Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1366

UNITED STATES,

Plaintiff, Appellee,

v.

$21,510.00 IN U.S. CURRENCY, ET AL.,

Defendants,

____________________

JORGE L. ROSADO-SIERRA,

Claimant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpi, U.S. Magistrate Judge]

Before

 Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

Lorenzo J. Palomares, Lorenzo Palomares, P.A., on brief for

appellant.

H.S. Garcia, United States Attorney, Miguel A. Fernandez,

Assistant U.S. Attorney, and Isabel Munoz-Acosta, Assistant U.S.

Attorney, on brief for appellee.

July 20, 2005
 Because it was not presented to the district court, we do 1

not consider Appellant's claim that his attorney filed the consent

form without Rosado-Sierra's knowledge or consent.

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Per Curiam. Claimant Jorge L. Rosado-Sierra appeals from

the district court's decision to grant the motion of the United

States for entry of summary judgment in this in rem action for

forfeiture of approximately $31,000 in U.S. currency. He seeks

reversal on the grounds that there is a genuine issue of material

fact which remains controverted and that the magistrate judge to

whom the case was referred should have recused himself because he

represented Rosado-Sierra in an earlier action pursuant to 28

U.S.C. § 2255. For the reasons we stated in our November 16, 2004

order, we reject the government's argument that this appeal is

untimely.

I. Recusal

With respect to Rosado-Sierra's claim that the magistrate

judge should have recused himself from presiding over this case

because of his prior representation of Rosado-Sierra, that argument

was not raised in the district court. To the contrary, RosadoSierra submitted a statement expressly consenting to the referral

of the case to the Magistrate Judge. "Our law is clear that a 1

party ordinarily may not raise on appeal issues that were not

seasonably advanced (and, hence, preserved) below." Daigle v. Maine

Medical Center, Inc., 14 F.3d 684, 687 (1 Cir. 1994). Appellant st
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has forfeited that issue and we see no sufficient basis warranting

excusing the forfeiture.

II. Summary Judgment 

The Civil Asset Forfeiture Reform Act (CAFRA) applies

to civil forfeiture cases which, like this one, were commenced on

or after August 23, 2000. "CAFRA heightens the government's

evidentiary burden in civil forfeitures." United States v. Funds

in Amount of $30,670.00, 403 F.3d 448, 454 (7 Cir. 2005). The th

government has the burden of proving by a preponderance of the

evidence that the property is subject to forfeiture. § 983(c).

(Formerly the standard was probable cause.) To meet this burden,

the government may rely on evidence obtained after the filing of

the complaint for forfeiture. Furthermore, where (as in this

case) the 

Government's theory of forfeiture is that

the property was used to commit or

facilitate the commission of a criminal

offense, or was involved in the commission

of a criminal offense, the Government shall

establish that there was a substantial

connection between the property and the

offense.

§ 938(c)(3).

To satisfy its burden, the government relied upon the

following uncontested facts:

the $21,510.00 in cash found inside a black

duffle bag and the $10,240.00 in cash found

inside a beige safety deposit box were found

in the same area of the [claimant's] house

where the diazepam and lactose were found,
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and all items were seized pursuant to a

federal search warrant. Moreover, the

claimant pled guilty to the drug conspiracy

charge arising from the execution of that

search warrant, and which gave rise to the

present action.

United States v. $21,510 in U.S. Currency, 292 F. Supp. 2d 318,

322 (D. Puerto Rico 2003). The record also reveals that a canine

search indicated the presence of controlled substances on the

seized currency. As part of his guilty plea, Rosado-Sierra

specifically admitted to discussing the purchase of narcotics

with a co-conspirator in February, 2002, less than four months

before the seizure of the currency. 

These facts are probative of a connection between the

seized currency and drug trafficking. "A claimant's record of

drug activity is a highly probative factor in the forfeiture

calculus." United States v. $67,220.00 in U.S. Currency, 957 F.2d

280, 286 (6 Cir. 1992). See United States v. $87,118.00 in U.S. th

Currency, 95 F.3d 511, 519 (7 Cir. 1996); United States v. th

$19,960.00, 897 F.2d 1457, 1462-63 (8 Cir. 1990). A large th

amount of hidden currency "is strong evidence of . . . an illicit

connection to drug trafficking." United States v. $149,442.43 in

U.S. Currency, 965 F.2d 868, 877 (10 Cir. 1992). The fact that th

drugs were not found on the scene when the cash was seized "is

not fatal to the government's case." United States v. One Lot of

U.S. Currency($36,634), 103 F.3d 1048, 1055 (1 Cir. 1997). The st

dog's alert to the presence of controlled substances on the
 It is appropriate to rely upon forfeiture case law decided 2

before the enactment of CAFRA. Although those cases applied the

less-burdensome probable cause standard, "[f]actors that weighed in

favor of forfeiture in the past continue to do so now - with the

obvious caveat that the government must show more or stronger

evidence establishing a link between forfeited property and illegal

activity." United States v. Funds in Amount of $30,670.00, 403 F.3d

448, 469 (7 Cir. 2005). th

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seized currency "weighs some, but not a great deal on the scale."

Id. at 1056.2

To demonstrate that the currency was not connected to

drug trafficking, Rosado-Sierra relied upon his declaration that

the currency was "the proceeds and working capital of [his]

legitimate business Rosado Construction." In his answer to

interrogatories, Rosada-Sierra stated that Rosado Construction

"operated on a cash-payment basis with its clients." He

submitted copies of his tax returns for 1999-2001. The 2001

return reported gross income from Rosado Construction of $126,476

and expenses of $89,528, resulting in net income of $36,948.

Rosado-Sierra points out that the expenses included depreciation

of capital equal to $16,511, so that the total after tax proceeds

from the business were $52,733. 

Even if the information from the 2001 tax return is

accepted as true, Rosado-Sierra still has not created a genuine

issue of material fact. As explanation for the presence of the

large quantity of cash at his apartment, Rosado-Sierra maintains

that Rosado Construction was operated on a "cash payment basis"
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but has provided no receipts or other documentation of that fact

and no explanation for the absence of documentation. See United

States v. Funds in Amount of $30,670.00, 403 F.3d 448, 468 (7th

Cir. 2005)(affirming summary judgment in government's favor where

claimant "provided no receipts or other proof regarding origins

of the cash"). Moreover, "the government introduced much more to

show [a substantial connection between currency and drug

trafficking] than simply a comparison of [Rosado-Sierra's] income

with his expenditures." United States v. Parcels of Land, 903

F.2d 36, 42 (1 Cir. 1990). In these circumstances, we conclude st

that no rational factfinder could permissibly credit RosadoSierra's undocumented assertion.

Rosado-Sierra argued in his opposition to summary

judgment that the fact that "alleged cutting agents were found in

Mr. Rosado-Sierra's residence the day of the search proves

nothing in the absence of any evidence of recent criminal

activity." Dkt No. 32, p. 7 (emphasis added). He further argued

that his indictment based on intercepted conversations that

occurred two years prior to the search could not establish the

requisite substantial connection between the seized currency and

drug trafficking. However, as part of his guilty plea, RosadoSierra admitted to having discussed with other indicted coconspirators the purchase of narcotics in February 2002, less

than four months before the seizure.
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Based on the totality of circumstances, and reviewing

the district court's determination de novo, we conclude that

Rosado-Sierra has not created a genuine issue of material fact.

Therefore, the district court order granting the government's

motion for summary judgment is affirmed. See 1 Cir. R. 27(c). st