United States v. Jarvis

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
August 28, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
No. 06-2264
v.

DANA JARV IS,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D .C . N o. C R-05-1849-JH )

Jody Neal-Post, Albuquerque, New M exico, for D efendant-Appellant.

Stephen R. Kotz, Assistant United States Attorney (Larry Gomez, Acting United
States A ttorney, James R.W . Braun, Assistant United States A ttorney, with him
on the brief), Albuquerque, New M exico, for Plaintiff-Appellee.

Before BRISCO E, HO LLO W AY, and M URPH Y, Circuit Judges.

M U RPH Y, Circuit Judge.
I. IN TR OD UC TIO N

This is an interlocutory appeal from a district court order denying the

motion of Defendant-Appellant Dana Jarvis to release funds. At issue is the

propriety of two notices of lis pendens filed under New M exico state law by the

United States on substitute property potentially subject to criminal forfeiture

under 21 U.S.C. § 853.

This court has jurisdiction pursuant to the collateral order doctrine. United

States v. M usson, 802 F.2d 384, 385 (10th Cir. 1986). Applying an exception to

the usual rule that issues not presented below are forfeited on appeal, this court

concludes the use by the United States of the New M exico lis pendens statute was

improper. The order of the district court denying Jarvis’ motion to release funds

is, therefore, reversed and this case rem anded to the district court with

instructions to order the lis pendens notices removed.

II. BAC KGR OU N D

Jarvis, along with twenty other defendants, was charged in initial and

superceding multi-count indictments with conspiracy to distribute 1000 kilograms

or more of marijuana, in violation of 21 U.S.C. § 846; conspiracy to launder

money and knowing conduct of a financial transaction involving proceeds of

unlawful activity, in violation of 18 U.S.C. § 1956; and engaging in a continuing

criminal enterprise, in violation of 21 U.S.C. § 848 and 18 U.S.C. § 2.

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 The initial indictment contained a criminal forfeiture allegation stating that,

upon conviction for one or more of the substantive offenses, all defendants w ould

be jointly and severally liable for a money judgment of just over $49 million in

proceeds allegedly derived from or involved in the indicted offenses. The

forfeitures were to be carried out pursuant to 21 U.S.C. § 853 and 18 U.S.C.

§ 982. The superseding indictment contained the same criminal offense charges

as the initial indictment, but named a different combination of defendants and

broadened the alleged time frame of the conspiracy and continuing criminal

enterprise by twelve years. As a result, the superceding indictment increased the

demand for money judgment from $49 million to $158.4 million.

Bank accounts, several parcels of real property, conveyances of personal

property, and a liquor license were listed in the initial and superceding

indictments as “forfeitable property” connected to the defendants’ criminal

conduct. 1 The superceding indictment added seized United States currency as

1
Under the criminal forfeiture statute, property subject to mandatory
forfeiture upon conviction includes:
(1) any property constituting, or derived from, any proceeds the
person obtained, directly or indirectly, as the result of [a drug-related
criminal] violation;
(2) any of the person’s property used, or intended to be used, in any
manner or part to commit or to facilitate the commission of, such
violation; and
(3) in the case of a person convicted of engaging in a continuing
criminal enterprise in violation of section 848 of this title, the person
shall forfeit, in addition to any property described in paragraph (1) or
(2), any of his interest in, claims against, and property or contractual
(continued...)

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forfeitable property. B oth the original and superceding indictments listed two

pieces of real property titled to Jarvis among the substitute assets to be forfeited

pursuant to 21 U.S.C. § 853(p) in the event other property directly connected to

the alleged criminal activity was unavailable for forfeiture. 2 These two parcels

are collectively known as the “M ora properties,” located in M ora County, New

M exico.

The United States recorded notices of lis pendens on the M ora properties

with the M ora County clerk, see N.M . Stat. Ann. § 38-1-14, and filed the notices

with the district court. The notices include the language, “The property located in

M ora County, New M exico, was criminally indicted in this case and the United

States is seeking the forfeiture of all that lot or parcel of land, together w ith its

buildings, appurtenances, improvements, fixtures, attachments, and easements

1
(...continued)
rights affording a source of control over, the continuing criminal
enterprise.
21 U.S.C. § 853(a)(1)-(3).
2
Substitute assets are defined in § 853(p). Section 853(p)(2) requires the
court to order forfeiture of substitute property up to the value of the forfeitable
property described in § 853(a) when such forfeitable property:
(A) cannot be located upon the exercise of due diligence;
(B) has been transferred or sold to, or deposited with, a third party;
(C) has been placed beyond the jurisdiction of the court;
(D) has been substantially diminished in value; or
(E) has been commingled with other property which cannot be divided
without difficulty.
21 U.S.C. § 853(p)(1)(A)-(E).

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thereon.” The United States did not attempt to use the criminal forfeiture statute

to seek a federal protective order on the M ora properties. 3

Claiming the U nited States’ lis pendens notices on the M ora properties

prevented him from liquidating these properties to pay for retained defense

counsel, Jarvis moved the district court to release his property. Jarvis explained

to the court that he had no other assets with which to retain counsel. He argued

the M ora properties, which were purchased well before the initiation of the

criminal activity charged in the indictment, were “substitute assets” within the

meaning of § 853(p). Looking to the federal protective order provision of the

criminal forfeiture statute, § 853(e), as well as most federal courts of appeals’

interpretations of that statute, Jarvis contended there was no legal basis for the

restraint of substitute assets without a conviction and forfeiture order. Because

the United States’ restraint of the M ora properties prevented him from hiring the

counsel of his choice and deprived him of his Sixth Amendment right, Jarvis

argued, a due process hearing was required before the United States could

effectively freeze his assets.

3
Section 853(e) allows the United States to seek a restraining order or
injunction “to preserve the availability of property described in subsection (a) of
[§ 853(a)] . . . upon the filing of an indictment or information charging a violation
. . . for which criminal forfeiture may be ordered . . . and alleging that the
property with respect to which the order is sought would, in the event of
conviction, be subject to forfeiture.” 21 U.S.C. § 853(e)(1)(A). Section 853(e)
does not, however, explicitly provide for pre-trial restraint of § 853(p) substitute
property.

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 The United States responded to Jarvis’ motion by contending that a lis

pendens is not a legal restraint, but merely functions as constructive notice to

prospective purchasers. Even if a lis pendens were a restraint, however, the

United States argued that substitute assets such as the M ora properties may be

restrained consistent with the statutory scheme provided for in § 853, especially

in light of the guidance in § 853(o) that the criminal forfeiture statute be liberally

construed to effect its objectives.

Drawing heavily on the United States’ arguments, the district court denied

Jarvis’ motion, concluding the filing of a lis pendens does not constitute a

restraint of property within the meaning of 21 U.S.C. § 853. Based on the

reasoning in United States v. Register, 182 F.3d 820, 836–37 (11th Cir. 1999),

and Aronson v. City of Akron, 116 F.3d 806, 811–12 (6th Cir. 1997), and

borrowing language from United States v. James D aniel G ood Real Property, 510

U.S. 43, 54 (1993), the court determined that a lis pendens did not interfere with

any legal incidents of property ownership such as “the right of sale, the right of

occupancy, the right to unrestricted use and enjoyment, and the right to receive

rents” and, therefore, did not constitute a property deprivation triggering due

process concerns. The court also rejected Jarvis’ argument that the nature of the

properties as substitute assets, rather than forfeitable assets, should affect the

court’s analysis.

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 Jarvis moved the court to reconsider, again attempting to draw a distinction

between forfeitable property under § 853(a) and substitute property under

§ 853(p). He argued that New M exico law classifies a lis pendens as a restraint

and that a restraint cannot apply to substitute property until (1) a court has issued

an order of forfeiture and (2) the government is unable to satisfy the order with

forfeitable § 853(a) property. He contended the lis pendens notices on the M ora

properties were, therefore, a violation of state law. The United States, in

response, maintained that because a lis pendens does not affect the owner’s legal

right to alienate his property, it is not a restraint. It again also argued that pre-

trial restraint of substitute assets is permissible under the federal statutory

scheme. After holding an evidentiary hearing, which included testimony by a

realtor on the effect of a lis pendens notice on a seller’s practical ability to

alienate his land, the court rejected Jarvis’ motion to reconsider, concluding in a

single sentence that Jarvis had not presented any new arguments regarding his

motion to release funds.

Jarvis timely appealed the district court’s denial of his motion under the

collateral order doctrine. See Musson, 802 F.2d at 385 (recognizing an exception

to the final judgment rule in a federal criminal forfeiture case where “the disputed

issues [involving the propriety of a restraining order] are collateral to and

separate from the issue of the defendants’ guilt or innocence”). On appeal, in

addition to reviving the argument that a lis pendens constitutes an unlawful

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restraint on substitute assets under § 853, Jarvis introduces a theory not presented

below regarding the nature of substitute assets in a criminal forfeiture proceeding.

Jarvis contends that, under the New M exico lis pendens statute, a notice of lis

pendens is only proper where the underlying litigation involves a dispute

affecting title to the same real property upon which the notice has been filed. H e

argues § 853(p) substitute property can never be the subject of such underlying

litigation. Rather, he argues, the United States seeks a money judgment for the

more than $158,000,000 allegedly attributable to Jarvis’ criminal activities and

that, under New M exico law, a lis pendens cannot be used to secure a money

judgment in an action unrelated to the property upon which the lis pendens has

been placed. See Hill v. Dep’t of the Air Force, 884 F.2d 1321, 1322 (10th Cir.

1989). Jarvis alleges the district court erred when ruling on his motion by

concluding the threshold issue was whether a lis pendens constituted a restraint

within the meaning of § 853. Instead, Jarvis argues, the court should have

considered in the first instance whether the lis pendens notices were lawful as a

m atter of N ew M exico state law . 4

4
Jarvis also contends the lis pendens notices were facially invalid because
they referred to the M ora properties as “criminally indicted.” Although he argues
the “criminally indicted” label is a material misstatement, Jarvis does not cite any
New M exico case law to support this point. Because Jarvis’ claim is resolved in
his favor on other grounds, we do not address the merits of this argument.

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 The United States responds that Jarvis’ state law argument was forfeited by

his failure to present this theory to the district court. 5 On the merits, the United

States asserts the lis pendens notices were proper because title to the M ora

properties could be affected by Jarvis’ conviction and, therefore, the criminal

action against Jarvis is one affecting title to real property within the meaning of

the New M exico lis pendens statute. As to Jarvis’ argument regarding the

prohibition on filing of a lis pendens in anticipation of a money judgment, the

government contends Hill is distinguishable because it involved a lis pendens

filed in anticipation of a money judgment in a civil tort suit rather than in a

criminal forfeiture proceeding.

III. D ISC USSIO N

A. Forfeiture of Argum ent Raised for First Tim e on Appeal

At no point in the proceedings below did Jarvis ever fully articulate the

theory he relies upon now, that New M exico lis pendens notices are improperly

utilized in an in personam criminal forfeiture action where the real property itself

is not the subject of the litigation or connected to the defendant’s criminal

5
The United States uses the term “waiver” to describe Jarvis’ failure to
raise the state law theory in the district court. Because there is no allegation or
support in the record that Jarvis intentionally relinquished a right to raise this
theory, the term “forfeiture” is more appropriate to describe Jarvis’ failure to
raise the theory below. See United States v. Teague, 443 F.3d 1310, 1314 (10th
Cir. 2006) (distinguishing a claim that is waived from one that is forfeited). W e
therefore use the term “forfeiture” rather than “waiver” throughout this opinion to
describe the potential effect of Jarvis’ failure to present the theory below.

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activity. The United States, similarly, never addressed this argument, nor did the

court make any findings or reach any legal conclusions responsive to Jarvis’

isolated reference to this theory. This court would, therefore, ordinarily decline

to consider Jarvis’ argument under the principle that issues not presented below

are forfeited on appeal. Tele-Communications, Inc. v. Comm’r, 104 F.3d 1229,

1233 (10th Cir. 1997) (“Propounding new arguments on appeal in an attempt to

prompt us to reverse the trial court undermines important judicial values.”).

B. Exceptions to the Forfeiture Principle

Although a litigant’s failure to raise an argument before the district court

generally results in forfeiture on appeal, forfeiture is not jurisdictional. Singleton

v. W ulff, 428 U.S. 106, 120 (1976). W hether to address the argument despite the

litigant’s failure to raise it below is subject to this court’s discretion based on the

circumstances of the individual case. Id. For example, the Supreme Court has

indicated appellate courts might be justified in resolving an issue for the first time

on appeal “where the proper resolution is beyond any doubt or where injustice

might otherwise result.” Id. at 121 (citation and quotation omitted). This court

has characterized its willingness to exercise its discretion to hear issues not raised

below “only in the most unusual circumstances.” Lyons v. Jefferson Bank &

Trust, 994 F.2d 716, 721 (10th Cir. 1993). W e have consistently stated that “a

party may not lose in the district court on one theory of the case, and then prevail

on appeal on a different theory.” Id.

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 Nevertheless, this court has recognized an exception where the argument

involves a pure matter of law and the proper resolution of the issue is certain.

Geddes v. United Staffing Alliance Employee M ed. Plan, 469 F.3d 919, 931 (10th

Cir. 2006); United Steelworkers of Am. v. Or. Steel M ills, Inc., 322 F.3d 1222,

1227–28 (10th Cir. 2003) (considering new statutory argument for the first time

on appeal); Proctor & Gamble Co. v. Haugen, 222 F.3d 1262, 1271 (10th Cir.

2000) (exercising discretion where district court’s error in statutory interpretation

was purely legal issue with a certain resolution); Sussman v. Patterson, 108 F.3d

1206, 1210 (10th Cir. 1997) (exercising discretion where issue not raised below

was purely legal issue, had been fully briefed by the parties, and involved

important public policy concerns); Grubb v. FDIC, 833 F.2d 222, 224 (10th Cir.

1987) (exercising discretion because issue presented only a question of law). W e

have justified our decision to exercise discretion in these situations because no

additional findings of fact or presentation of evidence were required for the

issue’s disposition and both parties had the opportunity to address the issue in

their appellate briefing. See, e.g., Trierweiler v. Croxton & Trench Holding

Corp., 90 F.3d 1523, 1538 (10th Cir. 1996); Grubb, 833 F.3d at 224.

C. Application of the Forfeiture Exception

Under the circumstances presented here, this court determines an exercise

of our discretion is warranted to permit us to consider whether the federal

government’s use of a lis pendens was appropriate under New M exico law. The

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issue before us is purely legal in nature and the relevant statutory language and

case law dictate a certain result. 6 This, therefore, is one of the unusual cases in

which it is proper to apply the forfeiture exception.

1. Pure Issue of Law

None of the traditional functions unique to a trial court are necessary to the

development of the issue Jarvis presents for the first time on appeal. The facts

are not in dispute and there is nothing the trial court could have done to facilitate

resolution of the issue. Had the trial court been given the opportunity to rule, our

review would be de novo, just as it is now. The issue presents a pure question of

law and both parties have fully briefed and argued the issue before this court.

2. Certainty of Proper Resolution

The purpose of recording a notice of lis pendens on a piece of real property

is to provide “constructive notice to subsequent purchasers and encumbrancers of

litigation affecting the title to [the] real property.” Title Guar. & Ins. Co. v.

Campbell, 742 P.2d 8, 13 (N.M . Ct. App. 1987); S. Utsunomiya Enters., Inc. v.

M oomuku Country Club, 866 P.2d 951, 966–67 (Haw. 1994) (stating the purpose

6
Singleton v. Wolff, 428 U.S. 106, 121 (1976), suggests two routes for
determining whether an appellate court is justified in resolving an issue raised for
the first time on appeal. Because we determine the resolution of the pure legal
issue before us is certain, we need not address a potential alternative rationale for
considering the issue: namely, whether injustice from an alleged violation of
Jarvis’ Sixth Amendment right to counsel would occur if this court were to
decline to address the propriety of the New M exico lis pendens notices placed on
the M ora properties.

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of a lis pendens notice “is to provide notice of pending litigation and not to make

plaintiffs secured creditors of defendants”). In New M exico, a lis pendens notice

is essentially “a republication of the pleadings filed in the pending judicial

proceedings.” Title Guar. & Ins. Co., 742 P.2d at 13. Under the New M exico lis

pendens statute, a notice of lis pendens may only be recorded by plaintiffs in

“actions . . . affecting the title to real estate.” N.M . Stat. Ann. § 38-1-14;

Superior Constr., Inc. v. Linnerooth, 712 P.2d 1378, 1381 (N.M . 1986) (“[A]

notice of lis pendens may be properly filed only if plaintiff pleads a cause of

action which involves or affects the title to, or any interest in or a lien upon,

specifically described real property.” (emphasis added) (quotation omitted)).

To be eligible to record a lis pendens notice on a piece of real property,

however, the party recording the notice must assert a present claim to the

property’s title or have some other present interest in the subject property. See 14

Richard R. Powell, Powell on Real Property § 82A.01[2], at 6 (M . W olf ed.,

2000) [hereinafter Powell]. The notice is intended to preserve the property rights

in existence at the time the litigation comm ences, but does not create new or

additional property rights. Cf. id. (“[P]ublic policy [underlying a lis pendens

notice] requires that the property interests existing at the time the court action is

initiated be preserved until the court’s judgment can be enforced in favor of the

prevailing party.” (emphasis added)). In New M exico, a lis pendens cannot be

filed in “anticipation of a money judgment.” Hill, 884 F.2d at 1322. A lis

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pendens also generally cannot be used as “a substitute for a prejudgment

attachment,” The Cadle Co. II, Inc. v. Superior Constr. & Contracting, Inc. (In re

Rice), 362 B.R. 687, 688 (Bankr. E.D. Va. 2006), or to create a constructive trust

on property to satisfy a potential monetary judgment, Flores v. Haberman, 915

S.W .2d 477, 478 (Tex. 1995).

For the United States to record a notice of lis pendens, it must establish that

the underlying action, a criminal forfeiture proceeding, is one “affecting the title

to real estate,” N.M . Stat. Ann. § 38-1-14, specifically, the M ora properties.

Criminal forfeiture is an in personam action in which the forfeiture of and the

vesting of title in the United States in the defendant’s tainted property is imposed

as a punishment against the defendant. See United States v. Nichols, 841 F.2d

1485, 1487 (10th Cir. 1988) ([C]riminal forfeiture was designed both to penalize

and to deter criminal activity.”); United States v. $39,000 in Canadian Currency,

801 F.2d 1210, 1218 (10th Cir. 1986). The government’s interest in and right to

the defendant’s property is defined in 21 U.S.C. § 853. Assets “constituting, or

derived from, any proceeds” of the defendant’s criminal action and property

“used, or intended to be used” in the commission or facilitation of the defendant’s

criminal action “shall” be forfeited upon conviction. 21 U.S.C. § 853(a). By

virtue of the statute’s relation-back provision, the United States obtains a vested

“right, title, and interest” in such tainted § 853(a) property superior to that of

third parties “upon the commission of the act giving rise to forfeiture.” Id.

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§ 853(c). The government, furthermore, has the ability to seek a protective order

to restrain tainted assets prior to trial in order to ensure the availability of the

tainted property in the event of the defendant’s conviction. See id. § 853(e).

In contrast, the statute treats the United States’ interest in substitute

property— property that neither comprises the fruits of nor is connected to the

defendant’s alleged crime— differently than it treats the government’s interest in

§ 853(a) tainted property. Pursuant to § 853(p), forfeiture of substitute property

cannot occur until after the defendant’s conviction and a determination by the

trial court that the defendant’s act or omission resulted in the court’s inability to

reach § 853(a) assets. See § 853(p)(1)(A)-(E); Fed. R. Crim. P. 32.2(e)(1)(B).

Both the relation-back and the protective order provisions of § 853 are silent as to

§ 853(p) substitute property. See § 853(c), (e). Unlike the pre-conviction interest

the government may claim in tainted § 853(a) property, § 853(c) thus does not

explicitly authorize the United States to claim any pre-conviction right, title, or

interest in § 853(p) substitute property. 7 Furthermore, all but one federal court of

appeals to address the issue has determined the legislative silence regarding

substitute property in § 853(e) precludes pre-conviction restraint of substitute

7
One court has ruled the government does have such authority despite the
lack of explicit authorization in § 853(c). See United States v. M cHan, 345 F.3d
262, 270–72 (4th Cir. 2003) (concluding a broad reading of the language of
§ 853(o), which instructs that the criminal forfeiture statute should be liberally
construed to effectuate the statute’s purpose, permits the government to claim a
relation-back interest in substitute property).

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property. 8 The statute, therefore, imposes specific preconditions on the

government’s ability to claim title to the defendant’s substitute property,

preconditions which can only be satisfied once the defendant has been convicted.

See, e.g., United States v. M isla-Aldarondo, 478 F.3d 52, 75 (1st Cir. 2007)

(explaining forfeiture of substitute assets or the ability to reach additional assets

to satisfy a money judgment requires the government to show “the principal

forfeitable assets . . . are unavailable at the end of the trial”); United States v.

Casey, 444 F.3d 1071, 1076–77 (9th Cir. 2006) (holding money judgment for

substitute assets may be ordered when tainted assets are insufficient to satisfy a

forfeiture order); United States v. Parrett, 469 F. Supp. 2d 489, 493 (S.D. Ohio

2007) (stating government has no “proprietary interest” in § 853(p) substitute

assets prior to judgment ordering substitute assets forfeited). As a consequence,

the United States does not have a ripened interest in § 853(p) substitute property

until (1) after the defendant’s conviction and (2) the court determines the

8
The Fourth Circuit is the only federal court of appeals to conclude the
statute permits pre-trial restraint of substitute assets. See United States v.
M cKinney (In re Assets of Billman), 915 F.2d 916, 921 (4th Cir. 1990) (permitting
pre-trial restraint of assets under R ICO’s protective order provision). In re Assets
of Billman relies for support on the necessity of “liberally constru[ing]” the RICO
forfeiture provisions. 915 F.2d at 921 (quoting Russello v. United States, 464
U.S. 16, 26-27 (1983)). All other courts of appeals to consider the issue have
ruled substitute assets are not subject to pre-trial restraint. See United States v.
Gotti, 155 F.3d 144, 148–49 (2d Cir. 1998); United States v. Field, 62 F.3d 246,
248–49 (8th Cir. 1995); United States v. Ripinsky, 20 F.3d 359, 364–65 (9th Cir.
1994); In re Assets of M artin, 1 F.3d 1351, 1359–61 (3d Cir. 1993); United States
v. Floyd, 992 F.2d 498, 500–02 (5th Cir. 1993).

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defendant’s § 853(a) forfeitable property is out of the government’s reach for a

reason enumerated in § 853(p)(1)(A)-(E).

There is no dispute the M ora properties are § 853(p) substitute property.

Jarvis obtained these properties prior to the beginning of the drug conspiracy in

which he allegedly participated; there is no allegation these properties were used

to commit or facilitate the conspiracy. M oreover, the properties are specifically

listed as substitute assets in the indictment. As a consequence, the United States

had no interest in the title to or a claim upon the M ora properties at the time of

the indictment or the recording of the lis pendens on the properties. 9 The

government’s interest in the M ora properties, if any, is only a potential and

speculative future interest. Because that interest cannot mature into an actual

interest until after conviction and does not relate back to a pre-conviction date, it

cannot satisfy the prerequisites for the recording of a lis pendens. See 14 Powell

§ 82A.01[2], at 6 (stating property interest must exist at the initiation of the

underlying legal action). As a result, it cannot be said the United States has a

9
Section 853(a) property might provide a different case. There may be a
credible argument that the criminal action against Jarvis w ould “affect title” to
the indicted § 853(a) real property because of the federal relation-back policy
articulated in § 853(c) and the ability to restrain § 853(a) assets prior to trial
pursuant to § 853(e). The same cannot, however, be true of § 853(p) substitute
property because the U nited States may gain title to or an interest in the M ora
properties, if at all, only (1) after a conviction and, even then, only after (2)
Jarvis’ § 853(a) forfeitable property is determined to be out of the government’s
reach for the reasons enumerated in § 853(p)(1)(A)-(E).

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“cause of action which involves or affects the title to” the M ora properties. 10

Linnerooth, 712 P.2d at 1381. The United States’ filing of lis pendens notices on

the M ora properties was therefore improper under N ew M exico law. Accord

United States v. Kramer, N o. 1:06-cr-200, 2006 W L 3545026, at *10 (E.D.N.Y .

Dec. 8, 2006) (concluding lis pendens notice was similarly improper under New

York lis pendens statute).

In essence, the United States seeks to use the lis pendens mechanism to

preserve the substitute property in anticipation of a conviction and a

determination by the court that the § 853(a) forfeitable property is beyond the

government’s reach to satisfy the accompanying money judgment or forfeiture

order. Although the government recognizes that, under New M exico law, “[t]he

filing of a notice of lis pendens in anticipation of a money judgment is

prohibited,” Hill, 884 F.2d at 1322, it attempts to distinguish the scope of a so-

10
By way of contrast with the instant criminal forfeiture action, causes of
action in which lis pendens notices have been deemed by New M exico courts to
“affect title to real property” include a quiet title action in which the plaintiff
recorded a lis pendens against the disputed property, Title Guar. & Ins. Co. v.
Campbell, 742 P.2d 8, 9 (N.M . Ct. App. 1987), a breach-of-contract action
involving construction on a lot on which a lis pendens was recorded, Superior
Constr., Inc. v. Linnerooth, 712 P.2d 1378, 1379 (N.M . 1986), and a writ of
attachment to secure priority in probate court proceeding, Bell v. Gaylord, 27 P.
494, 495 (N.M . Terr. 1891). These are, of course, all actions in which “the
pending litigation directly involves the property” and “[t]he judgment sought
[will] affect the title to the property or the right to possess, use or enjoy it.”
Richard R. Powell, Powell on Real Property § 82A.02[2], at 9 (M . W olf ed.,
2000); cf. Ruiz v. Varan, 797 P.2d 267, 268, 269 (N.M . 1990) (holding nominal
damages are available in New M exico for the tort of abuse of process where a lis
pendens is recorded but a “claim of title w as never involved in the litigation”).

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called “general” in personam money judgment from a money judgment arising

from a criminal forfeiture action. It argues the indictment’s identification of the

specific substitute property from which a money judgment would be satisfied

permits the use of the lis pendens in this situation. The case the government

relies upon, which has nothing to do with a chain of title to substitute property,

creates a distinction between the two types of money judgments, but does so for a

reason wholly unrelated to the argument advanced here by the U nited States. 11

See Vampire Nation, 451 F.3d at 202–03. The U nited States cannot convert

§ 853(p) substitute property to § 853(a) forfeitable property merely by identifying

the former in the indictment. There is, therefore, no reason the usual prohibition

on using a lis pendens in anticipation of a money judgment would not apply in

this situation.

IV . C ON CLU SIO N

Because we determine the United States made improper use of New

M exico’s lis pendens statute when placing lis pendens notices on Jarvis’ M ora

11
In Vampire Nation, the defendant asserted the court could not issue a
forfeiture order for an in personam money judgment in an amount exceeding the
assets the defendant had on hand at the time of sentencing. United States v.
Vampire Nation, 451 F.3d 189, 201 (3d Cir. 2006). Rejecting the defendant’s
argument, the court held that the forfeiture statutes specifically authorize a money
judgment equivalent to the sum of the proceeds of the defendant’s criminal
activity, even when the defendant lacks such assets at the time of conviction. Id.
at 202–03. The court distinguished the limited nature of the money judgment
sought in a forfeiture proceeding with the unlimited nature of an in personam
money judgment arising from other types of actions. Id. at 202.

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properties, we REV ER SE the order of the district court and REM AND to the

district court with direction to order the lis pendens notices removed.

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