                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0053n.06

                                          Nos. 19-3199

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                               )                       FILED
                                                         )                 Jan 27, 2020
        Plaintiff-Appellee,                              )             DEBORAH S. HUNT, Clerk
                                                         )
                v.                                       )
                                                         )     ON APPEAL FROM THE
 $46,340.00 IN U.S. CURRENCY,                            )     UNITED STATES DISTRICT
                                                         )     COURT FOR THE NORTHERN
        Defendant,                                       )     DISTRICT OF OHIO
                                                         )
 GEORGE ABERNATHY,                                       )
                                                         )
        Claimant-Appellant.                              )



BEFORE: MERRITT, CLAY, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       The Drug Enforcement Administration seized $46,340.00 in U.S. Currency from a

residence in Toledo, Ohio pursuant to a search warrant, leading the government to commence this

forfeiture proceeding. Claimant George Abernathy filed a verified claim attesting to his ownership

of the money, but refused to answer the government’s discovery requests “on the basis of his Fifth

Amendment Rights.” So the government moved to strike his claim for lack of standing and for

summary judgment under Federal Rule of Civil Procedure 56 and Rule G(8)(c) of the Federal

Rules of Civil Procedure’s Supplemental Rules for Admiralty or Maritime Claims and Civil

Forfeiture Actions. A magistrate judge recommended that the district court grant the government’s
No. 19-3199, United States v. $46,340.00 in U.S. Currency


motion for lack of standing. The district court overruled Abernathy’s objections, adopted the

report and recommendation, and ordered the money forfeited. Abernathy appeals.

       “[W]e review a district court’s decision to strike a claim in an in rem forfeiture action for

an abuse of discretion. However, we review de novo the district court’s determination of a

claimant’s standing to contest a federal forfeiture action.” United States v. $31,000.00 in U.S.

Currency, 872 F.3d 342, 347 (6th Cir. 2017) (brackets, internal quotation marks, and citations

omitted).

       This appeal is meritless. Abernathy “bears the burden of demonstrating an interest in the

seized [currency] sufficient to satisfy the court of his standing as a claimant.” United States v.

$515,060.42 in U.S. Currency, 152 F.3d 491, 498 (6th Cir. 1998). Mere physical possession of

property does not suffice to show standing; instead, we “require some explanation or contextual

information regarding the claimant’s relationship to the seized property.” Id.

       Abernathy’s universal invocation of the Fifth Amendment during discovery foreclosed any

way for him to sustain this burden: “[A] blanket assertion of the [Fifth Amendment] privilege is

no defense to a forfeiture proceeding,” United States v. Certain Real Prop. 566 Hendrickson Blvd.,

Clawson, Oakland Cty., Mich., 986 F.2d 990, 996 (6th Cir. 1993), and likewise cannot be used as

“a sword . . . to make one’s assertions of ownership impervious to attack,” United States v.

$31,000.00 in U.S. Currency, 774 F. App’x 288, 292 (6th Cir. 2019). Otherwise, a “claim of

privilege . . . could furnish [a claimant] with what may be false evidence and prejudice the

government by depriving it of any means of detecting the falsity.” United States v. $99,500.00

U.S. Currency Seized on Mar. 20, 2016, --- F. App’x ---, 2019 WL 5783471, at *4 (6th Cir. Nov.

6, 2019).




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No. 19-3199, United States v. $46,340.00 in U.S. Currency


       Having properly struck Abernathy’s verified claim as a Fifth-Amendment sword,

$31,000.00 in U.S. Currency, 774 F. App’x at 292, the district court was left with a “record devoid

of any other evidence that would demonstrate standing to contest the forfeiture,” id.; see also

$99,500.00 U.S. Currency Seized on Mar. 20, 2016, 2019 WL 5783471, at *4 (similar). The

government was therefore entitled to summary judgment on the basis of lack of standing. And

because Abernathy lacked Article III standing, we will not consider his merits-based contention

regarding “the propriety of the initial seizure.” $31,000.00 in U.S. Currency, 774 F. App’x at 292

n.2; see also Whitmore v. Arkansas, 495 U.S. 149, 154 (1990) (“[B]efore a federal court can

consider the merits of a legal claim, the person seeking to invoke the jurisdiction of the court must

establish the requisite standing to sue.”).

       For these reasons, we affirm the district court’s judgment.




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