### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-20289 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. $78,882.00 IN U.S. CURRENCY, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas, Houston

USDC No. 4:09-CV-4068

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges. PER CURIAM: * Appellants Francisco and Concepcion Salgado appeal the district court’s order of forfeiture of $78,882.00 in favor of Appellee United States of America. The Salgados argue that the forfeiture of the entire $78,88 2

. 0 0 vi o lates the Eighth Amendment’s Excessive Fines Clause because it is grossly disproportional to the Salgados’ violations of 31 U.S.C. § 5316(a)( 1 ) (A)

. We AFFIRM. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D March 15 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5th Cir. R. 47.5 , the cour t has det erm ined that this op i n i o n s hould not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5th Cir. R. 47.5 .4. Case: 11-20289 Document: 00511789677 Page: 1 Date Filed: 03/15/2012No. 11-20289 I. BACKGROUND On N o vember 24, 2009, Francisco and Concepcion Salgado prepared to board a flight to Mexico from George Bush Intercontinental Airport in Houston, Texas. A Custom s a n d Border Protection (CBP) officer asked the Salgados if they were traveling with more than $10,000.00, and Mrs. Salgado replied “no.” The officer then asked how m u c h m oney the Salgados were carrying. The Salgados’ answers indicated that they poss e s s e d a total of $12,000.00. Mrs. Salgado completed and signed, under the penalty of p e r j ury, a FINCEN 105 form attesting to possession of $12,000.00. Another CBP officer then asked the Salgados to place their currency on a table. The contents of the Salgados’ wallets and Mr. Salgado’s pockets totaled approximately $21,000.00. The CBP officer found an additional $3,000.00 in Mr. Salg a do’s backpack. Further searches of the Salgados and their luggage produced an additional $48,000.00. Ultimately, the searches revealed that the Salgados were carrying a total of $78,882.00. On December 21, 2009, the United States file d a n in rem civil forfeiture action pursuant to 31 U.S.C. § 5317(c)(2) against the $78,882.00 seized from the Salgados. In response, the Salgados filed a verified claim under 18 U.S.C. § 983(a)(4)(A) asserting ownership of the $78,882.00 and requesting its return. The Salgados also filed an answer to the forfeiture action, generally denying all allegations and any wrongdo i n g t h a t would allow forfeiture of the $78,882.00. The United States then moved for summary judgm e n t

. Finding that the facts

were not in dispute, and that the United States had shown that the $78,882.00 qualified for forfeiture, the district court granted summary judg m ent. The 1 district court issued a separate order for forfeiture of the $78,882.00, which was entered as the final judgment in the case.

In res pons e to the governm ent’ s sum mar y judgm ent mo tio n, the Salgad os st ated that 1 they “[ did] not allege a dis put e of the ma t e r i a l f a c ts pr es ente d in the Unit ed Sta tes

. . . mo tio n.”
2 Case: 11-20289 Document: 00511789677 Page: 2 Date Filed: 03/15/2012No. 11-20289

The Salgados timely appealed the judgment to this court. The i r appeal states one ground of attack—that the forfeiture of the entire $78,882.00 violates the Eighth Amendment’s Excessive Fines Clause because it is grossly dis p r o p o r t i onal to the Salgados’ failure to report the currency. The Salgados 2 contend that the currency is not connected with any other crime, and that their only offense was an omission that does not merit forfeiture of all their currency. The Salgados seek reversal of the district court’s judgment. II. DISCUSSION Because the Salgados raise their Excessive Fines C l a u s e theory for the first time on appeal, we review t h e d i s t rict court’s order of forfeiture for plain

error. See Doug las s v. U.S. Auto Ass’n , 79 F.3d 1415, 1424 (5th Cir. 1996) (en banc). To meet the pla i n e r r o r s t andard, we must conclude that there was an error, that the error was ob vi o u s , and that the error affected a party’s substantial rights. United States v. Olano , 507 U.S. 725, 732

S 34 (1993). I f we find plain error by the district court, we will only correct the error if it “‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” Id. at 736 (quoting United States v. Atkinson , 297 U.S. 157, 160 (1936)). Although both parties rely on United States v. Bajakajian , 524 U.S. 321 (1998), the Salgados and the Un i t e d States articulate different inquiries for analyzing the forfeiture’s propriety. We need not decide the proper inquiry in 3 this case. Instead, b e c a u s e u n der either test the Salgados were required to

The Salgad os do not app eal the dis tri ct court’s det erm inati on that they violat ed 31 2 U. S. C. § 5316( a)( 1)(A) by kn ow ingly fai ling to rep ort t h a t t h e y we re car rying mo re than $10, 000. 00.
The for fei tur es in the cas es cit ed by the Unit ed Sta tes all aros e fr om ongoing unlaw ful 3 act ivitie s in violat ion of ot her s tat utes . See Uni ted States v. Li , 615 F.3d752 (7th Cir. 2010) (f orf eit ing a hous e tra ced to the cri me of harbo ring aliens for per so nal fina ncial gain); Uni ted States v. Chees em an , 600 F.3d 270 (3d Cir. 2010) (f orf eit ing a large quant ity of fir earm s for the cri me of fir earm pos se ss ion by a fel on) ; Uni ted States v. Wal la ce , 389 F.3d 483 (5t h Cir. 2004) (f orf eit ing an ai r p l a ne for violat ing the requ irem ent to regis ter the airc raf t)

. Ho we ver, the par tie s didno t cit e a ny c ase s pr ecis ely on poi nt. 3 Case: 11-20289 Document: 00511789677 Page: 3 Date Filed: 03/15/2012No. 11-20289

demonstrate that the value of the property seized was disproportional t o their offense, which they failed to do, we need only consider proportionality. Se e 1 8 U.S.C. § 983(g)(3) (“The claimant shall have the burden of establishing that the forfeiture is grossly disproportional by a preponderance of the evidence . . . .”). The Salgados r est their appeal upon Bajakajian

. Though the Salgados’ 4

case arises from the same underlying offense and circumstances as Bajakajian , it involves less than a quarter of the amount of currency seized in Bajakajian

. See Bajakajian , 524 U.S. at 325. And while the forfeiture of the $357,144 seized in Bajakajian would have exceeded the maximum $250,000 statutory fine, the Salgados’ forfeiture clearly does not. Thus, Bajakajian alone con s t i tutes insufficient authority for the Salgados’ theory that the forfeiture of $78,882.00 was a disproportional punishment for their offense. Under these circumstances, we cannot say that the district court plainly erred in requiring the Salgados to forfeit $78,882.00. See United States v. Olano , 507 U.S. 725, 734 (1993) (For an error to be plain, it mu s t be “clear under current law”). The district court’s judgment is AFFIRMED.

T h e S a l g ado s’ brie f cit es only tw o othe r cas es , both of wh ich fai l to add res s the 4 pr opo rti onalit y is suep res ente d in this appe al and, there for e, do not pr ovideany sup por t for the Salgad os ’ pr opo rti onalit y t heor y. 4 Case: 11-20289 Document: 00511789677 Page: 4 Date Filed: 03/15/2012