United States v. Rodriguez-Aguirre

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 5, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 02-2340
v.

GABRIEL RODRIGUEZ-AGUIRRE;
ELENO AGUIRRE,

Defendants - Appellants.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-92-486-JC)

Stephen R. Kotz, Assistant United States Attorney (David C. Iglesias, United States
Attorney, with him on the briefs), Albuquerque, New Mexico, for Plaintiff - Appellee.

Brenda G. Grantland, Mill Valley, California, for Defendants - Appellants.

Before MURPHY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and O’BRIEN,
Circuit Judge.

O’BRIEN, Circuit Judge.
 This is the second appeal in this case. Gabriel Rodriguez-Aguirre and Eleno

Aguirre (collectively referred to as the Aguirres) filed a motion pursuant to Rule 41(e) of

the Federal Rules of Criminal Procedure1 seeking the return of over 205 items of personal

property which they allege the government seized from them but never properly forfeited.

On the recent remand, the district court granted summary judgment in favor of the

government and denied the Aguirres’ motion for partial summary judgment. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

Gabriel Rodriguez-Aguirre and Eleno Aguirre were convicted by a jury of multiple

drug offenses and money laundering and sentenced to 360 and 235 months imprisonment,

respectively.2 Their convictions arose out of their participation in the Aguirre drug

1
Effective December 1, 2002, Rule 41 was amended and reorganized. What was
formerly Rule 41(e) is now found at Rule 41(g) with minor stylistic changes. Rule 41(g)
provides:

Motion to Return Property. A person aggrieved by an unlawful search and
seizure of property or by the deprivation of property may move for the
property's return. The motion must be filed in the district where the property
was seized. The court must receive evidence on any factual issue necessary to
decide the motion. If it grants the motion, the court must return the property
to the movant, but may impose reasonable conditions to protect access to the
property and its use in later proceedings.

For purposes of this appeal and to remain consistent with the parties’ briefs, we will
continue to refer to the rule as Rule 41(e).
2
Their convictions were affirmed on appeal. See United States v. Aguirre, 108
F.3d 1284 (10th Cir. 1997); United States v. Rodriguez-Aguirre, 108 F.3d 1228 (10th Cir.
1997).

2
trafficking organization, which operated out of Deming, New Mexico, from 1985 until

the arrest of its members in October 1992. The organization distributed at least 29,000

pounds of marijuana and 24,000 pounds of cocaine, resulting in the generation of

approximately $41,000,000 in revenue. The Aguirre organization used these proceeds to

purchase vehicles, heavy equipment, real estate, horses, businesses and other items.

In October 1992, federal agents executed search and seizure warrants upon

multiple parcels of real property owned by various members of the Aguirre organization.

Thereafter, the government initiated judicial forfeiture proceedings. See United States v.

Fifty-One Items of Real Property, et al., Civil No. 92-1155-JC (D.N.M.). The

government personally served the forfeiture complaint upon the Aguirres. In response,

Gabriel filed a claim on behalf of himself and “others herein unnamed.” (R., Appellants’

Addendum at 141.) The court struck the claim. Gabriel did not re-file a claim or

otherwise answer the complaint. On December 15, 1993, the district court entered a

partial default judgment against various individuals including Gabriel and Eleno. On

December 23, 1993, the district court entered a final forfeiture judgment.

Subsequently, the government sought the forfeiture of seized race horses, cash,

vehicles and other property. See United States v. Approximately 247 Race Horses, et al.,

Civil No. 93-102-JC (D.N.M.). The district court entered a final forfeiture judgment on

April 19, 1994, which was amended on June 29, 1994, to include a list of the forfeited

items. In 1995, the government filed a third forfeiture proceeding, seeking and obtaining

3
the forfeiture of additional parcels of real property and a life insurance policy. See United

States v. Eighty Acres, et al., Civ. No. 95-981 JC (D.N.M.).

On April 20, 2000, the Aguirres filed a motion for return of property pursuant to

Rule 41(e).3 The motion sought the return of 127 items of personal property,4 which the

Aguirres claimed were seized but never judicially or administratively forfeited by the

government. On May 1, 2000, the government filed a Rule 12(b) motion to dismiss. On

August 17, 2000, the district court granted the government’s motion, dismissing the Rule

41(e) motion based on a lack of Article III standing and laches. The Aguirres appealed.

We reversed and remanded. See United States v. Rodriguez-Aguirre, 264 F.3d

1195 (10th Cir. 2001) (Aguirre I). We determined the Aguirres had standing and the

doctrine of laches was inapplicable. Id. at 1207, 1209. We also concluded that the six-

year statute of limitations contained in 28 U.S.C. § 2401(a) applied to Rule 41(e) motions.

Id. at 1210. However, because the record was insufficient to determine whether the

Aguirres’ motion was timely, we remanded the case to the district court “to determine in

the first instance the timeliness of [the] Rule 41(e) motion.” Id. at 1214.

On remand, the magistrate judge assigned to the case directed the Aguirres to file a

3
The motion was also filed on behalf of Delores Contreras and Tony Bencomo.
These two individuals, however, have abandoned their claims and are not parties to this
appeal.
4
Among the items sought to be returned were $3,233,000 in United States
currency, portable buildings, personal clothing, custom pool equipment, vehicles, mobile
homes and exercise equipment.

4
list of items being claimed, identifying the person claiming each item and describing each

item. The magistrate judge also ordered the government to respond to the list.

On December 7, 2001, the Aguirres filed a list containing 205 items of personal

property. On January 10, 2002, the government filed its response, addressing to the

extent possible the disposition of each of the items and objecting to the addition of any

items beyond the 127 items listed in the original Rule 41(e) motion.

Thereafter, the government filed a motion for summary judgment and the Aguirres

filed a motion for partial summary judgment. On July 17, 2002, the district court

conducted an evidentiary hearing on the parties’ respective motions. At the hearing, the

Aguirres orally moved to amend their list of personal property to include four liquor

licenses. The district court denied the motion. It also rejected their attempt to expand the

list of items sought beyond the 127 items originally claimed.

On October 16, 2002, the district court entered an order, granting the government’s

motion and denying the Aguirres’ motion. In this order, the district judge concluded the

following:

1. The Aguirres were challenging the prior judicial forfeiture proceedings and
therefore, the court lacked jurisdiction because Rule 41(e) is not the proper vehicle
for challenging a judicial forfeiture;

2. Even assuming the court had jurisdiction, based on the evidence and testimony
presented at the hearing, eighty-nine of the items sought to be returned were never
seized by the government, seven items were partially seized and forfeited, twenty-
four items were seized and forfeited, one item was returned to the registered
owner, four items were declared abandoned, one item was returned to Danny
Aguirre, and one item, mutilated currency, was destroyed because it had no value;

5
 and

3. Even assuming the government seized the property and was wrongfully
withholding it, the government successfully demonstrated at the hearing that the
property was 21 U.S.C. § 881(a)5 property and therefore, the government was
entitled to an award of quiet title in the property.

The Aguirres timely appealed.6

II. Discussion

The Aguirres contend the district court erred by (1) refusing to permit them to

expand their list of claimed property from 127 items to 205 items and to orally amend the

list to include four liquor licenses, (2) holding it lacked jurisdiction under Rule 41(e)

because they were challenging the judgments in the judicial forfeiture cases, (3) granting

summary judgment in favor of the government, and (4) permitting the government to

litigate the forfeitability of the property in this proceeding.

5
This statute provides in relevant part:
(a) Subject property

The following shall be subject to forfeiture to the United States and no property right
shall exist in them:
....

(6) All moneys . . . or other things of value furnished or intended to be
furnished by any person in exchange for a controlled substance or listed
chemical in violation of this subchapter, all proceeds traceable to such an
exchange, and all moneys . . . used or intended to be used to facilitate any
violation of this subchapter. . . .
6
This appeal was consolidated, for procedural purposes only, with Clymore v.
United States, No. 02-2264, which is addressed in a separate opinion.

6
 (a) Motion to Amend

The Aguirres allege the district court erred in refusing to allow them to expand

their list of property from 127 to 205 items and to orally add the four liquor licenses. The

district court denied the Aguirres’ “motion” to amend because it determined it was limited

to addressing only the 127 items which were presented to this Court in Aguirre I. We

review the denial of a motion to amend a complaint for an abuse of discretion. Long v.

United States, 972 F.2d 1174, 1183 (10th Cir. 1992).

We need not decide whether the district court abused its discretion in denying the

“motion” to amend because the district court made the following alternative finding:

“[E]ven had I considered the extra items, the United States’ evidence is sufficient to

demonstrate that either the additional items had not been seized, or they are 21 U.S.C. §

881(a) property, as they are sufficiently related and similar to the original 127 items.” (R.,

Appellants’ App. at 204.) Therefore, we will consider these additional items in reviewing

the district court’s order. We note, however, that although the Aguirres sought to expand

their list to include seventy-eight additional items plus the four liquor licenses, eight of

those items were sought solely by Delors Confreres and fifty-eight by Tony Bencomo,

who are no longer parties in this case. Further, at the evidentiary hearing, Gabriel

withdrew his claim for the $3,233,000. Therefore, our review is limited to the original

127 items, eleven additional items and four liquor licenses.

(b) Jurisdiction

7
 The Aguirres contend the district court erred in concluding that their Rule 41(e)

motion was in reality an attack on the prior judicial forfeiture proceedings and therefore,

that it lacked jurisdiction over this case. They argue they are not challenging the three

previous judicial forfeiture proceedings. Rather, they contend they refer to these

proceedings’ complaints merely to demonstrate the items sought to be returned in this

case were never named as defendants in those proceedings. They allege they are required

to show this because if any of the items had been judicially forfeited, they have no right to

their return.

We review de novo a district court’s dismissal for lack of subject matter

jurisdiction. Algin v. Lucero, 87 F.3d 401, 403 (10th Cir. 1996).

A Rule 41(e) motion is an inappropriate vehicle for challenging a judicial

forfeiture; the proper vehicle is a motion for relief of judgment under Rule 60(b) of the

Federal Rules of Civil Procedure. United States v. Madden, 95 F.3d 38, 40 (10th Cir.

1996). Here, the Aguirres submitted the complaints from the prior civil forfeiture

proceedings to demonstrate that the property alleged to have been forfeited by the

government was not properly forfeited because the complaints did not name the property

as a defendant. For instance, in Fifty-One Items of Real Property, Civil No. 92-1155-JC

(D.N.M.), the government referred to the defendants as “Fifty-One Items of Real

Property, and Improvements and Contents of Improvements Thereon in Luna, Grant and

Dona Ana Counties, New Mexico and Mariposa County, Arizona.” (R., Appellants’

8
Addendum at 1.) The Aguirres contend this language does not include, for example,

personal property inside mobile homes. Specifically, they assert that because mobile

homes are not improvements, the personal property inside them does not constitute

“contents of improvements.”

We agree with the district court that the Aguirres’ argument is in essence an attack

on the sufficiency of the prior forfeiture complaints and judgments. This type of attack

must be brought in a Rule 60(b) motion. It is not for this Court or the district court to

decide in a Rule 41(e) equity proceeding whether certain property was properly named in

the forfeiture proceedings. The Aguirres must first successfully attack the forfeiture

judgments under Rule 60(b). Therefore, the district court properly found it lacked

jurisdiction over that property the government states was judicially forfeited. We will

now address the district court’s determination as to the other items of property.

(c) Summary Judgment

The Aguirres argue the district court erred in granting summary judgment in favor

of the government and denying their motion for partial summary judgment. They claim

the district court improperly weighed the evidence and made credibility determinations.

They also contend the court should have granted them judgment on the following issues:

(1) items located outdoors on land cannot be forfeited as “contents of improvements” and

mobile homes are not “improvements,” (2) liquor licenses are not “contents of

improvements,” (3) the videotapes of the seizures demonstrate that certain items they

9
seek returned were seized by the government and they were located outside any

improvement, (4) documents created by the government, including the Declarations of

Abandonment and the Drug Enforcement Agency’s (DEA) Non-Drug Evidence List,

establish the items listed in these documents were seized by the government, and (5)

moldy currency found in the ground is not “contents of improvements.” The government

contends the court properly entered judgment in its favor. It argues the Aguirres ignore

the court’s findings that they were not credible and gloss over the overwhelming evidence

establishing that the government did not seize at least seventy percent of the property they

seek returned.

Generally, we review a district court's denial of a Rule 41(e) motion for an abuse

of discretion. United States v. Danann, 103 F.3d 82, 84 (10th Cir. 1996). However, the

district court denied the Aguirres’ Rule 41(e) motion pursuant to the government’s

motion for summary judgment. “We review a grant of summary judgment de novo,

applying the same legal standard used by the district court under Fed.R.Civ.P. 56(c).”

Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1182 (10th Cir. 1995). “Summary judgment

should be granted if ‘there is no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law.’” Id. (quoting FED. R. CIV. P. 56(c)).

“We consider the ‘factual record and reasonable inferences therefrom in the light most

favorable to the party opposing summary judgment.’” Id. at 1182-83 (quoting Blue Circle

Cement, Inc. v. Board of County Comm'rs., 27 F.3d 1499, 1503 (10th Cir. 1994)).

10
“Summary judgment is appropriate if the non-moving party cannot adduce probative

evidence on an element of its claim upon which it bears the burden of proof.” Id. at 1183.

Whether reviewed for an abuse of discretion or de novo, the district court did not err.

The evidentiary hearing on the parties’ motions for summary judgment was in

essence a hearing on the merits. The Aguirres, however, were not prejudiced by such

procedure. They testified and presented evidence at the hearing. In seeking to include

the four liquor licenses as part of the claimed property, their counsel stated “during the

course of preparing for this trial . . . .” (R. Appellees’ App. at 16.) This comment

demonstrates the Aguirres were aware the hearing would be similar to a trial on the merits

and the district court would be considering the evidence presented and making credibility

determinations in order to resolve the Rule 41(e) motion. Additionally Rule 41(e)

provides for such procedure, requiring the court to hear evidence on any factual issue

necessary to decide the Rule 41(e) motion. Here, the district court specifically found an

evidentiary hearing was required and conducted such hearing. There was nothing

improper about the district court’s actions in this case.

As to whether the court properly granted judgment in favor of the government, the

district court heard testimony, viewed the videotapes and weighed all the evidence.

Based on our own review of the videotapes and the transcript of the evidentiary hearing,

we conclude the district court did not err in finding that eighty-nine items sought to be

returned were never seized by the government, one item was returned to the registered

11
owner, four items were declared abandoned, one item was returned to Danny Aguirre and

one item was destroyed because it had no value.

As to the eighty-nine items which the court found were not seized, the Aguirres

testified the government seized these items and is still holding them. The government’s

evidence, however, casts a different story. The government presented testimony from

Agent Richard Wayne Sanders of the DEA, one of the original case agents involved in the

Aguirres’ criminal cases, Agent Kenneth Gayle Sanders of the United States Custom

Service, another case agent, and Agent Lawrence Hart of the Internal Revenue Service.

It also presented ten videotapes depicting the real properties on the date the government

executed the search and seizure warrants. Agent Sanders testified that most of the

personal property the Aguirres want returned was never located on the real properties.

His testimony is supported by the videotapes, which demonstrate that many of the items

claimed to be on the properties were not present at the time of the seizures. For instance,

the Aguirres sought the return of five fully furnished mobile homes.7 The videotapes,

however, demonstrate these homes were either empty or ransacked. Also, the videotapes

show that the vehicles sought to be returned were not present on the property on the date

of the seizure. In fact, Agent Lawrence Hart testified that up to the date of the seizures,

agents observed vehicles being removed from the properties. He also stated the

According to the government, there were only four homes on the property, one of
7

which was a burned hulk. The three homes which were standing contained no furniture
and were forfeited and sold with the property.

12
government was unable to execute all of the search warrants as it could not locate certain

items.8

In light of the government’s evidence, the Aguirres’ testimony is insufficient to

establish that the government seized these 89 items. Indeed, Gabriel admitted he had

been in prison for six months at the time of the execution of the warrants. Therefore, his

testimony that these items were on the subject properties on the date of the execution of

the warrants is highly suspect.

As to the mutilated currency, Agent Sanders testified that the United States

Treasury determined it had no value due to its deteriorated and moldy condition and

therefore had to be destroyed. Although the Aguirres contend on appeal that they “would

be content getting back an equivalent sum of currency” (Appellants’ Opening Br. at 24),

we have no jurisdiction to award money damages under Rule 41(e). See Clymore v.

United States, No. 02-2264 (issued simultaneously with this decision).

The government also presented sufficient evidence that one item was returned to

its registered owner (an eighteen foot fishing boat returned to Bob Dalton) and one item

(twelve leather jackets) was returned to Danny Aguirre. Although Danny Aguirre

testified he never received the twelve leather jackets, the government presented a receipt

signed by Danny evidencing their return.

In its October 16, 2002 order, the district court mistakenly states that this
8

testimony was provided by Agent Sawyer.

13
 The government also presented evidence that four items were declared abandoned.

As to these items, Agent Sanders testified the government provided notice of

abandonment to either the registered owner of the item, the owner of the property where

the item was found or to the lessee of the storage unit where the property was found. He

also testified that a notice was published in a nationally circulated newspaper. Gabriel

and Eleno contend they never received adequate notice of the abandonment proceedings.

The district court did not address this issue but rather found that “[e]ven if [it were to]

determine that the notices of abandonment . . . were constitutionally deficient and thus

void, at the hearing the government . . . adequately demonstrated a nexus between all of

the contested property and the drug proceeds from the Aguirre Organization.” (R.

Appellants’ App. at 213-14.) In other words, the court found all of the property sought to

be returned, including the abandoned property, was 21 U.S.C. § 881(a) property and

therefore, the Aguirres had no right to its return.

(d) 21 U.S.C. § 881(a) property

The Aguirres argue the district court erred in relying on Clymore v. United States,

245 F.3d 1195 (10th Cir. 2001) (Clymore II). Specifically, they contend the district court

improperly permitted the government to demonstrate that the subject property was

forfeitable under 21 U.S.C. § 881(a) even though the statute of limitations for forfeiting

such property had expired. They contend that under Clymore v. United States, 164 F.3d

569 (10th Cir. 1999) (Clymore I), the government cannot establish grounds for forfeiture

14
in a Rule 41(e) proceeding brought after the statute of limitations has run. To the extent

Clymore II changed this legal proposition, the Aguirres contend it violates the law of the

case doctrine and intracircuit conflict rules. They also argue Clymore II was wrongly

decided, is distinguishable and conflicts with Aguirre I. Resolution of these issues

requires a discussion of Clymore I and Clymore II.

The issue in Clymore I was whether a district court can review the merits of a

forfeiture proceeding in a Rule 41(e) action where the claimant never received

constitutionally adequate notice of the proceeding and the running of the statute of

limitations prevented the government from initiating new forfeiture proceedings. We first

determined that a forfeiture of property is considered void and must be vacated where a

claimant does not receive constitutionally adequate notice of the forfeiture. 164 F.3d at

572-74. We then concluded that because the statute of limitations prevented the

government from initiating new civil proceedings against the claimant, the forfeiture of

his property should be set aside unless the government can demonstrate equitable tolling.

Id.

In Clymore II, we addressed whether a Rule 41(e) claimant was entitled to

automatic return of seized property if the prior forfeiture of the property was invalid and

the statute of limitations prevented the government from initiating new forfeiture

proceedings. 245 F.3d at 1199. We concluded a claimant is not entitled to automatic

return of the property under such circumstances but rather, the government could still be

15
awarded quiet title to the property if it could establish (1) the property fell under the

auspices of 21 U.S.C. § 881(a), (2) an innocent owner was not entitled to the property and

(3) the seizure of the property was constitutional. Id. at 1200-02.

Clymore I and Clymore II do not conflict and neither the law of the case doctrine9

nor the intra-circuit conflict rules are violated.10 Clymore I merely held that the

government cannot rely on a void civil forfeiture proceeding as a defense in a Rule 41(e)

proceeding. It did not foreclose the government from asserting it had a right to the

property apart from its forfeiture of the property, i.e. under § 881(a), nor did it preclude

the government from asserting that a Rule 41(e) movant does not own the property and

therefore, has no right to its return.

The Aguirres also assert the district court erred in relying on Clymore II because it

conflicts with Aguirre I and is distinguishable. In support of this argument, the Aguirres

point to one statement in the Aguirre I opinion: “After the criminal proceedings conclude,

. . . the government has no right to retain the property, absent the commencement of

forfeiture proceedings . . . .” 264 F.3d at 1213. However, the Aguirre I court specifically

9
The law of the case doctrine provides “[w]hen a court decides upon a rule of law,
that decision should continue to govern the same issues in subsequent stages in the same
case.” Arizona v. California, 460 U.S. 605, 618 (1983). Therefore, “when a case is
appealed and remanded, the decision of the appellate court establishes the law of the case
and ordinarily will be followed by both the trial court on remand and the appellate court
in any subsequent appeal.” Rohrbaugh, 53 F.3d at 1183.
10
“[W]hen faced with an intra-circuit conflict, a panel should follow earlier,
settled precedent over a subsequent deviation therefrom.” Haynes v. Williams, 88 F.3d
898, 900 n.4 (10th Cir. 1996).

16
stated in a footnote that this statement did not conflict with Clymore II and acknowledged

its holding. Id. at 1213 n.14. In addition, the issues addressed in Aguirre I and Clymore

II were entirely different. In Aguirre I, we decided when the statute of limitations for the

filing of a Rule 41(e) motion begins to run; we did not address whether the district court

could decide the merits of a Rule 41(e) motion based on § 881(a) despite the

government’s inability to forfeit the property due to the running of the statute of

limitations.

Lastly, the Aguirres contend Clymore II is distinguishable because it involved an

administrative forfeiture later declared void for lack of notice. This distinction is

irrelevant. In this case, as in Clymore II, the government may no longer institute

forfeiture proceedings against the subject property and the question is whether a Rule

41(e) movant is entitled to the automatic return of the property under such circumstances.

In Clymore II, we answered this question in the negative.11

The Aguirres’ arguments are based on the faulty assertion that the district court

allowed the government to litigate the forfeitability of the property in this case. We

acknowledge that § 881 is a forfeiture statute. However, § 881(a) specifically states that

11
The Aguirres allege Clymore II was wrongly decided because it conflicts with
United States v. 92 Buena Vista Ave., 507 U.S. 111 (1993). We disagree. The issue in
Buena Vista was whether an owner’s lack of knowledge of the fact that her home had
been purchased with illegal drug proceeds constituted a defense to a § 881 forfeiture
proceeding. 507 U.S. at 114. It did not address whether a Rule 41(e) movant is entitled
to the return of § 881(a) property where the movant is not an innocent owner and the
seizure of the property was constitutional.

17
proceeds from the sale of drugs are subject to forfeiture and “no property right shall exist

in them.” It was under this definition that the district court denied the Aguirres’ Rule

41(e) motion. Despite the Aguirres’ repeated assertions that the government is unlawfully

withholding this property from them and that the government has no right to retain this

property, they have not shown they are lawfully entitled to it either. Indeed, under §

881(h), “[a]ll right, title, and interest in property described in subsection (a) . . . shall vest

in the United States upon commission of the act giving rise to forfeiture under this

section.” Therefore, the Aguirres never had a right to this property. At all times, title to

this property was vested in the government.

We emphasize that a Rule 41(e) proceeding is an equitable one. See Floyd v.

United States, 860 F.2d 999, 1002 (10th Cir. 1988). As we stated in Clymore II, returning

properly seized property to a criminal defendant simply because the government can no

longer initiate forfeiture proceedings, “would give criminal defendants a conclusively

presumptive property right in the fruit of their criminal conduct . . . a result clearly

prohibited by § 881.” 245 F.3d at 1200. Equity forbids such a result.

Because the district court properly relied on Clymore II, the question becomes

whether the court erred in determining that the subject property fell under the auspices of

§ 881(a). Notably, the Aguirres do not challenge the district court’s findings on this

issue; rather their arguments are limited to contesting the court’s application of § 881(a).

Nevertheless, we conclude the district court’s determinations are supported by the record.

18
 Agent Hart, who performed the financial investigation on the Aguirre organization

and its businesses, testified that (1) the approximate revenue realized by the Aguirre

Organization was $68-70 million,12 (2) Gabriel’s and Eleno’s expenditures far exceeded

their legal sources of income,13 (3) the Aguirre businesses operated at a loss and were

capitalized with drug proceeds and (4) although the Aguirres won one million dollars in a

horse race, the horse was purchased with drug proceeds. The district court found Agent

Hart’s testimony credible. It discounted Gabrielle’s testimony that the property was

purchased with money his father found in an abandoned mine in Mexico and prize money

earned by racing horses in Mexico, relying instead on Agent Hart’s testimony that there

was no evidence the Aguirres raced horses in Mexico and even if they had, the winnings

were never introduced into the United States’ economy.

Based on the above, the district court’s conclusion that the property at issue in this

case was § 881(a) property is adequately supported by the record.

III. Conclusion

The district court’s grant of summary judgment to the government and denial of

12
Agent Hart defined “revenue” for purpose of his testimony as “the gross amount
realized prior to paying any expenses or paying for inventory.” (R, Appellee’s App. at
198.)
13
Gabriel’s legitimate income during the relevant time period included the sale of
a few vehicles for less than $1,000 and monthly disability insurance benefits in the sum of
$318.00. Eleno was employed for approximately five years as a janitor at a local
elementary school and he too sold some vehicles. As a janitor, he made approximately
$10,000-$12,000 per year. Eleno’s wife contributed a de minimis amount of income to
the family.

19
the Aguirres’ motion for partial summary judgment are AFFIRMED.

20