United States v. $69,292.00 in U.S. Currency

dissenting and concurring in the judgment:

I am with the majority insofar as it remands this case for further proceedings in light of United States v. $405,089.23 in U.S. Currency, 33 F.3d 1210 (9th Cir.1994). However, I otherwise dissent.

All of Part I, a discussion of double jeopardy bereft of a holding, is superfluous to the disposition of the appeal before us. At this point, no one has any idea if Abdul Aziz has any ownership interest in the forfeited funds. Unless he does, Aziz obviously has no double jeopardy claim. The parties never briefed how § 5317 mixes with the Double Jeopardy Clause. Part I is, therefore, a discussion in the air with which I cannot agree.

I also disagree with Part II. Abdul Ma-jeed’s declaration does not create a genuine issue of material fact because it fails to distinguish his conduct from that in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 687 , 94 S.Ct. 2080, 2093-94 , 40 L.Ed.2d 452 (1974). It boils down to an assertion that Abdul Majeed hadn’t a clue that his brother would violate any law. This cannot possibly support a reasonable inference that he had “proved not only that he was uninvolved in and unaware of the wrongful…

Opinion by Judge FLETCHER; Partial Concurrence and Partial Dissent by Judge RYMER.

The Faheemi brothers — Adbul Aziz Fahee-mi and Abdul Majeed Faheemi — appeal a summary judgment in the Government’s favor. The district court forfeited to the government funds seized from Abdul Aziz as he was boarding an airplane for a flight to the United Arab Emirates. We reverse and remand.

What defenses and claims may be asserted and by whom turns on the ownership of the defendant currency — each of the brothers claims to own it. 1 Thus, on remand the district court should first resolve the competing claims to ownership before it turns to the merits of the defenses and claims. If Abdul Aziz can prove an ownership interest in some of the currency, he is entitled to assert a Double Jeopardy claim. If Abdul Majeed can establish an ownership interest in some of the currency, he is entitled to assert an innocent owner defense. Finally, only if these claims are not dispositive must the district court address whether the forfeiture was excessive. In the event the district court reaches the excessive forfeiture claim it should apply the factors set forth in United States v. Real Property Located in El…