Gordon v. United States ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JANET GORDON,
Plaintiff-Appellant,
v. No. 94-2324
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Edward S. Northrop, Senior District Judge.
(CA-90-3003-N)
Submitted: April 15, 1996
Decided: April 25, 1996
Before ERVIN and MOTZ, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Bradley A. Thomas, GOURDINE & THOMAS, Washington, D.C.;
Stephen O. Russell, Oxon Hill, Maryland, for Appellant. Loretta C.
Argrett, Assistant Attorney General, Gary R. Allen, Charles E. Brook-
hart, David A. Shuster, Tax Division, Lynne Ann Battaglia, United
States Attorney, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Janet Gordon appeals from the district court's order entering judg-
ment in favor of the United States on her wrongful levy action filed
pursuant to 26 U.S.C. § 7426(c) (1988). Gordon claims that the dis-
trict court erred in admitting certain documents as evidence; in allow-
ing the government to admit certain hearsay testimony; and that the
district court's finding was unsupported by the evidence. We affirm.
On August 21, 1987, Gordon posted bail in the amount of $75,000
on behalf of her niece, Laverne Box, who had been arrested in Mary-
land on state drug charges and was subsequently convicted. The day
before Box was sentenced, local and state officials instituted forfei-
ture proceedings as to the bail money, alleging that it was related to
illegal drug transactions involving Box's codefendant. Gordon even-
tually settled the forfeiture proceeding, agreeing to allow Prince
George's County to retain $25,000 and to keep the remaining
$50,000.
Before the $50,000 was returned to Gordon, however, the Internal
Revenue Service served a notice of levy upon the Prince George's
County Director of Finance alleging that Gordon was only a nominee
of the taxpayer. The funds were seized in partial satisfaction of a
jeopardy assessment in the amount of $4,000,000 made against the
taxpayer. Gordon then filed this wrongful levy action claiming that
the $50,000 did not belong to the taxpayer. The district court, after a
one-day trial, concluded that Gordon was, in fact, the nominee of the
taxpayer and entered judgment in favor of the Government. Gordon
appeals.
In a wrongful levy action brought under § 7426, the taxpayer has
the initial burden of proving that she has an interest in the property.
Morris v. United States, 813 F.2d 343, 345 (11th Cir. 1987). The
Government concedes that Gordon met this initial burden.
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Once the plaintiff's initial burden is met, however, the burden
shifts to the government to prove, by "substantial evidence," a nexus
between the taxpayer and the property seized. Morris, 813 F.2d at
345; Valley Fin., Inc. v. United States, 629 F.2d 162, 171 n.19 (D.C.
Cir. 1980), cert. denied, 451 U.S. 1018 (1981). Gordon claimed that
she saved this money over the years by hoarding it in various places
in her apartment. The Government offered evidence to show that Gor-
don's income was such that she would have been unable to accumu-
late this amount of money and also that the taxpayer used multiple
nominees to hide assets. The district court specifically discredited
Gordon's testimony and credited the testimony of the government
witnesses. That finding is not subject to review. United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (credibility of witnesses is
within sole province of fact-finder and not susceptible to review on
appeal).
Gordon claims that the district court erred in admitting three docu-
ments (certain bank records and an Internal Revenue Service currency
transaction report) because they were not authenticated. The authenti-
cation requirement, set forth in Fed. R. Evid. 901(a), is met if there
exists "sufficient evidence to support a finding that the matter in ques-
tion is what its proponent claims." We find that the records here were
properly authenticated under Rule 901(a). Gordon further claims that
the district court erred in admitting certain hearsay testimony. Our
review of the record and the transcript of the hearing reveals that no
part of the testimony at issue which constituted hearsay was admitted.
Accordingly, we affirm the judgment of the district court. We dis-
pense 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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