United States v. One Hundred Twenty-four Thousand Eight Hundred Thirteen Dollars ($124,813) in U.S.

United States Court of Appeals,

Fifth Circuit.

No. 94-20866

Summary Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

ONE HUNDRED TWENTY-FOUR THOUSAND EIGHT HUNDRED THIRTEEN DOLLARS
($124,813) IN UNITED STATES CURRENCY, Defendant,

Somnath Sivaskandan, Claimant-Appellant.

May 30, 1995.

Appeal from the United States District Court for the Southern
District of Texas.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

PER CURIAM:

Claimant, Somnath Sivaskandan, appeals the district court's

summary judgment in favor of the United States in this civil

forfeiture suit. Finding no error, we affirm.

I. FACTS

On February 10, 1994, Veena Sivamani Sivaskandan, an Indian

citizen, was convicted of several federal offenses arising out of

her failure to declare $124,813.00 in U.S. currency to customs

officials when entering the United States, and her attempted

bribery of a government official. On April 4, 1994, the United

States commenced this action seeking forfeiture of the seized

funds. The District Director of the United States Customs Service

was designated as the substitute custodian of the currency during

the pendency of the action.

1
 Somnath Sivaskandan, Veena Sivaskandan's brother, individually

and on behalf of his minor daughter, filed a claim for possession

of the funds, asserting that he and his minor daughter were the

lawful owners of the currency through assignment and inheritance,

and that the funds were illegally seized. The United States moved

for summary judgment and adduced evidence that there was probable

cause to believe that the currency was subject to seizure and

forfeiture under 31 U.S.C. § 5317(c) by virtue of Ms. Sivaskandan's

failure to comply with the reporting requirements of § 5316(a)

prior to transporting the currency into the United States.

According to the affidavit of a United States Customs Service

agent, from May 19, 1993 through July 29, 1993, Ms. Sivaskandan

repeatedly offered to pay a United States Foreign Service Officer

$130,000.00 in exchange for the issuance of 30 U.S. Non-Immigrant

Visas. Ms. Sivaskandan was told she would have to bring the money

to Washington D.C. to consummate the transaction. On August 14,

1993, Ms. Sivaskandan entered the United States through the Houston

Intercontinental Airport. She told a senior customs inspector that

she was not bringing more than $5,000.00 cash or negotiable

monetary instruments into the United States and declared that she

was carrying $500.00 only. A search of her bag revealed a small

package containing $100 bills concealed in an inside suit pocket,

and upon further inspection the inspector discovered twelve

$10,000.00 bundles and other currency totalling $124,813. Ms.

Sivaskandan was detained.

During an interview on the night of August 14, Ms. Sivaskandan

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advised Customs officials that the money belonged to her and

represented proceeds from the sale of property and jewelry in

India. She claimed that she was sleeping during the flight, but

awakened during the video instructing passengers on how to fill out

the monetary reporting forms, and obtained the forms from a flight

attendant, but did not fill them out because the flight attendant

did not help her and she was exhausted. Ms. Sivaskandan admitted

that she worked as a flight attendant for Pan Am for two years, and

that she successfully completed airline training in Miami. She

claimed, however, that she was not instructed about currency

reporting requirements. Early the next morning when Ms.

Sivaskandan's brother, the claimant, came to the customs office, he

gave a statement to customs officials in which he denied any

interest in the currency.

In opposition to the government's motion for summary judgment,

and relying on Calero-Toledo v. Pearson Yacht Leasing Co.,1 the

claimant asserted that he was entitled to the currency because he

was its innocent owner and was unaware of any illegal activity. In

support of his "innocent owner" defense, the claimant submitted his

deceased father's will, which disinherited Veena Sivaskandan, and

an affidavit from their mother, a resident of Bombay, India, which

stated, in pertinent part:

After the demise of my husband the said Mr. V.S. Sivaskandan
in November, 1992, A.D., and while my son [the claimant] was
and still is in U.S.A. My only dauther [sic] [Veena
Sivaskandan], aged now 31 years, and who was carrying on a
business in travel agency in Bombay, induced me, taking

1
416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974).

3
 advantage of the fact of my affection for her asher [sic]
mother as well as my lack of exposure to the outer world
experience to part with, periodically, all the jewels and
other precious things which my husband kept in his cupboards
as per his will and which legally belonged to my granddaughter
... as per the will of my husband ... all this happening over
a period of six months from December, 1992 A.D. In August
1993 A.D., [Sivaskandan] informed me that she was going to
U.S.A. in connection with and to expand the business of travel
agencies she was carrying on as on that date and thereby
induced me to part with the cash ... on an assurance that she
would give the equivalent of the said cash ... taken from me
by her as well as the value of the jewels and other precious
things taken by her from me periodically ... to my son ... as
soon as she would successfully complete her business
transactions in U.S.A.

In a judgment dated October 4, 1994, and entered October 6,

1994, the district court granted the government's motion for

summary judgment. The district court determined that the funds

were "in the possession of Veena Sivaskandan for her use,

irrespective of the ultimate obligation she may have had to repay

her mother or to disburse them to her brother." On October 12th,

the government moved the district court to reconsider and amend the

final judgment. On November 14, 1994, the claimant filed a notice

of appeal. By order dated November 28th and entered November 30th,

the district court denied the motion to reconsider and amend.

II. DISCUSSION

The United States argues that this court has no jurisdiction

over this appeal. The government's position is that claimant's

notice of appeal is a nullity because it was filed prior to the

district court's disposition of the government's motion to

reconsider and amend. This was the rule prior to the amendments to

the Federal Rules of Appellate Procedure effective December 1,

1993. Under Fed.R.App.P. 4(a)(4), as amended, the claimant's

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notice of appeal is treated as merely dormant until the date the

post-judgment motion is decided.2 Thus, the government's position

on this point is in error, and we will proceed to the merits of

this appeal.

This court reviews the granting of summary judgment de novo,

applying the same criteria used by the district court in its

initial determination of the issues.3 Summary judgment is

appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law."4 We review the evidence, "viewing the facts and

inferences drawn from that evidence in the light most favorable to

the nonmoving party."5

31 U.S.C. § 5316 requires that any person transporting

monetary instruments worth more than $10,000 into the United States

file a report containing certain information.6 Section 5317(c)

authorizes the Government to seize and obtain judicial forfeiture

of monetary instruments not properly declared at the border in

2
See Burt v. Ware, 14 F.3d 256 (5th Cir.1994).
3
MacMillan v. United States, 46 F.3d 377, 380 (5th
Cir.1995).
4
Id. (citing Fed.R.Civ.P. 56(c)).
5
Id.
6
31 U.S.C. § 5316(a), (b).

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accordance with section 5316.7 The Government bears "the initial

burden of demonstrating the existence of probable cause to seize

the violating currency."8 Probable cause is the "reasonable ground

for belief of guilt supported by less than prima facie evidence but

more than mere suspicion"; it may be proved by circumstantial or

hearsay evidence.9 Once probable cause has been established, the

burden of proof shifts to the claimant to prove a defense by the

preponderance of the evidence.10

The claimant argues that the district court erred in granting

summary judgment because genuine issues of material fact exist,

including (1) whether the claimant and his daughter are innocent

owners of the currency, (2) whether Ms. Sivaskandan had any

ownership rights in the currency, and (3) whether the claimant or

his daughter had any knowledge of, or assisted the efforts of, Ms.

Sivaskandan's attempt to bring the currency into the United States

without declaring it.

The claimant does not contest the district court's implicit

determination that the Government had probable cause to seize the

currency. Instead, the claimant argues that the currency should

not be subjected to forfeiture because he and his minor daughter

were in fact the "innocent owners" of the currency, relying on

7
United States v. $400,000 in U.S. Currency, 831 F.2d 84,
86-87 (5th Cir.1987).
8
Id. at 87 (internal quotation and citation omitted).
9
Id.
10
Id. at 88.

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Calero-Toledo v. Pearson Yacht Leasing Co.11

As we have previously recognized,12 in Calero-Toledo, the

Supreme Court held constitutional a Puerto Rican forfeiture statute

even though it did not exempt property of an owner who was neither

involved in nor aware of the act of his lessee that resulted in the

forfeiture. In fact, after Calero-Toledo there can be no doubt

that Congress has the authority to provide for the forfeiture of an

innocent party's property where such forfeiture serves a legitimate

governmental purpose, such as deterring the type of illegal

activity in which the property was involved. The Court noted that

"[t]o the extent that such forfeiture provisions are applied to

lessors, bailors, or secured creditors who are innocent of any

wrongdoing, confiscation may have the desirable effect of inducing

them to exercise greater care in transferring possession of their

property."13 It could not be clearer, therefore, that Calero-Toledo

did not create a general "innocent owner" defense to statutory

forfeiture.

However, in dicta, the Court conceded that there could be

circumstances under which the "broad sweep" of forfeiture statutes

could give rise to serious constitutional questions. The court

said

it would be difficult to reject the constitutional claim of an
owner whose property subjected to forfeiture had been taken

11
416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974).
12
See United States v. Eighty-three Rolex Watches, 992 F.2d
508, 517 (5th Cir.1993).
13
Calero-Toledo, 416 U.S. at 687-88, 94 S.Ct. at 2094.

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 from him without his privity or consent. Similarly, the same
might be said of an owner who proved not only that he was
uninvolved in and unaware of the wrongful activity, but also
that he had done all that reasonably could be expected to
prevent the proscribed use of his property; for in that
circumstance, it would be difficult to conclude that
forfeiture served legitimate purposes and was not unduly
oppressive.14

At most, this language recognizes that there may be a subclass of

innocent persons to whom forfeiture provisions could not be applied

constitutionally. The burden of establishing that he is a member

of that subclass rests with the claimant. In this case, Mr.

Sivaskandan has not met that burden.

It is insufficient to prove that he was in fact "innocent" or

that he did not know about or aid in the illegal activity. It is

also insufficient to prove that Veena Sivaskandan did not have

ownership rights in the currency. The claimant would have had to

produce evidence that the property had been taken from him without

his privity or consent, or that he had done all that could

reasonably be expected to prevent the proscribed use of the

property to implicate the constitutional concerns the Supreme Court

alluded to in Calero-Toledo. The claimant produced no such

evidence.

Because the claimant did not establish the existence of a

genuine issue of material fact, the district court did not err in

granting the Government's motion for summary judgment.

III. CONCLUSION

For the reasons given above, the judgment of the district

14
Calero-Toledo, 416 U.S. at 688-90, 94 S.Ct. at 2094-95.

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court is AFFIRMED.

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