* At the parties’ request, the case is unanimously or dered submitted without

oral argument pursuant to Fed. R. App. P. 34(f) and10th Cir. R. 34.1(G). This order and judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R . 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 9 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SYLVESTER ANDERSON,

Plaintiff - Appellant,

v. UNITED STATES OF AMERICA,

Defendant - Appellee. No. 02-3093 (D.C. No. 01-CV-3277-JWL)

(D. Kan.)

ORDER AND JUDGMENT *

Before SEYMOUR , KELLY , and LUCERO , Circuit Judges.

Sylvester Anderson, appearing pro se, appeals from the district court’s order entering summary judgment in favor of the Uni ted States of America and denying his cross-motion for summary judgment on hi s equitable civil motion for return of property. Having reviewed the district c ourt’s summary judgment order de novo, we exercise jurisdiction under 28 U.S.C. § 1291 and affirm.1 The details of the seizures are set forth in the di strict court’s order entering

summary judgment for the government. See Anderson v. United States , No. 01-3277, 2002 WL 598337, at *1 (D. Kan. Feb. 27, 20 02) (unpublished).

-2- Anderson was convicted by a jury of conspiracy to d istribute cocaine and possession with intent to distribute cocaine in vio lation of 21 U.S.C. § 841(a). We affirmed his convictions on direct appeal. See United States v. Anderson , 189 F.3d 1201 (10th Cir. 1999). In the present case, A nderson filed a motion pursuant to Fed. R. Crim. P. 41(e) seeking the return of $55 ,489.79 that was seized in connection with a warrantless search of his car and $50,520.00 that was seized from his house pursuant to a search warrant. 1 In accordance with our opinions in United States v. Clark , 84 F.3d 378, 381 (10th Cir. 1996) and United Stat es v. Clymore , 245 F.3d 1195, 1199–1200 (10th Cir. 2001), the di strict court treated Anderson’s motion as an equitable civil motion for return of property. After thoroughly analyzing the parties’ motions forsummary judgment, the district court granted summary judgment to the gove rnment, denied Anderson’s cross-motion for summary judgment, and quieted titl e to the $55,489.79 and the $50,520.00 in favor of the government. Specificall y, the court concluded that: (1) these amounts were subject to forfeiture under 21 U.S.C. § 881 because, as set forth by this court in its opinion on direct appeal , see Anderson , 189 F.3d at 1206, 1207, 1212, there was no question that they were pr ofits of the cocaine--3-

distribution conspiracy for which Anderson was conv icted; (2) Anderson was collaterally estopped from challenging the legality of the seizures or, alternatively, there were no genuine issues of mate rial fact regarding the legality of the seizures; and (3) Anderson failed to establi sh that he was an “innocent owner” under 18 U.S.C. § 983(d). On appeal, Anderson claims the district court erred in: (1) denying the motion he filed requesting that the government prod uce certain records pertaining to his use of a cellular phone in November 1994; (2 ) applying collateral estoppel; and (3) concluding that he was not an innocent owne r. We reject each of these arguments. Anderson’s first argument relates to whether there was probable cause to search his home. The government supported its appl ication for the warrant to search Anderson’s residence with an affidavit from an agent of the United States Customs Service, which stated that Anderson made co ntact with a drug courier at an airport in California on November 4, 1994, and t hen facilitated the delivery of seven kilograms of cocaine. Anderson tells us thatthe cellular phone records he sought would show that he was not using his cell ph one in California at the time the drug courier arrived at the airport on November4, 1994, and that the phone records would therefore corroborate his claim that he was not involved in that incident. Without more, however, the phone record s could not conclusively-4-

establish Anderson’s whereabouts on November 4, 199 4, and would only show the location of the phone itself. Further, regardless of what transpired on November 4, 1994, there is a substantial amount of additiona l information set forth in the agent’s affidavit that supported a finding of proba ble cause for the search of Anderson’s residence. Thus, the district court didnot abuse its discretion in denying Anderson’s motion to produce the cellular p hone records. We next address Anderson’s argument that the distri ct court erred in using collateral estoppel to preclude him from challengin g the legality of the seizures. As to the seizure of evidence from his car, prior t o his criminal trial, Anderson filed a motion to suppress the $55,489.79 on the gr ound that the search of his car was unlawful. After conducting a hearing, the dist rict court denied the suppression motion; Anderson did not directly appea l the denial. As a result, we agree with the district court that Anderson is coll aterally estopped from relitigating the legality of the search of his car. As for the seizure of evidence from his residence, however, the doctrine of collat eral estoppel is not applicable as the legality of the search of Anderson’s residen ce was not actually litigated in the criminal case. See Klemens v. Wallace ( In re Wallace ), 840 F.2d 762, 765 (10th Cir. 1988). Nonetheless, we agree with the d istrict court’s alternative holding that Anderson failed to raise a genuine iss ue of material fact for trial regarding the legality of the search of his residen ce.-5-

Finally, an innocent owner is one who: “(i) did no t know of the conduct giving rise to forfeiture; or (ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expect ed under the circumstances to terminate such use of the property.” United States v. 16328 S. 43rd E. Ave., Bixby, Tulsa County, Okla. , 275 F.3d 1281, 1284 n.1 (10th Cir.) (quoting 18 U.S.C. § 983(d)(2)(A)), cert. denied sub nom. , 535 U.S. 1058 (2002). We agree with the district court that Anderson failed to make either of these showings. For the foregoing reasons, the judgment of the dist rict court is
AFFIRMED . We also GRANT the government’s motion to supplement the record on appeal. We remind Mr. Anderson that beca use his motion to proceed in forma pauperis on appeal was granted, he must conti nue making partial payments on court fees previously assessed until such fees h ave been paid in full.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge