# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2017 Decided June 20, 2017

No. 16

- 5284

U NITED S TATES OF A MERICA
, C / O U NITED S TATES A TTORNEY ' S O FFICE
, P LAINTIFF

- A PPELLEE

v.

S EVENTEEN T HOUSAND N INE H UNDRED D OLLARS ($17,900.00) I N U NITED S TATES C URRENCY
, D EFENDANT

J OYCE C OPELAND AND A NGELA R ODRIQUEZ
, C LAIMANTS

- A PPELLANTS

Appeal from the United States District Court
for the District of Columbia (No. 1:15

- cv

- 00368)

Christa Laser argued the cause and f iled the briefs for appellants. Christopher Landau entered an appearance.

Christopher B. Brown , Assistant U.S. Attorney, argued the cause for appellee United States of America. With him on the
brief were Elizabeth Trosman and Chrisellen R. Kolb , Assistant
U.S. Attorneys. R. Craig Lawrence , Assistant U.S. Attorney, entered an appearance.2

Before: R OGERS
, T ATEL and P ILLARD
, Circuit Judges

.

Opinion for the Court filed by Circuit Judge T ATEL

.

T ATEL
, Circuit Judge : This is a civil

- forfeiture case , which
is why the plaintiff is the United States of America and the
defendant is a pile of cash. The g overnment claims that the cash is subject to forfeiture because it is connected to the “exchange [of] a controlled substance

, ” i.e.

, drug trafficking. 21 U.S.C. § 881(a)( 6). Appellants

, themselves flesh and blood, have
intervened in this action

, offering sworn testimony that the

money is theirs and wholly unrelated to drugs

. A ccording to the

g overnment

, that testimony is so implau si ble that appellants
lack Article III stan ding to intervene. T he district court

, deciding the issue on summary judgment

, agreed

. We reverse.
At summary judgment, c laimant s alleging an ownership
interest need only make an assertion of ownership and provide some evidence of ownership to establish standing

. Because “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ,” Anderson v. Liberty Lobby,
Inc. , 477 U.S. 242, 255 (1986), we co nclude that a ppellants met
their burden.

I.

The practice of c ivil forfeiture allows law enforcement to seize property and then seek permanent forfeiture in a civil proceeding in rem

— meaning, in a proceeding against the property

— all without so much as charging the own er with a criminal offense. Leonard v. Texas , No. 16

- 122, slip op. at 2 (U.S. Mar. 6

, 2017) (Thomas, J.) (statement respecting the denial of certiorari) . Though rooted in an English Law tradition that ope rated “under the fiction that the thing itself, rather than the owner, was guilty of the crime,” contemporary civil forfeiture in the federal system is a creature of statute, the3

Supplemental Rules for Admiralty or Maritime Claims and
Asset Forfeiture Actions, and the Federal Rules of Civil
Procedure

. Id. at 4 (citing Calero

- Toledo v. Pearson Yacht Leasing Co. , 416 U.S. 663, 684

– 85 (1974)); see United States v. $133,420 , 672 F.3d 629, 634 (9th Cir. 2012).

The typical forfeiture action begins when the g overnment files a verified complaint against the property specifying

, among other things, “ the statute under which the forfeiture action is brought” and “ sufficiently detailed facts to support a reasonable belief that the government will be able to meet it s burden of proof at trial. ” Supplemental Rule G(2)

. As plaintiff

, the government bears the ultimate “burden of proof

. . . to establish, by a preponderance of the evidence, that the property is subject to forf eiture.” 18 U.S.C. § 983(c)(1).

Although the initial parties to the proceeding are the government and the property, “[a] person who asserts an interest in the defendant property may contest the forfeiture by filing a claim in the court where the action is pending.” Supplemental Rule G(5) (a) (i)

. A claim , in turn, must identify the property and claimant, state the claimant’s interest in the property, and be signed by the claimant under penalty of perjury. Id.

“Unlike in typical civil proceedings, the government may
commence limited discove ry immediately after a verified claim
is filed.” $133,420 , 672 F.3d at 635. Under Supplemental Rule G(6)(a), “[t]he government may serve special interrogatories limited to the claimant’s identity and relationship to the defendant property without the court ’s leave at any time after the claim is filed and before discovery is closed.” These same rules provide that the “government may move to strike a claim . . . because the claimant lacks standing” and that such a motion “may be presented as a motion for judg ment on the pleadings4

or as a motion to determine after a hearing or by summary judgment whether the claimant can carry the burden of establishing standing by a preponderance of the evidence.” Supplemental Rule G(8)(c).

This case traces its roots back to March 28, 2014, when an Amtrak passenger mistakenly removed another person’s backpack from a train at Washington’s Union Station. L ater that day

, he opened the backpack to find a shopping bag containing $17,900 in cash. Commendably, he turn ed the backpack over to Amtrak police.

In addition to the money, Amtrak police officers found
in side the bag a student notebook and other personal effects

. One of the papers contained the name Peter Rodriguez , as did

t he train manifest. A police narcotics dog alerted to the backpack, suggesting the presence of drug residue.

Using a contact number from the manifest, a detective with the Metropolitan Police Department called Peter Rodriguez, who gave a detailed description of the contents of the backpack

— except for the mon ey. T wice asked whether there was money in the backpack, Peter said no . Later, t he detective
called Peter to inform him that currency was found in the backpack, and that the bag

— sans cash

— could be recovered from Amtrak, though the money would remain with t he MPD
Asset Forfeiture Unit.

Shortly thereafter, appellant Angela Rodriguez, Peter’ s mother, contacted MPD, explaining, a ccording to the government’s verified complaint, that the cash belonged to her and her domestic partner, appellant Joyce Copeland, wh o live s with her in New York City. The couple , she recounted, had left the money in a bag in Peter’s apartment, but neglected to tell him that it contained currency. When Peter later announced that5

he was coming to New York to visit his mother, she told hi m to bring the bag along.

Unconvinced by Ms. Rodriguez’s story, the police
forma lly seized the currency and turned it over to the DEA,
which initiated administrative forfeiture proceedings

. See 18 U.S.C. § 983. The couple participated in that process, fil ing claims of interest and providing some documents to support
their claim. Still unmoved, the government commenced this

case on March 13, 2015, by filing its complaint seeking forfeiture of the money as drug related. 21 U.S.C. § 881(a)(6).

After the couple filed verified claims asserting their ownership interest s in the money, the government served special interrogatories asking them to : describe, in great detail, how they came to acquire the money; provide records and other information supporting the ir account; and explain how Peter came to possess the money.

In their responses , sworn under penalty of perjury, the couple stated that they amassed the cash over time

— with advance payments of federal tax refunds, a transfer from a retirement account, th e sale of a pair of mink coats, and by
other means

— and stored their savings in a locked file cabinet. With plans to eventually move from New York to North Carolina, where Peter lives, and to purchase a home there, the pair drove south with cash in excess o f $17,900. A long with using the money to pay for trip

- related expense s like food and gas, they hoped to buy a used vehicle so that each would have
a car to drive after they relocated

. Once in North Carolina , they stayed in Peter’s home and visited several open houses . On February 26 , the couple returned to New York, cutting their trip shorter than expected because one of them called her doctor in New York and learned that she had a medical procedure
scheduled . B efore driving back , Ms. Rodriguez decided to6

leave a ba g holding the currency in Peter’s home “because [the couple ] intended to return to North Carolina within a short period of time to continue the search for housing and a car.”
She “did not provide Peter Rodriguez any information about
the amount o f the [cash] because [she] believed Peter might have taken some of it had he known it was in the bag.” It was
on March 28

, about a month after the pair left North Carolina

, that Peter’s backpack was mistakenly removed from the train.

With t he record compo sed of little beside this testimony and the verified complaint, the government moved to strike the couple’s claim s for lack of standing under Supplemental Rule G(8)(C)(i)(B). The district court

, finding that “ no reasonable jury could believe the Claimants’ bizarre explanation for how they came to own the $17,900,” granted the government’s
motion for summary judgment. United States v. $17,900 , 200 F. Supp. 3d 132, 134 (D.D.C. 2016). Our review is de novo

. See Citizens for Responsibility and Ethics in Washington v.
Federal Election Commission , 711 F.3d 180, 184 (D.C. Cir. 2013) (explaining that review of a district court’s grant of summary judgment is de novo ).

II.

When the g overnment moves to strike a claim for lack of standing, a claimant has the burden to establish standing by a preponderance of the evidence. Supplemental Rule G(8)(c)

. To prevail, “ a claimant must meet both Article III and statutory standing requirements.” United States v. $487,825 , 484 F.3d
662 , 664 ( 3d Cir. 2007 )

. In this appeal , the government challenges only the former.

As our court has explained

, “ [t] he requirements for a [claimant] to demonstrate constitutional standing to challenge
a forfeiture are very forgiving.” United States v. Emor , 785 F.3d 671, 676 (D.C. Cir. 2 015) (alterations omitte d )

. “In7

general, any colorable claim on the property suff ices, ” i d.

— t y pi cally, an o wnership or possessory interest, s ee , e.g., $133,420

, 672 F.3d at 637

. “Article III’s standing requirement is thereby satisfied because an owner or possessor of property that has been seized necessarily suffers an injury that can be redressed at least in part by the return of the seized property .”
United States v. $515,060.42 , 152 F.3d 491, 497 (6th Cir.
1998 ) ; c.f. Town of Chester v. Laroe Estates , Inc. , No. 16

- 605 (U.S. June 5, 2017), slip op. at 6 (“[A] n interven or of right must
have Article III standing in order to pursue relief that is different from that which is sought by a party with standing

. ” )

.

As always , standing “ must be supported . . . with the manner and degree of evidence required at [each] successive stage[] of the litigation. ” Lujan v. Defenders of Wildlife

, 504
U.S. 555, 561 (1992). At the pleading stage, a claimant need only allege a colorable interest in the property. $133,420

, 672
F.3d at 638; see Emor 785 F.3d at 676. “In response to a summary judgment motion, however, the [claimant] can no longer rest on such ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ which for purposes of the summary judgment motion will be taken to be true.” Lujan , 504 U.S. at 561 ( quoting Fed. R. Civ

. P

. 56(e))

.

Although our court has yet to articulate precisely “the manner and degree of evidence required

, ” id. at 561, for a claimant to survive the summary judgment stage of a civil

forfeiture proceeding, other circuits have. For example, the
Seventh Circuit has that held that where, as here, a claim is predicated on an ownership interest

, “an assertion of ownership
combined with some evidence of owne rship is sufficient to
establish standing.” United States v. $239,400 , 795 F.3d 639,
642

– 43 (7th Cir. 2015)

. T he Ninth Circuit has a dopted the same
standard: “[a] claimant asserting an ownership inte rest in the defendant property . . . must

. . . present ‘ some evidence of8

ownership ’ beyond the mere assertion in order to survive a motion for summary judgment. ” $133,420 , 672 F.3d at 63 9 ; see also United States v. $148,840 , 521 F.3d 1268, 1276 ( 10th Cir. 2008) ( same) ; United States v. $ 81,000

, 189 F.3d 28, 35 (1st Cir. 1999) (same); United States v. $38,570

, 950 F.2d 1108, 1112 (5th Cir. 1992) (same).

B ot h the government and the couple agree that the “some
evidence” standard is appropriate, and t his case is a fine example of why

.

For one thing

, because th e case concerns cash, it
demonstrates how challenging it can be to document ownership of property seized by law enforcement. Indeed, the very qualities that make paper money useful for illicit activity

— in particular, its untraceability

— often make it difficu lt to prove that any cash is le gitimate, no matter its source. This is especially true for those in our society who rely on cash to the
exclusion of banki ng and other financial services. A s Justice
Thomas has recognized

, it is “the poor and other groups le ast able to defend their interests in forfeiture proceedings” who
bear the brunt of civil asset forfeiture

. Leonard , slip op. at 4 (internal citation omitted). And it is these same groups that are

“ more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture.” Id. ;

s ee Federal Deposit Insurance Corporation, National Survey of
Unbanked and Underbanked Households 16 ( Dec

. 2009 )

, https://goo.gl/g3JtKe (finding that l ow

- income, black, and Hispanic households, and those with a householder that is a foreign

- born noncitizen, are more likely to be “unbanked”

— to go without use of banking or similar financial services). So

e specially when cash is at issue, requiring more tha n “some evidence” of ownership would be onerous , unfair, and
unrealistic.9

A more demanding standard would also run up against the limited oppor tunity claimant s often have to develop the record
when the government moves to strike for lack of standing. In this case, for example, the record consists

, in essence, of nothing more than the government’s verified complaint and the couple’s responses to the government’s special interrogatories

. Although the district court treated the government’s motion to
strike as one for summary judgment, it never held a n evidentiary hearing , nor did the parties engage in the broad discovery typical in civil cases. Asking for more than “some evidence” of ownership on such a record would risk unduly excluding those with a “colora ble claim” on the property

. Emor , 785 F.3d at 676.

Finally, the “some evidence” standard preserves the important distinction between constitutional standing and the
merits. Although claim ant s bear the burden of establishing standing

, it is the government that bears the burden to prove, on the merits, “that the property is subject to forfeiture.” 18 U.S.C. § 983(c)(1). As the First Circuit has cautioned , “ [c] ourts should not

. . . conflate the constitutional standing inquiry with
the merits determination that comes later. ” United States v.
One

- Sixth Share of Mass Millions Lottery Ticket

, 326 F.3d 36, 41 (1st Cir. 2003). Where, as here, a claimant’s account of ownership is irreconci lable with the theory up on which the government seeks forfeiture

, requiring the claimant to produce
more than “some evidence” of ownership runs the danger of impermissibly shift ing the merits burden to the claimant

— tantamount to , say, making a claimant prove that her property
is unconnected to unlawful activity

. Indeed, that is exactly what the government seeks to do here : a t oral argument, government counsel suggested that the couple lack s Article III standing
because their claimed ownership i nterest is undercut by “the
record evidence ” indicating that “ this is drug trafficking money.” Oral Argument at 18:40

– 18:55. Understandably, the10

government w ould prefer to try its merits case against an inanimate object. We think it “obvious

, ” however

, that “ a claimant [who has shown some evidence of ownership] risks injury within the meaning of Article III and thus may have his day in court.” $148,840 , 521 F.3d at 1276.

III.

Having determined what claimant s must show in order to establish standing, we can easily resolve what remains of this appeal by applying well

- worn principles of summary judgment.

Summary judgment is appropriate only “ if the movant ”

— here the government

— “ shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law. ” Fed. R. Civ. P. 56(a). The court must “view[] the evidence in the light most f avorable to the nonmoving party”

— here the couple

— and “ draw[] all
reasonable inferences in [its] favor.” Johnson v. Perez , 823
F.3d 701, 705 (D.C. Cir. 2016)

. In so doing, the court “ may not make credibility determinations or otherwise weigh the
evidence.” Id. And “if one party presents relevant evidence that another party does not call into question factually, the court must accept th e uncontroverted fact.” Id.

Rule 56 of t he Federal Rules of Civil Procedure expressly provides that a party opposing summary judgment may support its factual positions using “affidavits or declarations” and “interrogatory answers

. ” Fed. R. Civ. P. 56(c) (1 )(A). S o long as an “affidavit or declaration” is “made on personal knowledge, set[s] out facts that would be admissible in evidence, and show [s] that the affiant or declarant is competent to testify on the matters stated,” it may be “used to . . . oppose a motion” for summary judgment. I d. at 56(c)(4).11

In this case, the couple has offered sworn testimony detailing how they amassed the money, why the y transported it to North Carolina, and how it ended up in Peter’s hands. In fact,
there is little in the record other than their declarations

. Certainly, nothing in the record directly contradicts the pair’ s
sworn account

— no evidence that they did not travel to North Carolina, for instance, nor evidence t h at the cash had anothe r

source. Given our responsibility to “ view [] the evidence in the light most favorable ” to the couple and to “ accept

. . . uncontroverted fact [ s ],” Johnson , 823 F.3d at 705, we have little trouble concluding that the couple has asserted ownership
and offered “ some evidence ” of ownership sufficient to
withstand summ ary judgment.

T he government insists that the couple has done no more than simply assert ownership. In its view, they failed to meet their burden to produce “some evidence” of ownership wh en they “offered no evidence, beyond their own words, to substantiate” their story. Government Br. at 34. H ad the couple
offered only a bare assertion that they o wned the prop erty

, we might agree

. But as explained above, the two did more

, submitting extensive sworn testimony as evidence of their
claim

. J ust as Rule 56 provides , a part y may oppose summary jud g ment with sworn testimony , a nd

— as we have recognized

— that party’s own sworn testimony can alone
defeat summary judgment, s ee, e

. g

. , Johnson , 823 F.3d at 710 (recognizing that a party’s testimony will always in some sense
be “self

- serving,” but that “parties, like other fact witnesses, are legally competent to give material testimony” and in certain contexts may be “the key, or even sole, witn esses”); Arrington
v. United States , 473 F.3d 329, 337

– 38 (D.C. Cir. 2006) (denying summary judgment where a non

- movant’s affidavit created a genuine issue of material fact). Summary judgment

turns not on whether a party offers a particular form of
evidenc e , but rather on whether the evidence a party does12

submit creates a genuine iss ue of mate rial fact

. See Celotex Corp

. v. Catrett

, 477 U.S. 317, 324 (1986) (“ Rule 56(e) permits

a proper summary judgment motion to be opposed by any of
the kinds of evidentiary materials listed in Rule 56(c) ” ); Fed. R. Civ. P. 56(c) ( listing “ depositions, documents, electronically stored information, affidavit s or declarations, stipulations . . . , admissions, interrogatory answers, or other materials ”)

.

T he government urges us to “reject” the couple’s testimony as “facially implausible.” Government Br. at 25. On this point, i t bears repeating that “ [ c ] redibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the fa cts are jury functions, not those of a judge

, ” and are thus inappropriate at summary judgment.
Anderson , 477 U.S. at 255. “This is the standard even when the court entertains grave doubts about ” a “ statement [] proffered by the party opposing summary judgment.” Greene v. Dalton

, 164 F.3d 671, 674 (D.C. Cir. 1999). T he government nonetheless contends that we can set aside the couple’s account
because it “strains credulity,” involving “numerous improbable
elements ”:

that [the cou ple] stockpiled thousands of dollars in cash in their apartment for as long as 14 months rather than secure their savings in bank accounts; hand

carried the bag contain ing more than $17,900 on the drive from New York to North Carolina; and chose to pay all expenses [on that trip] in cash rather than utilize their financial accounts; and . . . became so worried about managing currency on their return trip that they risked entrusting their savings to an individual they believed would steal the money if he
dis covered it.

Government Br. at 36.13

The government’s argument perfectly il lustrates why credibility determinations and the weighing of evidence are left to juries rather than judges. Government c ounsel may well be able to convince j udges that it is inconceivable someone would
choose to keep sizeable cash savings, to travel with cash, or to pay for routine expenses using cash rather than a credit card

, but a jury of lay people with different and more diverse life experiences might view these very same choices with considerably less suspicion. “ Trial by a jury of laym en rather than by the sovereign’ s judges was important to the founders
beca use juries represent the layman’ s common sense

. ” Parklane Hosiery Co. v. Shore , 439 U.S. 322, 343

– 44 (19 79) (Rehnqu ist, J. dissenting). W e are thus especially reticent to
circumvent the jury process and throw out sworn testimony
because it is out of line with our own lived experi ence s

.

Rather , o ur cases describe narrow circumstances under
which court s may “l awfully put aside testimony [because it] is
so undermined as to be incredible

. ” Robinson v. Pezzat , 818 F.3d 1, 10 (D.C. Cir. 2016) . As we recently explained in Chenari v. George Washington University , 847 F.3d 740 (D.C. Cir. 2017), this situation usually comes in to play “when a plaintiff’s claim is supported solely by the plaintiff ’ s own self

serving testimony, unsupported by corroborating evidence, and undermined either by other credible evidence, physical impossibility or other persuasive evidence that the plain tiff has deliberately committed perjury.” Id. at 747. Here, however, the
record contains scarcely any evidence aside from the couple’s testimony

, let alone evidence that undermines their account or suggests deliberate perjury

. And while one might well discount as unlikely the pair’s testimony about leav ing their savings in a bag in Peter’s home

, without telling him, only to later reverse course and ask him to bring the bag to New York

, that story is far from “physically impossib[le] .” Id.14

The government cites a series of cases in which, it says,

courts have thrown out analogous swor n testimony

. All are distinguishable. Two of the cited cases concern testimony that

was riddled with internal contradiction s central to the case

. See Jeffreys v. City of New York , 426 F.3d 549 , 555 (2d Cir. 2005) ( setting aside “contradictory and incomplete” testimony); Aziz Zarif Sh abazz v. Pico , 994 F. Supp. 460, 468

– 71 (S.D.N.Y. 1998) (Sotomayor, J.) (same). Another dealt with a statement “blatantly contradi cted ” by video evidence. Scott v. Harris , 550 U.S. 372, 380 (2007).

T he government’s reliance on United States v. $8,440,190

, 719 F. 3 d 49 ( 1st Cir. 2013), in which the First Circuit dismissed a claimant for lack of Article III standing, is equally misplaced.
There

, a Coast Guard boat , while making chase on a suspicious vessel, saw “numerous bales” thrown “overboard

. ” Id. at 51

– 52. Although some bales were never recovered, the ones that were contained roughly $8.4 million. When questioned , a crewmember on the fleeing vessel claimed that he had been paid to transport the bales of money. Id. at 52. But i n a subsequent action for asset forfeiture, the crewmember changed his tune, filing a verified claim for all $8.4 million. Id.
at 53

– 54. In supp ort of his claim, the crewmember offered only a “conclusory” affidavit “in which he referred to the bales as ‘my bales’” and stated that he “intended to go back and
retrieve” them from the sea. Id. at 58

– 59

. Dismissing his claim,
the First Circuit observed that the crewmember’s new story

“ defie[d] common sense ,” as the bails lacked any feature that would keep them “floating in place

, ” which explains why many “presumably s[ank] or float [ ed] away .” Id. at 59. From this , the government asks us to read t h e First Circuit as holding that courts may set aside sworn testimony that is “inconsistent with
common sense.” Government Br. at 26 n.6.15

In truth

, that decision falls squarely within the bound s for setting aside self

- serving and uncorroborated testimony that we spelled out in Chenari : where such testimony is “ undermined either by other credible evidence, physical impossibility or other persuasive evidence that the plaintiff has deliberately
commi tted perjury.” 847 F.3d at 747. Specifically, (1) the record contained contradictory evidence that undermined the
crewmember’s claim

— namely, his prior testimony; (2) th e change in the crewmember’s account raised an inference of fabrication; and ( 3 ) the cla imant’s story had an ele ment of physical impossibility

— after all, the money sank . In addition,
the court emphasized that the crewmember’s affidavit evidence was minimal bordering on conclusory, as any explanation of how he acquired the money and why it was on the vessel was missing

. $8, 4 4 0,190

, 719 F. 3 d at 58

– 59; s ee Greene , 164 F.3d

at 675 ( While “statements made by the party opposing a motion for summary judgment must be accepted as true for the purpose of ruling on that motion, some statements are so conclusory as to come within an exception to that rule”)

. This case differs in every respect: t he record is devoid of contradictory evidence, the couple has consistently maint ained that the money is theirs

, nothing in their accoun t is physically impossible, and

— far from conclusory

— the couple has explain ed how they came to

own the money in considerable detail.

Given all this

, we believe that the couple has more than
met its burden to establish const itutional standing at summary judgment

. Our decision means only that the pair has a right to

contest whether the money is subject to forfeiture . D espite the government’s best efforts, this will remain an adversary proceeding

.16

I V

. For the foregoing reasons, t he judgment of the district
court is r eversed and the case is remanded for proceedings consistent with this opinion.

So ordered

.