IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

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 this suit to recover

$58,874.45 he paid to an undercover agent of U.S. Immigration and Customs

Enforcement (ICE). The ICE agent was posing as the owner of a Laredo,

United States Court of Appeals

Fifth Circuit

F I L E D

October 17, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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

Texas, company dealing in illegally diverted imports. Santana-Lim appeals

the district court’s summary judgment against him.

Santana-Lim’s admissions, together with the ICE agent’s

uncontroverted affidavit, establish that in September, 2004, Santana-Lim

paid the $58,874.45 to purchase two containers of apparel, imported from

China under a customs entry requiring prompt re-export. The agent’s

affidavit testimony shows that Santana-Lim was aware that the apparel had

been illegally diverted into U.S. commerce, 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 prohibit exporting

the containers in that manner, as well as purchasing them with that purpose. 

19 U.S.C. § 1592a(a)(2)(A)-(D). Title 19, United States Code, § 1595a(d)

provides:

Merchandise exported or sent from the United States or attempted

to be exported or sent from the United States contrary to law, or the

proceeds or value thereof, and property used to facilitate the

exporting or sending of such merchandise, the attempted exporting

or sending of such merchandise, or the receipt, purchase,

transportation, concealment, or sale of such merchandise prior to

exportation shall be seized and forfeited to the United States.

The summary judgment evidence therefore established that when he

attempted to buy the containers, Santana-Lim effected a transfer of his rights

in the purchase money to the United States. The district court was correct

that the principle of automatic forfeiture stated in United States v. Stowell,

133 U.S. 1, 16, 10 S.Ct. 244, 247 (1890), applies to 19 U.S.C. § 1595a(d). See

United States v. Currency Totalling $48,318.08, 609 F.2d 210, 213 (5th Cir.

Case: 11-40104 Document: 00511634695 Page: 2 Date Filed: 10/17/2011
1980). It is therefore of no moment that the government did not bring judicial

or administrative forfeiture proceedings within the statute of limitations. As

the district court observed, “[a] judicial decree or administrative forfeiture

would operate only to confirm the forfeiture that had already occurred and

quiet title in the government as to any interested, innocent third parties.” It

is also of no moment that the government did not prosecute Santana-Lim for

his attempt to purchase the containers. The attempt may well have been a

crime. 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,

284 (1931). And nothing in 19 U.S.C. § 1595a(d) limits its effect to property

involved in violations of the customs laws for which Congress has provided

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