Not for P ublication in West's Fe deral Reporter Citation Limited P ursuan t to 1st C ir. Loc. R. 32.3 

# U nit edStates C ou rt o f App eal s

For th e Firs t C ircu it

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.

L o r e nzo J. Palomares, Lorenzo Palomares, P.A., on brief for appellant. H. S . G arcia, United States Attorney, Miguel A. Fernandez, Assistant U.S. Attorney, and Isabel Munoz-Acosta, A s sistant U.S. Attorney, on brief for appellee.

July 20, 2005Because it was n o t p r esented 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. -2- 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 r e m action for forfeiture of approximately $31,000 in U.S. cur r e ncy. He seeks reversal on the grounds that there is a genuine issue of material fact w h i c h r e m a i n s c o n t r o v e r t e d a n d t h a t t h e m a g i s t r a t e j u d g e 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 presid i n g over this case because of his prior representation of Rosado-Sierra, that argument was not raised in the district c o u r t . T o 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-3-

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 Au g u s t 2 3, 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 th e b u r d en of proving by a preponderance of the evidence that the property is subject to forf e i t ure. § 983(c). (Formerly the standard was probable cause.) To meet this burden, the government may rely on evidence obtained after the filing of the co mplaint for forfeiture. Furthermore, where (as in this case) the Government's t heory of forfeiture is that

the property was use d to commit or facilitate the commis s ion of a criminal offense, or was involved in the commission of a criminal of fense, the Government shall establish that t h ere was a substantial connection between t h e 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 t h e s a m e a r e a o f t h e [ c l a i m a n t ' s ] h o u se where the diazepam andlactose were found,-4- and all i t ems were seized pursuant to a federal sear c h warrant. Moreover, the claimant pled guilty to the dru g conspiracy charge arising from the execu tion of that sear c hw a r r a n t , a n dw h i c h g a v e r i s e t o t he 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 t h e p r e sence of controlled substances on the seized currency. A s part of his guilty plea, Rosado-Sierra specifically admitt ed to discussing the purchase of narcotics

w i t h 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 dr u g trafficking. "A claimant's record of druga c t i v i t yi s a h i g h l yp r o b a t i v e f a c t o r i n t h e f o r f e iture 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. 1 9 9 6 ) ; United States v. th $19,960.00, 8 9 7 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 th e s c e n e 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 do g ' s a l e r t t o t h e p r e s e n c e o f c o n t r o l l e d s u b s t a n c e s o n theIt is appropriate to rely upon forfe i t u re 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 n o w - w i th the obvious c a v e at 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 -5- 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 w a s "the proceeds and working capital of [his] legitimate business Rosado Construction." In his a n s w e r to interrogatories, Rosada

- Sierra stated that Rosado Construction "operated on a cash-payment basis w i t h its clients." He

s u b m i t t e d c o p i e s o f h i s t a x r e t u r n s f o r 1 9 9 9

- 2 0 0 1
. The 2001 return reported gross income from Rosado Construction of $126,476

a n d e x p enses 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 re turn 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"-6-

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 (7 th 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
t h a t 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 th e search proves nothing in the absence of any evidence of recent c r i m i n al activity ." Dkt No. 32, p. 7 (emphasis added). He further argued that his indictment based on intercepted conversat i ons that occurred two ye a r s p r ior 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 ha v i n g d iscussed with other indicted coconspirators the purchase of narcotics i n F e b ruary 2002, less than four months before the seizure.-7- Based on the totality of circumstances, and reviewing the district court's determination de novo, we conclude t hat Rosado-Sierra has not created a genuine issue of material fact. Therefore, the district court or der granting the government's motion for summary judgment is affirmed. See 1 Cir. R. 27(c). st