                                     PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-2358


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DAMIAN PHILLIPS,

                    Claimant - Appellant,

             and

CURRENCY, $200,000.00 IN U.S.,

                    Defendant.


Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Loretta C. Biggs, District Judge. (1:14-cv-00836-LCB-LPA)


Argued: January 24, 2018                                     Decided: February 21, 2018


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge
Wilkinson and Judge Niemeyer joined.


David Allen Bauernfeind, LAW OFFICE OF DAVID BAUERNFEIND, Raleigh, North
Carolina, for Appellant. Steven N. Baker, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

       In this civil forfeiture case, the United States claims that $200,000 in cash

discovered in a storage unit leased by Byron Phillips is subject to forfeiture because the

cash is connected to the “exchange [of] a controlled substance.”           See 21 U.S.C.

§ 881(a)(6). Damian Phillips, Byron’s brother, seeks to intervene, contending that the

money is his life savings and has nothing to do with drugs. The district court granted the

Government summary judgment, holding that Damian lacked standing to intervene. We

affirm. Although claimants in civil forfeiture cases need only show a colorable interest in

the property to have standing, the undisputed record evidence here establishes that

Damian lacks such an interest.



                                             I.

       On April 4, 2014, detectives with the Durham County Sheriff’s Office received

reports of a marijuana odor emanating from a section of storage units at Brassfield Self

Storage, located in Durham, North Carolina. After narrowing down the source of the

odor with the help of a drug-sniffing dog, officers obtained a search warrant for a storage

unit leased to Byron Phillips. Inside the unit, officers discovered a duffle bag with

$200,000 in twelve vacuum-sealed plastic bags, though they did not find any marijuana.

A drug-sniffing dog later alerted to the cash, indicating an odor of narcotics. Byron had

previously been convicted of maintaining a vehicle or dwelling for controlled substances,

and, in a separate incident, felony possession of marijuana.



                                             2
       Damian Phillips filed a verified claim stating that the currency found in the storage

unit belonged to him, not his brother, Byron, and that the currency “was not [us]ed or

intended to be used in exchange for controlled substances or to traffic in controlled

substances.” In support, Byron submitted a declaration stating that he had allowed his

brother to store Damian’s life savings of $200,000 in the storage unit.

       During discovery, Damian asserted that he had accumulated the $200,000 between

2003 and 2013 by saving his earned income, a workers’ compensation settlement, and

unemployment benefits. He explained that he played professional football in the NFL

and Arena Football League in 2003, worked as a counselor from 2004 to 2010, worked

for a city parks and recreation program from 2004 to 2006, and received the settlement in

2008 and unemployment benefits from 2010 to 2011.

       Damian’s tax returns show that his adjusted gross income was $20,257 in 2003,

$15,118 in 2004, $8,820 in 2006, $43,577 in 2007, $60,434 in 2008, $32,912 in 2009,

and $10,168 in 2014. The IRS had no record of tax returns filed in 2005 or from 2010 to

2013. Phillips also produced a copy of a $40,095.45 settlement check. And he stated that

he received $216 per week in unemployment benefits from November 2010 to November

2011, equivalent to $11,232 for a full year. The gross income reported in tax returns, the

settlement, and the unemployment benefits add up to $242,613.45.

       Damian admitted that in 2006 and 2010, car dealerships repossessed his vehicles,

and that in November 2012, he and his wife were four months ($8,400) behind in their

rent payments. In addition, his wife filed for bankruptcy on August 27, 2012. Damian

also provided estimates of his monthly expenses from 2003 through 2014, ranging from

                                             3
$750 (in months when he allegedly lived with family members and paid no rent) to

$4,552 (in the year 2013). The car payments and monthly expenses that Phillips reported

he had incurred from 2003 through March 2014 totaled approximately $250,000.

       The Government moved for summary judgment, contending that Damian had not

submitted sufficient evidence to establish Article III standing. The district court granted

the motion, holding that he lacked standing and that the Government was entitled to

forfeiture of the $200,000 found in the storage unit. Damian timely appealed. We review

de novo the district court’s decision to dismiss for lack of standing. Beck v. McDonald,

848 F.3d 262, 269 (4th Cir. 2017).



                                             II.

       We initially address a matter of first impression in this circuit: the appropriate test

for third-party standing in civil forfeiture cases. To establish Article III standing, a party

“must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged

conduct . . . and (3) that is likely to be redressed by a favorable judicial decision.”

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To meet these requirements, a

claimant seeking to challenge a civil forfeiture must have an ownership or possessory

interest in the property, “because an owner or possessor of property that has been seized

necessarily suffers an injury that can be redressed at least in part by return of the seized

property.” United States v. $17,900, 859 F.3d 1085, 1090 (D.C. Cir. 2017) (quoting

United States v. $515,060.42, 152 F.3d 491, 497 (6th Cir. 1998)); United States v.

Contents of Accounts Nos. 3034504504 & 144-07143, 971 F.2d 974, 985 (3d Cir. 1992).

                                              4
       As in all cases, the “manner and degree of evidence required” to establish standing

depends on the “stage[] of the litigation.” See Lujan v. Defs. of Wildlife, 504 U.S. 555,

561 (1992). At the pleading stage, a claimant in a civil forfeiture case need only allege a

possessory or ownership interest in the property. See $17,900, 859 F.3d at 1090; United

States v. $133,420, 672 F.3d 629, 638 (9th Cir. 2012). “In response to a summary

judgment motion, however, the [claimant] can no longer rest on such ‘mere allegations,’

but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ which for purposes of

the summary judgment motion will be taken to be true.” Lujan, 504 U.S. at 561 (quoting

Fed. R. Civ. P. 56(e)).

       Our court has not previously addressed the “manner and degree of evidence

required” for a claimant to establish standing at the summary judgment stage in a civil

forfeiture proceeding. Every court of appeals that has addressed the issue in the last

twenty years has used the “colorable interest” test, which requires a claimant to present

“some evidence of ownership” beyond the mere assertion of an ownership interest in the

property. See United States v. $81,000, 189 F.3d 28, 35 (1st Cir. 1999); Torres v.

$36,256.80, 25 F.3d 1154, 1158 (2d Cir. 1994); Mantilla v. United States, 302 F.3d 182,

185 (3d Cir. 2002); Kadonsky v. United States, 216 F.3d 499, 508 (5th Cir. 2000); United

States v. $515,060.42, 152 F.3d 491, 497–98 (6th Cir. 1998); United States v. $239,400,

795 F.3d 639, 642–43 (7th Cir. 2015); United States v. One Lincoln Navigator 1998, 328




                                            5
F.3d 1011, 1013 (8th Cir. 2003); $133,420, 672 F.3d at 639 (9th Cir.); United States v.

$148,840, 521 F.3d 1268, 1276 (10th Cir. 2008); $17,900, 859 F.3d at 1090 (D.C. Cir.). 1

       We agree that the colorable interest test applies to determine a claimant’s standing

to challenge a civil forfeiture. As other courts have recognized, demanding more than

“some evidence” of ownership in such cases would be inappropriate in part because of

“how challenging it can be to document ownership of property seized by law

enforcement.” See $17,900, 859 F.3d at 1090. This is especially true for cash, as “the

very qualities that make paper money useful for illicit activity — in particular, its

untraceability — often make it difficult to prove that any cash is legitimate, no matter its

source.” Id.

       Moreover, applying the colorable interest test “preserves the important distinction

between constitutional standing and the merits” of a civil forfeiture case. Id. at 1091.

Although a claimant bears the burden of establishing standing, the government bears the

burden of proving, on the merits, “that the property is subject to forfeiture.” 18 U.S.C.

§ 983(c)(1). Here, for example, the Government contends that the currency is linked to


       1
         One older case held that ownership “by one who does not exercise dominion and
control over the property is insufficient to establish standing.” United States v. 5000
Palmetto Drive, 928 F.2d 373, 375 (11th Cir. 1991). In another even older case, the
Eighth Circuit suggested that ownership might require “attendant characteristics of
dominion and control.” United States v. One 1945 Douglas C–54 (DC–4) Aircraft, 604
F.2d 27, 28 (8th Cir. 1979). However, the court did not resolve the question of standing
in that case, instead remanding for the district court to do so. See id. at 28–29. And the
Eighth Circuit has since clarified that the burden of establishing standing in civil
forfeiture cases “is not rigorous,” because a “claimant need only show a colorable
interest in the property.” One Lincoln Navigator 1998, 328 F.3d at 1013 (emphasis
added) (internal quotation marks and citation omitted).

                                             6
the “exchange [of] a controlled substance.” Damian contends to the contrary, namely,

that the cash is his life savings, not drug money. Requiring him to prove that assertion by

demonstrating something more than a colorable interest could impermissibly shift the

merits burden to him — essentially requiring him to prove that the money is unconnected

to drug activity.

       Our criminal forfeiture cases — in which we have held that, to have statutory

standing, a third party must demonstrate “dominion and control” over the forfeited

property — in no way conflict with our holding today. See In re Bryson, 406 F.3d 284,

291 (4th Cir. 2005); United States v. Morgan, 224 F.3d 339, 343 (4th Cir. 2000). In those

cases, we did not address Article III standing to challenge a forfeiture at all, but rather

described the statutory standing requirements unique to criminal forfeiture proceedings,

contained in 21 U.S.C. § 853(n)(6).

       Because criminal forfeiture is an action brought against a defendant as part of the

prosecution of that defendant, there is only a very limited possibility for a third party to

intervene: “Following the entry of an order of [criminal] forfeiture,” a third party may,

within thirty days, “petition the court for a hearing to adjudicate the validity of his alleged

interest in the property.” Id. §§ 853(n)(1), (2). At this hearing, the petitioner must

establish that he or she had a “legal right, title, or interest in the property” at the time of

the criminal acts that gave rise to the forfeiture. Id. § 853(n)(6)(A). These statutory

requirements apply only in criminal forfeiture cases, not in civil forfeiture cases.

       Furthermore, the requirement in § 853(n)(6) that a claimant provide more evidence

of ownership in criminal forfeiture cases does not present the same risk of shifting the

                                              7
merits burden away from the Government. This is so because § 853(n) allows a claimant

to intervene in a criminal forfeiture proceeding only after the court has already resolved

the merits and ordered forfeiture. By contrast, in civil forfeiture cases, a claimant with

standing may intervene earlier to contest the forfeiture on the merits.

       For these reasons, we hold that a claimant challenging a civil forfeiture must have

a colorable interest in that property, which he or she must support with some evidence

beyond a mere assertion of ownership to survive summary judgment.



                                            III.

       Having articulated what claimants must show to establish standing in a civil

forfeiture case, we turn to whether Damian Phillips has met that requirement here. In

doing so, we view the evidence in the light most favorable to him and draw all reasonable

inferences in his favor. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam).

       Damian does not contend that he had a possessory interest in the money; instead,

he claims an ownership interest. Under the colorable interest test, a claimant alleging an

ownership interest in seized property must, at a minimum, present some evidence

“regarding how the claimant came to possess the property.” $515,060.42, 152 F.3d

at 498. Although courts must refrain from weighing the evidence on summary judgment,

courts “may lawfully put aside testimony” that is “undermined either by other credible

evidence” or by “physical impossibility.”        See $17,900, 859 F.3d at 1093 (internal

quotation marks and citations omitted).



                                             8
       Here, Damian alleged facts purporting to show that beginning in 2003, he

accumulated $200,000, which he then secured in his brother’s storage unit, where it was

uncovered in 2014. But Damian presented no objective evidence corroborating those

facts. Indeed, the undisputed record evidence demonstrates exactly the opposite: that he

simply could not have saved $200,000.

       As summarized above, Damian’s total income from 2003 to 2014 was

$242,613.45, adding up all income that he reported from any source, including his

unemployment benefits. If Damian saved $200,000, he would have had $42,613.45 on

which to live during that twelve-year period — but according to Damian himself, his

expenses in 2013 alone totaled $54,624.          Viewed in total, the expenses Damian

acknowledges from 2003 through March 2014 — $250,000 — were greater than his

income, meaning he could not have saved any money, let alone $200,000.

       The record contains further evidence of Damian’s significant financial troubles

during this period, including two car repossessions, his wife’s bankruptcy, failure to file

tax returns in 2005 and 2010–2013, and delinquency in making rent payments. Though

we need not rely on this additional evidence, it confirms that Phillips cannot be the owner

of the $200,000 found in the storage unit.

       To resist this conclusion, Damian relies heavily on his “consistent, unwavering

assertion of ownership” in the $200,000. Appellant Reply Br. at 11. That assertion, no

matter how unwavering, does not suffice to show the colorable interest needed to

establish standing, for the colorable interest test requires some evidence beyond a mere

assertion.

                                             9
       Damian also suggests that the years in which the IRS had no tax returns from him

constitute “blanks” in the evidence that must be construed in his favor. See Oral Arg. at

10:10–10:25. In Damian’s view, this court must presume that he had legitimate income

in years for which no evidence of income exists. Damian is mistaken. We construe

evidence in the light most favorable to the non-movant; we do not similarly construe an

absence of evidence. Were it otherwise, parties opposing summary judgment would be

best advised to submit no evidence at all, assured that the court would fill the void with

imaginary evidence that favors them.

       In sum, Damian did not merely fail to provide some evidence to show a colorable

interest in the property; the undisputed evidence affirmatively proves the contrary. We

therefore affirm the judgment of the district court that Damian lacked standing. 2



                                            IV.

       For the foregoing reasons, the judgment of the district court is

                                                                              AFFIRMED.




       2
         Damian also argues that the district court should have held an evidentiary
hearing on the question of standing. But he cites no authority suggesting that a district
court ever must hold such a hearing; the cases he points to merely indicate that a district
court may do so. Moreover, because Damian did not request such a hearing below, he
cannot raise that argument for the first time on appeal. See In re Under Seal, 749 F.3d
276, 285 (4th Cir. 2014).

                                             10
