United States of America v. State of Oregon; State of Wisconsin

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
STATE OF OREGON; STATE OF
WISCONSIN,
Petitioners-Appellees,
and
STATE OF SOUTH CAROLINA;
STATE OF ARIZONA; STATE OF
No. 10-2154 ARKANSAS; STATE OF COLORADO; 
STATE OF IDAHO; STATE OF MAINE;
STATE OF MARYLAND; STATE OF
MASSACHUSETTS; STATE OF
MISSOURI; STATE OF NEW
HAMPSHIRE; STATE OF OHIO;
STATE OF WASHINGTON; STATE OF
WEST VIRGINIA; STATE OF
TENNESSEE; STATE OF
PENNSYLVANIA; STATE OF
KENTUCKY; STATE OF NORTH
DAKOTA; 

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 STATE OF ILLINOIS; STATE OF
GEORGIA; STATE OF NORTH
CAROLINA; COMMONWEALTH OF
PENNSYLVANIA; STATE OF KANSAS;
STATE OF OKLAHOMA; STATE OF
NEW YORK; COMMONWEALTH OF
VIRGINIA; STATE OF MICHIGAN;
STATE OF LOUISIANA; STATE OF
 CALIFORNIA,
Petitioners,
and
TERENCE PATRICK MCLAUGHLIN;
GEORGE CHEMALI; CLP,
INCORPORATED,
Defendants. 
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(1:09-cr-00004-jpj)
Argued: December 8, 2011
Decided: February 16, 2012
Before DUNCAN, DAVIS, and WYNN, Circuit Judges.
Vacated and remanded by published opinion. Judge Duncan
wrote the opinion, in which Judge Davis and Judge Wynn
joined.
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COUNSEL
ARGUED: Sharon Burnham, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia, for Appellant.
Monica Taylor Monday, GENTRY, LOCKE, RAKES &
MOORE, Roanoke, Virginia, for Appellees. ON BRIEF:
Timothy J. Heaphy, United States Attorney, Roanoke, Vir-
ginia, for Appellant. James J. O’Keeffe, IV, GENTRY,
LOCKE, RAKES & MOORE, Roanoke, Virginia, for Appel-
lee State of Oregon; Christopher J. Blythe, Lewis W. Beilin,
WISCONSIN DEPARTMENT OF JUSTICE, Madison, Wis-
consin, for Appellee State of Wisconsin.
OPINION
DUNCAN, Circuit Judge:
This appeal arises from the United States’ effort to forfeit
the assets of C.L.P., Inc. ("C.L.P.") following its guilty plea
to several tobacco-related charges. As relevant here, the
United States obtained a preliminary order of forfeiture allow-
ing it to seize funds that C.L.P. had deposited into an escrow
account, which held 35 sub-accounts for the benefit of each
state in which C.L.P. sold its products. Two of those states,
Oregon and Wisconsin (the "States"), sought to amend the
forfeiture order to exclude their respective sub-accounts from
the forfeiture, an amendment the district court ultimately
granted. Because we conclude that the States have not proven
by a preponderance of the evidence that they have a legal
interest that entitles them to amendment of the forfeiture
order, we vacate the forfeiture order and remand.
I.
Because the facts of this case are somewhat complex, we
will provide relevant background. First, we discuss how the
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concept of the escrow account at issue here evolved. Second,
we describe the creation of C.L.P.’s escrow account and the
Oregon and Wisconsin sub-accounts. Third, we describe the
forfeiture process in criminal prosecutions. Finally, we dis-
cuss the forfeiture at issue here.
A.
In November 1998, 46 states, five territories, and the Dis-
trict of Columbia agreed with certain major tobacco product
manufacturers to end years of litigation over tobacco-related
illnesses by signing a Master Settlement Agreement (the
"MSA"). Under the MSA, participating manufacturers agreed
to restrict their advertising and marketing practices and pay
significant sums to participating states each year in perpetuity.
Not all tobacco product manufacturers are parties to the
MSA. Therefore, the MSA provided incentives for participat-
ing states to pass statutes (the "escrow statutes") applicable to
non-participating manufacturers ("NPMs"). Most
states—including Oregon and Wisconsin—passed a model
escrow statute. These statutes, inter alia, require NPMs to
deposit into an escrow account a specified sum per tobacco
unit sold in a state on an annual basis. The deposits approxi-
mate what the NPMs would pay had they participated in the
MSA.
The purpose of the escrow statutes is twofold. First, they
aim to level the economic playing field between the partici-
pating manufacturers and NPMs. The requirement that NPMs
pay amounts similar to those paid by participating manufac-
turers eliminates any competitive advantage the NPMs might
otherwise have. Second, they ensure that there is a source of
funds against which participating states can collect any future
judgments or settlements arising from tobacco-related liability
against the NPM.
To comply with the escrow statutes, NPMs typically create
a master account with a sub-account for each participating
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state. The escrow statutes require escrow agreements that
limit the NPMs’ ability to access those funds. An NPM is
generally only allowed to withdraw funds to pay a judgment
or settlement or to obtain a refund of any payment in excess
of what the NPM would have paid under the MSA. The funds
deposited roll out of the account and flow back to the NPM
if there are no claims made against the account within a cer-
tain period of time after each deposit.
Beyond their distinctive origins, the escrow accounts are
unremarkable. The NPM selects a bank to hold the funds as
the escrow agent. The NPM and the escrow agent sign an
escrow agreement, which mirrors the statute in defining the
terms of the account. This agreement specifies the conditions
upon which the escrow agent is to pay the funds to the benefi-
ciary of the account.
States participating in the MSA are obligees of these
accounts. As such, they have a right to funds from the
accounts, but only if they satisfy the escrow conditions. Spe-
cifically, they must either win a judgment or settle a case
against the NPM and the NPM must elect not to pay the judg-
ment or settlement out of other funds. The states have no right
to access the escrow funds before they satisfy the escrow con-
ditions and no say in the quotidian administration of the
accounts.
B.
C.L.P. was the manufacturer of Bridgeton cigarettes until it
ceased operations sometime before 2010. Like other smaller
tobacco companies, it had declined to participate in the MSA
and was therefore subject to the escrow statute in each state
in which it sold tobacco products. It established its escrow
account, with sub-accounts for each participating state, at
First Citizens Bank & Trust Company ("First Citizens") in
North Carolina. The escrow account contained a sub-account
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for each state in which C.L.P. sold tobacco products, includ-
ing Oregon and Wisconsin.
C.L.P. entered into an escrow agreement with First Citizens
as the escrow agent. The terms of the escrow agreement are
those required by escrow statutes generally. For example,
§ 3(d) of the agreement specifies that all deposits "shall be
held, invested and disbursed in accordance with the terms and
conditions of [the escrow agreement] and the [escrow stat-
utes]." J.A. 51. Similarly, the escrow agreement, like the
escrow statutes, carefully circumscribes payments from the
escrow account. Section 3(f)(i) permits the release of funds to
pay a judgment or settlement brought by a participating state.
If the escrow agent receives no objections to a proposed
release of funds, it is to pay out the funds in the order in
which they were deposited and only to the extent needed to
satisfy the judgment or settlement. Section 3(f)(ii) directs the
escrow agent to return funds to C.L.P. if the company estab-
lishes that it paid more than it would have had it participated
in the MSA. Finally, § 3(f)(iii) states that "[t]o the extent not
released from escrow under subsections (i), or (ii), funds shall
be released from escrow and revert back to [C.L.P.] twenty-
five (25) years after the date on which the applicable annual
installments thereof were placed into escrow." J.A. 54. The
escrow agreement specifies that "it shall be construed in
accordance with and governed by the laws of the State of
North Carolina." J.A. 59.
Although C.L.P. cannot access the funds before they roll
out of the account, § 3(e) of the agreement entitles it to "re-
ceive the interest of other appreciation on the funds . . . as
earned," but "such payment shall be subject to the payment of
the Escrow Agent’s fees, costs, and expense." J.A. 53. This
provision places the cost of maintaining the account on C.L.P.
Should C.L.P. fail to pay maintenance costs, other provisions
in the escrow agreement restrict the Escrow Agent’s ability to
access the funds, thereby ensuring that they remain available
in full for the States.
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C.
We turn now to the process of criminal forfeiture. The
details of the forfeiture scheme, as relevant here, are found
primarily in 21 U.S.C. § 853 and Federal Rule of Criminal
Procedure 32.2. The United States’ power to forfeit property
arises from 21 U.S.C. § 853, which provides that any person
convicted of certain crimes, "shall forfeit to the United States
. . . any property constituting, or derived from, any proceeds
the person obtained, directly or indirectly, as the result of"
those crimes. 21 U.S.C. § 853(a). Importantly for our pur-
poses, when the property representing direct proceeds of ille-
gal activity is unavailable, the United States may instead seek
the forfeiture of "substitute property" of a defendant up to the
value of the property that would otherwise be subject to for-
feiture. Id. at § 853(p).
Rule 32.2 sets forth the procedure of forfeiture. First, the
United States must provide notice to a defendant by including
a forfeiture allegation in the indictment or information filed
against the defendant. Fed. R. Crim. P. 32.2(a). Next, "after
a . . . plea of guilty . . . is accepted, . . . the court must deter-
mine what property is subject to forfeiture under the applica-
ble statute." Id. at 32.2(b)(1)(A). "If the court finds that
property is subject to forfeiture, it must promptly enter a pre-
liminary order of forfeiture setting forth the amount of any
money judgment, directing the forfeiture of specific property,
and directing the forfeiture of any substitute property if the
government has met the statutory criteria." Id. at 32.2(b)(2).
After the property is seized pursuant to the preliminary for-
feiture order, see id. at 32.2(b)(3), any third party who claims
an interest in the property to be forfeited may file a petition
with the district court contesting the forfeiture, id. at
32.2(c)(1). The district court considers this petition in what is
called an "ancillary proceeding." Id. The preliminary order of
forfeiture cannot become final until after the ancillary pro-
ceeding concludes. Id. at 32.2(b)(4)(A). As relevant here, the
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district court must first consider any motion by the United
States to dismiss the petition for lack of standing before mov-
ing to the merits of the petition. Id. at 32.2(c)(1)(A), (B).
"When the ancillary proceeding ends, the court must enter a
final order of forfeiture by amending the preliminary order as
necessary to account for any third-party rights." Id. at
32.2(c)(2).
Returning to 21 U.S.C. § 853, subsection (n) provides the
standard by which the district court is to evaluate a petition
by a third party at an ancillary proceeding. The district court
"shall amend the [preliminary] order of forfeiture" if it "deter-
mines that the petitioner has established by a preponderance
of the evidence that . . . the petitioner has a legal right, title,
or interest in the property . . . [that] was vested in the peti-
tioner rather than the defendant or was superior to any right,
title, or interest of the defendant at the time of the commission
of the acts which gave rise to the forfeiture of the property
under this section." 21 U.S.C. § 853(n)(6).1
In essence, then, this type of ancillary proceeding consists
of four steps. First, a petitioner files a petition asking to be
heard. Second, the district court considers any motions to dis-
miss filed by the United States. Third, if the district court
denies those motions, it holds a hearing and determines
whether the petitioner has proven by a preponderance of the
evidence that its interest was either vested or superior to the
defendant’s interest at the time the acts giving rise to forfei-
ture occurred. Finally, if the district court concludes that the
petitioner has carried its burden, the district court amends the
forfeiture order as needed to account for that interest.2
1Although not relevant here, a petitioner is also entitled to amendment
if it can prove by a preponderance of the evidence that it "is a bona fide
purchaser for value . . . and was at the time of purchase reasonably without
cause to believe that the property was subject to forfeiture." 21 U.S.C.
§ 853(n)(6)(B).
2Amendment may not always be necessary. For example, a district court
could conclude at step four that the petitioner’s interest is already suffi-
ciently accounted for in the forfeiture order and therefore no amendment
is needed.
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D.
We now turn to the forfeiture proceedings in the district
court. On January 15, 2009, C.L.P. was charged with viola-
tions of the Contraband Cigarette Trafficking Act, 18 U.S.C.
§ 2342(b), evasion of the Federal Cigarette Excise Tax, 26
U.S.C. § 5762(a)(2), and mail fraud, 18 U.S.C. § 1341. The
Information filed against C.L.P. included a forfeiture allega-
tion in the amount of $801,495.00. The illegal acts giving rise
to the forfeiture were alleged to have occurred throughout the
years of 2007 and 2008. The same day the Information was
filed, C.L.P. pleaded guilty to the charges and consented to a
forfeiture money judgment in the amount of the forfeiture
allegation—$801,495.00.
C.L.P. did not possess sufficient funds to cover the money
judgment and, accordingly, the district court, in its prelimi-
nary order of forfeiture,3 ordered forfeiture of substitute assets
pursuant to 21 U.S.C. § 853(p). The largest of these assets
was "[a]ll funds, to include deposits and interest accruals, held
by First Citizens Bank & Trust Company as escrow agent for
C.L.P. Inc. . . . to include all sub-accounts related thereto, in
the approximate balance of not less than $722,135.27." J.A.
30. The United States seized $725,328.70 from the escrow
account shortly thereafter.
Many of the states with sub-accounts took the first step in
the ancillary proceeding by filing petitions with the district
court pursuant to § 853(n). The United States proffered settle-
ments under which each state would immediately receive 80
percent of the funds in its sub-account and the United States
would keep 20 percent. Of the 35 states for which C.L.P. had
placed funds in the escrow account, six defaulted their claims
to the funds, 27 accepted the settlement, and two, Oregon and
Wisconsin, refused it.
3The district court styled its preliminary order of forfeiture a "First
Amended Order of Forfeiture." J.A. 29.
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At step three4—considering the asserted interest—Oregon
and Wisconsin did not argue that the escrow conditions had
been satisfied at the time C.L.P. committed the acts giving
rise to forfeiture—and thus that they had an immediate claim
on the funds. Nor did they argue that at that time they were
pursuing claims that could have satisfied the condition. The
States instead argued that the United States was not entitled
to forfeit the principal in their sub-accounts because it could
only acquire what C.L.P. had, namely a reversionary interest
in the account and any interest generated by the principal. The
district court agreed with the States. It held that because for-
feiture only allows the United States to step into C.L.P.’s
shoes, the United States could at most forfeit C.L.P.’s right to
interest from the account and its reversionary interest in the
principal. It explained that Oregon and Wisconsin "have the
right for up to 25 years to make their tobacco-related claims."
J.A. 77. Accordingly, the district court concluded that the
States had carried their burden and that the order of forfeiture
must protect the States’ interest.
At step four, the district court amended the forfeiture to
protect the States’ interest. The final order of forfeiture
describes the States’ interest in the escrow funds as "vested in
the [States] rather than in the defendant C.L.P., Inc. and . . .
superior to any right, title, or interest of C.L.P., Inc." J.A. 80.
The order removes the funds in the States’ sub-accounts from
immediate forfeiture and compels the United States to main-
tain the sub-accounts in accordance with the escrow agreement.5
4The United States, at step two, filed motions to dismiss for lack of
standing Oregon and Wisconsin’s petitions. The district court appears to
have skipped this step, and moved directly on to step three, determining
whether the States had carried their burden.
5Under the order, the United States is responsible for maintaining these
sub-accounts until all of the funds roll out over the next 25 years. It need
not make any future contributions to Oregon and Wisconsin’s sub-
accounts, but is presumably responsible for the costs associated with
maintaining them. As per the order, the United States would gain access
to the forfeited funds only as they roll out of the escrow account.
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II.
The United States now appeals the district court’s final
order excluding funds in the States’ sub-accounts from imme-
diate forfeiture. It first argues that the States did not have an
interest in the funds and therefore lacked standing to file a
petition under § 853(n). In the alternative, it argues that, even
if the States have standing, they failed to carry their burden
at the ancillary proceeding, and that their interest in the funds
is, as a matter of federal law, insufficient to justify the district
court’s amendment of the forfeiture order. We address each
argument in turn.
In an appeal from a criminal forfeiture proceeding, "we
review the district court’s findings of fact for clear error and
the district court’s legal interpretations de novo." United
States v. Martin, 662 F.3d 301, 306 (4th Cir. 2011). Because
the facts in this appeal are uncontested, our review is de novo.
A.
We turn first to standing.6 Subsection (n)(2) of 21 U.S.C.
§ 853 allows any person, other than the defendant, asserting
a "legal interest" in the property to petition the district court
for a hearing to adjudicate its asserted interest. Accordingly,
the touchstone for standing is the possession of a legal interest
in the forfeited property.
Although the forfeiture issue here is a matter of federal law,
we generally refer to state law in determining whether a peti-
6We note that the "standing" at issue in this case is statutory standing,
which is a separate inquiry from Article III standing. See Thompson v. N.
Am. Stainless, 131 S. Ct. 863, 869-70 (2011). Statutory standing is itself
a merits issue. CGM, LLC v. BellSouth Telecommunications, Inc., 664
F.3d 46, 52 (4th Cir. 2011) (explaining that dismissal for lack of statutory
standing is "effectively the same as a dismissal for failure to state a claim"
(citations and quotation marks omitted)). We analyze standing at the out-
set pursuant to Fed. R. Crim. P. 32.2(c)(1)(B).
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tioner has a legal interest in forfeited property.7 Here, the
States’ interest, if any, was created by the escrow agreement,
which, as noted above, is to "be construed in accordance with
and governed by the laws of the State of North Carolina." J.A.
59. Accordingly, we will examine North Carolina law to
determine whether the States have a legal interest in the for-
feited funds.8
The general rule under North Carolina law is that the party
who deposited the funds into an escrow account retains title
to those funds until the escrow condition is satisfied. Johnson
v. Schultz, 671 S.E.2d 559, 564 (N.C. Ct. App. 2009).
Because there is no evidence that the condition on the
account—a settlement or judgment against C.L.P.—has been
satisfied, we conclude C.L.P. (or the United States qua
C.L.P.) has title to the funds in the relevant sub-accounts. The
States’ interest, then, is something other than legal title.
7We have occasionally departed from state law in these circumstances
where there is evidence a defendant has manipulated state law property
rights to shield assets from the reach of the forfeiture law. See In re Bry-
son, 406 F.3d 284, 290-91 (4th Cir. 2005); United States v. Morgan, 224
F.3d 339, 342-43 (4th Cir. 2000). Cf. United States v. Totaro, 345 F.3d
989, 994 (8th Cir. 2003) (holding that federal courts will look to state law
for these purposes only "so long as doing so does not frustrate a federal
interest"). Where, as is the case here, there is no evidence of such manipu-
lation, we revert to the norm of reliance on state law. See United States
v. Schecter, 251 F.3d 490, 494 (4th Cir. 2001); United States v. Buk, 314
F. App’x 565, 568 (4th Cir. 2009) (unpublished).
8The States appear to argue that their state laws should apply because
their legal interest was created by their respective escrow statutes. We dis-
agree. Although it is true that the escrow statutes mandated the creation
of the escrow account, it is the escrow agreements that actually created the
escrow account and created the States’ property interest. Therefore, it is
the state law selected in the escrow agreement that determines any benefi-
ciary state’s interest in the escrow funds. Cf. Stefan D. Cassella, Asset
Forfeiture Law in the United States § 23-12, at 674 (2007) ("[T]he court
looks to the law of the jurisdiction that created the claimant’s interest to
see what interest the claimant has in the property.") (collecting cases).
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The United States insists that we should stop here, asking
rhetorically, "If CLP remains the full owner of the funds,
what is the ‘legal . . . interest in the property’ held by the
States?" Appellant’s Br. 18. Even assuming that, as depositor,
C.L.P. "remains the full owner of the funds,"9 we do not
believe that ends our inquiry. For example, a defendant may
forfeit to the United States an interest other than legal title in
an asset. See 21 U.S.C. § 853(b) ("Property subject to crimi-
nal forfeiture under this section includes . . . tangible and
intangible personal property, including rights, privileges,
interests, [and] claims."). Following the reasoning of the
United States then, a petitioner with less than legal title chal-
lenging the forfeiture in such a circumstance could never have
standing, even if its interest is greater than that forfeited by
the defendant to the United States. We decline to adopt such
reasoning.
Turning back to our examination of North Carolina law, we
conclude that an obligee10 of an escrow account does have a
legal interest in the funds contained in that escrow account. In
GE Capital Mortgage Services v. Avent, 442 S.E.2d 98, 100
(N.C. App. Ct. 1994), for example, the North Carolina Court
of Appeals held that when an escrow agent embezzles escrow
funds prior to the satisfaction of the escrow condition, the loss
lies with the depositor and not with the obligee. Applying that
reasoning to this case, had C.L.P.’s escrow agent absconded
with the funds in the escrow accounts, the States could have
sued to force C.L.P. to replenish the funds. If the States had
no interest in the funds, they would have no right to require
C.L.P. to replenish the funds. Accordingly, because the States
did have such a right under North Carolina law, we conclude
that the States, as obligees of an escrow account, must have
9It is unclear to us what the United States means by the term "full
owner." We assume it uses the term here to mean a holder of legal title.
10Although the escrow agreement refers to the States as "beneficiaries,"
in the terms of escrow law, they are "obligees." See Johnson, 671 S.E.2d
at 565 (quoting 28 Am. Jur. 2d Escrow § 1 (2000)).
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had some legal interest in the escrow funds, even prior to the
occurrence of the escrow condition. With such an interest, the
States have standing to press their claims in an ancillary pro-
ceeding under 21 U.S.C. § 853(n).
B.
Having concluded that the States have standing to adjudi-
cate their petitions, we now consider whether the States "es-
tablished by a preponderance of the evidence that" their legal
interest in the escrow funds was "vested in [them] rather than
in [C.L.P.] or was superior to any right, title, or interest of
[C.L.P.] at the time of the commission of the acts which gave
rise to the forfeiture of the property." 21 U.S.C. § 853(n)(6).11
Although the interests held by the petitioner and the defendant
are generally defined by reference to state law, the question
of whether a petitioner’s interest satisfies the requirements of
21 U.S.C. § 853(n)(6) is a question of federal law. See United
States v. Kennedy, 201 F.3d 1324, 1334 (11th Cir. 2000);
United States v. Lester, 85 F.3d 1409, 1412 (9th Cir. 1996).
It is important at the outset to observe that the issue we are
considering at this point is not whether an error occurred at
some point in the forfeiture process that requires amendment
of the forfeiture order.12 Instead, we are only at step
three—considering whether the States have proven, by a pre-
ponderance of the evidence, that they have a legal interest in
the escrow funds that entitles them to amendment of the for-
feiture order. Only if we conclude that the States have carried
their burden will we go on to step four and consider appropri-
11As this requirement is framed in the disjunctive, a petitioner may sat-
isfy it in two ways: proving that the interest was vested, or proving that
the interest was superior. See United States v. Wilson, 659 F.3d 947, 953
(9th Cir. 2011).
12For example, the issue of whether the United States acquired from the
forfeiture something greater than what C.L.P. had to forfeit is not before
us. The only question is whether the States’ legal interest in the funds as
of January 2007 entitles them to amendment of the forfeiture order.
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ate amendment of the forfeiture order. See United States v.
McHan, 345 F.3d 262, 270 (4th Cir. 2003) ("[I]t was Con-
gress’ clear intention in passing § 853(n) that third parties
have an opportunity to be heard and to be awarded relief if
they were to show a cognizable interest in the property pre-
liminarily ordered forfeited." (emphasis added)); see also
Libretti v. United States, 516 U.S. 29, 44 (1995) (reaffirming
that a § 853(n) proceeding is the "only . . . means" by which
a third party may safeguard his rights in property ordered for-
feited under § 853, even where the complaint is that the for-
feiture itself was unsupported by factual evidence). We
conclude that the States have not carried their burden, and
therefore our inquiry ends at step three.
We first consider whether the States’ interest in the escrow
funds was vested during 2007 and 2008, when C.L.P.’s acts
giving rise to the forfeiture were occurring. Black’s Law Dic-
tionary defines "vested" as: "Having become a completed,
consummated right for present or future enjoyment; not con-
tingent; unconditional; absolute[;] does not depend on an
uncertain period or event." Black’s Law Dictionary (9th ed.
2009). Thus, for the States’ interest in the escrow funds to
have been vested, the escrow condition must have been satis-
fied, i.e., the States must have achieved a judgment against or
settlement with C.L.P.; otherwise, their interest, by definition,
remained conditional, and thus unvested. The States make no
claim that the escrow condition was satisfied by the existence
of any such judgment or settlement. Therefore, we must con-
clude that the States’ interest was not vested during 2007 and
2008.
We now consider whether the States’ legal interest was
superior to C.L.P.’s during 2007 and 2008. As noted above,
superiority is a question of federal law. Although "superior"
is not defined in the statute, a practice has developed in the
courts to treat the inquiry as similar to a quiet title action. See
McHan, 345 F.3d at 275 ("[T]he relief offered to a complain-
ant in a quiet title action is substantially the same relief
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offered to a § 853(n) petitioner."); see also United States v.
Cone, 627 F.3d 1356, 1359 (11th Cir. 2010) (describing the
"section 853(n) ancillary forfeiture proceeding" as "designed
to quiet title"). Thus, as in a quiet title action, the inquiry here
is not a precise one, but instead involves equitable consider-
ations and is necessarily fact-bound and value-laden. See
Mchan, 345 F.3d at 275 ("[C]laims for the type of relief
offered by a quiet title suit have always been equitable
actions, brought in the courts of equity rather than courts of
law."); see also id. ("The [§ 853(n)] proceeding at bottom
becomes a competition over ownership priority with the court
determining the superior title."). Cf. Morgan, 224 F.3d at 343
(approving of the district court’s looking behind the labels of
the parties’ interests to determine if a petitioner "had a prop-
erty interest sufficient to prevent forfeiture" under 21 U.S.C.
§ 853(n)(6)).
We now proceed to resolve the competition over ownership
priority by comparing the respective legal interests. We deter-
mine that the States do not have a superior interest to the
escrow funds. As already noted, under North Carolina law,
the United States qua C.L.P., maintained title over those funds
during 2007 and 2008 as depositor. Such title, when com-
pared to the States’ unvested interest in the escrow funds,
places the United States in a strong position.13 We decline to
end our inquiry there, however. We cannot ignore that the
funds were placed in the escrow account for a purpose and
that that purpose was to benefit the States should they obtain
a judgment against, or settle a claim with, C.L.P. Consider-
ations of equity would raise serious concerns were the States
to have demonstrated some likelihood that judgments or set-
tlements were in the pipeline.14 The burden, however, was on
the States to demonstrate such a likelihood, and they failed to
13We also note approvingly that were the status quo of 2007 and 2008
maintained, C.L.P. would ultimately regain possession of the funds, free
and clear of any obligation to the States.
14In a similar vein, considerations of equity would also give pause, for
example, if a teenage beneficiary were challenging the forfeiture of a trust
set up by a defendant-parent to pay for the beneficiary’s college tuition.
That the defendant-parent maintained title over the trust corpus would be
only one of many factors a court would consider in determining superior-
ity under 21 U.S.C. § 853(n)(6)(A).
16 UNITED STATES v. STATE OF OREGON

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do so. As noted above, the States put forth no evidence that
they, at any time, had—or were even considering—claims
against C.L.P.
In the absence of such evidence, we return to our initial
inclination that the United States is in a stronger position and
therefore have no choice but to conclude that the States failed
to carry their burden to prove, by a preponderance of the evi-
dence, that their legal interest in the escrow funds was supe-
rior to C.L.P’s during 2007 and 2008. Accordingly, the States
are not entitled to have the forfeiture order amended to
account for their legal interest.15
III.
For the foregoing reasons, the order of the district court is
vacated, and we remand for entry of a forfeiture order consis-
tent with this opinion.
VACATED AND REMANDED
15Because we hold that the States, as obligees of the escrow accounts,
have not met their burden of proof, we need not decide whether an escrow
obligee who did meet this burden would be entitled to receive the present
value of its interest or to have the United States maintain the escrow
account.
17 UNITED STATES v. STATE OF OREGON

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