It's an internecine battle of the right wing in this case. And the young turk prevails over the old guard. At least in part because the newbie (Judge Bybee) is right, the old guard (Judge Rymer) is wrong, and the swing vote (Judge O'Scannlain) is bright enough to know the difference.
You pretty much can't imagine a worse panel than these three if you're either a criminal defendant. Or, as here, an (allegedly) sleazy family member who's trying to avoid the forfeiture of property as a result of your father's ("Big Vic") federal conviction for conspiracy to distribute methamphetamine. Nonetheless, in a well-reasoned and articulate opinion, Judge Bybee holds that the property here can't be forfeited, at least in an in personam proceeding under Section 853, because the daughter (not the father) owned the property. Judge Rymer dissents. But Judge Bybee's opinion and analysis is much better. And Judge O'Scannlain agrees.
What saves the daughter here is the confluence of several factors. First, although the panel is incredibly conservative, they're also federalists, and (correctly) decide -- over Judge Rymer's dissent -- that ownership of property under Section 853 should be decided under state rather than federal law. Second, in my mind, the majority is probably willing to let the daughter win for now in large part because they think that it won't matter: that she can avoid perhaps forfeiture under Section 853, but that she'll eventually lose the property anyway under the civil (in rem) forfeiture provisions of Section 881. Which Judge Bybee expressly alludes to in the penultimate paragraph of his opinion. Absent those two facts, I think the panel would have come out the other way and affirmed the forfeiture.
Whatever the motivation, however, the panel gets it right. And Judge Bybee writes a good opinion.
