In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1143
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
5443 S UFFIELD T ERRACE, S KOKIE, ILLINOIS,
Defendant.
A PPEAL OF:
R ICHARD S. C ONNORS.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 1883—Robert W. Gettleman, Judge.
A RGUED N OVEMBER 6, 2009—D ECIDED JUNE 9, 2010
Before P OSNER, K ANNE, and R OVNER, Circuit Judges.
K ANNE, Circuit Judge. Appellant Richard S. Connors
operated a Cuban cigar smuggling and distribution
business from at least 1996 through 1999. He eventually
was convicted of several crimes related to this business.
See United States v. Connors, 441 F.3d 527 (7th Cir. 2006)
(upholding his conviction on appeal). The government
2 No. 09-1143
filed an action seeking civil forfeiture of Connors’s
home, arguing that Connors used the home to facilitate
his illegal business and that the home was purchased
with proceeds traceable to the illegal business. The
district court denied Connors’s motion to dismiss based
on his argument that the statute of limitations had run
on the government’s civil forfeiture action. The district
court then granted the government’s motion for sum-
mary judgment on both the facilitation and proceeds
theories, and ordered that the home be forfeited to the
United States. We affirm.
I. B ACKGROUND
United States Customs officials stopped Connors on
April 7, 1996, as he attempted to smuggle 1150 Cuban
cigars into the United States from Canada. The officials
confiscated the cigars and Connors’s passport. Undeterred,
Connors continued to travel to Cuba over the next three
years on numerous occasions to smuggle cigars into the
United States and sell them. In March 1997, local police
found Cuban cigars in Connors’s home, located at 5443
Suffield Terrace in Skokie, Illinois. The following day,
March 15, 1997, Skokie police turned over to U.S. Customs
officials the cigars that they found at Connors’s home.
Connors’s escapades continued through 1999, when in late
October U.S. Customs officials seized 850 Cuban cigars
from Connors’s home. A jury convicted Connors of smug-
gling Cuban cigars into the United States, conspiring to
smuggle cigars into the United States, making a false
statement on a passport application, and violating the
No. 09-1143 3
Trading With The Enemy Act, 50 App. U.S.C. §§ 5(b)(1), 16.
We have already affirmed Connors’s conviction. See
Connors, 441 F.3d 527. The question before us now is
whether he should also lose his house.
The government filed this civil forfeiture action on
March 14, 2002, just one day shy of five years after
Skokie police turned over the cigars they seized from
Connors’s house. The government argued that the house
was subject to forfeiture under two theories: first, that the
house was paid for, at least in part, with proceeds from
Connors’s illegal cigar business; and second, that Connors
used the house to facilitate his illegal cigar business,
subjecting the house to forfeiture under 18 U.S.C.
§ 981(a)(1)(C) and 19 U.S.C. § 1595a(A), respectively.
Connors filed a motion to dismiss, arguing that the
statute of limitations began to run on April 7, 1996,
when the government first discovered he was smuggling
cigars into the United States. The district court denied
his motion, holding that when Skokie police turned over
the seized cigars to federal officials on March 15, 1997,
it restarted the clock on the statute of limitations. The
district court granted the government’s motion for sum-
mary judgment. The district court denied Connors’s
motion for reconsideration and ordered the house for-
feited. This appeal followed.
II. A NALYSIS
Connors appeals the district court’s denial of his
motion to dismiss and its granting of the government’s
motion for summary judgment. We address each deci-
sion in turn.
4 No. 09-1143
A. Statute of Limitations
To avoid running afoul of the statute of limitations,
the government had two windows within which to file
its civil forfeiture action: “within five years after the time
when the alleged offense was discovered, or in the case
of forfeiture, within 2 years after the time when the in-
volvement of the property in the alleged offense was
discovered, whichever was later . . . .” 19 U.S.C. § 1621. The
government first discovered that Connors was using his
house as part of his smuggling operation in March 1997
but did not file this civil forfeiture action until March
2002, so it cannot rely on the two-year limitation. Whether
the government’s action was still timely filed within
the five-year limitation depends on which particular
event constitutes § 1621’s “alleged offense.”
Connors argues that the “alleged offense” is the opera-
tion of a cigar smuggling business in general, which the
government first discovered on April 7, 1996, when
U.S. Customs officials stopped him at the Canadian border
and seized his cigars. The government argues that the
“alleged offense” is not the enterprise, but the specific
instances of smuggling, one of which the government
discovered on March 15, 1997, when the Skokie police
turned over cigars seized from Connors’s house.
The district court found that although the April 1996
seizure constituted an alleged offense, the March 1997
discovery of additional smuggled cigars constituted a
“fresh alleged offense,” and the statute of limitations
therefore reset and began to run from that later date. We
review de novo the district court’s denial of a motion to
No. 09-1143 5
dismiss based on the statute of limitations. Middleton v.
City of Chicago, 578 F.3d 655, 657 (7th Cir. 2009).
Section 1621 does not itself define the term “alleged
offense.” Whatever question there may have been about
the meaning of the pre-CAFRA statute,1 the meaning of
alleged offense in § 1621 is unambiguous now. The refer-
ence in that section to the “alleged offense” clearly
means the alleged offense that gives rise to the civil
forfeiture action. When there are multiple, distinct under-
lying crimes that independently could support forfeiture
of the same property, nothing in the plain language of
§ 1621 bars a court from adjudicating a forfeiture action
as long as at least one alleged offense is not time-barred,
even if the statute of limitations has run on the
remainder of the underlying crimes. Section 1621’s refer-
ence to “the” alleged offense does not mean there can
be only one alleged offense, but instead is intended to
specify which alleged offense is being used as the basis
for the civil forfeiture action.
1
Prior to 2000, § 1621 included only the five-year statute of
limitations; Congress added the additional two-year limitation
when it passed the Civil Asset Forfeiture Reform Act of 2000
(CAFRA). Without a specific reference to the time that officials
discovered the property’s involvement, courts disagreed about
when an alleged offense was discovered. See United States v.
5443 Suffield Terrace, Skokie, Illinois, 209 F. Supp. 2d 919, 921 (N.D.
Ill. 2002) (noting the Sixth, Eighth, and Ninth Circuits found that
the statute of limitations ran from the time the underlying
offense was discovered, whereas the Eleventh Circuit held that
the statute of limitations ran from the time the property’s
connection with the crime was discovered).
6 No. 09-1143
We agree with the district court that the Skokie police
turning over the cigars on March 15, 1997, was a new
“alleged offense” for purposes of § 1621. Here, the govern-
ment’s civil forfeiture action is based not on Connors’s
attempted smuggling of cigars into the country in
April 1996, but on the discovery of smuggled cigars in
his house in March 1997 and October 1999. Because the
government filed its complaint in this case within five
years of those alleged offenses, the district court correctly
denied Connors’s motion to dismiss based on the statute
of limitations.
In his appeal, Connors mischaracterizes the district
court’s holding. The district court correctly concluded
that the weight of authority supports the notion that the
five-year statute of limitations begins to run from the
date of discovery of the underlying criminal offense
rather than when the government discovers the
property’s involvement. See 5443 Suffield Terrace, 209
F. Supp. 2d at 921-22 (discussing case law). However, the
district court went on to hold not that the attempted
smuggling on April 7, 1996, was the alleged offense, but
instead was an alleged offense; the turning over of the
additional cigars on March 15, 1997, was also an alleged
offense—or a “fresh alleged offense”—on which the
government could base its civil forfeiture action.
Connors forfeited his house not because he operated
a cigar smuggling business in general, but because the
government discovered on March 15, 1997, that he had
recently smuggled cigars into the country. Whether the
government could or should have discovered after April 7,
No. 09-1143 7
1996, but before March 15, 1997, that Connors was using
his house to facilitate his smuggling business or
could not afford to pay his mortgage without ill-gotten
proceeds is quite beside the point. Connors put his
home at risk of being forfeited anew when he elected to
smuggle cigars into the country after having already
been stopped once at the border by government officials.
He did so again when he smuggled additional cigars
that were discovered in 1999.
Connors cites the Sixth Circuit’s decision in United
States v. $515,060.42 in U.S. Currency, 152 F.3d 491 (6th Cir.
1998) in support of his position. In $515,060, govern-
ment officials seized the currency from Virginia Hurst’s
home on October 17, 1989. Hurst was convicted of con-
spiracy to conduct an illegal gambling business and
conducting an illegal gambling business. The government
filed its civil forfeiture action on March 14, 1994, one year
after Hurst’s last conviction for conducting an illegal
gambling business. Id. at 495. The district court held that
the forfeiture action was time-barred by the five-year
statute of limitations because the government had
heard testimony before a grand jury in the fall of 1988
that linked Hurst to the illegal gambling operations
under investigation, meaning that the forfeiture action
must have been filed sometime prior to the fall of 1993.
Id. at 502-03. The Sixth Circuit held that the statute of
limitation included a “known or should have known”
standard, id. at 502 (citing United States v. James Daniel
Good Property, 971 F.2d 1376, 1381 (9th Cir. 1992)), meaning
“an offense is discovered when the Government dis-
covers or possesses the means to discover the alleged
8 No. 09-1143
wrong, whichever occurs first,” id. The court expressly
rejected the government’s argument that the money in
jeopardy came from a recent violation of the gambling
laws which had reset the clock: “The statute of limitations
does not run from the date of a particular violation, but
from the date of ‘discovery’ of an offense. The Govern-
ment cannot disregard its discovery of earlier occurring
offenses in preference for later offenses which would
produce a more favorable timeline.” Id. at 502-03. The
Sixth Circuit rested its conclusion principally on its
understanding of the word “discovery.” It bolstered its
conclusion by emphasizing that “[s]tatutes of limitations
are statutes of repose,” with one of their principal pur-
poses being to put the adversary on notice. Id. at 503.
$515,060 is neither binding on this court nor applicable
to this case. The alleged offense in $515,060 was the
operation of a gambling business—a single, continuing
offense—whereas here Connors committed multiple,
albeit related, offenses. Although it is convenient to refer
to Connors’s many exploits as a cigar-smuggling business
or enterprise, Connors in fact committed many separate
offenses. That he was also charged with and convicted of
conspiracy does not change this. There can be multiple
crimes committed within a conspiracy, so the mere pres-
ence of a conspiracy charge does not automatically lump
all separate offenses together. As discussed above, each
time Connors committed a new crime by smuggling
illicit cigars into the country, he re-exposed his house to
the risk of forfeiture. Further, our decision does not
conflict with the conceptualization of statutes of limita-
tions as statutes of repose. Connors has received the
No. 09-1143 9
repose he deserves: the government cannot seek for-
feiture of his house based on his April 1996 failed smug-
gling because it failed to file its forfeiture action within
five years of that date. That Connors should be entitled
to rest easy regarding his subsequent crimes is an absur-
dity not supported by the plain language of 19 U.S.C.
§ 1621 or common sense.
We affirm the district court’s denial of Connors’s
motion to dismiss.
B. Income Deficiency
The district court granted summary judgement on the
government’s theory that the house was paid for at least
partly with proceeds from Connors’s cigar smuggling
business. The district court found that Connors had
deposited far more money into the bank account from
which he made the mortgage payments than could be
attributable to his legitimate sources of income. The
district court also noted that Connors did not produce any
evidence of additional legitimate sources of income.
On appeal, Connors argues that he had multiple sources
of additional legitimate income, and that the district court
ignored the evidence he submitted earlier in the litiga-
tion. We find that Connors waived this argument by
failing to raise it properly before the district court at
summary judgment, and we therefore affirm the district
court’s granting of summary judgment on the income
deficiency theory.
In his response to the government’s motion for sum-
mary judgment, Connors argued only that the govern-
10 No. 09-1143
ment had waived this theory because of a typo in the
complaint. He continues to press this point on appeal. In
its complaint, the government inadvertently (as was
obvious from the fact that it was bringing a civil forfeiture
action) wrote that Connors’s income exceeded his ex-
penditures during the relevant years rather than that his
expenditures greatly exceed his reported income. The
district court noted that the government could correct
the error by amending its complaint under Federal Rule
of Civil Procedure 15(b). Connors argues that because
the government never moved to amend its complaint
and correct the typo, the government has waived its
proceeds theory.
Connors’s objection notwithstanding, he clearly under-
stood the thrust of the government’s proceeds argument
and attempted, albeit inadequately, to mount a defense.
Under these circumstances, we find that it was unneces-
sary for the government to amend its complaint. Cf. Torry
v. Northrop Grumman Corp., 399 F.3d 876, 877-79 (7th
Cir. 2005). In any event, Connors did not appeal, and we
do not upset, the district court’s conclusion that the
government can amend its complaint to correct the
typos, which it may still do even after judgment has been
entered. See Fed. R. Civ. P. 15(b)(2).
Aside from his argument that the government waived
the income deficiency theory, in his summary judgment
response, Connors did not so much as mention any addi-
tional sources of income, much less cite to any competent
evidence of that income. If Connors had evidence he
wished the district court to consider, the proper thing
No. 09-1143 11
would have been to attach the evidence to his response to
the government’s motion for summary judgment. Having
failed to do so when he had the chance, Connors waived
the argument and we decline to consider the merits of it
on appeal.
Connors argues that he raised the issue in his response
to the government’s Rule 56.1 statement. A response to a
Local Rule 56.1 statement should be concise and note
disagreements with the moving party’s statement by
making “specific references to the affidavits, parts of
the record, and other supporting materials relied upon.”
N.D. Ill. R. 56.1(b)(3). Rather than comply with the local
rule, Connors—who is an attorney, even though he pro-
ceeded pro se below—submitted a meandering 35-page
response virtually bereft of citations to evidence. He
also failed to restrict his response to the facts, wasting
significant ink instead on rehashing legal arguments long
since put to rest and attempting to raise new arguments.
Buried on page 33 of his response, Connors refers to
his exhibits 8 and 9, which are an inadmissible “summary”
of Connors’s income and available funds from 1996
through 1998, and a copy of two pages of his reply on
his unsuccessful motion to dismiss, respectively. In the
copied pages of his reply regarding the motion to
dismiss, Connors attached copies of bank statements that
he alleged showed additional legitimate sources of
income. He did not, however, attach those bank state-
ments to his response to the government’s motion for
summary judgment or specifically reference the state-
ments in his response to the government’s Rule 56.1
statement. He did include as his fourth affirmative
12 No. 09-1143
defense a statement that he had other sources of income,
although he failed again to include a reference to any
evidence supporting that defense.
At summary judgment, unfortunately for Connors,
saying so doesn’t make it so; summary judgment may
only be defeated by pointing to admissible evidence in
the summary judgment record that creates a genuine
issue of material fact, and it was not the district court’s
job to sift through the record and make Connors’s case
for him. United States v. Dunkel, 927 F.2d 955, 956 (7th
Cir. 1991) (“Judges are not like pigs, hunting for truffles
buried in briefs.”). We find his attempts to raise the
issue of additional legitimate income inadequate, and
therefore affirm the district court’s granting of summary
judgment on the government’s income deficiency or
proceeds theory. Having affirmed the district court’s
granting of summary judgment on this theory, we
find it unnecessary to address the district court’s granting
of summary judgment on the government’s facilitation
claim.
III. C ONCLUSION
We A FFIRM the district court’s denial of the motion to
dismiss and grant of summary judgment. The property
remains forfeited to the United States.
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