USCA4 Appeal: 20-2321 Doc: 21 Filed: 11/10/2022 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-2321

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHERMARQUETTE WHITAKER,

Claimant - Appellant,

and

$35,990.00 IN U.S. CURRENCY,

Defendant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Malcolm J. Howard, Senior District Judge. (2:17-cv-00002-H)

Submitted: September 15, 2022 Decided: November 10, 2022

Before KING and AGEE, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for Appellant. G. Norman Acker, III, Acting United States Attorney, Matthew L. Fesak, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, USCA4 Appeal: 20-2321 Doc: 21 Filed: 11/10/2022 Pg: 2 of 5

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Shermarquette Whitaker appeals the district court’s grant of summary judgment in

favor of the Government in a civil forfeiture proceeding and the court’s judgment ordering

forfeiture of $35,990 in United States currency. Finding no error, we affirm.

“We review the district court’s grant of summary judgment de novo and construe

all facts and reasonable inferences therefrom in favor of the nonmoving party.” United

States v. McClellan,

(4th Cir. 2022) (cleaned up). Summary judgment

is appropriate only “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The

relevant inquiry on summary judgment is whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” United States v. 8.929 Acres of Land in Arlington Cnty.,

(4th Cir. 2022) (internal quotation marks omitted). In opposing summary

judgment, “the nonmoving party must rely on more than conclusory allegations, mere

speculation, the building of one inference upon another, or the mere existence of a scintilla

of evidence.”

(internal quotation marks omitted).

Civil forfeiture standards are set forth in the Civil Asset Forfeiture Reform Act of

2000,

Stat. 202. See

. The statute provides that

the Government must demonstrate by a preponderance of the evidence that the property

sought is subject to forfeiture.

(c)(1), (2); McClellan,

.

“Property is subject to forfeiture if it either facilitated the transportation, sale, receipt,

possession, or concealment of a controlled substance, or was intended to do so, or

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constitutes proceeds of drug-trafficking activities.” McClellan,

(citing

(a)(6)). Furthermore, “if the Government’s theory of forfeiture is that the

property was used to commit or facilitate the commission of a criminal offense, or was

involved in the commission of a criminal offense, the Government shall establish that there

was a substantial connection between the property and the offense.”

(c)(3);

McClellan,

. In civil forfeiture proceedings, “we review a district court’s

factual findings for clear error” and review de novo the court’s legal determination

regarding whether the facts render the defendant property subject to forfeiture. United

States v. Kivanc,

(4th Cir. 2013).

With these standards in mind, we have reviewed the joint appendix and the parties’

briefs and—contrary to Whitaker’s assertion on appeal—conclude that the district court

properly found the Government established by a preponderance of the evidence that the

subject currency had a substantial connection to drug trafficking. Although Whitaker

argues that the Government cannot establish a substantial connection between the currency

and a criminal offense because he was not convicted of any crime with respect to the seizure

of the currency, a conviction is not required for a civil forfeiture. See United States v.

Louthian,

, 307 n.12 (4th Cir. 2014) (explaining that while “criminal forfeiture

is an in personam action that requires a conviction, civil forfeiture is an in rem action

against the property itself”); United States v. Cherry,

, 668 n.16

(4th Cir. 2003) (“[C]ivil forfeiture proceedings are brought against property, not against

the property owner; the owner’s culpability is irrelevant in deciding whether property

should be forfeited.”).

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Whitaker also argues that there were genuine disputes as to the source of the seized

currency, whether he was connected to the home where the currency was found, and

whether he was engaged in drug trafficking. Because this was a civil forfeiture proceeding,

Whitaker’s culpability and connection to the home where the currency was found are not

material facts. See Cherry,

n.16. As for the source of the currency,

Whitaker alleged that he won the money in the lottery. However, only a portion of

Whitaker’s lottery winnings were adequately documented, the lottery receipts were dated

over a year and half before the seizure of the currency, Whitaker purchased a car

immediately after winning the lottery, he spent $10,000 to $15,000 per year on lottery

tickets, and he had not been employed since 2006. Based on these facts, the district court

appropriately concluded that there was no genuine dispute as to the source of the money.

See 8.929 Acres of Land in Arlington Cnty.,

; Libertarian Party of Va. v.

Judd,

(4th Cir. 2013) (explaining that “[a] dispute is genuine if a

reasonable jury could return a verdict for the nonmoving party” (internal quotation marks

omitted)).

Accordingly, we affirm the judgment of the district court. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED

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