                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                   File Name: 19a0240p.06

                    UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                             ┐
                                 Plaintiff-Appellee,   │
                                                       │
                                                       │
       v.                                              >      No. 18-3347
                                                       │
                                                       │
 REAL PROPERTY 10338 MARCY ROAD NORTHWEST,             │
 CANAL WINCHESTER, OHIO,                               │
                                    Defendant,         │
                                                       │
 LEVI H. WINSTON,                                      │
                                                       │
                               Claimant-Appellant.
                                                       │
                                                       ┘

                        Appeal from the United States District Court
                       for the Southern District of Ohio at Columbus.
            No. 2:13-cv-01048—Elizabeth A. Preston Deavers, Magistrate Judge.

                                  Argued: May 7, 2019

                         Decided and Filed: September 12, 2019

             Before: COLE, Chief Judge; STRANCH and READLER, Circuit Judges.

                                   _________________

                                       COUNSEL

ARGUED: Dennis C. Belli, BELLI LAW OFFICE, Columbus, Ohio, for Appellant. Leah M.
Wolfe, UNITED STATES ATTORNEY’S OFFICE, Columbus, Ohio, for Appellee.
ON BRIEF: Dennis C. Belli, BELLI LAW OFFICE, Columbus, Ohio, for Appellant. Leah M.
Wolfe, William B. King II, UNITED STATES ATTORNEY’S OFFICE, Columbus, Ohio, for
Appellee.
 No. 18-3347         United States v. Real Property 10338 Marcy Rd. NW, et al.          Page 2


                                     _________________

                                          OPINION
                                     _________________

       JANE B. STRANCH, Circuit Judge.            This is an appeal from the trial court’s
determination that a vacant lot on Marcy Road in Ohio (the Property), purchased by Appellant
Levi Winston in 2012, is subject to civil forfeiture under 21 U.S.C. § 881(a)(6). After a bench
trial, the court concluded that the Government met its burden to demonstrate, by a preponderance
of the evidence, a substantial connection between the money used to purchase the Property and
proceeds from Winston’s illegal drug sales. On appeal, Winston argues that the Government did
not meet its burden and disputes several of the lower court’s factual findings. For the reasons
stated below, we AFFIRM.

                                     I. BACKGROUND

       A. Factual Background

       This case revolves around Winston’s activities from April 2009 to March 2013. In the
month after Winston completed a prison sentence in April 2009, he first stayed in a halfway
house then moved in with his sister, Valerie Banks, with whom he lived for 29 months. He
worked at a call center and opened a business, Winston Hauling, earning income totaling
$169,132 between 2009 and 2012. In lieu of rent, he gave Banks a couple hundred dollars to
defray his costs. After initially taking the bus to work, he purchased a car in May 2010. With
the help of a Veterans Administration loan, he purchased and moved into a home at
999 Cummington Road in September 2011.            He paid taxes each year, remodeled the
999 Cummington residence (where he lived with his then-fiancée, now-wife), and spent money
on everyday living expenses. In November 2012, he signed a contract with Robin Adams to
purchase the Marcy Road Property for $36,500 and gave Adams four cash payments totaling
$26,500 between November 2012 and January 2013. Though it does not appear that Winston
paid the full $36,500, Adams considered the Property paid for and owned by Winston, and he
was willing to provide Winston with a quitclaim deed to the Property. The Property was never
deeded to Winston.
 No. 18-3347        United States v. Real Property 10338 Marcy Rd. NW, et al.             Page 3


        In 2010, while operating his legitimate business, Winston also became involved in a
large-scale marijuana trafficking conspiracy.    He rented several warehouses for offloading
marijuana shipments, spending at least $62,091 on rent and equipment, and he paid $25,000 to
an associate, Steven Johnson, for his help with renting the warehouses. In September 2012, he
purchased a van with $6,875 of drug trafficking proceeds, titling and registering the van with the
names of other individuals.

        In March 2013, after law enforcement surveillance of his warehouses and a search of 999
Cummington, Winston was arrested and charged on two counts: conspiracy to possess with
intent to distribute 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. § 846, and
money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), for purchasing the van with drug
trafficking proceeds and attempting to conceal his role in the purchase. He pleaded guilty and
was sentenced to 135 months’ imprisonment. He did not disclose his interest in the Marcy Road
Property to the district court’s pretrial services or probation offices. The Government became
aware of Winston’s interest in the Property only after interviewing Adams following Winston’s
guilty plea.

        B. Civil Forfeiture Action

        The Government then filed this civil forfeiture action under 21 U.S.C. § 881(a)(6),
alleging that Winston had purchased the Property with proceeds traceable to drug sales. The
district court granted the Government’s motion for summary judgment, finding that the illegal
drug trafficking was the “only plausible source of income, supported by evidence in the record,
from which Winston could have purchased the Marcy Road property.” According to the court,
Winston had not provided evidence of any legitimate earnings in 2012, the year he purchased the
Property, or evidence that he had saved enough of the previous years’ legitimate income to
purchase the Property in cash.
 No. 18-3347         United States v. Real Property 10338 Marcy Rd. NW, et al.            Page 4


       This court reversed the grant of summary judgment. United States v. Real Prop. 10338
Marcy Rd. Nw. (Marcy I), 659 F. App’x 212 (6th Cir. 2016). We found that Winston’s statement
that he earned $150,000 in legitimate income in 2012 created a dispute of material fact
over whether the Property was purchased with legitimate income or drug sale proceeds. Id. at
218–19. We determined that there existed a genuine dispute of material fact over whether the
Government had established a substantial connection between the Property and drug proceeds
and remanded the case to the district court for further proceedings. Id. at 220.

       At the resulting bench trial, the Government presented seven witnesses testifying to
Winston’s everyday expenses and his drug trafficking activities, including renting warehouses
for the purpose of unloading marijuana, paying $25,000 cash to Johnson for his help with the
warehouses, and purchasing a van with drug proceeds. The Government presented Winston’s
legitimate income from 2009–2012 as $169,132. According to his 2012 tax return, Winston’s
legitimate income in 2012 was only $16,243, not the $150,000 he claimed in Marcy I. See
659 F. App’x at 218. Based on the figure Winston provided for his living expenses in the
Presentence Investigation Report (PSI) in his criminal case (which contained a mathematical
error), the Government estimated his living expenses as $148,272 for the four-year period. For
Winston’s case-in-chief, his sister Banks testified that he spent little money when he lived with
her after leaving prison. Winston also recalled to the stand Internal Revenue Service agent
Bernard Clark, who had worked on Winston’s case and testified that based on his 30 years of
experience, it was “common for drug dealers to use their drug profits to pay for the expenses of
their business,” as well as to “sometimes devote their profits to expanding their business.” Clark
testified that in Winston’s case, it was a “fair assessment” that it was “more probable than not
that the cost of the warehouse and that equipment [e.g. forklifts] was paid for with drug money.”
Documentary evidence submitted included the Government’s summary of Winston’s calculated
expenses and income, Winston’s personal and business tax documents, copies of cashier’s
checks given to Johnson for warehouse rentals, an accountant’s summary of Winston’s business
accounts, receipts from the remodel of 999 Cummington, and receipts for jewelry purchased
from Jared the Galleria of Jewelry.
 No. 18-3347        United States v. Real Property 10338 Marcy Rd. NW, et al.            Page 5


       Based on this evidence, the trial court made the following accounting of Winston’s
unrebutted expenses from 2009–2012:

                    Payments to Jared the Galleria of Jewelry  $8,828
                    Tax Payments                               $4,756
                    Car Payments                               $5,856
                    Warehouse Rentals                         $62,091
                    Payments to Johnson                       $25,000
                    Sept. 2012 Van Purchase                    $6,875
                    Cash Payments to Banks                       $400
                    Ford Taurus                                $3,000
                    Total unrebutted expenditures 2009–2012 $116,806

To the $116,806, the court added several additional expenses. First, Winston had obtained a
building permit authorizing $60,000 in building costs to remodel 999 Cummington but argued
that he did some of the work himself and that his wife paid for some of the costs. The court
chose to attribute $30,000 in home remodeling costs to Winston. The court also added living
expenses for the four-year period between Winston’s prior release from prison and his arrest in
2013, after which he remained in custody. The court agreed with Winston’s contention that the
Government’s initial estimate of $147,272 of living expenses was $57,832 too high because it
did not account for his living rent-free with his sister for 29 months and was based on a
mathematical error in the PSI. The court thus found that the living expenses during the four-year
period were $90,440: the Government’s estimate of $147,272 minus $57,398. Excluding the
purchase of the Property, the court calculated Winston’s total known expenditures as $237,246
and subtracted that figure from his legitimate income:

                    Winston’s Legitimate Income                    $169,132
                    Unrebutted Expenses          $116,806
                    Remodeling costs              $30,000
                    Living Expenses               $90,440
                    Total Expenditures           $237,246
                    Total Legitimate Income
                                                                  ($68,114)
                    Available After Expenditures
 No. 18-3347         United States v. Real Property 10338 Marcy Rd. NW, et al.             Page 6


       Based on the court’s calculations, Winston spent $68,114 more than he earned in
legitimate income between 2009 and 2012. The court concluded that it was “mathematically
impossible” for Winston to have purchased the Property with legitimate funds and found that the
Government met its burden to show that Winston “purchased the Property with proceeds from
his illegal activities.” Thus, the court found the Property forfeitable under 21 U.S.C. § 881(a)(6)
based on the Government’s circumstantial evidence of the substantial connection. Winston
timely appealed.

                                         II. ANALYSIS

       “In an appeal from a judgment entered after a bench trial, we review the district court’s
findings of fact for clear error and its conclusions of law de novo.” T. Marzetti Co. v. Roskam
Baking Co., 680 F.3d 629, 633 (6th Cir. 2012) (emphasis omitted). We “must give due regard to
the trial court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6).
“A district court has committed clear error only when ‘the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed.’” King v.
Zamiara, 680 F.3d 686, 694 (6th Cir. 2012) (quoting Anderson v. City of Bessemer City,
470 U.S. 564, 573 (1985)).

       We address first Winston’s factual arguments regarding the trial court’s expense
calculation before turning to the applicable standard under 21 U.S.C. § 881(a)(6) and assessing
the evidence under that standard.

       A. Expense Calculation

       Winston contests several of the trial court’s factual findings regarding his expenses.

       He argues that the court clearly erred in finding his remodeling costs to be $30,000 and
living expenses from 2009–2012 to be $90,440. The remodel’s building permit stated that
construction costs would be $60,000, and at trial, there was evidence that Winston may have
performed some work himself and that his wife paid for some of the materials. The court
properly found that Winston spent at least some money on remodeling; thus, the court did not
clearly err in selecting $30,000 based on the evidence before it. Regarding living expenses, the
 No. 18-3347          United States v. Real Property 10338 Marcy Rd. NW, et al.            Page 7


court adopted the calculation Winston presented in his post-trial brief, thereby taking into
account his savings from living rent-free with his sister and taking the bus to work. The court
did not err in using this calculation.

        Winston also argues that the trial court improperly calculated his “unrebutted expenses”
by double-counting his automobile-related expenses and including $93,966 of drug trafficking
expenses—the September 2012 van purchase ($6,875), warehouse rentals ($62,091), and
payments to Johnson ($25,000).

        First, the trial court listed as unrebutted expenses a total auto loan payment of $5,856,
reflecting a loan taken out in May 2011, as well as a Ford Taurus purchased for $3,000. Winston
argues that his $5,856 of car payments should not be treated as a separate expense because his
car payments were included in his monthly living expenses.          This is incorrect; Winston’s
monthly living expenses of $2,783.60 (the figure from his PSI that he, the Government, and the
trial court use) do not include a monthly car payment. The trial court did not err in counting
Winston’s car payment of $5,856 separately. As to the Ford Taurus, the only evidence that
Winston purchased it is Winston’s sister’s testimony that he purchased the Taurus for about
$3,000 or $4,000 while residing with her. But based on Winston’s bank statements and the
vehicle assets listed in his Pretrial Services Report, the Taurus is the same car for which Winston
made $5,856 in car payments. The court clearly erred by including the Taurus as an unrebutted
expense.

        Second, the trial court specifically found that Winston purchased the $6,875 van with
drug proceeds because that purchase was the basis for Winston’s conviction for money
laundering. This finding rebutted the Government’s assertion that Winston purchased the van
with legitimate income. The court clearly erred by including the $6,875 van purchase as an
unrebutted expense.

        It is a closer call, however, whether the court erred by considering the $62,091 spent on
warehouse rentals and $25,000 on Johnson’s payments. That Winston spent that money is
unrebutted. But Winston argues that he paid for drug trafficking expenses with drug proceeds,
rather than with his legitimate income. His evidence consists of IRS agent Bernard Clark’s
 No. 18-3347         United States v. Real Property 10338 Marcy Rd. NW, et al.             Page 9


Only in the third column, which excludes the drug trafficking expenses, does Winston have
enough total legitimate income available after total expenses—$28,852—to make $26,500 in
cash payments for the Property.

       We first explain the Government’s burden to establish forfeiture in § 881(a)(6) civil
forfeiture cases then examine the issues concerning Winston’s income and expenses.

       B. Civil Forfeiture under 21 U.S.C. § 881(a)(6)

       The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) changed the government’s
burden of proof in civil forfeiture actions. Previously, the government needed to show only
probable cause that the property was subject to forfeiture. See United States v. $174,206.00 in
U.S. Currency, 320 F.3d 658, 661–62 (6th Cir. 2003). Now, under CAFRA, “the burden of
proof is on the Government to establish, by a preponderance of the evidence, that the property is
subject to forfeiture.” 18 U.S.C. § 983(c)(1). This burden “requires the trier of fact to believe
that the existence of a fact is more probable than its nonexistence.” Concrete Pipe & Prods. of
Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (citation and
internal quotation marks omitted). “If the United States meets its burden, it will prevail unless a
claimant introduces evidence to support his case. . . .” United States v. Cunningham, 520 F.
App’x 413, 415 (6th Cir. 2013). But if the government does not meet its initial burden, the
claimant prevails. In that situation, claimants are “under no obligation to come forward with
evidence of their rightful ownership.” United States v. $125,938.62, 537 F.3d 1287, 1294 (11th
Cir. 2008).

       The Government seeks forfeiture of the Marcy Road Property under the “proceeds
theory” referenced in the civil forfeiture section of the Controlled Substances Act (CSA), which
provides for forfeiture of:

       All moneys, negotiable instruments, securities, or other things of value furnished
       or intended to be furnished by any person in exchange for a controlled substance
       or listed chemical in violation of this subchapter, all proceeds traceable to such
       an exchange, and all moneys, negotiable instruments, and securities used or
       intended to be used to facilitate any violation of this subchapter.
 No. 18-3347         United States v. Real Property 10338 Marcy Rd. NW, et al.           Page 10


21 U.S.C. § 881(a)(6) (emphasis added); see United States v. Premises Known as 8584 Old
Brownsville Rd., 736 F.2d 1129, 1131 (6th Cir. 1984) (finding real property forfeitable under
21 U.S.C. § 881(a)(6) when purchased with illegal drug sale proceeds).

       In Marcy I, we explained that before CAFRA was passed, the language of the CSA
required “that the government show probable cause of ‘a substantial connection between the
property and the underlying criminal activity’” in proceeds cases. Marcy I, 659 F. App’x at 215
(quoting United States v. Fifty-Three Thousand Eighty-Two Dollars in U.S. Currency,
$53,082.00, 985 F.2d 245, 250 (6th Cir. 1993)). This conclusion is supported by Congress’s
joint explanatory statement on the Senate bill that added subsection (a)(6) to 21 U.S.C. § 881:

       Due to the penal nature of forfeiture statutes, it is the intent of these provisions
       that property would be forfeited only if there is a substantial connection between
       the property and the underlying criminal activity which the statute seeks to
       prevent. . . . [The Senate amendment] provides for forfeiture of property which is
       the proceeds of an illegal drug transaction only if there is a traceable connection
       [between] such property and the illegal exchange of controlled substances. Thus
       if such proceeds were, for example, commingled with other assets, involved in
       intervening legitimate transactions, or otherwise changed in form: they would still
       be subject to forfeiture, but only to the extent that it could be shown that a
       traceable connection to an illegal transaction in controlled substances existed.

Id. at 216 (quoting Joint Explanatory Statement of Titles II and III, Psychotropic Substances Act
of 1978, Pub. L. 95-633, reprinted in 1978 U.S. Code Cong. & Admin. News 9518, 9522).
Noting “CAFRA’s imposition of a more stringent burden of proof,” we held that the Government
must “establish by a preponderance of the evidence that the Marcy Road property was purchased
by Winston with cash that had a ‘substantial connection’ to an unauthorized drug sale.” Id.

               1. Substantial Connection

       The government may use direct tracing to establish the requisite substantial connection to
illegal activity. For example, actions under the federal civil forfeiture statute at 18 U.S.C.
§ 981(a) authorize the forfeiture of property derived from proceeds “traceable to” a qualifying
criminal violation. In United States v. $72,050.00 in U.S. Currency, 587 F. App’x 241 (6th Cir.
2014), the government met its burden under 18 U.S.C. § 981(a) to show a substantial connection
between the money sought to be forfeited and the claimant’s fraud through an “‘extensive
 No. 18-3347        United States v. Real Property 10338 Marcy Rd. NW, et al.           Page 11


review’ of the relevant bank records [that] could trace the amount to investor funds.” Id. at 244.
Though that claimant attempted to present a different explanation for the money’s origins, we
found the government’s tracing evidence more persuasive. Id. Thus, direct tracing can be a
valuable tool for the government in meeting its burden of proof.

       In civil forfeiture cases under 21 U.S.C. § 881(a)(6), however, the government may also
meet its burden with circumstantial evidence of the substantial connection between the subject
property and illegal drug sales.    See Cunningham, 520 F. App’x at 415; United States v.
$110,873.00 in U.S. Currency, 159 F. App’x 649, 652 (6th Cir. 2005); see also United States v.
$11,500.00 in U.S. Currency, 710 F.3d 1006, 1013 (9th Cir. 2013) (“The government may meet
its burden with sufficiently strong circumstantial evidence linking the currency to drug
trafficking in general.”); United States v. $84,615 in U.S. Currency, 379 F.3d 496, 501 (8th Cir.
2004) (“Circumstantial evidence can be used by the United States to establish its burden of
proof.”).

       Circumstantial evidence of a substantial connection is evaluated under “the totality of the
circumstances.” United States v. $99,990.00 in U.S. Currency, 69 F. App’x 757, 763 (6th Cir.
2003); accord United States v. Funds in Amount of $30,670.00, 403 F.3d 448, 469 (7th Cir.
2005) (“[W]e consider the totality of the evidence as a whole and in the appropriate context.”).
In pre-CAFRA cases, where the government had a lower burden of proof, we reviewed “each of
the[] facts in turn to determine whether, in the aggregate, the evidence establishes [the
government’s burden].” United States v. $5,000.00 in U.S. Currency, 40 F.3d 846, 849 (6th Cir.
1994). “While we must consider all of the government’s evidence in order to determine whether
[the burden was met], we must also consider the relative strengths and weaknesses of that
evidence.” United States v. $67,220.00 in U.S. Currency, 957 F.2d 280, 286 (6th Cir. 1992).
This totality test still applies under the government’s more stringent burden of proof imposed by
CAFRA. Each fact-specific case thus requires the court to assess whether the government’s
“cumulation of . . . evidence” is strong enough to make its explanation more probable than not.
$110,873.00 in U.S. Currency, 159 F. App’x at 652.

       We have addressed the efficacy of certain types of circumstantial evidence, such as the
presence of cash, signs of drug activity, and misleading of authorities. Carrying large amounts of
 No. 18-3347         United States v. Real Property 10338 Marcy Rd. NW, et al.            Page 12


cash is “insufficient, standing alone, to support forfeiture,” but may be “strong evidence of some
relationship with illegal drugs.” $99,990.00 in U.S. Currency, 69 F. App’x at 763 (citation and
internal quotation marks omitted); see also $5,000 in U.S. Currency, 40 F.3d at 850 (“[W]e agree
with the Ninth Circuit that ‘[f]ifteen to twenty thousand dollars is hardly enough cash, standing
alone, to justify more than a suspicion of illegal activity.’” (quoting United States v. $191,910.00
in U.S. Currency, 16 F.3d 1051, 1072 (9th Cir. 1994))). In one case, the government carried its
burden to establish forfeiture of $99,990 in cash by presenting the following cumulation of
evidence: officers found the enormous sum of cash in the claimant’s vehicle, the cash was
packaged in a manner suggesting drug activity (“heat-sealed and wrapped in tape, consistent with
how kilograms of cocaine are packaged”), a drug dog alerted to the vehicle and to the cash, the
claimant made “false and misleading statements” to police, and additional evidence about the
vehicle was probative of drug activity. $99,990.00 in U.S. Currency, 69 F. App’x at 763. The
government did not, however, carry its burden as to the $4,000 in cash found in the same
claimant’s motel room because it was “neither packaged suspiciously nor discovered in a
package to which the canine alerted.” Id. at 764.

       Additional circumstantial evidence may include “evidence of legitimate income that is
insufficient to explain the large amount of property seized, unrebutted by any evidence pointing
to any other source of legitimate income or any evidence indicating innocent ownership.”
$174,206.00 in U.S. Currency, 320 F.3d at 662. For example, the government met its burden
where two claimants reported a total of $31,142 in legitimate income over five years and could
not explain their possession of safe deposit boxes containing $174,206. Id. Similarly, other
courts have found that the government met its burden by presenting evidence of claimants’
legitimate income weighed against their everyday expenses, where expenses for homes, jewelry,
or luxury cars significantly exceeded their legitimate means. See, e.g., United States v. 6 Fox St.,
480 F.3d 38, 43–44 (1st Cir. 2007) (finding minimal legitimate income could not cover tens of
thousands of dollars of expenses).

       If the government initially meets its burden, the claimant prevails if he presents “any
evidence pointing to any other source of legitimate income or any evidence indicating innocent
ownership” that rebuts the government’s evidence. $174,206.00 in U.S. Currency, 320 F.3d at
 No. 18-3347         United States v. Real Property 10338 Marcy Rd. NW, et al.            Page 13


662.   In United States v. Veggacado, 37 F. App’x 189 (6th Cir. 2002), an action under
§ 881(a)(6) seeking the forfeiture of seized cash, jewelry, and a computer, the claimant “had no
apparent income other than from drug trafficking,” “lived affluently and leased a Mercedes Benz
for $850 per month,” and owned fourteen pieces of jewelry ranging in value from $350 to
$37,000 with no “bills of sale, evidence of insurance coverage, or probate documents to show
any legitimate source for the property.” Id. at 190. The jury, however, credited the claimant’s
testimony that one gold religious pendant was left to him by his mother and other pieces of
jewelry were purchased with his wife’s legitimate income. Id. at 191. The jury thus found that,
in the face of the claimant’s evidence of legitimate ownership, the government did not ultimately
meet its burden to establish a substantial connection between those four pieces of jewelry and
drug proceeds. Id.

       Though Winston acknowledges that evidence of a claimant’s minimal legitimate income
is persuasive in some cases, he argues that in a closer case, where the claimant’s legitimate
income could feasibly cover the purchase of the subject property, the government must provide
more direct evidence of the substantial connection to meet its burden. He cites Congress’s
policy statement on § 881(a)(6), which explained that if illegal drug sale proceeds “were, for
example, commingled with other assets, involved in intervening legitimate transactions, or
otherwise changed in form: they would still be subject to forfeiture, but only to the extent that it
could be shown that a traceable connection to an illegal transaction in controlled substances
existed.” He urges us to read 21 U.S.C. § 881(a)(6) as requiring, in cases involving significant
legitimate income commingled with illegitimate income, that the Government use direct tracing
methods to establish “how much of the value of the funds [to purchase the property] came from
untainted sources and how much came from tainted sources.” He points to tracing methods used
in other circuits in criminal forfeiture cases as examples of the rigid tracing used in such
commingled-income cases. See United States v. Ayika, 837 F.3d 460, 472 (5th Cir. 2016);
United States v. Voigt, 89 F.3d 1050, 1087 (3d Cir. 1996).

       Though some cases of commingled income may require direct tracing evidence for the
government to meet its burden, we decline to establish a rule as to when that becomes necessary.
In those cases, as in this one, we evaluate the government’s evidence—whether direct or
 No. 18-3347         United States v. Real Property 10338 Marcy Rd. NW, et al.           Page 14


circumstantial—under the totality of the circumstances to determine whether the government has
established the substantial connection by a preponderance of the evidence. Because “[e]ach
forfeiture proceeding is based upon unique circumstances,” this evaluation is a fact-intensive
inquiry. United States v. Certain Real Prop. Located at 2525 Leroy Lane, 910 F.2d 343, 349
(6th Cir. 1990). We now examine the evidence to determine whether the Government has met its
burden with the evidence presented here and if so, whether Winston presented rebuttal evidence
of legitimate income or innocent ownership.

               2. Totality of the Circumstances

       As discussed in the expense calculations above, the presence of significant legitimate
income and relatively modest personal expenses requires a close review of the evidence
presented at Winston’s trial on remand. Under the totality of the circumstances approach, “[w]e
review each of these facts in turn to determine whether, in the aggregate, the evidence establishes
[the government’s burden].” $5,000.00 in U.S. Currency, 40 F.3d at 849. We “must also
consider the relative strengths and weaknesses of that evidence.” $67,220.00 in U.S. Currency,
957 F.2d at 286.

       The Government relies on four categories of evidence. First, Winston in fact trafficked
drugs. As we have explained in Marcy I, the “mere fact that a claimant previously had been
convicted of a drug offense” does not “necessarily prove[] the substantial connection between
property and illegal activities that would establish, by a preponderance of the evidence, that the
property should be forfeited.” Marcy I, 659 F. App’x at 218. A drug trafficking conviction
alone cannot justify forfeiture, as “[p]lacement of such a permanent, immutable stigma upon an
individual contravenes all notions of fair play and due process.” Id. Winston, however, pleaded
guilty to participating in drug trafficking and concedes that he made—and spent—drug
trafficking proceeds in 2012. It is undisputed that Winston could have used legitimate income or
contemporaneously earned drug proceeds to purchase the Property.

       Second, Winston withheld information from the Government by not revealing his interest
in the Property to the district court’s pretrial services and probation departments. We take into
account, as part of the totality of the circumstances, whether the claimant “withheld information
 No. 18-3347        United States v. Real Property 10338 Marcy Rd. NW, et al.           Page 15


from[] authorities.” $99,990.00 in U.S. Currency, 69 F. App’x at 763. We have acknowledged,
albeit in a different context, that “[l]aundering of drug profits is not the only plausible
explanation for concealing assets,” and “[l]egitimate income is often hidden from creditors and
tax agents.” United States v. McDougald, 990 F.2d 259, 262 (6th Cir. 1993). But Winston’s
misleading statements about the Property can also be understood as support for the
Government’s contention that he purchased the Property with illegitimate funds, especially in
conjunction with the other circumstantial evidence.

       Third, at the summary judgment proceedings, Winston substantially misrepresented his
legitimate income in 2012, the year in which he purchased the Property. Winston’s 2012 tax
return reveals that he made only $16,243, not the $150,000 of legitimate income that he claimed
at summary judgment. Winston agreed to purchase the Property at issue for $36,500, and in fact
paid $26,500, a sum appreciably exceeding his 2012 legitimate income.

       Finally, the Government emphasizes that Winston’s legitimate income was insufficient to
cover his expenses if the drug trafficking expenses were correctly included in the trial court’s
expense calculation. Adjusting for the district court’s calculation errors, between 2009 and 2012,
Winston earned $169,132 in legitimate income but spent $227,371, including the warehouse
rentals and Johnson payments totaling $93,966. See Table 1 above. If we find that the trial court
did not clearly err by including the warehouse rentals and Johnson payments in Winston’s
unrebutted expenses, Winston does not have adequate legitimate income remaining to purchase
the Property for $26,500. And “evidence of legitimate income that is insufficient to explain the
large amount of property seized, unrebutted by any evidence pointing to any other source of
legitimate income or any evidence indicating innocent ownership, satisfies the burden imposed
by [CAFRA].” $174,206.00 in U.S. Currency, 320 F.3d at 662.

       Winston argues that he rebutted the Government’s evidence by showing that he did not
use his legitimate income to pay the $93,966 of drug trafficking expenses, leaving $28,852 of
legitimate income to purchase the Property. He relies solely on IRS agent Clark’s testimony that
in general, drug traffickers spend their drug proceeds on their drug business and that Winston
probably did so. The trial court also found that “[l]arge-scale trafficking of marijuana in the
Columbus area, akin to Winston’s during the relevant time period, is highly lucrative.” Winston
 No. 18-3347         United States v. Real Property 10338 Marcy Rd. NW, et al.              Page 16


did not provide any other evidence that he used drug trafficking proceeds to fund his drug
business or that he purchased the Property with legitimate income.

       The evidence here presents two “possible stories” about how Winston paid for the
warehouses and Johnson’s services, and, by extension, how much legitimate income he had
remaining to purchase the Property. United States v. Assorted Jewelry Approximately Valued of
$44,328.00, 833 F.3d 13, 16 (1st Cir. 2016). Winston argues that the Government has not met its
burden to “tip the scale” toward connecting the Property to drug sale proceeds. Id. at 17.

       Even assuming that the trial court may have erred by including the drug trafficking
expenses in its calculation of Winston’s unrebutted expenses, the Government’s “cumulation of
. . . evidence” is strong enough to make its explanation more likely than any explanation
proffered by the claimant. $110,873.00 in U.S. Currency, 159 F. App’x at 652. Based on the
court’s calculations, Winston spent $68,114 more than he earned in legitimate income between
2009 and 2012. Thus, although the calculations regarding Winston’s expenses and his legitimate
income cannot independently indicate which items he purchased with legitimate income or drug
proceeds, they do reveal that Winston purchased something with drug money, as his legitimate
income of $169,132 was insufficient to cover all of his known expenses between 2009 and 2012.
The additional facts described in the Government’s first three categories of evidence—that
Winston was trafficking in drugs at the time he purchased the Property, purchased the Property
with $26,000 in cash installments, failed to reveal his interest in the Property to authorities, and
lied about his legitimate income in the year that he purchased the Property—makes it more likely
than not that he used the drug proceeds to pay for the Property.

       Winston argues that this analysis is a “thinly-disguised effort to invoke the substitute
assets remedy” under 18 U.S.C. § 853(p). In criminal forfeiture actions, that statute provides for
forfeiture of property that is itself not connected to illegal activity but serves as a substitute for
forfeitable property that cannot be located or is otherwise unavailable to fulfill the authorized
forfeiture. 18 U.S.C. §853(p). By contrast, the CSA’s civil forfeiture provision does not permit
forfeiture of “innocent” property. For example, here, the Government could not rely on a
21 U.S.C. § 881(a)(6) proceeds theory to show a substantial connection between drug trafficking
and Winston’s Ford Taurus, for which he made monthly auto payments from legitimate income,
 No. 18-3347        United States v. Real Property 10338 Marcy Rd. NW, et al.           Page 17


or 999 Cummington, which was financed by a VA loan and paid with legitimate income. But the
Government may rely on the following evidence: in 2012, Winston made only $16,243 in
legitimate income, not the $150,000 originally claimed; Winston’s misrepresented his legitimate
income during the time at which he bought the Property; and Winston failed to report his interest
in the Property. This evidence suggests a connection between Winston’s illegitimate income and
the Property that he purchased with $26,500 in cash.

       The presence of significant legitimate income makes this case more difficult. On the
totality of the evidence in the record, however, Winston has failed to rebut the Government’s
proof that the Property was purchased with illegitimate income.         Unlike the claimant in
Veggacado, who provided evidence that persuaded the jury that some of his property was either
inherited from his mother or purchased with his wife’s legitimate income, Winston has not
shown that his explanation is at least as likely as the Government’s. 37 F. App’x at 190. Nor is
this case still at summary judgment, where Winston need only present a dispute of material fact,
rather than sufficient evidence to rebut the Government’s case.        See $99,990.00 in U.S.
Currency, 69 F. App’x at 763–64. The cumulative effect of the evidence presented is sufficient
to satisfy the Government’s burden to show that a substantial connection between the property
and the underlying criminal activity was more likely than not.        See $110,873.00 in U.S.
Currency, 159 F. App’x at 652.

                                     III. CONCLUSION

       Because the Government met its burden to establish, by a preponderance of the evidence,
a substantial connection between the Property and illegal drug sale proceeds and its case was not
rebutted, the Property is forfeitable under 21 U.S.C. § 881(a)(6). We AFFIRM the judgment of
the court below.
