United States v. Currency, U.S., $864,400.00 , 405 F. App'x 717 ( 2010 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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
Attorney, Lynne P. Klauer, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Steven Tan appeals the district court’s grant of
summary judgment in favor of the Government in a forfeiture
proceeding, and judgment of forfeiture of $864,400.00 and
$7,000.00 in U.S. currency. Finding no error, we affirm.
We review de novo a district court’s order granting
summary judgment. Providence Square Assocs., L.L.C. v. G.D.F.,
Inc., 211 F.3d 846, 850 (4th Cir. 2000). Summary judgment
should be granted “if the pleadings, the discovery and
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.” Fed. R. Civ. P.
56(c). “[T]here is no issue for trial 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
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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
Controlled Substances Act. 21 U.S.C. § 881(a)(6) (2006). Once
the government meets its burden, the burden shifts to the
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. United States v.
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
the Government presented sufficient evidence to carry its burden
and show that the currency was more likely than not proceeds
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from a drug transaction. Specifically, the Government showed
that the defendant currency was bundled in newspaper and
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 by law enforcement Tan was nervous, attempted to
conceal the presence of the currency, and gave 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 argues that he has rebutted the Government’s
claims and presented sufficient evidence of his innocent
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
rise to a dispute over a material fact. See United States v.
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 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. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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