Case: 11-40104       Document: 00511634695        Page: 1    Date Filed: 10/17/2011




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                                             FILED
                                                                          October 17, 2011
                                  ______________________
                                                                           Lyle W. Cayce
                                       No. 11-40104                             Clerk
                                    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,

       *
           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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 2   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,

, 16, 

, 247 (1890), applies to 19 U.S.C. § 1595a(d). See
United States v. Currency Totalling $48,318.08, 

, 213 (5th Cir.
   Case: 11-40104   Document: 00511634695     Page: 3   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, 

, 581, 

,
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.