                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                  UNITED STATES COURT OF APPEALS                         DEC 21 1999

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

 v.

 $5,348.00 IN UNITED STATES
 CURRENCY; $1,000 IN UNITED
 STATES CURRENCY, $1,000.00 in
 American Express Traveler’s cheques,
 which have been converted to cash;
                                                       No. 99-3189
 ONE POSTAL MONEY ORDER IN
                                               (D.C. No. 98-CV-1015-MLB)
 THE AMOUNT OF $465.00,
                                                         (Kansas)
           Defendants.

 ------------------------------------
 MONTGOMERY C. AKERS,

           Claimant-Appellant.




                           ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.




       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

      The United States filed a civil forfeiture proceeding under 18 U.S.C. §

981(a)(1)(C) against $5,348 in United States Currency, $1,000 in travelers checks,

and a postal money order in the amount of $465, asserting they were properties or

proceeds of properties involved in a violation of the federal bank fraud statute.

The defendant properties were seized from Montgomery C. Akers after they were

discovered on his person during a search incident to arrest. Mr. Akers filed a

motion to dismiss the forfeiture proceeding, which was denied by the district

court. The court thereafter struck Mr. Akers’ answer as failing to establish his

standing to contest the forfeiture, dismissed the government’s motion for default

as moot, and ordered the government to proceed in its forfeiture against the

defendant properties. Mr. Akers appeals and we affirm.

      The district court construed Mr. Akers’ motion to dismiss as asserting that

the government’s forfeiture claim was not supported by probable cause and Mr.

Akers appears to agree with that characterization on appeal. “The test for

determining probable cause for forfeiture purposes is the same as applies in

arrests, searches and seizures. Accordingly, the government must demonstrate a


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reasonable ground for belief of guilt supported by less than prima facie proof, but

more than mere suspicion.” United States v. $149,442.43, 965 F.3d 868, 876

(10th Cir. 1992). Whether the facts constitute probable cause is a legal

determination that we review de novo. Id. We have carefully examined the

affidavit submitted by the government below in support of its forfeiture complaint

and we agree with the district court that probable cause existed to believe that the

defendant properties were subject to forfeiture. “Once probable cause for

forfeiture has been established, claimants may recover the defendant property

only by establishing a defense to forfeiture by a preponderance of the evidence.”

Id. at 877. Mr. Akers has made no such showing.

      On appeal, Mr. Akers claims the district court lacked subject matter

jurisdiction because the government did not show probable cause, a claim that we

have rejected as unsupported by the record. Although Mr. Akers also asserts lack

of personal jurisdiction, the facts he offers in support do not show that

jurisdiction was lacking. Mr. Akers further contends the district court

erroneously failed to consider and address the answer he filed to the government’s

petition. The district court docket sheet, however, reveals that the answer was

never filed below. Finally, to the extent that Mr. Akers raises claims for the first

time in this court, we decline to consider them.

      The orders of the district court are AFFIRMED.


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ENTERED FOR THE COURT


Stephanie K. Seymour
Chief Judge




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