NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0454n.06

                                        No. 15-3668                                FILED
                                                                              Aug 09, 2016
                                                                          DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                     )
                                              )
       Plaintiff-Appellee,                    )
                                              )
v.                                            )
                                              )
REAL PROPERTY 10338 MARCY ROAD                )
NORTHWEST, CANAL WINCHESTER,                  )    ON APPEAL FROM THE UNITED
OHIO,                                         )    STATES DISTRICT COURT FOR THE
                                              )    SOUTHERN DISTRICT OF OHIO
       Defendant,                             )
                                              )
LEVI H. WINSTON,                              )
                                              )
      Claimant-Appellant.                     )


BEFORE:       DAUGHTREY, MOORE, and STRANCH, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge.                 Following Levi H. Winston’s

convictions for money laundering and conspiracy to possess with intent to distribute more than

1,000 kilograms of marijuana, the government filed a complaint for forfeiture of real property

owned by Winston and located at 10338 Marcy Road in Canal Winchester, Ohio.             In its

complaint, the government alleged that the property “was used or intended to be used in

exchange for controlled substances, or represents proceeds of trafficking in controlled

substances, or was used or intended to be used to facilitate the trafficking of a controlled

substance.” Eventually, the government moved for summary judgment, and the district court

granted that motion. Winston now appeals, arguing that he has established at least a genuine
No. 15-3668
United States v. Real Property 10338 Marcy Road

dispute of fact regarding whether the subject property was purchased with legitimate funds. We

agree and reverse.


                     FACTUAL AND PROCEDURAL BACKGROUND

        Winston admits that he has not been a model citizen in many respects. In fact, he

concedes that he previously had been in federal custody for some period of time prior to 2009.

Additionally, he does not contest the fact that he pleaded guilty in May 2013 to charges of

money laundering and conspiracy to possess with intent to possess more than 1,000 kilograms of

marijuana between October 2011 and March 2013, convictions for which he received a second

prison sentence of 135 months. The facts underlying that later conspiracy charge established that

Winston orchestrated the transport of large shipments of marijuana from the Texas-Mexico

border by hiding the drugs in pieces of heavy equipment that would be loaded onto flatbed

tractor-trailers and driven to Columbus, Ohio. Once in the Columbus area, Winston would

arrange for the equipment to be offloaded from the transport vehicles, for the drugs to be

removed from their hiding places in the equipment, and for the marijuana to be taken to

warehouses that Winston rented in the name of an associate for storage pending later

distribution.

        In September 2012, surveillance revealed that a 20-foot by 9-foot by 9-foot crate was

moved from one of Winston’s rented warehouses to a Columbus residence owned by Robin

Adams. Two months later, in November 2012, by use of a tracking device that had been

attached to Winston’s automobile, authorities determined that Winston stopped in the area of

10338 Marcy Road Northwest, Canal Winchester, Ohio—another property owned by Adams.

Indeed, subsequent investigation revealed that Winston later purchased the Marcy Road property

from Adams for $36,500. According to a statement made under penalty of perjury by a special

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agent with the United States Department of Homeland Security who was involved in narcotics

investigations in the Columbus area:

       On November 14, 2012, Winston made an initial payment of $14,500.00 in cash.
       The Contract for Deed was signed by Adams and Winston on November 29,
       2012. Winston paid the balance of $22,000.00 in four (4) installment cash
       payments as follows: December 11, 2012, $1,000.00; December 12, 2012,
       $1,000.00; January 2, 2013, $10,000.00; and, the final payment of $10,000.00 in
       early 2013.

       After Winston then pleaded guilty in May 2013 to criminal charges stemming from his

drug-trafficking activities, the government filed this civil action seeking forfeiture of the Marcy

Road property. In the forfeiture complaint, the government sought to tie the subject property to

Winston’s drug trafficking and alleged that the Marcy Road real estate either “was used or

intended to be used in exchange for controlled substances,” or “represents proceeds of trafficking

in controlled substances,” or “was used or intended to be used to facilitate the trafficking of a

controlled substance.”

       Winston moved to dismiss the action, claiming that the government alleged no facts

linking the property to any illegal activity. Believing that the property nevertheless represented

proceeds of illegal drug trafficking, the government responded by moving for summary

judgment in its favor, a motion that Winston opposed. In the end, the district court granted the

government’s motion for summary judgment, concluding that the government had shown, by a

preponderance of the evidence, that Winston had not earned sufficient, legitimate income in

2012 that would have allowed him to purchase the Marcy Road property without tapping into

funds obtained through drug trafficking. Stated differently, the district court believed that the

evidence established unequivocally that “Winston’s illegal drug operation is the only plausible

source of income, supported by evidence in the record, from which Winston could have



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purchased the [real estate].” From that determination that resulted in the forfeiture of his

property, Winston now appeals.

                                          DISCUSSION

Standard of Review

       Given the posture of this case, the relevant issue before us on appeal is not whether

Winston has shown definitively that the Marcy Road property was purchased with legitimate

funds; instead, our task simply is to determine whether Winston has adduced evidence sufficient

to raise a genuine dispute as to the legitimacy of his real estate transaction with Robin Adams.

Indeed, the mandate of Rule 56(a) of the Federal Rules of Civil Procedure is clear: summary

judgment is proper only “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” When evaluating the propriety of

a grant of summary judgment, we view the evidence presented in the light most favorable to the

nonmoving party and draw all justifiable inferences in favor of that party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). If the moving party satisfies its initial burden of showing

an absence of genuine disputes of material fact, “the nonmoving party must then present

significant probative evidence to do more than show that there is some metaphysical doubt as to

the material facts to defeat the motion.” Ondo v. City of Cleveland, 795 F.3d 597, 603 (6th Cir.

2015) (citation and internal quotation marks omitted).

Government’s Theories of Forfeiture

       In pertinent part, the civil forfeiture provisions of the Controlled Substances Act,

21 U.S.C. § 881(a), provide that the following shall be subject to forfeiture to the United States:

       (6) All moneys, negotiable instruments, securities, or other things of value
       furnished or intended to be furnished by any person in exchange for a controlled
       substance or listed chemical in violation of this subchapter, all proceeds traceable


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       to such an exchange, and all moneys, negotiable instruments, and securities used
       or intended to be used to facilitate any violation of this subchapter.

       (7) All real property, including any right, title, and interest (including any
       leasehold interest) in the whole of any lot or tract of land and any appurtenances
       or improvements, which is used, or intended to be used, in any manner or part, to
       commit, or to facilitate the commission of, a violation of this subchapter
       punishable by more than one year’s imprisonment.

21 U.S.C. § 881(a)(6) and (7). “One theory calls for forfeiture of any real property that is used to

facilitate the commission of a drug crime. See 21 U.S.C. § 881(a)(7). The other theory is based

on the premise that the real estate was acquired with drug sale proceeds.           See 21 U.S.C.

§ 881(a)(6).” United States v. Real Prop. in Section 9, Town 29 N., Range 1 W., Twp. of

Charlton, Otsego Cty., Mich., 308 F. Supp. 2d 791, 798 (E.D. Mich. 2004) (emphasis added). At

least in its complaint initiating this in rem action, the government relied on both of these

provisions to justify the forfeiture of the Marcy Road property.

Government’s Burden of Proof in Forfeiture Actions

       Prior to the enactment of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), 18

U.S.C. § 983, the United States, when seeking civil forfeiture of property, was required to

demonstrate only “probable cause to believe that the property is subject to forfeiture.” United

States v. $174,206.00 in U.S. Currency, 320 F.3d 658, 661-62 (6th Cir. 2003). Now, after

CAFRA, “the burden of proof is on the Government to establish, by a preponderance of the

evidence, that the property is subject to forfeiture.” 18 U.S.C. § 983(c)(1) (emphasis added).

Moreover, if the government proceeds against certain property pursuant to 21 U.S.C.

§ 881(a)(7)’s “facilitation theory,” it is required to “establish that there was a substantial

connection between the property and the offense.” 18 U.S.C. § 983(c)(3) (emphasis added).

Because the government was unable to adduce any proof whatsoever of drug sales, drug storage,

or drug conversations at the Marcy Road property, it has abandoned, both in the district court and

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on appeal, the facilitation prong of its forfeiture claim. However, the government seeks to justify

the property forfeiture under a “proceeds theory,” by arguing “that the real estate was acquired

with drug sale proceeds.” See Real Prop. in Section 9, 308 F. Supp. 2d at 798.

       The forfeiture statutes do not contain language specifically indicating that the “substantial

connection” between a drug offense and the subject property that is required under a “facilitation

theory” also is necessary under a “proceeds theory.” Nevertheless, in United States v. One 1984

Cadillac, 888 F.2d 1133, 1136 (6th Cir. 1989), we recognized, albeit in dicta, that 21 U.S.C.

§ 881(a)(6)’s legislative history requires the use of the “substantial connection” burden in

forfeiture actions involving proceeds of illegal drug activities. Then, in United States v. Fifty-

Three Thousand Eighty-Two Dollars in U.S. Currency, $53,082.00, 985 F.2d 245, 250 (6th Cir.

1993), we stated explicitly that 21 U.S.C. § 881(a)(6) “requires that the government show

probable cause of ‘a substantial connection between the property and the underlying criminal

activity.’” (Citation omitted.)

       Even if we were not convinced that our prior precedents recognized the incorporation of

the “substantial connection” standard into “proceeds theory” forfeiture proceedings, the

legislative history surrounding the addition of subsection (a)(6) to the federal forfeiture statute

makes it clear that the government must show just such a “substantial connection” between the

property to be forfeited and illegal drug-trafficking activity, even under a “proceeds theory.”

Congress’s joint explanatory statement regarding the Senate bill that added subsection (a)(6) to

21 U.S.C. § 881 provided:

       Due to the penal nature of forfeiture statutes, it is the intent of these provisions
       that property would be forfeited only if there is a substantial connection between
       the property and the underlying criminal activity which the statute seeks to
       prevent. . . . [The Senate amendment] provides for forfeiture of property which
       is the proceeds of an illegal drug transaction only if there is a traceable
       connection [between] such property and the illegal exchange of controlled

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         substances. Thus if such proceeds were, for example, commingled with other
         assets, involved in intervening legitimate transactions, or otherwise changed in
         form: they would still be subject to forfeiture, but only to the extent that it could
         be shown that a traceable connection to an illegal transaction in controlled
         substances existed.

Joint Explanatory Statement of Titles II and III, Psychotropic Substances Act of 1978, Pub. L.

95-633, reprinted in 1978 U.S. Code Cong. & Admin. News 9518, 9522 (emphasis added).

         Nothing in CAFRA’s imposition of a more stringent burden of proof upon the

government in civil-forfeiture actions would lead us to conclude that the preponderance-of-the-

evidence standard would not incorporate as well the requirement that the United States

demonstrate a substantial connection between illegal drug activity and the proceeds of such

activity that the government seeks to confiscate. Thus, in this case, under CAFRA’s burden-of-

proof provision, 18 U.S.C. § 983(c)(1), the government is required to establish by a

preponderance of the evidence that the Marcy Road property was purchased by Winston with

cash that had a “substantial connection” to an unauthorized drug sale.1

Application of the Relevant Law to the Facts of Winston’s Case

         In many cases, proving the required “substantial connection” between property and

proceeds of drug trafficking is not difficult. For example, in Real Property in Section 9, 308 F.

Supp.2d at 807, a witness testified during her sworn deposition that “she would, on more than


1
  In its opinion granting summary judgment to the government in this case, the district court cited United States v.
$118,170.00 in U.S. Currency, 69 F. App’x 714, 717 n.1 (6th Cir. 2003), for the proposition that the government “is
not required to prove a direct or substantial connection between the subject property and a specific drug transaction”
when it advances a “drug proceeds theory.” For a number of reasons, the district court’s reliance upon such
language from the cited opinion is inapposite to the dispute now before us. First, we reiterate that unpublished
opinions carry absolutely no precedential value, and statements of law contained within them have no relevance
outside of that particular case. See, e.g., Tanner v. Yukins, 776 F.3d 434, 441 (6th Cir. 2015). Second, $118,170.00
in U.S. Currency neither discussed nor gave due deference to contrary published opinions of this circuit and to the
clearly expressed intent of Congress in adding subsection (a)(6) to 21 U.S.C. § 881. Third, even the statement from
our prior unpublished opinion upon which the district court sought to rely does not support the government’s
assertion that the forfeited proceeds need not be traceable to any drug transaction. Instead, the relevant language in
$118,170.00 in U.S. Currency states only that “the Government need not prove a substantial connection to a specific
drug transaction when it advances a drug proceeds theory.” 69 F. App’x at 717 n.1 (emphasis added).

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one occasion, make land contract payments . . . from the money received from drug sales.”

Here, however, no such direct evidence of a “substantial connection” between illegal drug

activity and the money paid by Winston for the Marcy Road property exists. As a result, the

government relies upon circumstantial evidence and argues in its appellate brief:

       [T]he United States may meet its burden by showing that the claimant’s
       “legitimate income [ ] is insufficient to explain the large amount of property
       seized.” [$]174,206.00 in United States Currency, 320 F.3d at 662. The
       claimant’s “record of drug activity is a highly probative factor in the forfeiture
       calculus.” United States v. $67,220.00 in United States Currency, 957 F.2d 280,
       286 (6th Cir. 1992). The claimant’s “use [of] cash for large purchases” is also
       probative. United States v. Carrell, 252 F.3d 1193, 1201 (11th Cir. 2001)
       (internal quotation marks omitted).

Although each of these three statements relied upon by the government has legal and theoretical

validity, the context in which each factor was applied in the cited cases must be understood.

Indeed, a close examination of those cited cases helps explain why the three factors are not

applicable to Winston’s situation, or at the very least, establish that Winston identified a genuine

dispute of material fact precluding summary judgment in favor of the government.

       Initially, it is noteworthy that both Carrell and $67,220.00 in U.S. Currency were decided

by courts using the more lenient probable-cause standard of proof applied in forfeiture cases

decided prior to the enactment of CAFRA. In Carrell, the Eleventh Circuit noted explicitly that

the probable cause necessary to justify a civil forfeiture at that time required only “reasonable

grounds for belief of guilt, supported by less than prima facie proof, but more than mere

suspicion,” 252 F.3d at 1200 (citation and internal quotation marks omitted), while recognizing

that a requirement that a fact or claim be proven “by a preponderance of the evidence [is] a more

stringent standard.” Id. at 1201 (citing United States v. Four Million, Two Hundred Fifty-Five

Thousand Dollars in U.S. Currency, 762 F.2d 895, 904 (11th Cir. 1985) (internal quotation

marks omitted)). Likewise, in $67,220.00 in U.S. Currency, we relied upon the then-applicable

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less-stringent standard to uphold the government’s confiscation of cash from a claimant, holding

that the government’s burden of proof required it to establish only “probable cause to believe

that a substantial connection exists between the property to be forfeited and the illegal exchange

of a controlled substance.” 957 F.2d at 283 (citation omitted).

       Moreover, despite the government’s citations to Carrell and $67,220.00 in U.S. Currency

for the propositions that use of cash and a record of former drug activity are indications that

property was acquired with proceeds from drug sales, those cases presented facts much different

and more egregious than the situation involving Winston’s purchase of the Marcy Road property.

In Carrell, for example, the government sought forfeiture of two separate parcels of real property

purchased by Homer Carrell, the father of the claimant in that case. However, Carrell “had no

other legitimate source of income” other than money from the sale of marijuana and cocaine,

Carrell, 252 F.3d at 1201, and “ha[d] been engaged in the large scale distribution of cocaine and

marijuana in the Northern District of Alabama since at least 1980.”         Id. at 1201-02, n.9.

Nevertheless, he was able to provide $10,000 in cash to purchase one piece of real property and

16 used cars (all purchased with drug proceeds) for the other property. Id. at 1196. In light of

those facts, the court justifiably concluded that “[t]here is ample evidence of a substantial

connection between Homer Carrell’s marijuana and cocaine sales and the subject properties to

establish probable cause” for the forfeiture. Id. at 1202.

       In $67,220.00 in U.S. Currency, we also noted the probative nature of a claimant’s

“record of drug activity.” 957 F.2d at 286. Nothing in that case, however, would support an

assertion that the mere fact that a claimant previously had been convicted of a drug offense

necessarily proves the substantial connection between property and illegal activities that would

establish, by a preponderance of the evidence, that the property should be forfeited. Indeed,


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were such a broad generalization considered sufficient to justify a forfeiture, no individual who

had been convicted previously of a drug offense ever would be above suspicion when purchasing

real or personal property, regardless of the possible legitimate sources of the funds used in the

transaction. Placement of such a permanent, immutable stigma upon an individual contravenes

all notions of fair play and due process.

       Finally, the government’s citation to $174,206.00 in U.S. Currency for the proposition

that a right to forfeiture may be shown by the fact that a claimant’s “legitimate income . . . is

insufficient to explain the large amount of property seized” fails to give effect to all the language

used in the opinion. 320 F.3d at 662. Indeed, our opinion in $174,206.00 in U.S. Currency

includes qualifying language that explains that evidence of insufficient legitimate income must

be “unrebutted by any evidence pointing to any other source of legitimate income” before a

judgment of forfeiture may be entered. 320 F.3d at 662 (emphasis added). In $174,206.00 in

U.S. Currency, the government offered proof that the claimants in that case had accumulated

only $31,142 in legitimate income over a five-year period, yet had $174,206 in cash stored in

safe deposit boxes. Id. Because the claimants in that case could not rebut the allegation that the

large sum of money was derived from illegitimate sources, forfeiture of that property was

deemed to have been proper.

       A radically different scenario is presented by the facts in the present case. It is true that

Winston made cash payments of $14,500, $1,000, $1,000, $10,000, and $10,000 between early

November 2012 and January 2013 in order to purchase the property that the government sought

to have forfeited. It also is true that Winston previously had been convicted of and had been

incarcerated for drug-trafficking offenses. Unlike the situations present in other cases, however,

absolutely no evidence, other than blatant speculation, tied the $36,500 Winston paid for the


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Marcy Road property to any prior illegal activity. In fact, evidence before the district court, and

known by the prosecution prior to the filing of its complaint for forfeiture, showed that Winston

received legitimate income of $12,132 in the last four months of 2009 (the year he was released

from prison in mid-August after serving time for a 1992 criminal conviction); $40,412 in 2010;

$66,607 in 2011; and $150,000 in 2012. Nor is there evidence in the record that Winston lived a

lavish lifestyle that would have led him to squander that money. In fact, a March 2013 pretrial-

services report estimated Winston’s fixed monthly expenses at $1,662 and his net positive

monthly cash flow at more than $8,000. Such information clearly could serve to rebut the

presumption that only ill-gotten gains could account for the funds expended by Winston to

purchase the Marcy Road property.

       Additionally, Winston himself offered in a sworn affidavit that “[n]one of the purchasing

funds were from illegal activity, nor was Adams given drugs in exchange for any portion of the

$36,500.00 purchase price.” In support of that assertion, Winston also stated:

       In order to explain the amount of cash on hand that each of the six or seven
       installment payments entailed, I have copies of my 2009, 2010 and 2011 tax
       transcripts (2012 taxes have not been filed due to my present incarceration). The
       attachment is simply to demonstrate a legitimate source of income substantially
       above each payment made for the duration of the “Contract of Deed.”

At the very least, therefore, Winston has adduced sufficient facts to create a genuine dispute over

whether the cash payments to Robin Adams for the property were connected to the sale of any

controlled substance.

       Even in the face of Winston’s statements and documentary evidence, the government

argues that we should affirm the judgment of the district court because Winston’s affidavit

contains only legal conclusions, not facts, and, in any event, was offered only in support of

Winston’s motion to dismiss, not in response to the government’s motion for summary


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judgment.      The United States further contends that no credence should be accorded the

information in the pretrial-services report because such information consists of inadmissible

hearsay and was not sworn to by the claimant. None these challenges to the evidence offered by

Winston has merit.

          First, the government’s assertion that Winston’s affidavit contains only conclusions of

law and no factual support for the statements made is erroneous. Admittedly, in one paragraph

of the affidavit, Winston does state simply that “[n]one of the purchasing funds were from illegal

activity.”    As explained above, however, that seemingly bald assertion was supported by

attachments to the affidavit that summarized income tax information from 2009 through 2011.

Additionally, Winston included a copy of the report prepared by pretrial services based upon a

meeting with Winston on the very day he was arrested on the most recent drug-trafficking

charge.

          Second, there is no merit to the government’s claim that the district court, or this court in

its de novo review of the grant of summary judgment, cannot consider Winston’s affidavit

because it was offered in support of only his motion to dismiss, not in response to the

government’s motion for summary judgment. In his response to the summary judgment motion,

however, Winston made the following statements:

          Claimant has filed an affidavit and tax transcripts with the Court on this matter.
          Claimant would ask that the Plaintiff refer to these filings for the source of the
          currency which purchased Defendant Real Property.

                                                  ***

          Claimant has filed information with the Court that genuinely disputes the
          Plaintiff’s calculations as to Claimant’s earnings during the pertinent years at
          issue.

                                                  ***


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       Claimant has supplied the Court with material facts of his legitimate earnings
       . . . . Claimant, by sworn affidavit, avers that he purchased Defendant Real
       Property with legally earned income and provides the factual information to
       support this claim.

Such statements clearly incorporate into Winston’s summary judgment filing the factual

information contained as exhibits to his motion to dismiss the indictment. In any event, neither

the district court nor this court is as narrowly restricted in its consideration of a summary

judgment motion as the government would have us believe. In fact, Rule 56(c)(3) of the Federal

Rules of Civil Procedure states explicitly that “[t]he court need consider only the cited materials,

but it may consider other materials in the record.” (Emphasis added.) Consequently, even if

Winston had not referenced the motion-to-dismiss documents in his summary judgment

response, we are free to consider any information contained in the court record when conducting

our de novo review.

       Third, the government’s hearsay objection to consideration of the information in the

pretrial-services report regarding Winston’s 2012 income fails for at least two reasons.

Substantively, the report falls under one of the recognized exceptions to the general prohibition

to admission of hearsay evidence. Pursuant to the relevant provisions of Federal Rules of

Evidence 803(8)(A)(iii) and 803(8)(B), a record or statement of a public office is admissible if it

sets out factual findings from a legally authorized investigation, and “the opponent does not

show that the source of information or other circumstances indicate a lack of trustworthiness.”

Here, the pretrial-services report was prepared by a government office after an authorized

investigation into Winston’s personal history and finances a full seven months prior to the

government’s filing of its complaint for forfeiture. See 18 U.S.C. § 3154. Moreover, that report

contains sufficient indicia of reliability to satisfy the Federal Rule of Evidence 803(8)

requirements given 18 U.S.C. § 3153(c)(3)’s implication that an individual may be prosecuted

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“for a crime [of providing knowingly false information] in the course of obtaining pretrial

release.”

       Furthermore, even if the pretrial-services report were not to fall within the hearsay

exception set forth in Rule 803(8) and were to be considered hearsay, we would be justified in

considering the information contained within the report because the government failed to raise a

contemporaneous objection to Winston’s reference to the evidence. As made clear in Federal

Rule of Evidence 103(a)(1)(A), a party must lodge a timely objection to the admission of

evidence in order to preserve any claim of error. The government’s failure to object to the

inclusion of the pretrial-services report in Winston’s court filing thus results in a waiver of its

argument concerning the admissibility of the evidence.

                                        CONCLUSION

       All objections raised by the government to the evidence Winston offered to establish the

legitimacy of the funds used to purchase the Marcy Road property are without merit. Thus,

viewing all the evidence in the light most favorable to the Winston, we conclude that he has

raised at least a genuine dispute of fact regarding the government’s ability to establish a

substantial connection between the proceeds used to purchase the property and any drug

trafficking in which Winston engaged. We therefore REVERSE the district court’s grant of

summary judgment to the government and REMAND the matter for such further proceedings as

are necessary.




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