                                                      [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                 FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                   ________________________ ELEVENTH CIRCUIT
                                                         MAY 18, 2007
                          No. 06-16188                 THOMAS K. KAHN
                      Non-Argument Calendar                CLERK
                    ________________________

                 D. C. Docket No. 04-00008-CV-F-S

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                               versus

PARCELS OF PROPERTY LOCATED AT 14 LEON DRIVE,
HOUSTON COUNTY, ALABAMA, WITH ALL APPURTENANCES
AND IMPROVEMENTS THEREON, et al.,

                                                                  Defendants,

MARY LEON TURNER,

                                                       Claimant-Appellant.

                    ________________________

             Appeal from the United States District Court
                 for the Middle District of Alabama
                   _________________________

                           (May 18, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

       Claimant Mary Turner (“Turner”) appeals the district court’s judgment of

civil forfeiture in favor of the United States. 18 U.S.C. § 2253 provides for the

criminal forfeiture of “any property, real or personal, used or intended to be used to

commit or to promote the commission of” a violation of 18 U.S.C. §§ 2251,

2251A, 2252, 2252A, 2252B, or 2260. Any property subject to forfeiture pursuant

to 18 U.S.C. § 2253 is also subject to civil forfeiture. 18 U.S.C. § 2254. Turner

concedes on appeal that the defendant property was used by her husband in the

commission of distribution and possession of child pornography in violation of 18

U.S.C. §§ 2252(a)(1), (a)(2), and 2252A, and was, accordingly, subject to

forfeiture.

       However, “an innocent owner’s interest in property shall not be forfeited

under any civil forfeiture statute.” 18 U.S.C. § 983(d)(1). The claimant—in this

case, Turner—has the burden of proving by a preponderance of the evidence that

she is an innocent owner. Id. Where, as here, the property in question was in

existence at the time of the illegal conduct, an “innocent owner” is defined as an

owner who “(i) did not know of the conduct giving rise to the forfeiture; or

(ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably



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could be expected under the circumstances to terminate such use of the property.”

18 U.S.C. § 983(d)(2)(A). Turner did not argue below, and she does not argue on

appeal, that she attempted to terminate the illegal use of her property. Therefore,

whether Turner “did not know of the conduct” was the sole ultimate factual issue

before the district court below and before us now.

                                          I.

      As a preliminary matter, Turner argues that the district court abused its

discretion in admitting evidence of her husband’s 1995 conviction for sexual abuse

of a minor and in admitting evidence of her complicity in her husband’s 2004–05

post-conviction schemes to have a fellow inmate reassigned to the husband’s cell.

      We review a district court’s evidentiary rulings for an abuse of discretion.

Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213,

1216 (11th Cir. 2003). “This standard of deference is even greater when the

objected-to evidentiary ruling is made during a bench trial because it is presumed

that the district judge will rely only upon properly admitted and relevant evidence.”

Id.

      The fact that Turner knew of her husband’s 1995 guilty plea to sexual abuse

of a minor was not character evidence as to Turner, and was highly probative in

assessing whether she did not have actual knowledge that he was engaged in sexual



                                          3
misconduct with a minor from 1998-2000. The district court did not abuse its

discretion in admitting this evidence.

      Unlike the evidence of Turner’s husband’s 1995 conviction, and her

knowledge thereof, the evidence of Turner’s conduct in 2004–05 does not appear

to have any relevance to her knowledge of her husband’s illegal activities in

1998–2000. However, the presumption that a judge presiding over a bench trial

relies only on properly admissible and relevant evidence applies even when the

judge allows the presentation of evidence that had no permissible relevance. See

Cmty. Action Group v. Columbus, 473 F.2d 966, 973 (5th Cir. 1973). Review of

the record reveals nothing that would allow Turner to overcome this presumption.

                                          II.

      Turner argues that the district court erred in concluding that she did not carry

her burden to prove that she lacked actual knowledge of her husband’s illegal

activities. Application of the innocent owner defense turns on the claimant's

actual, rather than constructive, knowledge. United States v. Four Million, Two

Hundred Fifty-Five Thousand, 762 F.2d 895, 906 (11th Cir.1985). Turner

characterizes the district court’s conclusion as based exclusively on what she

characterizes as irrelevant evidence: the 1995 conviction and the 2004–05 prison

scheme, several years after the offense giving rise to the forfeiture. Turner



                                          4
emphasizes that her testimony established that she did not have actual knowledge

of her husband’s sexual proclivities and activities from 1998 to 2000.

      Whether or not a claimant is an innocent owner is a finding of fact that we

review for clear error. United States v. Real Prop. at 5000 Palmetto Drive, 928

F.2d 373, 375 (11th Cir. 1991). “When findings of fact are based on

determinations about witnesses’ credibility, the deference accorded the trial judge

is even more significant for only the trial judge can be aware of the variations in

demeanor and tone of voice that bear so heavily on the listener's understanding of

and belief in what is said.” Johansen v. Combustion Eng’g, Inc., 170 F.3d 1320,

1335 (11th Cir. 1999) (internal quotation omitted).

      The district court did not clearly err in finding that Turner failed to prove

that she lacked actual knowledge of her husband’s illegal activities. The district

court was entitled to assess Turner’s testimony and demeanor, conclude that she

was not credible, and reject her statements “as a complete fabrication.” United

States v. Vazquez, 53 F.3d 1216, 1225 (11th Cir. 1995). Indeed, a finder of fact

may not only discount a non-credible witness’s testimony, but may “conclude the

opposite of [her] testimony is true.” Id. (internal quotation omitted). This rule

applies with particular force where the fact in question is “highly subjective,” such

as “intent or knowledge.” Id. at 1225 (internal quotation omitted). The district



                                           5
court here clearly found Turner to be a non-credible witness. As Turner bore the

burden of proof below, and her testimony was the primary evidence of her lack of

knowledge, this adverse credibility finding is sufficient on its own to defeat her

innocent owner defense.

      However, there was also circumstantial evidence against Turner. She knew

that her husband had pled guilty to an offense involving sexual abuse of a minor in

1995. She knew that he had met this minor male using the internet. She had

attended the court-ordered counseling sessions that arose out of this conviction,

and felt that they had helped her husband with his problem. She knew that her

husband operated a computer business on the defendant property. She also knew

that the victim in the offense giving rise to this forfeiture was employed by her

husband in his computer business and had met him over the internet. She knew

that the victim was a young male and that her husband spent large amounts of

unsupervised time with him in an office on the defendant property. Accordingly,

the district court did not commit clear error in examining these circumstances,

discounting Turner’s testimony that she had no knowledge that her husband had

any sexual interest in young boys or had engaged in sexual activities with them,

and finding that Turner failed to prove by a preponderance of the evidence that she

had no actual knowledge of her husband’s illegal activities.



                                           6
                                         III.

      Finally, Turner argues that the district court erred by allowing deliberate or

willful ignorance to substitute for the actual knowledge required for civil

forfeiture. However, the district court expressly found that Turner “had actual

knowledge of the illegal activities occurring on the property.”

      After careful consideration of the briefs of the parties, and thorough review

of the record, we find no reversible error. Accordingly, we affirm district court’s

judgment of forfeiture.

      AFFIRMED.




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