OpenJurist

917 F2d 28 United States v. Beltran-Beltran $20150 US

917 F.2d 28

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Jose Antonio BELTRAN-BELTRAN, Claimant-Appellant,
$20,150 In U.S. Currency, Defendant.

No. 89-16178.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 23, 1990.*
Decided Oct. 25, 1990.

Before HUG, NELSON and LEAVY, Circuit Judges.

1

MEMORANDUM**

2

Jose Antonio Beltran-Beltran appeals the district court's order granting summary judgment in favor of the United States. In the action, the United States sought the forfeiture of $20,150 in undeclared funds seized by United States Customs officials pursuant to 31 U.S.C. Sec. 5317. The district court found that the United States had established probable cause to institute the in rem forfeiture, and that Beltran-Beltran had failed to raise any genuine issues of material fact which could refute the government's showing of probable cause. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm.

3

The only issue on appeal is whether the district court should have exercised judicial restraint.1 In United States v. Tax Lot 1500, we implicitly recognized that judicial restraint was available in a civil forfeiture proceeding. 861 F.2d 232, 235 (9th Cir.1988), cert. denied sub nom., Jaffe v. United States, 110 S.Ct. 364 (1989). In that case, the government sought the forfeiture of the claimant's house and surrounding land, pursuant to 21 U.S.C. Sec. 881(a)(7), after the claimant had been convicted of growing marijuana in a small, two and one-half by five foot, garden on the premises. We held that summary judgment was appropriate, and that the district court had "correctly concluded that this was not a case for judicial restraint." Id.

4

Here, Beltran-Beltran attempted to enter the United States without declaring that he had in excess of $10,000 on his person. See 31 U.S.C. Secs. 5316 & 5317 (establishing criminal and civil penalties for transporting amounts in excess of $10,000 without reporting). When asked by a United States Customs agent if had money in excess of $10,000 on his person he replied, "No." Beltran-Beltran also marked "No" in response to the same question on his declaration form. Upon searching Beltran-Beltran, Customs agents found $17,300 concealed in his socks, which with other monies on his person totaled $20,150. Beltran subsequently plead guilty to making a false statement on his declaration form and was given a five-year suspended sentence, five-years probation, and fined $2,500.

5

Beltran-Beltran contends that given the "technical" nature of the violation, the district court erred by not exercising judicial restraint. Based on the record, however, we find that it was not error for the district court to decline to exercise its judicial restraint. See, e.g., Tax Lot 1500, 861 F.2d at 235.

6

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Beltran-Beltran raised a number of issues in his opening brief which he abandons in his reply brief conceding that "most of the arguments raised by claimant in his opening brief.... [do] not withstand the Supreme Court's opinion in One Lot Emerald Cut Stones [v. United States, 409 U.S. 232, 235-37 (1972) ]." See Appellant's Reply Brief at 1. Beltran-Beltran, however, reiterates his argument that the district court should have used judicial restraint. Id