                                                                              FILED
                            NOT FOR PUBLICATION                               OCT 22 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-16727

              Plaintiff - Appellee,              D.C. No. 2:11-cv-00504-SRB

  v.
                                                 MEMORANDUM*
$311,229.00 IN US CURRENCY FROM
ARIZONA ASSET MANAGEMENT
AND RECOVERY INCORPORATED
ACCOUNT LOCATED AT BANK OF
AMERICA; $163, 987.42 IN US
CURRENCY FROM WORLD FOOD
GHANA LIMITED ACCOUNT
LOCATED AT TD BANK; $2,000.00 IN
US CURRENCY FROM WORLD FOOD
ASSOCIATION ORGANIZATION
ACCOUNT LOCATED AT CITIBANK,

              Defendants,

    V.

WORLD FOOD ASSOCIATION
ORGANIZATION, S.A., INC.,

              Claimant - Appellant.




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                      Argued and Submitted October 9, 2014
                               Phoenix, Arizona

Before: WALLACE, SILVERMAN, and M. SMITH, Circuit Judges.

      World Food Association, Inc. appeals from the district court’s order granting

summary judgment to the United States in this civil forfeiture action. On appeal,

World Food argues that the Government is not entitled to summary judgment

because it has not established by a preponderance of the evidence that the

$477,216.42 at issue in this case are proceeds traceable to wire fraud in violation of

18 U.S.C. § 1343. We agree, and reverse.

      The Civil Asset Forfeiture Reform Act (CAFRA), 18 U.S.C. § 983,

establishes a burden-shifting scheme for summary judgment in civil forfeiture

actions that requires the Government to prove, by a preponderance of the evidence,

that the property in question is subject to forfeiture. 18 U.S.C. § 983(c)(1). Here,

the undisputed facts do not show that the res sought to be forfeited is traceable to

wire or mail fraud, i.e., that World Food or its president, Henry Ford, knowingly

devised a scheme to defraud Interfinanz Und Immobilien, AG (“IFG AG”) by




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entering into a contract that they had no intention of honoring. See United States v.

Jinian, 712 F.3d 1255, 1260, 1265 (9th Cir. 2013).

      The Government has not charged World Food or Mr. Ford with fraud related

to this particular transaction, and as the Government acknowledges, IFG AG has

not made an official request for the seized monies, nor has it sued World Food for

breach of contract. Indeed, representatives of IFG AG insist that they “still trust”

World Food and Mr. Ford, and have requested that the funds be released from

seizure so that World Food can either perform under the contract or return the

money to IFG AG. Whether World Food was required to use the money from IFG

AG to purchase gold under the contract, or whether it could use the funds at its

discretion, is a triable issue of fact for the jury that the plain language of the

contract does not resolve.

      Viewed in the light most favorable to World Food, the evidence the

Government has produced does not establish, by a preponderance of the evidence,

that World Food and Mr. Ford fraudulently obtained money from IFG AG. See

Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004). Because

the government has not borne its burden under CAFRA, it is not entitled to

summary judgment at this stage of the proceedings.




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      The judgment of the district court is REVERSED and REMANDED for

further proceedings.




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