942 F.2d at 77-78 ("Whether a

belated claim will be recognized often depends on the existence of

mitigating factors."); One Urban Lot, 885 F.2d at 999-1001

(applying admiralty law's traditional liberal construction of

procedural practices to in rem civil forfeiture case). For the

reasons that follow, the doctrine does not help Davis and Hussey,

because even were we to ignore the failure to file, they do not

have the requisite interest in the property to assert a claim.

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 Davis and Hussey rely on the purported lien they secured

from state court. Normally, a lien against the defendant property

would establish standing. See 18 U.S.C. § 981(a)(2) (1994)

(amended 2000) (barring forfeiture of property "to the extent of

the interest of an owner or lienholder" who was uninvolved in the

criminal activity); In re Metmor Fin., Inc., 819 F.2d 446, 448 &

n.2 (4th Cir. 1987) ("There is no question" that holder of mortgage

is entitled to innocent owner status to extent of interest); Town

of Sanford v. United States, 961 F. Supp. 16, 16-17, (D. Me. 1997),

aff'd 140 F.3d 20, 22 (1st Cir. 1998) (lien for back taxes on

forfeited property entitles town to innocent owner defense). Given

the generous standards for constitutional standing, it is arguable

that they had a colorable claim once the state court acted.

There are two problems with their purported lien,

however. First, at the time the state court acted in 2001, "[a]ll

right, title, and interest" in the property had already vested in

the United States over five years earlier. 18 U.S.C. § 981(f).

There was no share of the lottery proceeds left in Whitey Bulger's

name. The Lottery Commission informed the district court in July

2001 that it believed the forfeiture order applied to one-sixth of

the entire prize, and that the state court order was inconsistent

with the federal forfeiture. State court jurisdiction over Whitey

Bulger would have been inadequate to confer authority for disposing

of property that he no longer owned, and the state court did not

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have or purport to exercise jurisdiction over the United States.

Cf. Fierro v. Reno, 217 F.3d 1, 6-7 (1st Cir. 2000) (refusing to

recognize state court's nunc pro tunc order modifying twenty-year-

old child custody order for purposes of defining immigration status

of deportee).

Second, the state court was aware of the issue and

included broad language in its order to exclude any interest that

the federal government already had in the property by virtue of the

civil forfeiture. The equitable lien is only enforceable "to the

extent permissible with the civil forfeiture currently in place."

This exception swallows up whatever hold the lien would otherwise

provide over the res. Davis and Hussey can hardly displace a

first-in-time final judgment by virtue of an equitable lien which

explicitly excludes property subject to that judgment.

Without the lien to provide standing connected to the res

itself, Davis and Hussey must fall back on their more general

claims against Whitey Bulger. They have a significant problem here

as well, because they have never demonstrated that they possess any

judgment against him. They rely on the fact that his default has

been entered by the clerk of the state court under Mass. R. Civ. P.

55(a). As the government points out, however, under Massachusetts

rules this is not the same as a judgment, which must be pursued in

cases of default according to additional procedures under Mass. R.

Civ. P. 55(b). See Mass. R. Civ. P. 55, reporters' notes (1973)

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("Rule 55 embraces two separate and distinct procedures . . . .").

It appears that Davis and Hussey remain mere plaintiffs, rather

than judgment creditors. But the problem is more serious than one

of timing -- if they held a judgment, it would not solve the

problem.

Even were we to assume that they held a judgment against

Whitey Bulger, it would be only a general in personam judgment, not

a secured interest against any particular asset that he owned. In

most circumstances, such general creditors are outside the ambit of

the "owner or lienholder" to which the statute then referred. 18

U.S.C. § 981(a)(2) (1994) (amended 2000). "[T]he federal courts

have consistently held that unsecured creditors do not have

standing to challenge the civil forfeiture of their debtors'

property." United States v. $20,193.39, 16 F.3d 344, 346 (9th Cir.

1994) (collecting cases); see Smith, supra, ¶ 9.04, at 70.6-70.7

("A mere equitable interest in the property was historically not

deemed sufficient to confer standing.").

Whether this rule about general creditors may ever be

relaxed in unusual circumstances is an issue we need not decide.

In the related context of criminal forfeiture, some circuits have

said "never." For example, a line of cases holds:

[A] general creditor can never have an interest in
specific forfeited property, no matter what the relative
size of his claim vis-a-vis the value of the defendant's
post-forfeiture estate. Were it otherwise, the court
litigating the forfeiture issue would be converted into
a bankruptcy court and would not be able to grant

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 forfeiture to the government until it determined that no
general creditor would be unable to satisfy its claim
against the defendant.

United States v. BCCI Holdings (Lux.), S.A., 46 F.3d 1185, 1191-92

(D.C. Cir. 1995); accord United States v. Watkins, 320 F.3d 1279,

1283 (11th Cir. 2003); United States v. Ribadeneira, 105 F.3d 833,

836-37 (2d Cir. 1997); United States v. Campos, 859 F.2d 1233,

1237-38 (6th Cir. 1988). Other courts say "hardly ever." See

United States v. Reckmeyer, 836 F.2d 200, 206-08 (4th Cir. 1987)

(general creditors may have claim where criminal forfeiture reaches

all discovered and undiscovered assets of debtor). Here, the

competing general creditors are more than a mere abstraction: in

light of the other murder allegations, there are at least seventeen

other families of victims with potential wrongful death claims

against Whitey Bulger.

Davis and Hussey offer two rebuttals to these arguments

against their standing. They first argue, without authoritative

support, that future lottery payments could not be part of the res

subject to forfeiture, because "there is no right to seize cash

which does not yet exist" and in rem jurisdiction is limited to

"the seizure of a physical object." As a result, they say,

payments other than the one made in 1995 were never seized, and are

therefore subject to their lien.

This argument is meritless. The complaint, the warrant,

and the order all define the res as the "one-sixth share of James

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J. Bulger in all present and future proceeds" (emphasis added) from

the winning ticket. That res was forfeited in its entirety to the

United States at the time of the judgment in January 1996. There

is no meaningful difference between this case and the forfeiture of

a share of stock, which includes the right to receive future

dividends. See, e.g., United States v. 2,538.85 Shares of Stock,

988 F.2d 1281, 1283-84 (1st Cir. 1993) (discussing procedures for

seizing intangible property in civil forfeiture cases). The

contention that a res must be tangible is belied by long-running

debate concerning jurisdiction over an intangible res. See

generally 4A C.A. Wright & A.R. Miller, Federal Practice and

Procedure § 1071 (3d ed. 2002).

Davis and Hussey also argue that forfeiture of the right

to lottery payments is impermissible under Massachusetts law making

them unassignable, or at least that the question is open to doubt

so they should be permitted to litigate it. In federal civil

forfeiture proceedings, the definition of ownership interests is

governed by state law. See $81,000, 189 F.3d at 33. However, the

state law that Davis and Hussey cite hurts them instead of helping

them. It provides, "No right of any person to a prize shall be

assignable except that . . . any person pursuant to an appropriate

judicial order may be paid the prize to which the winner is

entitled . . . ." Mass. Gen. Laws ch. 10 § 28 (2002). An

"appropriate judicial order" issued by a federal court has

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forfeited a one-sixth share of the prize to the United States,

consistent with state law.

The anguish of a parent whose child has been murdered is

unending. Taking the property of the murderer is incomplete

recompense, at best, but may provide some sense of justice.

Congress has provided for justice a different way: it has provided

that the government, which stands for all the citizens, may take

the criminal's property by forfeiture, and it has limited those who

may assert competing claims. Courts must adjudicate the laws which

Congress enacts. If Davis and Hussey wish to pursue the matter,

they should turn to the executive branch, to which the property was

properly forfeit. See 18 U.S.C. § 981(d) ("The Attorney General

shall have sole responsibility for disposing of petitions for

remission or mitigation with respect to property involved in a

judicial forfeiture proceeding.").

III.

The district court's judgment is affirmed. No costs are

awarded.

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