UNITED STATES of America, Plaintiff-Appellee v. BROADENING-INFO ENTERPRISES, INC., Claimant-Appellant, 462 F. App'x 93

SUMMARY ORDER Claimant-Appellant Broadening-Info Enterprises, Inc. (“Broadening”) appeals a September 20, 2010 judgment of civil forfeiture entered by the Southern District of New York (Sullivan, J.) following a Memorandum Order dated May 18, 2010 granting the United States’s motion for

summary judgment and ordering Broadening to forfeit the defendants-m-rem, the painting known as “Hannibal” and the sculpture known as “Roman Togatus,” to the United States pursuant to 19 U.S.C. § 1595a(c). We presume the parties’ familiarity with the facts and procedural history of this case. We review a district court’s grant of

summary judgment de novo. Pilgrim v. Luther, 571 F.3d 201, 204 (2d Cir.2009). In reviewing a

summary judgment decision, we “utilize[] the same standard as the district court:

summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law.” D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998). A material fact is one that might “affect the outcome of the suit under the governing law,” and a dispute about a genuine issue of material fact exists if the evidence is such that “a reasonable [fact finder] could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities and draw all inferences against the moving party. Pilgrim, 571 F.3d at 204.

We first turn to Broadening’s contention that the district court erred in holding that the protections for civil forfeiture claimants found in the Civil Asset Forfeiture Reform Act of 2000, 18 U.S.C. § 981 et seq. (“CAFRA”), do not apply in the instant action. “Congress responded to concerns regarding the broad scope of the government’s civil forfeiture authority by passing [CAFRA, which] ... provides some claimants with, among other things, a more favorable burden of proof and an innocent-owner defense.” United States v.

Davis, 648 F.3d 84, 92-93 (2d Cir.2011); see 18 U.S.C. § 983(c) & (d) (“under any civil forfeiture statute ... [a]n innocent owner’s interest in property shall not be forfeited” and “the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture”). However, in what has become known as the “customs carve-out,” Davis, 648 F.3d at 94, Congress expressly excluded forfeiture actions brought under “the Tariff Act of 1930 or any provision of law codified in title 19” from CAFRA’s definition of a “civil forfeiture statute.” 18 U.S.C. § 983(i)(2)(A).

Accordingly, as we recently held, “forfeiture actions brought pursuant to 19 U.S.C. § 1595a are not subject to CAFRA’s innocent-owner provision” or its “burden-of-proof provision.” Davis, 648 F.3d at 94, 96. Broadening offers no basis by which we could conclude that the customs claim in Davis is distinguishable in any pertinent way from the customs claim at issue here. Indeed, in reaching our holding in Davis that CAFRA does not apply to any claim brought under 19 U.S.C. § 1595a, we cited as support the order that is the subject of the instant appeal. See id. at 94 n. 6 (citing United States v.

Painting Known as “Hannibal”, No. 08 Civ. 1511(RJS), 2010 WL 2102484, at *4 (S.D.N.Y. May 18, 2010)). For these reasons, we conclude that CAFRA is in no way applicable to the 19 U.S.C. § 1595a forfeiture claim on appeal. We next turn to Broadening’s contention that the district court erred in taking into consideration a declaration submitted by U.S. Immigration and Customs Enforcement (“ICE”) agent Seth Taylor (the “Taylor Declaration”) in support of the government’s motion for

summary judgment. “[W]e afford district courts wide latitude in determining whether evidence is admissible,” and so “review ... evidentiary rulings for abuse of discretion, reversing only if we find manifest error.” United States v. Miller, 626 F.3d 682, 687-88 (2d Cir.2010) (internal quotation marks, citations, and ellipsis omitted). As an initial matter, the ordinary requirement that affidavits submitted in support of a party’s motion for

summary judgment be based upon personal knowledge and admissible evidence does not apply under the pre-CAFRA evidentiary framework applicable here. See United States v. One Parcel of Prop. Located at 15 Black Ledge Drive, Marlborough, Conn., 897 F.2d 97, 101-02 (2d Cir.1990) (“the government [is allowed] to establish probable cause on the basis of hearsay affidavits” so long as the information contained therein is reliable).

Accordingly, to the extent that Broadening’s objection to the district court’s consideration of the Taylor Declaration is predicated solely on Taylor’s lack of personal knowledge regarding the information to which he attested, that objection is without merit. Further, the district court did not abuse its discretion in concluding that the shipping invoices attached to the Taylor Declaration were reliable evidence. Those documents were produced in response to an ICE Customs Summons by the neutral third party that was responsible for transporting the defendants-m-rem from JFK airport to a warehouse in New York.

Moreover, Broadening itself conceded that these documents are exactly what they purport to be — namely, customs documentation presented to ICE in connection with Broadening’s effort to import Hannibal and Roman Togahis into the United States. Accordingly, we conclude that the district court did not err in relying on the Taylor Declaration on

summary judgment. Having addressed these preliminary matters, we next turn to whether the district court correctly granted the government’s motion for

summary judgment on its claim brought under 19 U.S.C. § 1595a(c).

Section 1595a(

c) of Title 19 of the United States Code states that “[m]er-chandise which is introduced or attempted to be introduced into the United States contrary to law ... shall be seized and forfeited ... if it ... is stolen, smuggled, or clandestinely imported or introduced.” Accordingly, for the government to seize merchandise under 19 U.S.C. § 1595a(c), it must satisfy two separate requirements: (1) that the merchandise was introduced, or was sought to be introduced, “contrary to law”; and (2) that the merchandise was “stolen, smuggled, or clandestinely imported or introduced.” See Davis, 648 F.3d at 87; see also id. at 90 (noting that “the undisputed evidence before the district court indicated that [the merchandise in question] was stolen”).

One way in which merchandise may be introduced into the United States “contrary to law” is if it is “enter[ed] or introduce^] ... by means of any fraudulent or false invoice ... or by means of any false statement, written or verbal ... whether or not the United States shall or may be deprived of any lawful duties.” 18 U.S.C. § 542. False statements only violate § 542 if they are “material.” United States v. An Antique Platter of Gold, 184 F.3d 131, 135 (2d Cir.1999). “[A] false statement is material under

Section 542 if it has the potential significantly to affect the integrity or operation of the importation process as a whole.... ” Id. at 136 (brackets omitted). This standard entails determining “whether a reasonable customs official would consider the statements to be significant to the exercise of his or her official duties,” including “the decision to admit an item” as well as “decisions as to processing, e.g., expediting importation.” Id. Here, Broadening contends that the district court erred in concluding that the shipping invoices accompanying the defendants-m-rem were materially false.

Those invoices declared the value of each artwork as only $100, whereas Broadening paid $1 million for Hannibal and $600,000 for Roman Togatus. Under 19 U.S.C. § 1484, the “importer of record” of merchandise must provide “such information as is necessary to enable the Bureau of Customs and Border Protection to determine whether the merchandise may be released” from its custody. As is relevant here, if a shipment is valued at less than $200, it may be imported into the United States without any customs documentation. See 19 C.F.R. § 128.24(a) & (e).

Accordingly, “necessary” information under § 1484 includes the value of the merchandise whose importation is being sought. See United States v. Holmquist, 36 F.3d 154, 161 (1st Cir.1994) (cited in Antique Platter of Gold, 184 F.3d at 136) (“Undervaluations are by their nature materially related to the importation process, both because they may interfere with the government’s efforts to monitor and regulate the flow of goods into the United States and because they undermine the integrity of the entire importation process.”); accord United States v. Ackerman, 704 F.2d 1344, 1348 (5th Cir.1983).

Because the shipping invoices at issue here grossly misrepresented the value of the defendants-m-rem, thereby materially impacting “decisions as to processing, e.g., expediting importation,” Antique Platter of Gold, 184 F.3d at 136, we conclude that the district court did not err in finding those invoices materially false under 18 U.S.C. § 542. Accordingly, we affirm the district court’s conclusion that the defendants-m-rem were introduced into the United States “contrary to law” under 19 U.S.C. § 1595a(

c) Turning to the second requirement under 19 U.S.C. § 1595a(c), whether the defendants-m-rem were “stolen, smuggled, or clandestinely imported or introduced” into the United States, it does not appear that the district court expressly addressed this issue in its May 18, 2010 Memorandum Order. See Painting Known as “Hannibal”, 2010 WL 2102484, at *4.

Because we are unable to assess, on the record before us, whether the district court found that the defendants-m-rem were “stolen, smuggled, or clandestinely imported or introduced,” as required under 19 U.S.C. § 1595a(e), we remand the case to the district court, pursuant to the procedures set forth in United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994), for clarification of its decision and for additional findings of fact or conclusions of law as necessary. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED in part and the case is REMANDED. The mandate shall issue forthwith.

The parties are to inform the Clerk of the Court by letter within twenty-one days of when the district court has issued its clarification. Following such notification, jurisdiction of this appeal automatically will be restored to this Court without need for either party to file a new notice of appeal. After jurisdiction is restored, this panel will resume its consideration of this case. Broadening’s argument that the true value of the defendants-in-rem is unknown because of a "lack of market activity” shedding light on their worth, Appellant Br. at 43, is wholly unconvincing.

There is no dispute that Broadening purchased the artworks for a combined $1.6 million, at prices that Broadening itself describes on appeal as representing their "fair market prices.” Id. at 7. In such circumstances, any uncertainty as to the exact valuation of the artworks — whether, for example, Hannibal was worth the $1 million Broadening paid for it, the $2 million Broadening attempted to sell it for, or the $8 million that a neutral appraisal concluded it could be worth — has no bearing whatsoever on whether it was materially false to represent that each artwork was worth a mere $100.