Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1990)

MEMORANDUM^** 

Claimant, Benjamin Charles Smith, appeals from the judgment of the district court. That judgment forfeited an arrested aircraft to the United States. We affirm.

FACTS

On October 16, 1987, Smith purchased a Cessna aircraft from Hudson Flyers, Inc. with three cashier's checks for $9,000, $9,000, and $5,500. The checks listed the purchasers as Todd Baker, Robert Burke, and Shauna Hills.

The first check for $9,000 was purchased that day at the Uptown Office of First Interstate Bank in Sedona, Arizona. The purchaser identified himself as "Todd Baker." The second and third checks were purchased the same day by two individuals. The first identified himself as Robert Burke, and the second identified herself as "Shauna Hills." None of the tellers in those three transactions filed a currency transaction report. See 31 U.S.C. § 5313(a).

Smith was arrested on October 24, 1987 for escape from a federal correctional institution. In a search at his residence, officers discovered identification documents in the names of Todd Baker and Robert Burke. Smith was convicted in the District of Oregon for, among other things, conspiracy to produce and production of false identification documents. The court found that Smith used the names of Todd Baker and Robert Burke.

Smith was also indicted in the District of Arizona for attempting to cause a financial institution to fail to file a currency transaction report, in violation of 31 U.S.C. § 5324(1), and conspiracy to commit that offense. Smith was acquitted on January 25, 1989.

On November 24, 1987, the Government filed the complaint in this action. The Government also filed a motion for a warrant of arrest in rem. The affidavit in support of the motion stated that Smith had escaped from federal custody and described the cashier's check and aircraft purchase transactions. The affidavit also noted that the indictment in the Oregon criminal actions charged Smith and his wife with possession of false identification documents in the names of Baker, Burke, and Hills. The court granted the motion and ordered the issuance of an arrest warrant.

Smith filed a claim on March 9, 1988. After the above criminal actions had concluded, the Government filed a motion for summary judgment against Smith and a motion for default judgment against all other claimants. The court granted the motions on May 23, 1989. Judgment was filed on May 26, 1989. Smith filed a timely notice of appeal.

During the pendency of this appeal, the United States Marshal moved for an order to transfer the aircraft to the Midland/Odessa Airport in Texas. The district court granted the motion in an order filed on March 2, 1990. On March 29, 1990, during transfer, the plane was wrecked in a collision with a radio tower thirty miles west of the airport. The Government states that the aircraft has no salvage value.

JURISDICTION

The district court has jurisdiction over forfeiture actions under 28 U.S.C. § 1355. Smith argues that there is no subject matter jurisdiction because no acts were alleged to have taken place in the District of Oregon. This argument, however, concerns the proper venue for the action. Smith did not raise this argument below, and we deem it waived. Westinghouse Elec. Corp. v. Weigel, 426 F.2d 1356, 1357-58 (9th Cir. 1970) (per curiam).

The accident raises a further issue concerning our jurisdiction. The Government suggests that, notwithstanding the wreckage of the res, the court still retains jurisdiction. We agree. Smith has not stated that he disclaims an interest in the wreckage, which remains in the custody of the court. We therefore have jurisdiction over this appeal.

STANDARD OF REVIEW

We review de novo the grant of summary judgment. United States v. One 56-Foot Motor Yacht Named Tahuna, 702 F.2d 1276, 1280 (9th Cir. 1983). We review constitutional questions de novo. United States v. Bohn, 890 F.2d 1079, 1080 (9th Cir. 1989).

DISCUSSION

Smith first asserts that the district court erred when it granted summary judgment. There must be probable cause for the institution of a forfeiture action. 19 U.S.C. § 1615. Once probable cause is shown, the burden of proof shifts to the claimant. Probable cause is reasonable grounds to believe that the seized property is related to illegal acts. One 56-Foot Motor Yacht Named Tahuna, 702 F.2d at 1282.

The Government produced sufficient evidence to demonstrate probable cause to believe that the aircraft was related to the illegal act of causing a financial institution to fail to file a currency transaction report. Indeed, the Government did much more than that; it produced a great deal of evidence to demonstrate that Smith, in purchasing the airplane, had, in fact, engaged in structuring a transaction to evade reporting requirements. 31 U.S.C. § 5324. See United States v. Hoyland, No. 89-50253, slip op. 5373, 5379-81 (9th Cir. May 25, 1990).

Smith then had the burden under 19 U.S.C. § 1615 and Fed.R.Civ.Proc. 56 to refute the Government's showing of probable cause or to show that the property was not involved in illegal activity as alleged in the forfeiture action. United States v. $5,644,540.00 in U.S. Currency, 799 F.2d 1357 (9th Cir. 1986); United States v. One 56-Foot Motor Yacht Named Tahuna, 702 F.2d 1276, 1281 (9th Cir. 1983). He established only that he was acquitted in the Arizona criminal action. The district court properly found that this did not refute the Government's probable cause showing. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984). However, the district court did not address the second way that Smith could rebut the Government's case: by showing that the plane was not involved in the alleged activity or by showing that the alleged activity was not, in fact, illegal. The record is fully developed, however, enabling us to address this issue without remand. We see from our review that the record contains overwhelming evidence against Smith. Although it did not result in a conviction of money laundering, which requires proof beyond a reasonable doubt, the Government's evidence was ample to demonstrate that the illegal activity had occurred. Smith did not submit evidence to the contrary. Thus, the grant of summary judgment was proper.

Smith next asserts that the grant of summary judgment violated his seventh amendment right to a jury trial in a civil case. That contention is without merit. When there are no properly controverted factual issues, no jury trial is required. Fidelity & Deposit Co. v. United States ex rel. Smoot, 187 U.S. 315, 319-20, 23 S. Ct. 120, 122, 47 L. Ed. 194 (1902); Etalook v. Exxon Pipeline Co., 831 F.2d 1440, 1447 (9th Cir. 1987).

AFFIRMED.