                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 25 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-16843

             Plaintiff - Appellee,               D.C. No. 2:05-cv-00768-SRB

  v.
                                                 MEMORANDUM *
REAL PROPERTY LOCATED AT 11211
E. ARABIAN PARK DR.,
SCOTTSDALE, AZ,

             Defendant - Appellee,

AND REGARDING THE INTEREST OF
IRA W. GENTRY, JR.,

             Claimant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                     Argued and Submitted September 9, 2010
                            San Francisco, California

Before: B. FLETCHER, TALLMAN and RAWLINSON, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Ira Gentry appeals the district court’s grant of summary judgment for the

government in an in rem proceeding under 18 U.S.C. §§ 981(a)(1)(A) and

981(a)(1)(C), seeking forfeiture of real property located at 11211 East Arabian

Park Drive, Scottsdale, Arizona (the res). The district court had jurisdiction under

28 U.S.C. §§ 1345 and 1355. We have jurisdiction under 28 U.S.C. §1291. We

affirm.

      We review de novo the district court’s grant of summary judgment, Nunez v.

Duncan, 591 F.3d 1217, 1222 (9th Cir. 2010). Summary judgment was

appropriate here because, even viewing the evidence in the light most favorable to

Gentry as the non-moving party, there is “no genuine issue of material fact” that

the res was derived from proceeds traceable other than to securities fraud and wire

fraud. See Fed. R. Civ. P. 56(c). Thus, the government “is entitled to judgment as

a matter of law.” Id.

      Gentry concedes that the res was purchased with funds derived from the sale

of UniDyn stock in 2000. However, he argues that those sales were “100% legal.”

Gentry’s conviction for conspiracy to defraud the United States government and

commit securities fraud and wire fraud estops him from claiming that his sales of

UniDyn stock in 2000 were legal. See Considine v. United States, 683 F.2d 1285,

1286 (9th Cir. 1982). In United States v. Gentry, D.C. No 2:06-cr-00464-SRB-1

(D. Ariz., Mar. 17, 2009), the jury convicted Gentry of engaging in a conspiracy
from 1997 to 2002 to secretly acquire ownership of UniDyn stock, mislead the

investing public and the SEC through wire communications in order to inflate the

value of the stock, and then sell the stock through Canadian brokerage firms for

significant profit. The jury’s verdict was firmly rooted in a finding of fraudulent

conduct, and it prevents Gentry from disputing either the existence of the

conspiracy or the means used to effectuate it. See Emich Motors Corp. v. General

Motors Corp., 340 U.S. 558, 570-71 (1951).

      In addition, in response to one of Gentry’s motions for summary judgment,

the government submitted an affidavit from IRS Agent Linda Wallace attesting

that she was able to trace the purchase of the res to the proceeds of sales of

UniDyn stock and to Gentry’s fraud scheme. Gentry failed to make a showing

sufficient to establish a genuine dispute of material fact regarding Agent Wallace’s

evidence of the essential elements of the forfeiture action. See Gorman v. Wolpoff

& Abramson, LLP, 584 F.3d 1147, 1153 (9th Cir. 2009); Galen v. County of Los

Angeles, 477 F.3d 652, 658 (9th Cir. 2007).

      We also reject Gentry’s three additional arguments challenging the district

court’s grant of summary judgment. First, the complaint was timely filed within

five years of the purchase of the res. See 28 U.S.C. § 2462. Second, the civil

forfeiture statute, 18 U.S.C. § 981, does not require the government to prove that

the funds used to purchase the res were the “profits” of unlawful activity. The
statute subjects to forfeiture all property traceable to the “proceeds” of unlawful

activity and defines “proceeds” as anything obtained directly or indirectly as a

result of the unlawful activity, not limited to net gain or profits. 18 U.S.C. §

981(a)(2)(A). Third, in a civil forfeiture action, the government does not need to

prove that the property was obtained at the loss to another or the market in general.

See 18 U.S.C. § 981. Gentry raised two additional claims but did not support them

with facts or citations to legal authority. Therefore, he has abandoned them. See

Huppert v. City of Pittsburg, 574 F.3d 696, 710 (9th Cir. 2009).

      AFFIRMED.
