United States v. $17,900.00

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2017 Decided June 20, 2017
No. 16-5284
UNITED STATES OF AMERICA, C/O UNITED STATES
ATTORNEY'S OFFICE,
PLAINTIFF-APPELLEE
v.
SEVENTEEN THOUSAND NINE HUNDRED DOLLARS
($17,900.00) IN UNITED STATES CURRENCY,
DEFENDANT
JOYCE COPELAND AND ANGELA RODRIQUEZ,
CLAIMANTS-APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00368)
Christa Laser argued the cause and filed the briefs for
appellants. Christopher Landau entered an appearance.
Christopher B. Brown, Assistant U.S. Attorney, argued the
cause for appellee United States of America. With him on the
brief were Elizabeth Trosman and Chrisellen R. Kolb, Assistant
U.S. Attorneys. R. Craig Lawrence, Assistant U.S. Attorney,
entered an appearance.
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Before: ROGERS, TATEL and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: This is a civil-forfeiture case, which
is why the plaintiff is the United States of America and the
defendant is a pile of cash. The government claims that the cash
is subject to forfeiture because it is connected to the “exchange
[of] a controlled substance,” i.e., drug trafficking. 21 U.S.C.
§ 881(a)(6). Appellants, themselves flesh and blood, have
intervened in this action, offering sworn testimony that the
money is theirs and wholly unrelated to drugs. According to the
government, that testimony is so implausible that appellants
lack Article III standing to intervene. The district court,
deciding the issue on summary judgment, agreed. We reverse.
At summary judgment, claimants alleging an ownership
interest need only make an assertion of ownership and provide
some evidence of ownership to establish standing. Because
“[c]redibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge,” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986), we conclude that appellants met
their burden.
I.
The practice of civil forfeiture allows law enforcement to
seize property and then seek permanent forfeiture in a civil
proceeding in rem—meaning, in a proceeding against the
property—all without so much as charging the owner with a
criminal offense. Leonard v. Texas, No. 16-122, slip op. at 2
(U.S. Mar. 6, 2017) (Thomas, J.) (statement respecting the
denial of certiorari). Though rooted in an English Law tradition
that operated “under the fiction that the thing itself, rather than
the owner, was guilty of the crime,” contemporary civil
forfeiture in the federal system is a creature of statute, the
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Supplemental Rules for Admiralty or Maritime Claims and
Asset Forfeiture Actions, and the Federal Rules of Civil
Procedure. Id. at 4 (citing Calero-Toledo v. Pearson Yacht
Leasing Co., 416 U.S. 663, 684–85 (1974)); see United States
v. $133,420, 672 F.3d 629, 634 (9th Cir. 2012).
The typical forfeiture action begins when the government
files a verified complaint against the property specifying,
among other things, “the statute under which the forfeiture
action is brought” and “sufficiently detailed facts to support a
reasonable belief that the government will be able to meet its
burden of proof at trial.” Supplemental Rule G(2). As plaintiff,
the government bears the ultimate “burden of proof . . . to
establish, by a preponderance of the evidence, that the property
is subject to forfeiture.” 18 U.S.C. § 983(c)(1).
Although the initial parties to the proceeding are the
government and the property, “[a] person who asserts an
interest in the defendant property may contest the forfeiture by
filing a claim in the court where the action is pending.”
Supplemental Rule G(5)(a)(i). A claim, in turn, must identify
the property and claimant, state the claimant’s interest in the
property, and be signed by the claimant under penalty of
perjury. Id.
“Unlike in typical civil proceedings, the government may
commence limited discovery immediately after a verified claim
is filed.” $133,420, 672 F.3d at 635. Under Supplemental Rule
G(6)(a), “[t]he government may serve special interrogatories
limited to the claimant’s identity and relationship to the
defendant property without the court’s leave at any time after
the claim is filed and before discovery is closed.” These same
rules provide that the “government may move to strike a claim
. . . because the claimant lacks standing” and that such a motion
“may be presented as a motion for judgment on the pleadings
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or as a motion to determine after a hearing or by summary
judgment whether the claimant can carry the burden of
establishing standing by a preponderance of the evidence.”
Supplemental Rule G(8)(c).
This case traces its roots back to March 28, 2014, when an
Amtrak passenger mistakenly removed another person’s
backpack from a train at Washington’s Union Station. Later
that day, he opened the backpack to find a shopping bag
containing $17,900 in cash. Commendably, he turned the
backpack over to Amtrak police.
In addition to the money, Amtrak police officers found
inside the bag a student notebook and other personal effects.
One of the papers contained the name Peter Rodriguez, as did
the train manifest. A police narcotics dog alerted to the
backpack, suggesting the presence of drug residue.
Using a contact number from the manifest, a detective with
the Metropolitan Police Department called Peter Rodriguez,
who gave a detailed description of the contents of the
backpack—except for the money. Twice asked whether there
was money in the backpack, Peter said no. Later, the detective
called Peter to inform him that currency was found in the
backpack, and that the bag—sans cash—could be recovered
from Amtrak, though the money would remain with the MPD
Asset Forfeiture Unit.
Shortly thereafter, appellant Angela Rodriguez, Peter’s
mother, contacted MPD, explaining, according to the
government’s verified complaint, that the cash belonged to her
and her domestic partner, appellant Joyce Copeland, who lives
with her in New York City. The couple, she recounted, had left
the money in a bag in Peter’s apartment, but neglected to tell
him that it contained currency. When Peter later announced that
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he was coming to New York to visit his mother, she told him
to bring the bag along.
Unconvinced by Ms. Rodriguez’s story, the police
formally seized the currency and turned it over to the DEA,
which initiated administrative forfeiture proceedings. See 18
U.S.C. § 983. The couple participated in that process, filing
claims of interest and providing some documents to support
their claim. Still unmoved, the government commenced this
case on March 13, 2015, by filing its complaint seeking
forfeiture of the money as drug related. 21 U.S.C. § 881(a)(6).
After the couple filed verified claims asserting their
ownership interests in the money, the government served
special interrogatories asking them to: describe, in great detail,
how they came to acquire the money; provide records and other
information supporting their account; and explain how Peter
came to possess the money.
In their responses, sworn under penalty of perjury, the
couple stated that they amassed the cash over time—with
advance payments of federal tax refunds, a transfer from a
retirement account, the sale of a pair of mink coats, and by
other means—and stored their savings in a locked file cabinet.
With plans to eventually move from New York to North
Carolina, where Peter lives, and to purchase a home there, the
pair drove south with cash in excess of $17,900. Along with
using the money to pay for trip-related expenses like food and
gas, they hoped to buy a used vehicle so that each would have
a car to drive after they relocated. Once in North Carolina, they
stayed in Peter’s home and visited several open houses. On
February 26, the couple returned to New York, cutting their trip
shorter than expected because one of them called her doctor in
New York and learned that she had a medical procedure
scheduled. Before driving back, Ms. Rodriguez decided to
6
leave a bag holding the currency in Peter’s home “because [the
couple] intended to return to North Carolina within a short
period of time to continue the search for housing and a car.”
She “did not provide Peter Rodriguez any information about
the amount of the [cash] because [she] believed Peter might
have taken some of it had he known it was in the bag.” It was
on March 28, about a month after the pair left North Carolina,
that Peter’s backpack was mistakenly removed from the train.
With the record composed of little beside this testimony
and the verified complaint, the government moved to strike the
couple’s claims for lack of standing under Supplemental Rule
G(8)(C)(i)(B). The district court, finding that “no reasonable
jury could believe the Claimants’ bizarre explanation for how
they came to own the $17,900,” granted the government’s
motion for summary judgment. United States v. $17,900, 200
F. Supp. 3d 132, 134 (D.D.C. 2016). Our review is de novo.
See Citizens for Responsibility and Ethics in Washington v.
Federal Election Commission, 711 F.3d 180, 184 (D.C. Cir.
2013) (explaining that review of a district court’s grant of
summary judgment is de novo).
II.
When the government moves to strike a claim for lack of
standing, a claimant has the burden to establish standing by a
preponderance of the evidence. Supplemental Rule G(8)(c). To
prevail, “a claimant must meet both Article III and statutory
standing requirements.” United States v. $487,825, 484 F.3d
662, 664 (3d Cir. 2007). In this appeal, the government
challenges only the former.
As our court has explained, “[t]he requirements for a
[claimant] to demonstrate constitutional standing to challenge
a forfeiture are very forgiving.” United States v. Emor, 785
F.3d 671, 676 (D.C. Cir. 2015) (alterations omitted). “In
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general, any colorable claim on the property suffices,” id.—
typically, an ownership or possessory interest, see, e.g.,
$133,420, 672 F.3d at 637. “Article III’s standing requirement
is thereby satisfied because an owner or possessor of property
that has been seized necessarily suffers an injury that can be
redressed at least in part by the return of the seized property.”
United States v. $515,060.42, 152 F.3d 491, 497 (6th Cir.
1998); c.f. Town of Chester v. Laroe Estates, Inc., No. 16-605
(U.S. June 5, 2017), slip op. at 6 (“[A]n intervenor of right must
have Article III standing in order to pursue relief that is
different from that which is sought by a party with standing.”).
As always, standing “must be supported . . . with the
manner and degree of evidence required at [each] successive
stage[] of the litigation.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992). At the pleading stage, a claimant need
only allege a colorable interest in the property. $133,420, 672
F.3d at 638; see Emor 785 F.3d at 676. “In response to a
summary judgment motion, however, the [claimant] can no
longer rest on such ‘mere allegations,’ but must ‘set forth’ by
affidavit or other evidence ‘specific facts,’ which for purposes
of the summary judgment motion will be taken to be true.”
Lujan, 504 U.S. at 561 (quoting Fed. R. Civ. P. 56(e)).
Although our court has yet to articulate precisely “the
manner and degree of evidence required,” id. at 561, for a
claimant to survive the summary judgment stage of a civil-
forfeiture proceeding, other circuits have. For example, the
Seventh Circuit has that held that where, as here, a claim is
predicated on an ownership interest, “an assertion of ownership
combined with some evidence of ownership is sufficient to
establish standing.” United States v. $239,400, 795 F.3d 639,
642–43 (7th Cir. 2015). The Ninth Circuit has adopted the same
standard: “[a] claimant asserting an ownership interest in the
defendant property . . . must . . . present ‘some evidence of
8
ownership’ beyond the mere assertion in order to survive a
motion for summary judgment.” $133,420, 672 F.3d at 639; see
also United States v. $148,840, 521 F.3d 1268, 1276 (10th Cir.
2008) (same); United States v. $81,000, 189 F.3d 28, 35 (1st
Cir. 1999) (same); United States v. $38,570, 950 F.2d 1108,
1112 (5th Cir. 1992) (same).
Both the government and the couple agree that the “some
evidence” standard is appropriate, and this case is a fine
example of why.
For one thing, because the case concerns cash, it
demonstrates how challenging it can be to document ownership
of property seized by law enforcement. Indeed, the very
qualities that make paper money useful for illicit activity—in
particular, its untraceability—often make it difficult to prove
that any cash is legitimate, no matter its source. This is
especially true for those in our society who rely on cash to the
exclusion of banking and other financial services. As Justice
Thomas has recognized, it is “the poor and other groups least
able to defend their interests in forfeiture proceedings” who
bear the brunt of civil asset forfeiture. Leonard, slip op. at 4
(internal citation omitted). And it is these same groups that are
“more likely to use cash than alternative forms of payment, like
credit cards, which may be less susceptible to forfeiture.” Id.;
see Federal Deposit Insurance Corporation, National Survey of
Unbanked and Underbanked Households 16 (Dec. 2009),
https://goo.gl/g3JtKe (finding that low-income, black, and
Hispanic households, and those with a householder that is a
foreign-born noncitizen, are more likely to be “unbanked”—to
go without use of banking or similar financial services). So
especially when cash is at issue, requiring more than “some
evidence” of ownership would be onerous, unfair, and
unrealistic.
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A more demanding standard would also run up against the
limited opportunity claimants often have to develop the record
when the government moves to strike for lack of standing. In
this case, for example, the record consists, in essence, of
nothing more than the government’s verified complaint and the
couple’s responses to the government’s special interrogatories.
Although the district court treated the government’s motion to
strike as one for summary judgment, it never held an
evidentiary hearing, nor did the parties engage in the broad
discovery typical in civil cases. Asking for more than “some
evidence” of ownership on such a record would risk unduly
excluding those with a “colorable claim” on the property.
Emor, 785 F.3d at 676.
Finally, the “some evidence” standard preserves the
important distinction between constitutional standing and the
merits. Although claimants bear the burden of establishing
standing, it is the government that bears the burden to prove,
on the merits, “that the property is subject to forfeiture.” 18
U.S.C. § 983(c)(1). As the First Circuit has cautioned, “[c]ourts
should not . . . conflate the constitutional standing inquiry with
the merits determination that comes later.” United States v.
One-Sixth Share of Mass Millions Lottery Ticket, 326 F.3d 36,
41 (1st Cir. 2003). Where, as here, a claimant’s account of
ownership is irreconcilable with the theory upon which the
government seeks forfeiture, requiring the claimant to produce
more than “some evidence” of ownership runs the danger of
impermissibly shifting the merits burden to the claimant—
tantamount to, say, making a claimant prove that her property
is unconnected to unlawful activity. Indeed, that is exactly what
the government seeks to do here: at oral argument, government
counsel suggested that the couple lacks Article III standing
because their claimed ownership interest is undercut by “the
record evidence” indicating that “this is drug trafficking
money.” Oral Argument at 18:40–18:55. Understandably, the
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government would prefer to try its merits case against an
inanimate object. We think it “obvious,” however, that “a
claimant [who has shown some evidence of ownership] risks
injury within the meaning of Article III and thus may have his
day in court.” $148,840, 521 F.3d at 1276.
III.
Having determined what claimants must show in order to
establish standing, we can easily resolve what remains of this
appeal by applying well-worn principles of summary
judgment.
Summary judgment is appropriate only “if the movant”—
here the government—“shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The court must
“view[] the evidence in the light most favorable to the
nonmoving party”—here the couple—and “draw[] all
reasonable inferences in [its] favor.” Johnson v. Perez, 823
F.3d 701, 705 (D.C. Cir. 2016). In so doing, the court “may not
make credibility determinations or otherwise weigh the
evidence.” Id. And “if one party presents relevant evidence that
another party does not call into question factually, the court
must accept the uncontroverted fact.” Id.
Rule 56 of the Federal Rules of Civil Procedure expressly
provides that a party opposing summary judgment may support
its factual positions using “affidavits or declarations” and
“interrogatory answers.” Fed. R. Civ. P. 56(c)(1)(A). So long
as an “affidavit or declaration” is “made on personal
knowledge, set[s] out facts that would be admissible in
evidence, and show[s] that the affiant or declarant is competent
to testify on the matters stated,” it may be “used to . . . oppose
a motion” for summary judgment. Id. at 56(c)(4).
 11
In this case, the couple has offered sworn testimony
detailing how they amassed the money, why they transported it
to North Carolina, and how it ended up in Peter’s hands. In fact,
there is little in the record other than their declarations.
Certainly, nothing in the record directly contradicts the pair’s
sworn account—no evidence that they did not travel to North
Carolina, for instance, nor evidence that the cash had another
source. Given our responsibility to “view[] the evidence in the
light most favorable” to the couple and to “accept . . .
uncontroverted fact[s],” Johnson, 823 F.3d at 705, we have
little trouble concluding that the couple has asserted ownership
and offered “some evidence” of ownership sufficient to
withstand summary judgment.
The government insists that the couple has done no more
than simply assert ownership. In its view, they failed to meet
their burden to produce “some evidence” of ownership when
they “offered no evidence, beyond their own words, to
substantiate” their story. Government Br. at 34. Had the couple
offered only a bare assertion that they owned the property, we
might agree. But as explained above, the two did more,
submitting extensive sworn testimony as evidence of their
claim. Just as Rule 56 provides, a party may oppose summary
judgment with sworn testimony, and—as we have
recognized—that party’s own sworn testimony can alone
defeat summary judgment, see, e.g., Johnson, 823 F.3d at 710
(recognizing that a party’s testimony will always in some sense
be “self-serving,” but that “parties, like other fact witnesses,
are legally competent to give material testimony” and in certain
contexts may be “the key, or even sole, witnesses”); Arrington
v. United States, 473 F.3d 329, 337–38 (D.C. Cir. 2006)
(denying summary judgment where a non-movant’s affidavit
created a genuine issue of material fact). Summary judgment
turns not on whether a party offers a particular form of
evidence, but rather on whether the evidence a party does
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submit creates a genuine issue of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“Rule 56(e) permits
a proper summary judgment motion to be opposed by any of
the kinds of evidentiary materials listed in Rule 56(c)”); Fed.
R. Civ. P. 56(c) (listing “depositions, documents, electronically
stored information, affidavits or declarations, stipulations . . . ,
admissions, interrogatory answers, or other materials”).
The government urges us to “reject” the couple’s
testimony as “facially implausible.” Government Br. at 25. On
this point, it bears repeating that “[c]redibility determinations,
the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge,” and are thus inappropriate at summary judgment.
Anderson, 477 U.S. at 255. “This is the standard even when the
court entertains grave doubts about” a “statement[] proffered
by the party opposing summary judgment.” Greene v. Dalton,
164 F.3d 671, 674 (D.C. Cir. 1999). The government
nonetheless contends that we can set aside the couple’s account
because it “strains credulity,” involving “numerous improbable
elements”:
that [the couple] stockpiled thousands of dollars in
cash in their apartment for as long as 14 months rather
than secure their savings in bank accounts; hand-
carried the bag containing more than $17,900 on the
drive from New York to North Carolina; and chose to
pay all expenses [on that trip] in cash rather than
utilize their financial accounts; and . . . became so
worried about managing currency on their return trip
that they risked entrusting their savings to an
individual they believed would steal the money if he
discovered it.
Government Br. at 36.
13
The government’s argument perfectly illustrates why
credibility determinations and the weighing of evidence are left
to juries rather than judges. Government counsel may well be
able to convince judges that it is inconceivable someone would
choose to keep sizeable cash savings, to travel with cash, or to
pay for routine expenses using cash rather than a credit card,
but a jury of laypeople with different and more diverse life
experiences might view these very same choices with
considerably less suspicion. “Trial by a jury of laymen rather
than by the sovereign’s judges was important to the founders
because juries represent the layman’s common sense.”
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 343–44 (1979)
(Rehnquist, J. dissenting). We are thus especially reticent to
circumvent the jury process and throw out sworn testimony
because it is out of line with our own lived experiences.
Rather, our cases describe narrow circumstances under
which courts may “lawfully put aside testimony [because it] is
so undermined as to be incredible.” Robinson v. Pezzat, 818
F.3d 1, 10 (D.C. Cir. 2016). As we recently explained in
Chenari v. George Washington University, 847 F.3d 740 (D.C.
Cir. 2017), this situation usually comes into play “when a
plaintiff’s claim is supported solely by the plaintiff’s own self-
serving testimony, unsupported by corroborating evidence, and
undermined either by other credible evidence, physical
impossibility or other persuasive evidence that the plaintiff has
deliberately committed perjury.” Id. at 747. Here, however, the
record contains scarcely any evidence aside from the couple’s
testimony, let alone evidence that undermines their account or
suggests deliberate perjury. And while one might well discount
as unlikely the pair’s testimony about leaving their savings in
a bag in Peter’s home, without telling him, only to later reverse
course and ask him to bring the bag to New York, that story is
far from “physically impossib[le].” Id.
14
The government cites a series of cases in which, it says,
courts have thrown out analogous sworn testimony. All are
distinguishable. Two of the cited cases concern testimony that
was riddled with internal contradictions central to the case. See
Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005)
(setting aside “contradictory and incomplete” testimony); Aziz
Zarif Shabazz v. Pico, 994 F. Supp. 460, 468–71 (S.D.N.Y.
1998) (Sotomayor, J.) (same). Another dealt with a statement
“blatantly contradicted” by video evidence. Scott v. Harris, 550
U.S. 372, 380 (2007).
The government’s reliance on United States v. $8,440,190,
719 F.3d 49 (1st Cir. 2013), in which the First Circuit dismissed
a claimant for lack of Article III standing, is equally misplaced.
There, a Coast Guard boat, while making chase on a suspicious
vessel, saw “numerous bales” thrown “overboard.” Id. at 51–
52. Although some bales were never recovered, the ones that
were contained roughly $8.4 million. When questioned, a
crewmember on the fleeing vessel claimed that he had been
paid to transport the bales of money. Id. at 52. But in a
subsequent action for asset forfeiture, the crewmember
changed his tune, filing a verified claim for all $8.4 million. Id.
at 53–54. In support of his claim, the crewmember offered only
a “conclusory” affidavit “in which he referred to the bales as
‘my bales’” and stated that he “intended to go back and
retrieve” them from the sea. Id. at 58–59. Dismissing his claim,
the First Circuit observed that the crewmember’s new story
“defie[d] common sense,” as the bails lacked any feature that
would keep them “floating in place,” which explains why many
“presumably s[ank] or float[ed] away.” Id. at 59. From this, the
government asks us to read the First Circuit as holding that
courts may set aside sworn testimony that is “inconsistent with
common sense.” Government Br. at 26 n.6.
15
In truth, that decision falls squarely within the bounds for
setting aside self-serving and uncorroborated testimony that we
spelled out in Chenari: where such testimony is “undermined
either by other credible evidence, physical impossibility or
other persuasive evidence that the plaintiff has deliberately
committed perjury.” 847 F.3d at 747. Specifically, (1) the
record contained contradictory evidence that undermined the
crewmember’s claim—namely, his prior testimony; (2) the
change in the crewmember’s account raised an inference of
fabrication; and (3) the claimant’s story had an element of
physical impossibility—after all, the money sank. In addition,
the court emphasized that the crewmember’s affidavit evidence
was minimal bordering on conclusory, as any explanation of
how he acquired the money and why it was on the vessel was
missing. $8,440,190, 719 F.3d at 58–59; see Greene, 164 F.3d
at 675 (While “statements made by the party opposing a motion
for summary judgment must be accepted as true for the purpose
of ruling on that motion, some statements are so conclusory as
to come within an exception to that rule”). This case differs in
every respect: the record is devoid of contradictory evidence,
the couple has consistently maintained that the money is theirs,
nothing in their account is physically impossible, and—far
from conclusory—the couple has explained how they came to
own the money in considerable detail.
Given all this, we believe that the couple has more than
met its burden to establish constitutional standing at summary
judgment. Our decision means only that the pair has a right to
contest whether the money is subject to forfeiture. Despite the
government’s best efforts, this will remain an adversary
proceeding.
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IV.
For the foregoing reasons, the judgment of the district
court is reversed and the case is remanded for proceedings
consistent with this opinion.
So ordered.