United States v. Real Property 10338 Marcy Rd. N.W.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0240p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

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v. > No. 18-3347

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REAL PROPERTY 10338 MARCY ROAD NORTHWEST, │

CANAL WINCHESTER, OHIO, │

Defendant, │

│

LEVI H. WINSTON, │

│

Claimant-Appellant.

│

┘

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 2:13-cv-01048—Elizabeth A. Preston Deavers, Magistrate Judge.

Argued: May 7, 2019

Decided and Filed: September 12, 2019

Before: COLE, Chief Judge; STRANCH and READLER, Circuit Judges.

_________________

COUNSEL

ARGUED: Dennis C. Belli, BELLI LAW OFFICE, Columbus, Ohio, for Appellant. Leah M.

Wolfe, UNITED STATES ATTORNEY’S OFFICE, Columbus, Ohio, for Appellee.

ON BRIEF: Dennis C. Belli, BELLI LAW OFFICE, Columbus, Ohio, for Appellant. Leah M.

Wolfe, William B. King II, UNITED STATES ATTORNEY’S OFFICE, Columbus, Ohio, for

Appellee.

No. 18-3347 United States v. Real Property 10338 Marcy Rd. NW, et al. Page 2

_________________

OPINION

_________________

JANE B. STRANCH, Circuit Judge. This is an appeal from the trial court’s

determination that a vacant lot on Marcy Road in Ohio (the Property), purchased by Appellant

Levi Winston in 2012, is subject to civil forfeiture under 21 U.S.C. § 881(a)(6). After a bench

trial, the court concluded that the Government met its burden to demonstrate, by a preponderance

of the evidence, a substantial connection between the money used to purchase the Property and

proceeds from Winston’s illegal drug sales. On appeal, Winston argues that the Government did

not meet its burden and disputes several of the lower court’s factual findings. For the reasons

stated below, we AFFIRM.

I. BACKGROUND

A. Factual Background

This case revolves around Winston’s activities from April 2009 to March 2013. In the

month after Winston completed a prison sentence in April 2009, he first stayed in a halfway

house then moved in with his sister, Valerie Banks, with whom he lived for 29 months. He

worked at a call center and opened a business, Winston Hauling, earning income totaling

$169,132 between 2009 and 2012. In lieu of rent, he gave Banks a couple hundred dollars to

defray his costs. After initially taking the bus to work, he purchased a car in May 2010. With

the help of a Veterans Administration loan, he purchased and moved into a home at

999 Cummington Road in September 2011. He paid taxes each year, remodeled the

999 Cummington residence (where he lived with his then-fiancée, now-wife), and spent money

on everyday living expenses. In November 2012, he signed a contract with Robin Adams to

purchase the Marcy Road Property for $36,500 and gave Adams four cash payments totaling

$26,500 between November 2012 and January 2013. Though it does not appear that Winston

paid the full $36,500, Adams considered the Property paid for and owned by Winston, and he

was willing to provide Winston with a quitclaim deed to the Property. The Property was never

deeded to Winston.

No. 18-3347 United States v. Real Property 10338 Marcy Rd. NW, et al. Page 3

In 2010, while operating his legitimate business, Winston also became involved in a

large-scale marijuana trafficking conspiracy. He rented several warehouses for offloading

marijuana shipments, spending at least $62,091 on rent and equipment, and he paid $25,000 to

an associate, Steven Johnson, for his help with renting the warehouses. In September 2012, he

purchased a van with $6,875 of drug trafficking proceeds, titling and registering the van with the

names of other individuals.

In March 2013, after law enforcement surveillance of his warehouses and a search of 999

Cummington, Winston was arrested and charged on two counts: conspiracy to possess with

intent to distribute 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. § 846, and

money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), for purchasing the van with drug

trafficking proceeds and attempting to conceal his role in the purchase. He pleaded guilty and

was sentenced to 135 months’ imprisonment. He did not disclose his interest in the Marcy Road

Property to the district court’s pretrial services or probation offices. The Government became

aware of Winston’s interest in the Property only after interviewing Adams following Winston’s

guilty plea.

B. Civil Forfeiture Action

The Government then filed this civil forfeiture action under 21 U.S.C. § 881(a)(6),

alleging that Winston had purchased the Property with proceeds traceable to drug sales. The

district court granted the Government’s motion for summary judgment, finding that the illegal

drug trafficking was the “only plausible source of income, supported by evidence in the record,

from which Winston could have purchased the Marcy Road property.” According to the court,

Winston had not provided evidence of any legitimate earnings in 2012, the year he purchased the

Property, or evidence that he had saved enough of the previous years’ legitimate income to

purchase the Property in cash.

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This court reversed the grant of summary judgment. United States v. Real Prop. 10338

Marcy Rd. Nw. (Marcy I), 659 F. App’x 212 (6th Cir. 2016). We found that Winston’s statement

that he earned $150,000 in legitimate income in 2012 created a dispute of material fact

over whether the Property was purchased with legitimate income or drug sale proceeds. Id. at

218–19. We determined that there existed a genuine dispute of material fact over whether the

Government had established a substantial connection between the Property and drug proceeds

and remanded the case to the district court for further proceedings. Id. at 220.

At the resulting bench trial, the Government presented seven witnesses testifying to

Winston’s everyday expenses and his drug trafficking activities, including renting warehouses

for the purpose of unloading marijuana, paying $25,000 cash to Johnson for his help with the

warehouses, and purchasing a van with drug proceeds. The Government presented Winston’s

legitimate income from 2009–2012 as $169,132. According to his 2012 tax return, Winston’s

legitimate income in 2012 was only $16,243, not the $150,000 he claimed in Marcy I. See

659 F. App’x at 218. Based on the figure Winston provided for his living expenses in the

Presentence Investigation Report (PSI) in his criminal case (which contained a mathematical

error), the Government estimated his living expenses as $148,272 for the four-year period. For

Winston’s case-in-chief, his sister Banks testified that he spent little money when he lived with

her after leaving prison. Winston also recalled to the stand Internal Revenue Service agent

Bernard Clark, who had worked on Winston’s case and testified that based on his 30 years of

experience, it was “common for drug dealers to use their drug profits to pay for the expenses of

their business,” as well as to “sometimes devote their profits to expanding their business.” Clark

testified that in Winston’s case, it was a “fair assessment” that it was “more probable than not

that the cost of the warehouse and that equipment [e.g. forklifts] was paid for with drug money.”

Documentary evidence submitted included the Government’s summary of Winston’s calculated

expenses and income, Winston’s personal and business tax documents, copies of cashier’s

checks given to Johnson for warehouse rentals, an accountant’s summary of Winston’s business

accounts, receipts from the remodel of 999 Cummington, and receipts for jewelry purchased

from Jared the Galleria of Jewelry.

No. 18-3347 United States v. Real Property 10338 Marcy Rd. NW, et al. Page 5

Based on this evidence, the trial court made the following accounting of Winston’s

unrebutted expenses from 2009–2012:

Payments to Jared the Galleria of Jewelry $8,828

Tax Payments $4,756

Car Payments $5,856

Warehouse Rentals $62,091

Payments to Johnson $25,000

Sept. 2012 Van Purchase $6,875

Cash Payments to Banks $400

Ford Taurus $3,000

Total unrebutted expenditures 2009–2012 $116,806

To the $116,806, the court added several additional expenses. First, Winston had obtained a

building permit authorizing $60,000 in building costs to remodel 999 Cummington but argued

that he did some of the work himself and that his wife paid for some of the costs. The court

chose to attribute $30,000 in home remodeling costs to Winston. The court also added living

expenses for the four-year period between Winston’s prior release from prison and his arrest in

2013, after which he remained in custody. The court agreed with Winston’s contention that the

Government’s initial estimate of $147,272 of living expenses was $57,832 too high because it

did not account for his living rent-free with his sister for 29 months and was based on a

mathematical error in the PSI. The court thus found that the living expenses during the four-year

period were $90,440: the Government’s estimate of $147,272 minus $57,398. Excluding the

purchase of the Property, the court calculated Winston’s total known expenditures as $237,246

and subtracted that figure from his legitimate income:

Winston’s Legitimate Income $169,132

Unrebutted Expenses $116,806

Remodeling costs $30,000

Living Expenses $90,440

Total Expenditures $237,246

Total Legitimate Income

($68,114)

Available After Expenditures

No. 18-3347 United States v. Real Property 10338 Marcy Rd. NW, et al. Page 6

Based on the court’s calculations, Winston spent $68,114 more than he earned in

legitimate income between 2009 and 2012. The court concluded that it was “mathematically

impossible” for Winston to have purchased the Property with legitimate funds and found that the

Government met its burden to show that Winston “purchased the Property with proceeds from

his illegal activities.” Thus, the court found the Property forfeitable under 21 U.S.C. § 881(a)(6)

based on the Government’s circumstantial evidence of the substantial connection. Winston

timely appealed.

II. ANALYSIS

“In an appeal from a judgment entered after a bench trial, we review the district court’s

findings of fact for clear error and its conclusions of law de novo.” T. Marzetti Co. v. Roskam

Baking Co., 680 F.3d 629, 633 (6th Cir. 2012) (emphasis omitted). We “must give due regard to

the trial court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6).

“A district court has committed clear error only when ‘the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has been committed.’” King v.

Zamiara, 680 F.3d 686, 694 (6th Cir. 2012) (quoting Anderson v. City of Bessemer City,

470 U.S. 564, 573 (1985)).

We address first Winston’s factual arguments regarding the trial court’s expense

calculation before turning to the applicable standard under 21 U.S.C. § 881(a)(6) and assessing

the evidence under that standard.

A. Expense Calculation

Winston contests several of the trial court’s factual findings regarding his expenses.

He argues that the court clearly erred in finding his remodeling costs to be $30,000 and

living expenses from 2009–2012 to be $90,440. The remodel’s building permit stated that

construction costs would be $60,000, and at trial, there was evidence that Winston may have

performed some work himself and that his wife paid for some of the materials. The court

properly found that Winston spent at least some money on remodeling; thus, the court did not

clearly err in selecting $30,000 based on the evidence before it. Regarding living expenses, the

No. 18-3347 United States v. Real Property 10338 Marcy Rd. NW, et al. Page 7

court adopted the calculation Winston presented in his post-trial brief, thereby taking into

account his savings from living rent-free with his sister and taking the bus to work. The court

did not err in using this calculation.

Winston also argues that the trial court improperly calculated his “unrebutted expenses”

by double-counting his automobile-related expenses and including $93,966 of drug trafficking

expenses—the September 2012 van purchase ($6,875), warehouse rentals ($62,091), and

payments to Johnson ($25,000).

First, the trial court listed as unrebutted expenses a total auto loan payment of $5,856,

reflecting a loan taken out in May 2011, as well as a Ford Taurus purchased for $3,000. Winston

argues that his $5,856 of car payments should not be treated as a separate expense because his

car payments were included in his monthly living expenses. This is incorrect; Winston’s

monthly living expenses of $2,783.60 (the figure from his PSI that he, the Government, and the

trial court use) do not include a monthly car payment. The trial court did not err in counting

Winston’s car payment of $5,856 separately. As to the Ford Taurus, the only evidence that

Winston purchased it is Winston’s sister’s testimony that he purchased the Taurus for about

$3,000 or $4,000 while residing with her. But based on Winston’s bank statements and the

vehicle assets listed in his Pretrial Services Report, the Taurus is the same car for which Winston

made $5,856 in car payments. The court clearly erred by including the Taurus as an unrebutted

expense.

Second, the trial court specifically found that Winston purchased the $6,875 van with

drug proceeds because that purchase was the basis for Winston’s conviction for money

laundering. This finding rebutted the Government’s assertion that Winston purchased the van

with legitimate income. The court clearly erred by including the $6,875 van purchase as an

unrebutted expense.

It is a closer call, however, whether the court erred by considering the $62,091 spent on

warehouse rentals and $25,000 on Johnson’s payments. That Winston spent that money is

unrebutted. But Winston argues that he paid for drug trafficking expenses with drug proceeds,

rather than with his legitimate income. His evidence consists of IRS agent Bernard Clark’s

No. 18-3347 United States v. Real Property 10338 Marcy Rd. NW, et al. Page 9

Only in the third column, which excludes the drug trafficking expenses, does Winston have

enough total legitimate income available after total expenses—$28,852—to make $26,500 in

cash payments for the Property.

We first explain the Government’s burden to establish forfeiture in § 881(a)(6) civil

forfeiture cases then examine the issues concerning Winston’s income and expenses.

B. Civil Forfeiture under 21 U.S.C. § 881(a)(6)

The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) changed the government’s

burden of proof in civil forfeiture actions. Previously, the government needed to show only

probable cause that the property was subject to forfeiture. See United States v. $174,206.00 in

U.S. Currency, 320 F.3d 658, 661–62 (6th Cir. 2003). Now, under CAFRA, “the burden of

proof is on the Government to establish, by a preponderance of the evidence, that the property is

subject to forfeiture.” 18 U.S.C. § 983(c)(1). This burden “requires the trier of fact to believe

that the existence of a fact is more probable than its nonexistence.” Concrete Pipe & Prods. of

Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (citation and

internal quotation marks omitted). “If the United States meets its burden, it will prevail unless a

claimant introduces evidence to support his case. . . .” United States v. Cunningham, 520 F.

App’x 413, 415 (6th Cir. 2013). But if the government does not meet its initial burden, the

claimant prevails. In that situation, claimants are “under no obligation to come forward with

evidence of their rightful ownership.” United States v. $125,938.62, 537 F.3d 1287, 1294 (11th

Cir. 2008).

The Government seeks forfeiture of the Marcy Road Property under the “proceeds

theory” referenced in the civil forfeiture section of the Controlled Substances Act (CSA), which

provides for forfeiture of:

All moneys, negotiable instruments, securities, or other things of value furnished

or intended to be furnished by any person in exchange for a controlled substance

or listed chemical in violation of this subchapter, all proceeds traceable to such

an exchange, and all moneys, negotiable instruments, and securities used or

intended to be used to facilitate any violation of this subchapter.

No. 18-3347 United States v. Real Property 10338 Marcy Rd. NW, et al. Page 10

21 U.S.C. § 881(a)(6) (emphasis added); see United States v. Premises Known as 8584 Old

Brownsville Rd., 736 F.2d 1129, 1131 (6th Cir. 1984) (finding real property forfeitable under

21 U.S.C. § 881(a)(6) when purchased with illegal drug sale proceeds).

In Marcy I, we explained that before CAFRA was passed, the language of the CSA

required “that the government show probable cause of ‘a substantial connection between the

property and the underlying criminal activity’” in proceeds cases. Marcy I, 659 F. App’x at 215

(quoting United States v. Fifty-Three Thousand Eighty-Two Dollars in U.S. Currency,

$53,082.00, 985 F.2d 245, 250 (6th Cir. 1993)). This conclusion is supported by Congress’s

joint explanatory statement on the Senate bill that added subsection (a)(6) to 21 U.S.C. § 881:

Due to the penal nature of forfeiture statutes, it is the intent of these provisions

that property would be forfeited only if there is a substantial connection between

the property and the underlying criminal activity which the statute seeks to

prevent. . . . [The Senate amendment] provides for forfeiture of property which is

the proceeds of an illegal drug transaction only if there is a traceable connection

[between] such property and the illegal exchange of controlled substances. Thus

if such proceeds were, for example, commingled with other assets, involved in

intervening legitimate transactions, or otherwise changed in form: they would still

be subject to forfeiture, but only to the extent that it could be shown that a

traceable connection to an illegal transaction in controlled substances existed.

Id. at 216 (quoting Joint Explanatory Statement of Titles II and III, Psychotropic Substances Act

of 1978, Pub. L. 95-633, reprinted in 1978 U.S. Code Cong. & Admin. News 9518, 9522).

Noting “CAFRA’s imposition of a more stringent burden of proof,” we held that the Government

must “establish by a preponderance of the evidence that the Marcy Road property was purchased

by Winston with cash that had a ‘substantial connection’ to an unauthorized drug sale.” Id.

1. Substantial Connection

The government may use direct tracing to establish the requisite substantial connection to

illegal activity. For example, actions under the federal civil forfeiture statute at 18 U.S.C.

§ 981(a) authorize the forfeiture of property derived from proceeds “traceable to” a qualifying

criminal violation. In United States v. $72,050.00 in U.S. Currency, 587 F. App’x 241 (6th Cir.

2014), the government met its burden under 18 U.S.C. § 981(a) to show a substantial connection

between the money sought to be forfeited and the claimant’s fraud through an “‘extensive

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review’ of the relevant bank records [that] could trace the amount to investor funds.” Id. at 244.

Though that claimant attempted to present a different explanation for the money’s origins, we

found the government’s tracing evidence more persuasive. Id. Thus, direct tracing can be a

valuable tool for the government in meeting its burden of proof.

In civil forfeiture cases under 21 U.S.C. § 881(a)(6), however, the government may also

meet its burden with circumstantial evidence of the substantial connection between the subject

property and illegal drug sales. See Cunningham, 520 F. App’x at 415; United States v.

$110,873.00 in U.S. Currency, 159 F. App’x 649, 652 (6th Cir. 2005); see also United States v.

$11,500.00 in U.S. Currency, 710 F.3d 1006, 1013 (9th Cir. 2013) (“The government may meet

its burden with sufficiently strong circumstantial evidence linking the currency to drug

trafficking in general.”); United States v. $84,615 in U.S. Currency, 379 F.3d 496, 501 (8th Cir.

2004) (“Circumstantial evidence can be used by the United States to establish its burden of

proof.”).

Circumstantial evidence of a substantial connection is evaluated under “the totality of the

circumstances.” United States v. $99,990.00 in U.S. Currency, 69 F. App’x 757, 763 (6th Cir.

2003); accord United States v. Funds in Amount of $30,670.00, 403 F.3d 448, 469 (7th Cir.

2005) (“[W]e consider the totality of the evidence as a whole and in the appropriate context.”).

In pre-CAFRA cases, where the government had a lower burden of proof, we reviewed “each of

the[] facts in turn to determine whether, in the aggregate, the evidence establishes [the

government’s burden].” United States v. $5,000.00 in U.S. Currency, 40 F.3d 846, 849 (6th Cir.

1994). “While we must consider all of the government’s evidence in order to determine whether

[the burden was met], we must also consider the relative strengths and weaknesses of that

evidence.” United States v. $67,220.00 in U.S. Currency, 957 F.2d 280, 286 (6th Cir. 1992).

This totality test still applies under the government’s more stringent burden of proof imposed by

CAFRA. Each fact-specific case thus requires the court to assess whether the government’s

“cumulation of . . . evidence” is strong enough to make its explanation more probable than not.

$110,873.00 in U.S. Currency, 159 F. App’x at 652.

We have addressed the efficacy of certain types of circumstantial evidence, such as the

presence of cash, signs of drug activity, and misleading of authorities. Carrying large amounts of

No. 18-3347 United States v. Real Property 10338 Marcy Rd. NW, et al. Page 12

cash is “insufficient, standing alone, to support forfeiture,” but may be “strong evidence of some

relationship with illegal drugs.” $99,990.00 in U.S. Currency, 69 F. App’x at 763 (citation and

internal quotation marks omitted); see also $5,000 in U.S. Currency, 40 F.3d at 850 (“[W]e agree

with the Ninth Circuit that ‘[f]ifteen to twenty thousand dollars is hardly enough cash, standing

alone, to justify more than a suspicion of illegal activity.’” (quoting United States v. $191,910.00

in U.S. Currency, 16 F.3d 1051, 1072 (9th Cir. 1994))). In one case, the government carried its

burden to establish forfeiture of $99,990 in cash by presenting the following cumulation of

evidence: officers found the enormous sum of cash in the claimant’s vehicle, the cash was

packaged in a manner suggesting drug activity (“heat-sealed and wrapped in tape, consistent with

how kilograms of cocaine are packaged”), a drug dog alerted to the vehicle and to the cash, the

claimant made “false and misleading statements” to police, and additional evidence about the

vehicle was probative of drug activity. $99,990.00 in U.S. Currency, 69 F. App’x at 763. The

government did not, however, carry its burden as to the $4,000 in cash found in the same

claimant’s motel room because it was “neither packaged suspiciously nor discovered in a

package to which the canine alerted.” Id. at 764.

Additional circumstantial evidence may include “evidence of legitimate income that is

insufficient to explain the large amount of property seized, unrebutted by any evidence pointing

to any other source of legitimate income or any evidence indicating innocent ownership.”

$174,206.00 in U.S. Currency, 320 F.3d at 662. For example, the government met its burden

where two claimants reported a total of $31,142 in legitimate income over five years and could

not explain their possession of safe deposit boxes containing $174,206. Id. Similarly, other

courts have found that the government met its burden by presenting evidence of claimants’

legitimate income weighed against their everyday expenses, where expenses for homes, jewelry,

or luxury cars significantly exceeded their legitimate means. See, e.g., United States v. 6 Fox St.,

480 F.3d 38, 43–44 (1st Cir. 2007) (finding minimal legitimate income could not cover tens of

thousands of dollars of expenses).

If the government initially meets its burden, the claimant prevails if he presents “any

evidence pointing to any other source of legitimate income or any evidence indicating innocent

ownership” that rebuts the government’s evidence. $174,206.00 in U.S. Currency, 320 F.3d at

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662. In United States v. Veggacado, 37 F. App’x 189 (6th Cir. 2002), an action under

§ 881(a)(6) seeking the forfeiture of seized cash, jewelry, and a computer, the claimant “had no

apparent income other than from drug trafficking,” “lived affluently and leased a Mercedes Benz

for $850 per month,” and owned fourteen pieces of jewelry ranging in value from $350 to

$37,000 with no “bills of sale, evidence of insurance coverage, or probate documents to show

any legitimate source for the property.” Id. at 190. The jury, however, credited the claimant’s

testimony that one gold religious pendant was left to him by his mother and other pieces of

jewelry were purchased with his wife’s legitimate income. Id. at 191. The jury thus found that,

in the face of the claimant’s evidence of legitimate ownership, the government did not ultimately

meet its burden to establish a substantial connection between those four pieces of jewelry and

drug proceeds. Id.

Though Winston acknowledges that evidence of a claimant’s minimal legitimate income

is persuasive in some cases, he argues that in a closer case, where the claimant’s legitimate

income could feasibly cover the purchase of the subject property, the government must provide

more direct evidence of the substantial connection to meet its burden. He cites Congress’s

policy statement on § 881(a)(6), which explained that if illegal drug sale proceeds “were, for

example, commingled with other assets, involved in intervening legitimate transactions, or

otherwise changed in form: they would still be subject to forfeiture, but only to the extent that it

could be shown that a traceable connection to an illegal transaction in controlled substances

existed.” He urges us to read 21 U.S.C. § 881(a)(6) as requiring, in cases involving significant

legitimate income commingled with illegitimate income, that the Government use direct tracing

methods to establish “how much of the value of the funds [to purchase the property] came from

untainted sources and how much came from tainted sources.” He points to tracing methods used

in other circuits in criminal forfeiture cases as examples of the rigid tracing used in such

commingled-income cases. See United States v. Ayika, 837 F.3d 460, 472 (5th Cir. 2016);

United States v. Voigt, 89 F.3d 1050, 1087 (3d Cir. 1996).

Though some cases of commingled income may require direct tracing evidence for the

government to meet its burden, we decline to establish a rule as to when that becomes necessary.

In those cases, as in this one, we evaluate the government’s evidence—whether direct or

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circumstantial—under the totality of the circumstances to determine whether the government has

established the substantial connection by a preponderance of the evidence. Because “[e]ach

forfeiture proceeding is based upon unique circumstances,” this evaluation is a fact-intensive

inquiry. United States v. Certain Real Prop. Located at 2525 Leroy Lane, 910 F.2d 343, 349

(6th Cir. 1990). We now examine the evidence to determine whether the Government has met its

burden with the evidence presented here and if so, whether Winston presented rebuttal evidence

of legitimate income or innocent ownership.

2. Totality of the Circumstances

As discussed in the expense calculations above, the presence of significant legitimate

income and relatively modest personal expenses requires a close review of the evidence

presented at Winston’s trial on remand. Under the totality of the circumstances approach, “[w]e

review each of these facts in turn to determine whether, in the aggregate, the evidence establishes

[the government’s burden].” $5,000.00 in U.S. Currency, 40 F.3d at 849. We “must also

consider the relative strengths and weaknesses of that evidence.” $67,220.00 in U.S. Currency,

957 F.2d at 286.

The Government relies on four categories of evidence. First, Winston in fact trafficked

drugs. As we have explained in Marcy I, the “mere fact that a claimant previously had been

convicted of a drug offense” does not “necessarily prove[] the substantial connection between

property and illegal activities that would establish, by a preponderance of the evidence, that the

property should be forfeited.” Marcy I, 659 F. App’x at 218. A drug trafficking conviction

alone cannot justify forfeiture, as “[p]lacement of such a permanent, immutable stigma upon an

individual contravenes all notions of fair play and due process.” Id. Winston, however, pleaded

guilty to participating in drug trafficking and concedes that he made—and spent—drug

trafficking proceeds in 2012. It is undisputed that Winston could have used legitimate income or

contemporaneously earned drug proceeds to purchase the Property.

Second, Winston withheld information from the Government by not revealing his interest

in the Property to the district court’s pretrial services and probation departments. We take into

account, as part of the totality of the circumstances, whether the claimant “withheld information

No. 18-3347 United States v. Real Property 10338 Marcy Rd. NW, et al. Page 15

from[] authorities.” $99,990.00 in U.S. Currency, 69 F. App’x at 763. We have acknowledged,

albeit in a different context, that “[l]aundering of drug profits is not the only plausible

explanation for concealing assets,” and “[l]egitimate income is often hidden from creditors and

tax agents.” United States v. McDougald, 990 F.2d 259, 262 (6th Cir. 1993). But Winston’s

misleading statements about the Property can also be understood as support for the

Government’s contention that he purchased the Property with illegitimate funds, especially in

conjunction with the other circumstantial evidence.

Third, at the summary judgment proceedings, Winston substantially misrepresented his

legitimate income in 2012, the year in which he purchased the Property. Winston’s 2012 tax

return reveals that he made only $16,243, not the $150,000 of legitimate income that he claimed

at summary judgment. Winston agreed to purchase the Property at issue for $36,500, and in fact

paid $26,500, a sum appreciably exceeding his 2012 legitimate income.

Finally, the Government emphasizes that Winston’s legitimate income was insufficient to

cover his expenses if the drug trafficking expenses were correctly included in the trial court’s

expense calculation. Adjusting for the district court’s calculation errors, between 2009 and 2012,

Winston earned $169,132 in legitimate income but spent $227,371, including the warehouse

rentals and Johnson payments totaling $93,966. See Table 1 above. If we find that the trial court

did not clearly err by including the warehouse rentals and Johnson payments in Winston’s

unrebutted expenses, Winston does not have adequate legitimate income remaining to purchase

the Property for $26,500. And “evidence of legitimate income that is insufficient to explain the

large amount of property seized, unrebutted by any evidence pointing to any other source of

legitimate income or any evidence indicating innocent ownership, satisfies the burden imposed

by [CAFRA].” $174,206.00 in U.S. Currency, 320 F.3d at 662.

Winston argues that he rebutted the Government’s evidence by showing that he did not

use his legitimate income to pay the $93,966 of drug trafficking expenses, leaving $28,852 of

legitimate income to purchase the Property. He relies solely on IRS agent Clark’s testimony that

in general, drug traffickers spend their drug proceeds on their drug business and that Winston

probably did so. The trial court also found that “[l]arge-scale trafficking of marijuana in the

Columbus area, akin to Winston’s during the relevant time period, is highly lucrative.” Winston

No. 18-3347 United States v. Real Property 10338 Marcy Rd. NW, et al. Page 16

did not provide any other evidence that he used drug trafficking proceeds to fund his drug

business or that he purchased the Property with legitimate income.

The evidence here presents two “possible stories” about how Winston paid for the

warehouses and Johnson’s services, and, by extension, how much legitimate income he had

remaining to purchase the Property. United States v. Assorted Jewelry Approximately Valued of

$44,328.00, 833 F.3d 13, 16 (1st Cir. 2016). Winston argues that the Government has not met its

burden to “tip the scale” toward connecting the Property to drug sale proceeds. Id. at 17.

Even assuming that the trial court may have erred by including the drug trafficking

expenses in its calculation of Winston’s unrebutted expenses, the Government’s “cumulation of

. . . evidence” is strong enough to make its explanation more likely than any explanation

proffered by the claimant. $110,873.00 in U.S. Currency, 159 F. App’x at 652. Based on the

court’s calculations, Winston spent $68,114 more than he earned in legitimate income between

2009 and 2012. Thus, although the calculations regarding Winston’s expenses and his legitimate

income cannot independently indicate which items he purchased with legitimate income or drug

proceeds, they do reveal that Winston purchased something with drug money, as his legitimate

income of $169,132 was insufficient to cover all of his known expenses between 2009 and 2012.

The additional facts described in the Government’s first three categories of evidence—that

Winston was trafficking in drugs at the time he purchased the Property, purchased the Property

with $26,000 in cash installments, failed to reveal his interest in the Property to authorities, and

lied about his legitimate income in the year that he purchased the Property—makes it more likely

than not that he used the drug proceeds to pay for the Property.

Winston argues that this analysis is a “thinly-disguised effort to invoke the substitute

assets remedy” under 18 U.S.C. § 853(p). In criminal forfeiture actions, that statute provides for

forfeiture of property that is itself not connected to illegal activity but serves as a substitute for

forfeitable property that cannot be located or is otherwise unavailable to fulfill the authorized

forfeiture. 18 U.S.C. §853(p). By contrast, the CSA’s civil forfeiture provision does not permit

forfeiture of “innocent” property. For example, here, the Government could not rely on a

21 U.S.C. § 881(a)(6) proceeds theory to show a substantial connection between drug trafficking

and Winston’s Ford Taurus, for which he made monthly auto payments from legitimate income,

No. 18-3347 United States v. Real Property 10338 Marcy Rd. NW, et al. Page 17

or 999 Cummington, which was financed by a VA loan and paid with legitimate income. But the

Government may rely on the following evidence: in 2012, Winston made only $16,243 in

legitimate income, not the $150,000 originally claimed; Winston’s misrepresented his legitimate

income during the time at which he bought the Property; and Winston failed to report his interest

in the Property. This evidence suggests a connection between Winston’s illegitimate income and

the Property that he purchased with $26,500 in cash.

The presence of significant legitimate income makes this case more difficult. On the

totality of the evidence in the record, however, Winston has failed to rebut the Government’s

proof that the Property was purchased with illegitimate income. Unlike the claimant in

Veggacado, who provided evidence that persuaded the jury that some of his property was either

inherited from his mother or purchased with his wife’s legitimate income, Winston has not

shown that his explanation is at least as likely as the Government’s. 37 F. App’x at 190. Nor is

this case still at summary judgment, where Winston need only present a dispute of material fact,

rather than sufficient evidence to rebut the Government’s case. See $99,990.00 in U.S.

Currency, 69 F. App’x at 763–64. The cumulative effect of the evidence presented is sufficient

to satisfy the Government’s burden to show that a substantial connection between the property

and the underlying criminal activity was more likely than not. See $110,873.00 in U.S.

Currency, 159 F. App’x at 652.

III. CONCLUSION

Because the Government met its burden to establish, by a preponderance of the evidence,

a substantial connection between the Property and illegal drug sale proceeds and its case was not

rebutted, the Property is forfeitable under 21 U.S.C. § 881(a)(6). We AFFIRM the judgment of

the court below.