US v. Currency, U.S. $864,400.00

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:05-cv-00919-NCT-WWD Copies to all parties and the district court/agency. [998486361] [09-1935]

US v. Currency, U.S. $864,400.00

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1935 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, STEVEN TAN, Claimant ­ Appellant, and XINGYUN CHIANG, Claimant, v. CURRENCY, U.S., $864,400.00; CURRENCY, U.S., $7000.00, Defendants.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:05-cv-00919-NCT-WWD) Submitted: November 15, 2010 Decided: December 16, 2010

Before NIEMEYER, AGEE, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Gary S. Harrison, HARRISON & RODRIGUEZ, A.P.L.C., San Gabriel, California, for Appellant. Anna Mills Wagoner, United States

Dockets.Justia.com

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Attorney, Lynne P. Klauer, Assistant United Greensboro, North Carolina, for Appellee.

States

Attorney,

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Steven summary judgment proceeding, and Tan in appeals favor of of the the district Government of court's in a grant of

forfeiture and

judgment

forfeiture

$864,400.00

$7,000.00 in U.S. currency.

Finding no error, we affirm.

We review de novo a district court's order granting summary judgment. Inc., should 211 be F.3d Providence Square Assocs., L.L.C. v. G.D.F., 846, 850 "if (4th Cir. 2000). the pleadings, Summary the judgment and

granted

discovery

disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." 56(c). "[T]here is no issue for trial Fed. R. Civ. P. unless there is

sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely

colorable, or is not significantly probative, summary judgment" is proper. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-

50 (1986) (citations omitted). Civil forfeiture standards are set forth in the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA"), 18 U.S.C.

§ 983(c)(1) (2006).

The statute provides that the Government

must demonstrate by a preponderance of the evidence that the property sought is subject to forfeiture. Id. Currency is

subject to forfeiture if it was furnished or intended to be 3

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furnished by any person in exchange for controlled substances, if it is traceable to such an exchange, or if it was used to, or intended to be used to, facilitate any violation of the Once the

Controlled Substances Act. the government meets its

21 U.S.C. § 881(a)(6) (2006). burden, the burden shifts to

claimant to show, by a preponderance of the evidence, that he is an "innocent owner" of the defendant property. 18 U.S.C.

§ 983(c), (d)(1). In a forfeiture proceeding, we review the district

court's factual findings for clear error and apply a de novo standard of review to the consideration of whether or not the facts render the defendant property subject to forfeiture.

United States v. $84,615 in U.S. Currency, 379 F.3d 496, 501 (8th Cir. 2004). This standard is met if the evidence shows the

existence of a fact is more probable than its non-existence. Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993). Further, this

court looks to the totality of the circumstances to determine whether the Government has met its burden. Thomas, 913 F.2d 1111, 1115 (4th Cir. 1990). Here, the Government seized the currency from Tan at a traffic stop. We have reviewed the record, and we conclude that United States v.

the Government presented sufficient evidence to carry its burden and show that the currency was more likely than not proceeds 4

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from a drug transaction. that the defendant

Specifically, the Government showed was bundled in newspaper and

currency

concealed in the door of Tan's rental vehicle.

Two separate

narcotics detection canines alerted to the presence of narcotic odor in areas of the car that did not contain currency, and when questioned conceal the by law enforcement of the Tan was nervous, and gave attempted to

presence

currency,

inconsistent

statements. With respect to the $7,000 Tan possessed on his

person, we agree with the district court that because the money was similarly bundled, and because Tan also possessed $1,000 in non-bundled currency (that was returned to him), that currency is similarly likely related to a drug transaction. Tan claims and argues presented that he has rebutted evidence the of Government's his innocent

sufficient

intentions to create a dispute over a material fact and defeat summary judgment. We do not agree. After reviewing Tan's

claims, we conclude (as did the district court) that they are incredible, and lack any basis in evidence, other than Tan's own self-serving declarations. In short, his claims do not give See United States v.

rise to a dispute over a material fact.

Two Parcels of Real Property Located in Russell County, 92 F.3d 1123, 1129 (11th Cir. 1996) ("[t]he mere allegation of a highly unlikely source of income without 5 some support to give the

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allegation credibility cannot constitute an issue of material fact defeating summary judgment for forfeiture."). Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

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