FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                April 4, 2008
                                                            Elisabeth A. Shumaker
                                   PUBLISH                      Clerk of Court

                    UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.

 $148,840.00 IN UNITED STATES
                                                       No. 07-2142
 CURRENCY,

       Defendant,

 DAVID D. AUSTIN,

       Claimant-Appellant.


                 Appeal from the United States District Court
                       for the District of New Mexico
                      (D.C. No. CV-05-1263-MV/DJS)


Michael McCabe (Richard M. Barnett, with him on the briefs), San Diego,
California, for Claimant-Appellant.

Stephen R. Kotz, Assistant United States Attorney (Larry Gomez, Acting United
States Attorney, with him on the briefs), Albuquerque, New Mexico, for Plaintiff-
Appellee.


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


LUCERO, Circuit Judge.
      In this civil in rem action, the United States seeks the forfeiture of

$148,840 in United States currency discovered in the trunk of a rental car driven

by claimant David Austin after Austin was stopped by police for speeding. The

government commenced the action under 21 U.S.C. § 881(a)(6), which authorizes

the forfeiture of currency: (1) furnished or intended to be furnished in exchange

for a controlled substance, (2) traceable to a controlled substance exchange, or (3)

used or intended to be used to facilitate a violation of the Controlled Substances

Act (“CSA”). Following a motion for summary judgment by the government, the

district court concluded that Austin lacked constitutional standing to challenge the

forfeiture. On appeal, we are faced with the sole question of whether a claimant,

such as Austin, who has made an unequivocal claim of ownership to currency

potentially forfeitable to the United States, and who is found in the exclusive

possession and control of that currency, has Article III standing to challenge the

forfeiture action. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude

that Austin has advanced sufficient jurisdictional facts to support his

constitutional standing. We thus REVERSE and REMAND for further

proceedings.

                                          I

                                          A

      At approximately 10:30 a.m. on June 25, 2005, Bernalillo County Deputy

Sheriff Peter Roth stopped Austin for traveling 65 miles per hour in a 45-miles-

                                          -2-
per-hour construction zone on westbound Interstate 40 near Albuquerque, New

Mexico. At Roth’s request, Austin produced a driver’s license issued by the State

of California and a rental contract in Austin’s name from a Hertz Rent-A-Car

location in Port Newark, New Jersey. Because the documents originated from

divergent coasts and places far from Albuquerque, Roth inquired about Austin’s

travel itinerary. Austin told him that he had flown from California to

Philadelphia the day before to visit a friend and that he was now on his way back

to California. He also stated that he had driven from Philadelphia to Illinois to

visit another friend and that because he was already halfway to California after

that visit, he decided to drive the rest of the way home. Finding this explanation

suspicious, Roth returned to his patrol car to perform a warrants check on Austin

as well as a vehicle check on Austin’s rental car to determine whether it was

stolen. After both checks came back negative, Roth prepared a traffic citation for

speeding and a preprinted consent to search form.

      When he returned to Austin’s vehicle, the deputy showed Austin the

citation, and Austin agreed to pay the associated fine. Roth then gave Austin a

copy of the citation and returned Austin’s documents. As both he and Austin

prepared to leave, however, Roth stopped and asked Austin if he could again

speak with him. Austin responded in the affirmative and Roth inquired whether

Austin had any illegal contraband or large sums of money in the vehicle. Austin

stated that there were no such items, at which point Roth asked Austin whether he

                                         -3-
would be willing to consent to a search of the vehicle. Austin replied that he

would not consent. Roth then advised Austin to remain on the scene while he

summoned an officer with a drug-sniffing canine.

      As Austin and Roth waited for the canine team to arrive, Roth asked Austin

about his travel plans again. Austin told the officer that he had traveled to

Philadelphia to visit a friend named Lenny with whom he used to play pool in

California, but that he did not know Lenny’s last name. When asked about his

employment, Austin stated that he had recently started a kitchen refurbishing

business, and offered to refurbish the deputy’s kitchen for approximately $300.

Together, these statements made Roth subjectively suspicious that Austin was

engaged in some type of illegal activity.

      Officer Arcenio Chavez soon arrived with a drug-sniffing canine, and asked

Austin for permission to have the dog inspect the interior and exterior of the

rental vehicle. Austin agreed and unlocked the trunk for the officers. Chavez

then escorted the dog around the exterior of Austin’s rental car. When the dog

approached the rear of the car, it jumped into the open trunk. Once inside the

trunk, the dog alerted to the odor of a controlled substance within the trunk area

and then attempted to open a cooler in the trunk with her nose. 1

      1
        According to Chavez, the dog began to increase her respiration and
change her body posture, which indicated that she was alerting to the odor of a
controlled substance. Additionally, although the dog’s attempt to open the cooler
with her nose was not part of her specific training, this reaction also purportedly
                                                                        (continued...)

                                         -4-
      Upon observing the dog alert, the officers asked Austin to remove the

cooler as well as an adjacent hard-sided suitcase. Austin complied, setting the

items down on the pavement behind the vehicle. Chavez then redirected the dog

toward these items and she again tried to open the cooler with her nose. She also

bit into the suitcase and dragged it along the pavement area. At that point, the

officers proceeded to search the suitcase and cooler. Although they found

nothing of interest in the suitcase, Chavez noticed several plastic bags containing

bundles wrapped in aluminum foil under the ice in the cooler. Roth removed the

plastic bags and the aluminum foil covering, and discovered $148,840 in cold

hard cash.

      Suspecting that the currency was related to drug trafficking, Roth

handcuffed Austin and read him his Miranda rights, but did not place him under

arrest. He then proceeded to search the remainder of the vehicle, a venture which

ultimately yielded no additional cash or contraband. When questioned by Roth

about the origins of the currency, Austin refused to reveal the source of the cash,

but told the deputy that the money belonged to him and said that he knew the

amount of the money that had been discovered. Austin then refused to discuss the

matter further without the advice of an attorney. Without any reason to continue




      1
       (...continued)
constituted an “alert” to the presence of a controlled substance.

                                         -5-
detaining Austin, Roth took possession of the currency, handed Austin a receipt

for it, and allowed him to continue on his travels.

                                          B

      On December 2, 2005, the United States filed a verified complaint in rem

seeking the forfeiture of the $148,840 recovered from Austin’s vehicle. The

government alleged that the currency was subject to forfeiture under 21 U.S.C.

§ 881(a)(6) because the currency was furnished, or intended to be furnished, in

exchange for a controlled substance, constituted proceeds traceable to such an

exchange, or was otherwise used or intended to be used to facilitate a violation of

the CSA. 2 Following the filing of the complaint, Austin submitted a verified

claim opposing the forfeiture and an answer to the government’s complaint,

asserting that he was the owner of the currency.

      The government thereafter deposed Austin on May 24, 2006. At that

deposition, Austin repeatedly claimed that he was the owner of the currency

seized, but in response to specific questions about the cash, he invoked his Fifth

Amendment privilege against self-incrimination. Specifically, he refused to

describe the source of the currency, explain why it was packaged in plastic and

foil, or reveal why he was carrying such a large amount of cash. He also declined

      2
        Although the government initially alleged that the currency was also
forfeitable under 18 U.S.C. § 981(a)(1)(A) and (a)(1)(C), it did not pursue
forfeiture under either of those grounds in its motion for summary judgment.
Adopting the government’s lead, we refer to this case as arising only under 21
U.S.C. § 881(a)(6).

                                         -6-
to answer, again on Fifth Amendment grounds, any questions relating to his

sources of income, his employment history, his previous residences, and his travel

itinerary in the days leading up to the traffic stop.

      On September 28, 2006, the United States filed a “Motion to Dismiss/Strike

Claim and Answer for Lack of Article III Standing or Motion for Summary

Judgment.” The government argued that Austin’s claim was based solely on his

“naked, unexplained possession” of the currency, and that he therefore lacked the

requisite injury in fact that would allow him standing under Article III of the

Constitution to challenge the forfeiture action. According to the government,

because Austin had invoked the Fifth Amendment when prompted to explain his

possession of the seized funds, he should be barred from contesting the forfeiture

action on the ground that he failed to carry his burden of establishing

constitutional standing. The district court agreed, and granted summary judgment

in favor of the United States. United States v. $148,840.00 in U.S. Currency, 

, 1259 (D.N.M. 2007). It concluded that Austin had not shown

that he had Article III standing because he had failed to provide “any evidence in

support of his claim of . . . an ownership interest in the currency.” 

appeal followed.

                                           II

      We review a district court’s grant of summary judgment de novo, and apply

the same legal standard as the district court. MediaNews Group, Inc. v.

                                           -7-
McCarthey, 

, 1260 (10th Cir. 2007). Summary judgment is

appropriate “if the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We

consider the factual record, together with all reasonable inferences derived

therefrom, in the light most favorable to the non-moving party. Jones v. Barnhart,

, 1265 (10th Cir. 2003). Accordingly, at this stage of the

proceedings, we do not weigh the evidence or make credibility determinations, as

it is not our office to do so; these are functions properly reserved for the ultimate

finder of fact. 

claimant has constitutional standing is a threshold jurisdictional

question that we review de novo. 3 See United States v. Rodriguez-Aguirre, 

, 1203 (10th Cir. 2001). As the party seeking to intervene in an in rem

forfeiture action, a claimant bears the burden of establishing his own

constitutional standing at all stages in the litigation. See United States v. $38,000


      3
        The sole issue before the court is whether Austin has Article III standing
to challenge the forfeiture of the currency seized, as that was the only basis upon
which the district court granted summary judgment to the United States. See
$148,840.00 in U.S. 

n.4. We do not address
the separate question of whether Austin has “statutory standing” under Rule C(6)
of the Supplemental Rules for Admiralty of Maritime Claims and Asset Forfeiture
Actions. See, e.g., United States v. $8,221,877.16 in U.S. Currency, 

, 150 n.9 (3d Cir. 2003) (explaining that Article III standing depends on the
existence of a case or controversy, while statutory standing requires compliance
with certain procedural imperatives).

                                         -8-
in U.S. Currency, 

, 1543-44 & n.12 (11th Cir. 1987); see also Lujan

v. Defenders of Wildlife, 

, 561 (1992). At the pleading stage, a

claimant satisfies this burden by alleging a sufficient interest in the seized

property, such as an ownership interest, some type of lawful possessory interest,

or a security interest. See, e.g., 

; United

States v. $515,060.42 in U.S. Currency, 

, 498-99 (6th Cir. 1998). In

contrast, at the summary judgment stage, a claimant must prove by a

preponderance of the evidence that he has a facially colorable interest in the res

such that he would be injured if the property were forfeited to the United States;

otherwise, no case or controversy exists capable of federal court adjudication.

See 

; United States v. Cambio Exacto, S.A.,

, 527-28 (2d Cir. 1999). Although a claimant must make an initial

evidentiary showing of such an interest, a claimant need not definitively prove the

existence of that interest. See 

; United

States v. $577,933.89, More or Less, in U.S. Funds, 

, 79 (2d Cir.

2002) (“[T]he only question that the courts need assess regarding a claimant’s

standing is whether he or she has shown the required ‘facially colorable interest,’

not whether he ultimately proves the existence of that interest.” (quotations

omitted)).

      A claimant’s decision to invoke the Fifth Amendment’s protection against

self-incrimination, as Austin did in this case, does not decrease his burden of

                                          -9-
establishing standing at the summary judgment stage. See United States v.

Rylander, 

, 761 (1983) (“[T]he claim of privilege is not a substitute

for relevant evidence.”); United States v. Certain Real Prop. & Premises, 

, 83 (2d Cir. 1995) (“[T]he claim of privilege will not prevent an adverse

finding or even summary judgment if the litigant does not present sufficient

evidence to satisfy the usual evidentiary burdens in the litigation.”). In other

words, “[a] party who asserts the privilege against self-incrimination must bear

the consequence of lack of evidence.” United States v. Taylor, 

, 404

(7th Cir. 1992); see also 

; Mercado v. U.S. Customs

Serv., 

, 644 (2d Cir. 1989).

                                           A

      At its essence, the government contends that in the absence of “some

evidence and explanation of his interest in the res,” Austin has failed to prove his

Article III standing to challenge the forfeiture. Stated more directly, the

government argues that in determining standing, it is not enough for a claimant to

say, “That money you took from me is mine.” A claimant must prove more, says

the government, “or it is ours”—without having to establish any of its own rights

to the asset. According to this contention, Austin may not merely claim the

property as his and couple his physical possession of the currency with that claim,

he must also present additional evidence, such as an explanation of how he came

into possession of the money, the nature of his relationship to it, or the story

                                         -10-
behind his control of it. Without such evidence, goes the argument, Austin’s

claim amounts to nothing more than “naked, unexplained possession.”

      Austin counters that the cases invoked by the government do not support

the conclusion that he lacks Article III standing. He urges that his categorical

claim of personal ownership of the funds (as to opposed to a claim of possession

on behalf of another), combined with the undisputed evidence that the money was

in his possession and control when seized, are together sufficient evidence to

establish his standing. As we view the matter, Austin has the better of the two

arguments.

                                         B

      The fundamental flaw in the government’s logic lies in its characterization

of this forfeiture case as one of mere possession, rather than one of ownership. In

the standing context, this distinction makes all the difference. As our sister

circuits have recognized in other forfeiture cases, there is an important difference,

for standing purposes, between one who claims to be the owner of property and

one who claims to be a mere possessor of it. Compare United States v. $38,570

in U.S. Currency, 

, 1112-13 (5th Cir. 1992), and United States v.

$191,910.00 in U.S. Currency, 

, 1057-58 (9th Cir. 1994), superseded

by statute on other grounds, with United States v. $321,470 in U.S. Currency, 

, 303 (5th Cir. 1989). The type of interest claimed dictates the type of

evidence required to establish standing. See $191,910.00 in U.S. Currency, 16

                                        -11-
F.3d at 1058. The case law in this area reveals the existence of at least three

relevant property interests, and the nature of proof needed to demonstrate

standing turns on which of these distinct interests has been claimed. These

interests include: (1) ownership interests; (2) explained, lawful possessory

interests (e.g., that of a bailee); and (3) unexplained or unlawful possessory

interests. See 

      In cases in which a person has asserted an ownership interest, our sister

courts have not required the claimant to present the type of explanatory evidence

urged by the government to establish his or her standing. See $38,570 in U.S.

; see also $191,910.00 in U.S. 

(“[A] simple claim of ownership will be sufficient to create standing to

challenge a forfeiture.”); cf. 

(recognizing, in

a Fed. R. Crim. P. 41(e) case, that “proof of ownership, as opposed to lawful

possession, is . . . not required [to establish Article III standing] . . . even at a

later stage in the proceedings such as a summary judgment or trial”). Rather,

“courts have held that an allegation of ownership and some evidence of ownership

are together sufficient to establish standing to contest a civil forfeiture.” United

States v. U.S. Currency, $81,000, etc., 

, 35 (1st Cir. 1999). The

required ownership interest can be demonstrated in a variety of ways, “including

showings of actual possession, control, title and financial stake.” United States v.




                                           -12-
1998 BMW “I” Convertible, 

, 399 (8th Cir. 2000) (quotation

omitted).

      The Fifth Circuit’s decision in $38,570 in U.S. Currency is instructive.

There, the court held that a claimant who asserted an ownership interest had

constitutional standing to challenge the forfeiture of currency seized from a car

that he was driving. 

Although the court stated that “a bare assertion

of ownership in the res, without more, is inadequate to prove an ownership

interest sufficient to establish standing,” it also concluded that such an assertion,

when coupled with evidence of the claimant’s involvement with the res, is enough

to confer Article III standing on the claimant. 

see also Kadonsky v.

United States, 

, 508 (5th Cir. 2000) (recognizing that “an

unsupported assertion is insufficient to establish standing” when the evidence

adduced shows only a that a claimant “might have been involved” with the

defendant res).

      Similarly, in $191,910.00 in U.S. Currency, the Ninth Circuit concluded

that a claimant who was found in possession of a large amount of currency, and

who had asserted at least a partial ownership interest in the defendant res, had

Article III standing to challenge the 

. The court based

its conclusion that the claimant had standing on the following reasoning:

      Here, [the claimant] clearly described the interest he asserted in the
      money—he claimed that he owned some of the money and that he
      was carrying the rest for a client. He did not disclaim knowledge of

                                         -13-
      the money he was carrying, and he did ask for a receipt from the
      police. His was certainly more than the kind of naked, unexplained
      claim of possessory interest held insufficient in Mercado. It was a
      repeated, colorable claim of possessory and ownership interests
      which, combined with the fact that the money was taken from
      Morgan’s possession, was more than sufficient to support standing.

cf. $557,933.89, More or 

n.10 (finding standing

because a claimant “submitted a verified claim that he was the owner of the

funds”). Moreover, the Ninth Circuit held that, given the claimant’s assertion of

ownership, it was of no moment that he invoked his privilege against self-

incrimination at his deposition when asked to explain his interest in detail.

$191,910.00 in U.S. 

, 1058 n.13. It was enough that he

claimed to own the money taken from his possession. 

where an individual claims only a possessory interest, the

courts have required the claimant to provide evidence tending to support the

legitimacy of the possessory interest alleged before the claimant will be held to

have standing. See $321,470 in U.S. 

; 

. Such evidence might include an explanation of the specific legal

interest in the res (e.g., a bailment or agency interest) or an identification of its

legal owner. See $321,470 in U.S. 

(“No one can

question the standing of a bailee or agent to attack a forfeiture of property subject

to a lawful or even colorably lawful bailment or agency.”); 

(“There must be some indication that the claimant is in fact a possessor, not a


                                           -14-
simple, perhaps unknowing custodian . . . .”); $38,000 in U.S. 

(holding that a possessory interest was sufficient to confer standing when

the claimant asserted that he held the money as a bailee). This distinct

evidentiary burden exists in possession cases because an individual who claims to

merely possess property cannot be said to suffer a constitutional injury in fact if

the property at issue is forfeited to the government unless that individual can

evidence a legally cognizable possessory interest in the property. See $321,470

in U.S. 

-04.

      Thus, in $321,470 in U.S. Currency, the Fifth Circuit concluded that a

claimant who “denie[d] legal ownership of [a] cash hoard” seized from a camper

that he was towing lacked constitutional standing to challenge the 

. Because the claimant was “either unable or . . . unwilling to

provide any evidence supporting his assertion that he [had] a lawful possessory

interest in the money seized,” the court held that his claim amounted to

“[u]nexplained naked possession of a cash hoard.” 

Such a claim was

insufficient to confer standing, unless the claimant coupled his claim with

evidence that he had a “lawful possessory interest.” Id.; see also $515,060.42 in

U.S. 

(“The assertion of simple physical possession of

property as a basis for standing must be accompanied by factual allegations

regarding how the claimant came to possess the property, the nature of the

claimant’s relationship to the property, and/or the story behind the claimant’s

                                         -15-
control of the property.”); 

(reasoning that an airline

passenger who did not know that a bag seized from him contained money lacked

standing to challenge its forfeiture); United States v. $15,500 in U.S. Currency,

, 1361 (9th Cir. 1977).

      Given that the root of the distinction recognized in these cases resides in

Article III’s clear requirement that an individual suffer a cognizable injury in fact

before he or she can have constitutional standing, we find the reasoning of these

cases persuasive. Moreover, our society is one that values both personal property

rights and the appropriate judicial resolution of disputes involving those rights.

As we view it, the government cannot prevent every person unwilling to

completely explain his relationship to property that he claims to own, and that is

found in his possession and control, from merely contesting a forfeiture of that

property in court. It may well be that forfeiture ultimately will prove appropriate,

but we find it obvious that such a claimant risks injury within the meaning of

Article III and thus may have his day in court. We thus hold that when a claimant

has asserted an ownership interest in the res at issue and has provided some

evidence tending to support the existence of that ownership interest, the claimant

has standing to challenge the forfeiture. In light of the foregoing, we turn to a

consideration of whether Austin’s unequivocal claim of ownership over the

currency seized, coupled with the undisputed evidence that the money was taken




                                         -16-
from his possession and control, are together sufficient to confer constitutional

standing on this record.

                                          C

      Like the claimants in $38,570 in U.S. Currency and $191,910 in U.S.

Currency, Austin has stated that he is the owner of the currency at issue. At his

deposition, he repeatedly testified that the money was his. Additionally, the

government does not dispute that Austin exercised some form of dominion and

control over the money at the time the officers recovered it from his rental car.

That he invoked the Fifth Amendment when asked to explain how he came into

ownership changes neither of these two dispositive facts.

      This would, of course, be a different case if the district court had exercised

its discretion to strike Austin’s claim of ownership to the currency in light of his

repeated invocations of the Fifth Amendment privilege. It is well established that

in a civil case a district court may strike conclusory testimony if the witness

asserts the Fifth Amendment privilege to avoid answering relevant questions, yet

freely responds to questions that are advantageous to his cause. See United States

v. Parcels of Land, 

, 43 (1st Cir. 1990); see also In re Edmond, 

, 1308-09 (4th Cir. 1991). This doctrine exists to prevent a party from

converting the Fifth Amendment privilege from its intended use as a shield

against compulsory self-incrimination into an offensive sword. 

. Notwithstanding these recognized principles, the government never

                                         -17-
moved to strike Austin’s deposition testimony, in which he asserted a claim of

ownership, and the district court therefore considered that testimony as part of the

record in ruling on the summary judgment motion.

      Because the relevant testimony was not stricken—indeed was not even

challenged by the government below—the district court was squarely presented

with Austin’s claim of ownership when it considered the standing issue. At the

summary judgment stage, the court was required to view that testimony in the

light most favorable to Austin, the non-moving party, and therefore was obliged

to accept Austin’s claim of ownership in determining whether Austin had met his

burden of proving standing by a preponderance of the evidence. See 1998 BMW

“I” 

(holding that where there were “disputed factual

issues and witness credibility determinations to be resolved,” summary judgment

against a civil forfeiture claimant based on lack of standing was inappropriate).

Thus, because Austin’s assertion of ownership is assumed to be true on this

record, and because the currency was indisputably seized from a vehicle that

Austin was driving, we hold that Austin has established constitutional standing at

this stage of the litigation. 4 He has both made a claim of ownership over the

      4
         Our recent Order and Judgment in United States v. $290,000 in U.S.
Currency, No. 06-3329, 

(10th Cir. Oct. 3, 2007) (unpublished),
is not to the contrary. The claimant in that case initially claimed an “ownership
and/or possessory interest in” cash seized from a rental car she was driving. 

At her deposition, however, she invoked the Fifth Amendment and refused to
say “whether she was the owner of the money.” 

Absent any affirmative
                                                                       (continued...)

                                        -18-
currency and provided some evidence tending to substantiate that claim, as he had

obvious possession and control over the currency when it was taken. 5 See

$38,570 in U.S. 

; $191,910.00 in U.S. 

.

      We stress that our conclusion that Austin has constitutional standing to

challenge the forfeiture at this point in the proceedings does no more than give

him the right to contest that his property rights in the cash are properly subject to

forfeiture. As to the merits of Austin’s asserted claim over the currency, we

express no opinion. Neither does his standing at this point in the proceedings

mean the district court may not revisit the issue at later stages in the litigation.

                                          III

      For the foregoing reasons, we REVERSE the district court’s grant of

summary judgment, and REMAND the case for further proceedings consistent

with this opinion.




      4
       (...continued)
evidentiary assertion of ownership, the claimant’s case was based merely on her
naked possession of the currency at issue, which, standing alone, is insufficient to
confer standing. 

not dispositive in light of his possession and control over the
currency at issue, Austin has also advanced one additional fact tending to
substantiate his ownership interest in the currency: He was able to recite to the
officers the amount of the currency at issue when the officers seized the money
from his rental car.

                                         -19-