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

______________________ No. 11-40104 Summary Calendar

______________________ ALVARO SANTANA-LIM, Plaintiff-Appellant
v. UNITED STATES OF AMERICA, Defendant-Appellee

____________________________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 5:10-MC-5

____________________________________________ Before REAVLEY, SMITH, and PRADO, Circuit Judges. PER CURIAM: * Plaintiff-Appellant Alvaro Santana-Lim brought th is suit to recover $58,874.45 he paid to an undercover agent of U.S. Immigr a ti on and Customs Enforcement (ICE). The ICE agent was posing as the owner o f a L a r edo, 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 Octob er 17 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5, the court has det ermined that this opi n i o n sh o uld not * be published and is not precedent except under the limited circum st ances set forth in 5 T H C IR

. R. 47.5.4. Case: 11-40104 Document: 00511634695 Page: 1 Date Filed: 10/17/2011No. 11-40104

Texas, company dealing in illeg a l l y diverted imports. Santana-Lim appeals the district court’s summary judgment against him.

S a n t a n a - L i m ’ s a d m i s s i o n s , t o g e t h e r w i t h t h e I C E a g e n t ’ s uncontroverted affidavit, establish that in September, 20 04, Santana-Lim paid the $58,874.45 to purchase two c ontainers of apparel, imported from China under a customs e n t ry requiring prompt re-export. The agent’s affidavit testimony shows th a t S a n t ana-Lim was aware that the apparel had been illegally diverted into U.S. c o m m e r ce, and that Santana-Lim intended to export the apparel to Mexico with its labels, seals, and documentation falsified to conceal its country of origin. U.S. customs laws pro h ib i t e xporting the contai n e r s i n t hat manner, as well as purchasing them with that purpose. 19 U.S.C. § 1592a(a)(2)(A)-(D). Title 19, United Stat e s Code, § 1595a(d) provides:

Merchandise exported or sent from the United States or at t e mpted to be exported or sent from the United State s c o n t r a ry to law, or the proceeds or value there o f, and property used to facilitate the exporting or sending of such merchandise, the attempted exporting or sending of such merchandise, or the re c e i pt, purchase, transportation, concealment, or sale of such merchan dise prior to exportation shall be seized and forfeited to the United States.

The summary judgment evide n ce therefore established that when he attempted to buy the containers, Santana-Lim eff ected a tra n s fer of his rights in the purchase m oney to the United States. The district court was correct that the principle of automatic forfeiture stated in United S t a t e s v. Stowell , 133 U.S. 1, 16, 10 S

. C t

. 244, 247 (1890), applies to 19 U.S.C. § 1595a(d). See Un i t e d S t ates v. Currency Totalling $48,318.08, 609 F.2d 210, 213 (5th Cir. Case: 11-40104 Document: 00511634695 Page: 2 Date Filed: 10/17/20111980). It is therefor e of no moment that the gover nment did not bring judicial

or administrative forfeiture proceedings within the s t a t u t e of limitations. As the district court observed, “[a] ju di c ial decree or administrative forfeiture would operate only to confirm the f o rf e i ture that had already occurred and quiet title in the government as to any interested, inno c e n t t h ird parties.” It is also of no moment that the government did not prosec u t e Santana-Lim for his attempt to purchase the containers. The attempt may well have been a
c ri m e . See 18 U.S.C. § 545. But forfeiture is not a criminal penalty. Various Items of Personal Property v. United States , 282 U.S. 577, 581, 51 S.Ct. 282, 2 8 4 ( 1 9 3 1 ). And nothing in 19 U.S.C. § 1595a(d) limits its effect to prope rt y i nv olved in violations of the customs laws for which Congress has pr o vi d e d criminal penalties, much less to those that give rise to a prosecution.

AFFIRMED. Case: 11-40104 Document: 00511634695 Page: 3 Date Filed: 10/17/2011