
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1776                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                   PARCELS OF PROPERTY, WITH BUILDING APPURTENANCES                  AND IMPROVEMENTS LOCATED AT 255 BROADWAY, HANOVER,                                 Defendant, Appellee,                                 ____________________                                   CLAIRE J. SOULE,                                 Claimant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                           Selya and Stahl, Circuit Judges,                                            ______________                             and Fuste,* District Judge.                                         ______________                                 ____________________            Richard J.  Inglis, with whom  Richard A.  Gargiulo and  Gargiulo,            __________________             ____________________      _________        Rudnick & Gargiulo, were on brief for appellant.        __________________            Laurie J.  Sartorio, Assistant United States Attorney with whom A.            ___________________                                             __        John Pappalardo, United States Attorney was on brief for appellee.        _______________                                 ____________________                                  November 24, 1993                                 ____________________        *Of the District Court of Puerto Rico, sitting by designation.                      STAHL,  Circuit Judge.   In  this appeal,  claimant                              _____________            Claire  Soule seeks  costs and  attorneys'  fees incurred  in            recovering $2450 in cash which  was seized in a drug raid  on            her home.  We affirm the denial of costs and fees,  though we            do  so on  grounds different  from those  relied upon  by the            district court.                                          I.                                          I.                                          __                      FACTUAL BACKGROUND AND PRIOR PROCEEDINGS1                      FACTUAL BACKGROUND AND PRIOR PROCEEDINGS                      ________________________________________                      During July of 1988, United States Drug Enforcement            Administration  (DEA) agents  received information  that 1500            pounds of marijuana were to  be delivered to Jeffrey Soule at            255 Broadway in Hanover, Massachusetts.  A local police check            revealed that a John Jeffrey  Soule resided in nearby Carver,            Massachusetts,  but that his mother lived  at 255 Broadway in            Hanover.                      On the evening of July 23, 1988, after local police            and DEA  agents observed  the delivery  of  marijuana to  255            Broadway, search warrants were obtained for the premises.  At            4:30  a.m. the following morning, local and federal officials            executed the warrants.  The search revealed, inter alia:  (1)                                                         _____ ____            approximately 1600 pounds of marijuana in a barn adjacent  to            the house; (2) $874,510 in cash found in a box in a closet on            the first  floor of  the house; (3)  461.8 grams  of cocaine,                                            ____________________            1.  For a more  detailed version of the factual background in            this case,  see United States  v. 255 Broadway, 795  F. Supp.                        ___ _____________     ____________            1225 (D. Mass. 1992).                                           -2-                                          2            along with $5310  in cash in a basement  safe; (4) $26,500 in            cash found in  a gym bag beside the bed in which John Jeffrey            Soule  was sleeping;  (5) $3171  in cash  found in  a leather            travel  bag on top of  a hutch in the dining  room; and (6) a            disputed amount of cash between $2450 and $4490  contained in            five envelopes found inside the dining room hutch.  Only this            last item is at issue in this appeal.                      On  April  17,  1989, John  Jeffrey  Soule  pleaded            guilty  to charges  of conspiracy  to  possess marijuana  and            possession  of marijuana with  intent to distribute.   On May            25, 1989, less  than one month later, the  government filed a            complaint for  forfeiture in  rem  of, inter  alia, the  cash                                                   _____  ____            proceeds found  in the  search of Claire  Soule's home.2   On            June 1, 1989, at the government's request, the district court            issued a  warrant and  monition for, inter  alia, all  of the                                                 _____  ____                                            ____________________            2.  21  U.S.C. 881(a)(6) states  that the following  shall be            subject to forfeiture:                      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   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, except                 that  no property  shall  be  forfeited under  this                 paragraph,  to the  extent of  the  interest of  an                 owner, by reason of any act or omission established                 by that  owner to  have been  committed or  omitted                 without knowledge or consent of that owner.                                         -3-                                          3            seized cash.3   Claire Soule  responded on June 14,  1989, by            filing a notice of claim for the money found in the envelopes            in the dining room hutch.     On September 6, 1989, a default            judgment  of forfeiture  was  entered  against  the  lots  of            $874,510,  $26,500 and  $5310.4   On  February 13,  1991, the            district court  held a  hearing at  which the government  was            asked to show probable cause  for the forfeiture of the money            found  in  the five  envelopes  inside  the  hutch.   At  the            conclusion of the hearing, the district  court found that the            government had failed  to show probable cause  for forfeiture            of  that money,  and  awarded  $2450 to  Claire  Soule.   The            government  moved immediately for a certificate of reasonable            cause pursuant to  28 U.S.C.   2465,  so as not to  be liable            for   costs.5    Claire  Soule  opposed   the  motion  for  a                                            ____________________            3.  21  U.S.C.     881(b) provides,  in  relevant  part, that            "[a]ny  property subject to  forfeiture to the  United States            under this subchapter may be  seized by the Attorney  General            upon  process issued pursuant  to the Supplemental  Rules for            Certain  Admiralty and  Maritime Claims."    The  warrant and            monition   in  this  case   was  issued  pursuant   to  these            Supplemental   Rules.      See,  e.g.,   United   States   v.                                       ___   ____    _______________            Approximately Two  Thousand, Five Hundred  Thirty-Eight Point            _____________________________________________________________            Eighty-Five Shares of Stock, 988 F.2d 1281, 1283-84 (1st Cir.            ___________________________            1993).            4.  Though  the appellate record  is not entirely  clear, the            $3171 found in  the leather bag appears to  have been subject            to administrative, rather than judicial, forfeiture.            5.  28 U.S.C.   2465 provides:                      Upon the entry of judgment for the claimant in                 any  proceeding  to  condemn  or  forfeit  property                 seized under  any  Act of  Congress, such  property                 shall  be returned forthwith to the claimant or his                                         -4-                                          4            certificate of  reasonable cause  and sought  attorneys' fees            under the Equal Access to  Justice Act (hereinafter EAJA), 28            U.S.C.     2412,6  for expenses  incurred  in  recovering the            $2450.  The  district court granted the  government's request            for the certificate of reasonable cause and denied claimant's            request for attorneys' fees.                                            II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      We begin  by noting that  "we are free to  affirm a            district  court's decision  on any  ground  supported in  the            record even if the issue  was not pleaded, tried or otherwise            referred to in the proceedings below."  De Casenave v. United                                                    ___________    ______            States, 991  F.2d 11, 12  n.2 (1st Cir. 1993)  (citations and            ______            internal quotations  omitted).   In this  case, although  the            district  court  misapplied   the  statutory  burden-shifting            scheme   applicable  to   federal   forfeiture  actions,   we            nonetheless affirm its denial of costs and attorneys' fees.                                            ____________________                 agent;  but if it appears that there was reasonable                 cause  for the  seizure, the  court  shall cause  a                 proper  certificate thereof  to be entered  and the                 claimant  shall not, in  such case, be  entitled to                 costs, nor shall  the person who made  the seizure,                 nor the prosecutor,  be liable to suit  or judgment                 on account of such suit or prosecution.             6.  28  U.S.C.    2412(d)(1)(A) provides,  in relevant  part,            that "a  court shall award  to a prevailing party  other than            the United States  fees and other  expenses . . .  unless the            court finds  that  the  position of  the  United  States  was            substantially justified or that special circumstances make an            award unjust."                                         -5-                                          5            A.    The Statutory  Scheme:    Probable  Cause to  Institute            A.    The Statutory  Scheme:    Probable  Cause to  Institute            _____________________________________________________________            Forfeiture Proceedings            Forfeiture Proceedings            ______________________                      In  a forfeiture action  brought under 21  U.S.C.              881, the allocation of the parties' burdens is provided by 19            U.S.C.   1615.  See 21 U.S.C.   881(d); United States v. 1933                            ___                     _____________    ____            Commonwealth Ave.,  913 F.2d 1,  3 (1st Cir. 1990).   Section            _________________            1615 states, in relevant part,  that the "the burden of proof            shall be  upon the defendant:  Provided,  That probable cause                                           ________            shall  be first  shown for  the institution  of such  suit or                                   ___  ___ ___________  __ ____  ____ __            action,  to  be   judged  by  the  court"   (second  emphasis            ______            supplied).                        In other words, under  section 1615, the government            has a preliminary  burden to show that it  had probable cause            to  institute the forfeiture  proceeding.  See,  e.g., United            _____________                              ___   ____  ______            States  v. 1988 Oldsmobile Cutlass Supreme, 983 F.2d 670, 675            ______     _______________________________            (5th  Cir.  1993) (affirming  district  court's finding  that            government  had  "probable  cause to  institute  a forfeiture                                              __  _________            action") (emphasis  supplied); United  States v.  One Hundred                                           ______________     ___________            Forty-Nine  Thousand   Four  Hundred  Forty-Two   and  43/100            _____________________________________________________________            Dollars,  965 F.2d 868, 876  (10th Cir. 1992) ("In forfeiture            _______            proceedings,  the government bears the initial burden to show            probable  cause   for  the  institution   of  the  forfeiture                              ___  ________________            action.")  (emphasis supplied);  United States v.  526 Liscum                                             _____________     __________            Drive, 866  F.2d  213,  216  (6th  Cir.  1989)  ("[O]nce  the            _____            government has  met its burden  of showing probable  cause to                                                                       __            institute  the forfeiture action,  the burden then  shifts to            _________                                         -6-                                          6            the claimant . . .  .") (emphasis supplied); United States v.                                                         _____________            One  1976 Ford  F-150 Pick-Up,  769 F.2d  525, 526  (8th Cir.            _____________________________            1985)  ("[T]he government has  the initial burden  of showing            probable  cause for the institution of the forfeiture suit.")                            ___ ___ ___________            (citations  and  internal  quotations  omitted  and  emphasis            supplied).  Once  the government has  made this showing,  the            burden then shifts to the claimant to show by a preponderance            of the evidence that the property  at issue is not subject to            forfeiture.  See, e.g., United  States v. 18 Oakwood St., 958                         ___  ____  ______________    ______________            F.2d 1, 3 (1st Cir. 1992).                      Here, the district court did not assess whether the            government had probable  cause to institute  the proceedings.                                           __ _________            Rather, it improperly focused its inquiry on whether probable            cause  existed on  the  date of  the  probable cause  hearing            itself, and concluded  that no probable cause existed at that            time.  See United States v.  255 Broadway, 795 F. Supp. 1225,                   ___ _____________     ____________            1231-32 (D. Mass.  1992).  The record before  us makes clear,            however, that on May 25, 1989, the date of the institution of                                                           ___________            forfeiture  proceedings, the government had probable cause to            believe that the funds at issue were forfeitable.            B.  The Existence of Probable Cause in this Case            B.  The Existence of Probable Cause in this Case            ________________________________________________                      "Probable   cause  to   forfeit  requires   only  a            `reasonable ground for  belief of guilt[,] supported  by less            than prima facie proof but more than mere suspicion' that the            property is  subject  to forfeiture."   United  States v.  28                                                    ______________     __                                         -7-                                          7            Emery  St., 914  F.2d 1,  3 (1st  Cir. 1990)  (quoting United            __________                                             ______            States v. $250,000  in United States Currency,  808 F.2d 895,            ______    ___________________________________            897 (1st Cir. 1987)).   In other words, the government has  a            "relatively  light  burden  of  showing  probable  cause"  to            believe that  the subject  property is  forfeitable.   United                                                                   ______            States  v. Plat 20, Lot 17,  Great Harbor Neck, 960 F.2d 200,            ______     ___________________________________            205  (1st   Cir.  1992)  (hereinafter  Great   Harbor  Neck).                                                   ____________________            Moreover,  "[b]ecause  there  are so  many  variables  in the            probable  cause  equation, probable  cause  findings  are not            invariably  bound by precedent."   United States  v. Maguire,                                               _____________     _______            918 F.2d  254, 258  (1st Cir.  1990) (citations  and internal            quotations  omitted), cert.  denied, 111  S.  Ct. 1421,  2861                                  _____  ______            (1991).  Rather, in each case, we must consider "the totality            of   the   circumstances   to   evaluate   the   government's            demonstration"  of probable  cause.   Id.   In doing  so, "we                                                  ___            review each piece of evidence only to determine whether it is            probative, not whether it establishes probable cause standing            alone."    United  States  v.  $67,220.00  in  United  States                       ______________      ______________________________            Currency, 957 F.2d 280, 285 (6th Cir. 1992).              ________                      In addition, we note that in order to show probable            cause to forfeit in this particular case, the government  was            not required to show that the money at issue was traceable to            the  very  contraband  found  on  the  night  of the  search.            Rather, the district  court held, and  Claire Soule does  not            dispute  on  appeal,  that  the  money  at   issue  would  be                                         -8-                                          8            forfeitable  if found  to  be  the proceeds  of  any of  John                                                             ___            Jeffrey  Soule's  drug   transactions.     See,  e.g.,   1933                                                       ___   ____    ____            Commonwealth Ave., 913 F.2d at 3 (stating that the government            _________________            is not  "require[d to]  link[] the  property to  a particular            transaction").                      Finally,  while  we  accept  the  district  court's            underlying   factual  findings   unless   they  are   clearly            erroneous, Maguire,  918 F.2d  at 257,  we  note that  "[t]he                       _______            existence  of probable  cause is  a question  of law,  and as            such, is  subject to plenary  review."  United States  v. One                                                    _____________     ___            1986 Chevrolet Van,  927 F.2d 39,  42 (1st  Cir. 1991).   Cf.            __________________                                        ___            United States v. Holder, 990 F.2d 1327, 1328 (D.C. Cir. 1993)            _____________    ______            ("We review  de novo  the district  court's legal  conclusion                         __ ____            that probable cause supported the arrest, but we  examine the            court's  findings of  fact only  for  clear error.");  United                                                                   ______            States v. Greene, 783 F.2d 1364, 13 (9th Cir.) ("The ultimate            ______    ______            conclusion of  presence or  absence of  probable  cause is  a            mixed  question of  law and  fact.   The underlying  facts as            found by the district court are to be accepted unless clearly            erroneous.    The  court's ultimate  conclusion,  however, is            reviewed de  novo.") (citations  omitted), cert.  denied, 476                     __  ____                          _____  ______            U.S. 1185 (1986).                      Applying  these  standards,  we  find  the   record            replete with  probative  evidence which  supports  a  finding            that, on May  25, 1989, the government had  probable cause to                                         -9-                                          9            institute forfeiture proceedings against  the money at issue.                      During the search of 255 Broadway, Claire Soule was            questioned by  a DEA agent  about the source  of the cash  at            issue  in this  appeal.   While  the district  court did  not            determine  precisely what  Claire Soule's  answers  were that            night,   it  nonetheless  did   find  those  answers   to  be            "inconsistent,  indeed suspicious."   This  finding is  fully            supported by the record.7   Moreover, there were  1600 pounds                                            ____________________            7.  Agent  Lively of the DEA testified as follows with regard            to Claire Soule's answers:                      I had a concern as  to what this money [in the                 envelopes] was  and I wanted to talk  to Mrs. Soule                 concerning what it  was.  She agreed to  talk to us                 about  the money.   And  myself  and Agent  Hayes--                 Lieutenant  Hayes--talked  with  her.    Lieutenant                 Hayes began the conversation with her by asking her                 about  what the  money was.   And  she said  it was                 money that was for a pool, which was fairly obvious                 from the notation  on the envelope.   She was asked                 how much  money  it was  and she  responded it  was                 about $10,000. She was asked what the source of the                 monies  were.   And her  first response was  it was                 money from an  inheritance.  And I  believe I asked                 her  who was  the inheritance  from,  what was  the                 source of the inheritance, which person.  Her words                 were, in effect, what difference does it that make?                 And I told her, I said, "I'm trying to determine if                 this is your money or this is somebody else's money                 or where this money came from.  If you  can tell me                 what  the source  of the inheritance  is or  if you                 have some probate document that shows you receiving                 this kind  of money, you  know, help me out."   She                 said,  "Well, I  got the  money in  cash."   And my                 response was  you usually  don't get  that kind  of                 money from an estate in  cash, it comes in the form                 of checks.   Her  response was,  "Well, I also  got                 monies  from  --  yes, for  my  birthday  and other                 occasions."                                          -10-                                          10            of marijuana in the barn  adjacent to Claire Soule's house, a            sizeable amount  of cocaine  in a safe  in the  basement, and            over $900,000 in cash in the house.   Not only was there cash            near  the hutch in which the funds at issue were found, there            was also a bag containing $3171  found directly on top of the            hutch.   Suspicious and contradictory answers in the presence            of the large  quantities of cash and drugs  uncovered in this            search are  certainly probative in determining  the existence            of probable cause.                      Equally important  is  the fact  that Claire  Soule            made  no  offers  of  proof,   either  before  or  after  the            government's   initiation  of   forfeiture  proceedings,   to            substantiate  her  allegations  that   the  cash  came   from            legitimate sources.   Thus, even if Claire  Soule's responses            had  not  been  adjudged  "suspicious,"  her  denials  alone,            unaccompanied  by offers of proof, were insufficient to rebut            a showing of  probable cause.  See, e.g.,  One Hundred Forty-                                           ___  ____   __________________            Nine  Thousand Four Hundred Forty-Two and 43/100 Dollars, 965            ________________________________________________________            F.2d  at 878 ("We  conclude that claimants'  proffer of three            `possible'  innocent sources of  income does not  vitiate the            government's  showing of a strong probability that the source            of  the  money is  in  fact  illegal drug  activity.");  1933                                                                     ____            Commonwealth Ave., 913  F.2d at 4 (finding  "general denials"            _________________            insufficient  to  overcome government's  showing  of probable            cause).                                         -11-                                          11                      Finally, it is undisputed  that Claire Soule's keys            to a safe deposit  box were seized during  the drug raid  and            that she surreptitiously went to the bank just days after the            search of  her home  and had  the  box drilled  open by  bank            employees so she could empty  it before it could be searched.            The government  was aware of  this act  at the  time that  it            instituted  forfeiture   proceedings.    Again,   while  such            behavior is far from determinative, we believe it relevant to            the probable cause determination.                      Without  making   any  credibility   determinations            beyond those  made by  the district  court, and  while noting            that   none  of  these  factors  standing  alone  necessarily            establishes probable  cause, we find that these circumstances            taken as a whole support a finding that, on May 25, 1989, the            date  of  the  initiation   of  forfeiture  proceedings,  the            government had  probable  cause to  believe that  all of  the            money seized  from 255 Broadway, including the money found in            the envelopes inside the hutch, was subject to forfeiture.            C.  Adversarial Evidence and the Probable Cause Hearing            C.  Adversarial Evidence and the Probable Cause Hearing            _______________________________________________________                      The  government   did  commit  serious   errors  in            handling the  cash found in and around  Claire Soule's dining            room hutch.   For example, initial notations by  a DEA agent,            made on  the envelopes themselves  on the night of  the raid,            indicated  that the envelopes  contained the following:   one            $10  bill, one-hundred and  fourteen $20 bills,  eighteen $50                                         -12-                                          12            bills and  eight $100  bills for a  total of  $3990.    About            three  days  later, forms  filed  by  the same  agent  showed            startlingly  different  denominations.    These  later  forms            stated that the envelopes seized from the hutch contained one            $10  bill, sixty-four $20 bills, sixty-two  $50 bills and one            $100 bill  for a total  of $4490.   In  addition, one  report            filed by  a  local police  officer  who participated  in  the            search stated that the amount  of cash found in the envelopes            combined with the cash found in the leather bag on top of the            ________ ____            hutch totaled $2911.                      At the  February 13, 1991,  probable cause hearing,            Claire  Soule's counsel  focused almost exclusively  on these            various  deficiencies   in  the  government's   handling  and            accounting of  the money found  in the envelopes.   While the            government's   errors  as  to   the  amount  at   issue  were                                                 ______            significant, it is the source of the funds in this case which                                   ______            would have rendered them forfeitable.  Thus, the government's            handling  and  accounting  errors  did  nothing  to  diminish            probable cause.   In  other words,  despite the  government's            errors,  there  remained  ample reason  to  believe  that the            source  of the  funds  rendered  them  forfeitable.   Cf.  18            ______                                                ___  __            Oakwood St., 958  F.2d at 5 ("[T]he  [government's] affidavit            ___________            asserts that  $50,000 was  seized during  a particular  drug-            related arrest at 18 Oakwood  Street, whereas in fact, as the            government  concedes, only  $611.00 was  seized.   While  the                                         -13-                                          13            monetary  discrepancy is  large, [claimant]  made no  showing            that  it  was of  any  consequence  to the  establishment  of            probable cause.").                        In  sum, the district  court first erred  in fixing            the date of  the probable cause hearing as the  date at which            the government must  demonstrate probable cause.   Rather, as            noted above,  in  order to  meet  its preliminary  burden  at            trial,  the government  need only  show that it  had probable            cause  to  institute  forfeiture   proceedings.  Second,  the                   __  _________            district court erred  in ruling that the  government's errors            in handling  and accounting for  the money at  issue vitiated            the existence of probable cause.              D.   The Certificate  of Reasonable Cause  and the  Denial of            D.   The Certificate  of Reasonable Cause  and the  Denial of            _____________________________________________________________            Attorneys' Fees            Attorneys' Fees            _______________                      Despite these errors below, however, we nonetheless            affirm the district court's denial of costs and fees.                      Claire Soule's argument  that the district  court's            issuance of the certificate of  reasonable cause was error is            based solely on  the ground that the district  court found no            probable cause  at the  pre-trial hearing.8   In view  of our                                            ____________________            8.  We expressly decline to reach the question  of whether we            have  appellate  jurisdiction  to review  the  granting  of a            certificate  of reasonable  cause.    See  United  States  v.                                                  ___  ______________            Abatoir Place,  106 U.S.  160, 162  (1882) (holding  that the            _____________            denial   of  a  certificate   of  reasonable  cause   is  not            ______            appealable); United States v. One Thousand Six Hundred Thirty                         _____________    _______________________________            Dollars, 922 F.2d 740, 741 (11th Cir. 1991) (applying Abatoir            _______                                               _______            in  holding that the granting  of a certificate of reasonable                                 ________            cause  is unappealable).    Rather, "it  is  settled that  an            appellate court may forego the resolution of a jurisdictional                                         -14-                                          14            determination  that there was probable cause to institute the            instant   proceedings,  this  argument  is  of  no  avail.9              Accordingly, Claire Soule's request for costs under 28 U.S.C.              2465 fails.                      Claire  Soule also seeks to recover attorneys' fees            under  the  EAJA  based both  upon  the  government's "agency            position", i.e.,  its decision to institute  proceedings, and            its "litigation  position", i.e., its persistence  in seeking            forfeiture  well  after  its  May  25,  1989,  initiation  of            proceedings.  See, e.g., Great  Harbor Neck, 960 F.2d at 208-                          ___  ____  __________________            09 (differentiating, for EAJA purposes, between  government's            "agency position," and its "litigation position").                      Like   her   "certificate  of   reasonable   cause"            argument,  Claire  Soule's  argument  that  the  government's            agency position  was not  "substantially justified"  for EAJA            purposes hinges entirely on the district court's finding that            the government failed to  meet its initial burden of  showing                                            ____________________            question if, as is true here, the appeal is uncomplicated and            easily resolved  in favor of  the party to whose  benefit the            jurisdictional  question would  redound."   United States  v.                                                        _____________            Connell, No. 93-1237, slip op. at  4 n.3 (1st Cir. October 6,            _______            1993).            9.  Moreover,  the Supreme Court  has stated  that reasonable            cause is  essentially synonymous  with probable  cause.   See                                                                      ___            Stacey v. Emery,  97 U.S.  642, 646 (1878)  ("If there was  a            ______    _____            probable cause of  seizure, there was a  reasonable cause.").            Thus, our  determination that  the government  did, in  fact,            possess   probable   cause   to  institute   the   forfeiture            proceedings  would suffice to  show that the  government also            possessed  reasonable cause,  and that  the  issuance of  the            certificate of reasonable cause was not in error.                                         -15-                                          15            probable cause.   Our  conclusion to  the contrary  similarly            forecloses this arm of her  EAJA argument.  Cf. United States                                                        ___ _____________            v. One 1985  Chevrolet Corvette, 914 F.2d 804,  809 (6th Cir.               ____________________________            1990) (finding that "when the government established probable            cause  in  the   forfeiture  proceeding,  its   position  was            substantially justified" for EAJA purposes).                        To the  extent that  Claire Soule  seeks attorneys'            fees  based  on  the government's  litigation  position,  the            district  court  specifically  found  that  the  government's            persistence in seeking  forfeiture was fully justified.   See                                                                      ___            255 Broadway, 795 F. Supp. at 1237 ("[T]he claimant points to            ____________            no  intervening evidence that might have given the government            pause  over whether  to continue  onward with  the case.   No            newly  unearthed  information,  for  instance,  substantiated            Claire  Soule's conflicting  accounts of  the  source of  the            money or  disproved the  money's apparent  connection to  the            wealth of  drug activity  that took  place  in the  house.").            This finding is fully supported by  the record.  Accordingly,            we  decline  to  overturn  the  district  court's  denial  of            attorneys' fees under the EAJA.                      Finally,  we  note  that the  government  does  not            cross-appeal in  this case.   As a  result, it  is foreclosed            from further  pursuit of  its forfeiture  claim, despite  our            ruling  that it  met  its  initial  burden  of  demonstrating                                         -16-                                          16            probable cause  to institute a forfeiture  proceeding against            the money in question.                                           III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For   the  foregoing  reasons,  the  order  of  the            district  court denying costs  and attorneys' fees  to Claire            Soule is                      Affirmed.   No costs.                      Affirmed.   No costs.                      _________   _________                                         -17-                                          17
