-1- 05-6522-cv United States v. $293,316 UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 August Term…

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05-6522-cv
United States v. $293,316
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term 2006 4
(Argued: April 18, 2007 Decided: August 10, 2007) 5
Docket No. 05-6522-cv 6
-----------------------------------------------------x 7
United States, 8
9
Plaintiff-Appellee, 10
11
-- v. -- 12
13
Mohammad Khan, Akbar Khan, Muhammad Room, Montaz, 14
Humayyum, John Patrick Donohue, as attorney for 15
Khista Bacha, Amir Amaan, Dor Amaan, Bacha Khan, Ali 16
Sher, Liaqat Ali, Sami Ur-Rahman, Said Ur Rahman, Gul 17
Bacha, Bahroz Khan, Rahman Ali, Hanifa, Abdul Samad 18
Khan, Aftab Ahmed, Sultan Zaib, Muhammad Ilyas Khan, 19
Rashid Ahmed, Barakat Khwaja, Haroon Rasheed, 20
Muzzafer Khan, Aftab Ud Din, Aziz Ur Rahman, also 21
known as Azizullah, Imran Mateen, also known as 22
Shakoor, Fazal Bacha, Rashid Iqbal, Muhammad Rahman, 23
Nadar Shah, Muhammad Khan, Rahman Zaib, Ali Haider, 24
Qadar Shab, Khalid Bacha, Amir Hamza, Abdul Kalam, 25
also known as Humayyun, Arsala Khan, Muzaffar Khan, 26
M. Khalid Farooqi, Muhammad Zahir, Ibn E. Amin, 27
Muhammad Zaib, Shaffi Ullah, Ali Sher Khan, Bahadar 28
Sher Khan, Ali Khan, Rafiq Ahmed, Alam Gir, Imran 29
Matin, Samieur Rahman, M.A. Yeem, Mozafar Khan, 30
Habib Ur Rehman, Sher Rahman, Badshah Amin, Rasheed 31
Ahmed, Shams Ur Rahman, Muhammad Arifkhan, Noor 32
Mohammad, Dil Aram Jan, Shafiullah, Mohammed Zeb, 33
Ghulm Rahman, Fazal Rahman, Mohammad Room, Zahir 34
Shah, Mohammad Amin, Sher Khan, Mohammad Shoeb, Qadar 35
Shah, Iqbal Sayed, 36
37
Claimants-Appellants, 38
39
$293,316 in United States Currency, More or Less, and 40
all Proceeds Traceable Thereto Seized From Ali Sher 41
Khan, $187,155 in United States Currency, More or 42
Less, and all Proceeds Traceable thereto Seized from 43
Akbar Ali Khan, $35,112 in United States Currency, 44
More or Less, and all Proceeds Traceable thereto 45

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Seized from Fazal Subhan, 1
2
Defendants, 3
4
Fazal Subhan, Haroon Khan, Mohammad Khan, Sami Ullah, 5
Diaz Ali Shah, Amir Bahadur, Rohmai Khan, Khan 6
Haroon, Sqbal Syed, Mian Rahim Shah, Fazal Rehman, 7
Rehmat Ali, Ali Rehman Seth, Tajul Malook, Mohammad 8
Ishaq, Malik Sardar, Iqbal Ahmed, Mohammad Khan, 9
10
Claimants. 11
12
-----------------------------------------------------x 13
14
B e f o r e : WALKER, STRAUB and B.D. PARKER, Circuit Judges. 15
Appeal from a judgment of the United States District Court 16
for the Eastern District of New York (Jack B. Weinstein, Judge) 17
denying Appellants’ application for attorney’s fees. 18
AFFIRMED. 19
DAVID B. SMITH, English & 20
Smith (John P. Donohue, 21
Kittredge, Donley, Elson, 22
Fullem & Emblick, LLP, 23
Philadelphia, PA, on the 24
brief), Alexandria, VA, for 25
Claimants-Appellants. 26
27
LAURA D. MANTELL, Assistant 28
United States Attorney for the 29
Eastern District of New York 30
(Roslynn R. Mauskopf, United 31
States Attorney, Steven Kim 32
and Kathleen A. Nandan, 33
Assistant United States 34
Attorneys, on the brief), 35
Brooklyn, NY, for Plaintiff- 36
Appellee. 37
JOHN M. WALKER, JR., Circuit Judge: 38
The expression “you can take that to the bank” connotes the 39
certainty and reliability of the banking system. This long- 40

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1 The convention in this case has been to refer to these 1
individuals as “contributor claimants,” a convention to which we 2
adhere. In reality, however, they are consignors. 3
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running dispute arises out of the disposition of several hundred 1
thousand dollars that nearly eighty Pakistanis (the “contributor 2
claimants”)1 wished to transfer from New York to Pakistan. Their 3
problems arose from their decision not to entrust their funds to 4
the international banking system but rather to three couriers. 5
The couriers, who were also carrying some of their own money, 6
were apprehended by the U.S. Customs Outbound Currency Team 7
(“Customs”) as they were about to board a flight to Pakistan and 8
were subsequently convicted under the bulk cash smuggling 9
provision of the USA PATRIOT Act. See Uniting and Strengthening 10
America by Providing Appropriate Tools Required to Intercept and 11
Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 12
115 Stat. 272. The United States District Court for the Eastern 13
District of New York (Jack B. Weinstein, Judge) concluded that 14
the government could forfeit 50% of the funds owned by the 15
couriers (the “convicted claimants”) without violating the 16
Excessive Fines Clause of the Eighth Amendment. United States v. 17
$293,316 in U.S. Currency, 349 F. Supp. 2d 638 (E.D.N.Y. 2004). 18
As for the contributor claimants, it took them roughly three 19
years to recover the money they had dispatched on what they had 20
believed would be an overnight flight. 21
Two attorneys, John P. Donohue and David B. Smith, who 22

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represent many of the contributor claimants -- and, not 1
incidentally, also two of the three convicted claimants -- sought 2
attorney’s fees from the United States. The district court 3
denied their request, and they now appeal from that decision. 4
BACKGROUND 5
In September 2002, the convicted claimants -- Ali Sher Khan, 6
Akbar Ali Khan, and Fazan Subhan -- were arrested while on the 7
jetway trying to board a flight from New York to Pakistan 8
carrying $515,583.00 in U.S. currency, concealed, among other 9
places, in soap and toothpaste boxes. In December 2002, they 10
were convicted of bulk cash smuggling, see 31 U.S.C. § 5332(a), 11
as well as various offenses relating to their failure to report 12
to government agents the amount of money they were transporting, 13
see 31 U.S.C. § 5316(a)(1)(A), (b). 14
On or about February 10, 2003, the government filed a civil 15
forfeiture action in rem against the funds seized from the 16
convicted claimants. Because this case turns, in part, on 17
whether the government was dilatory in eventually returning money 18
to the contributor claimants, we must recite the course of 19
proceedings in some detail. 20
On or about March 11, 2003, Ali Sher Khan filed his answer 21
to the complaint in rem as well as responses to the government’s 22
interrogatories. Cf. Fed. R. Civ. P. C(6)(b) (Supplemental Rules 23
for Certain Admiralty and Maritime Claims) (“Interrogatories may 24

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2 While Donohue eventually undertook the representation of 1
Akbar Ali Khan and those who had entrusted him with their funds 2
(the “Akbar Ali Khan contributors”), David Udell apparently 3
continues to represent Fazal Subhan and the Fazal Subhan 4
contributors. The rest of their story is irrelevant to this 5
appeal. 6
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be served with the complaint in an in rem action without leave of 1
court. Answers to the interrogatories must be served with the 2
answer to the complaint.”) [hereinafter Supplemental Rules]. He 3
did not submit a verified claim to the seized funds. In his 4
papers, Ali Sher Khan mentioned the names of approximately forty- 5
five of the eighty contributor claimants, which corroborated a 6
list the government had seized from his person. Customs then 7
sent copies of the verified complaint, as well as the 8
government’s interrogatories, to these forty-five putative 9
claimants. Customs also sent the same documents to various other 10
contributor claimants, identified in a letter dated July 9, 2003 11
from Attorney David Udell, who was representing Akbar Ali Khan 12
and Fazal Subhan.2 Thus, by mid-summer 2003, the government had 13
notified nearly all of the contributor claimants that their money 14
had been seized. 15
The contributor claimants, who had violated no law, 16
understandably wanted their money back. Pursuant to Supplemental 17
Rule C(6)(a)(i)(A), those asserting a right to seized funds must 18
file verified claims promptly. See also Supplemental Rule 19
C(6)(a)(iv); see generally United States v. Cambio Exacto, S.A., 20

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3 In June 2003, the convicted claimants filed motions seeking 1
leave to file their claims out of time. 2
4 It appears that Ali Sher Khan was responsible for some of 1
this confusion, as he did not amend his claim downward -- making 2
these four contributors’ claims more plausible -- until October 3
19, 2004, on the eve of a hearing before Magistrate Judge 4
Pollack. 5
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166 F.3d 522, 529 (2d Cir. 1999) (citing United States v. Amiel, 1
995 F.2d 367, 371 (2d Cir. 1993)). This, unfortunately, they did 2
not do, in part because some had gone to Pakistan and others did 3
not quickly retain counsel. 4
The district court, however, has the authority to extend the 5
time period for filing verified claims. See Supplemental Rule 6
C(6)(a)(i)(B). And, both Judge Weinstein and Magistrate Judge 7
Cheryl L. Pollack proved accommodating. Still, by January 30, 8
2004, no claimant had filed a verified claim -- neither the 9
convicted claimants nor a single one of the contributor 10
claimants.3
11
Eventually, the three convicted claimants and those who had 12
contributed money to one of them, Ali Sher Khan, filed verified 13
claims. On August 2, 2004, the government agreed to return money 14
to forty-one of the forty-five contributors to Ali Sher Khan. 15
However, the aggregate amount claimed by the contributors to Ali 16
Sher Khan exceeded by $28,000 the amount the government had 17
seized from him and his belongings.4 Three of the four 18
contributors whose claims remained in dispute at that point 19

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5 Some of the Akbar Ali Khan contributors had filed claims on 1
March 9, 2004; these claims, however, were unverified. And, as 2
one of the contributors already had filed a series of false 3
claims for more than $60,000, the government “declined to 4
recognize or attempt to settle any of the claims . . . that 5
[were] not notarized or verified.” 6
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eventually prevailed after a hearing before Magistrate Judge 1
Pollack, although not until July 1, 2005. 2
With respect to those who had given their money to Akbar Ali 3
Khan (the “Akbar Ali Khan contributors”), the process was slower. 4
By August 2, 2004, a number of the Akbar Ali Khan contributors 5
still had failed to respond to the government’s interrogatories, 6
and many had not filed verified claims.5 Some contributors to 7
Akbar Ali Khan were still filing claims as late as May 2005. 8
As verified claims trickled in, the government pressed for 9
the forfeiture of the full amount owned by the convicted 10
claimants. The convicted claimants argued that forfeiture in 11
that amount was unconstitutional under the Excessive Fines Clause 12
of the Eighth Amendment and in light of United States v. 13
Bajakajian, 524 U.S. 321 (1998). The district court agreed, 14
concluding that “forfeiture of the entire amount of [convicted] 15
claimants’ currency would be grossly disproportionate to the 16
gravity of claimants’ offenses.” $293,316, 349 F. Supp. 2d at 17
640. The district court ultimately ordered the forfeiture of 18
half of the convicted claimants’ own funds, amounting to “$33,500 19
for Ali Sher Khan, $9,650 for Akbar Ali Khan, and $5,000 for 20

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Fazal Subhan.” Id. at 651. 1
In August 2005, the government began the process of issuing 2
checks to both the contributor claimants and the convicted 3
claimants. Thereupon, attorneys Donohue and Smith sought fees 4
and expenses in the amount of $157,884.81, a little under a third 5
of the total amount seized from the convicted claimants on the 6
jetway. The district court denied their application, noting that 7
although “[c]ounsel for all parties . . . acted ethically and 8
properly . . . . [t]he Claimants’ choice of a surreptitious 9
method for sending their money . . . led to this costly 10
litigation.” 11
The district court concluded that attorneys Donohue and 12
Smith could not, pursuant to the Civil Asset Forfeiture Reform 13
Act of 2000, Pub. L. No. 106-185, 117 Stat. 202 (“CAFRA”), obtain 14
fees for their work on behalf of the contributor claimants 15
because there “were ‘competing claims’ [to the same property] 16
within the meaning of section 2465(b)(2)(C)(ii).” Cf. 28 U.S.C. 17
§ 2465(b)(2). The district court also held that they could not 18
obtain fees for their work on behalf of the convicted claimants 19
because the government had been “substantially justified” in 20
seeking forfeiture of the convicted claimants’ money, or, in the 21
alternative, because CAFRA preempted the Equal Access to Justice 22
Act (“EAJA”), see 28 U.S.C. §§ 2412(b), (d)(1)(A), and because 23
CAFRA does “not apply if the claimant is convicted of a crime for 24

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which the interest of the claimant in the property was subject to 1
forfeiture under a Federal criminal forfeiture law,” 28 U.S.C. § 2
2465(b)(2)(B). This appeal followed. 3
ANALYSIS 4
I. The Civil Asset Forfeiture Reform Act 5
In passing CAFRA, Congress was reacting to public outcry 6
over the government’s too-zealous pursuit of civil and criminal 7
forfeiture. Cf. United States v. Funds Held in the Name or for 8
the Benefit of Wetterer, 210 F.3d 96, 110 (2d Cir. 2000) (“[W]e 9
see aggressive but marginal claims asserted on dubious 10
jurisdiction to seize charitable funds raised for the relief of 11
abject orphans in an impoverished country, so that the money can 12
be diverted for expenditure by the Department of Justice.”). As 13
part and parcel of this effort to deter government overreaching, 14
Congress provided for the payment of “reasonable attorney fees 15
and other litigation costs” to claimants who “substantially 16
prevail[]” in a “civil proceeding to forfeit property.” 28 17
U.S.C. § 2465(b)(1)(A). However, Congress had no wish to expand 18
government liability respecting legitimate seizures of property 19
plausibly subject to forfeiture; thus, CAFRA also provides that, 20
[i]f there are multiple claims to the same property, 21
the United States shall not be liable for costs and 22
attorneys fees associated with any such claim if the 23
United States-- 24
(i) promptly recognizes such claim; 25
(ii) promptly returns the interest of the claimant 26
in the property to the claimant, if the property 27
can be divided without difficulty and there are no 28

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6 We need not spend much time on Appellants’ argument that 1
they are entitled, under CAFRA, to fees for their work on behalf 2
of the convicted claimants. CAFRA simply does “not apply if the 3
claimant is convicted of a crime for which the interest of the 4
claimant in the property was subject to forfeiture under a 5
Federal criminal forfeiture law.” 28 U.S.C. § 2465(b)(2)(B); 6
see United States v. U.S. Currency in the Sum of Six Hundred 7
Sixty Thousand, Two Hundred Dollars, More or Less, 429 F. Supp. 8
2d 577, 580-81 (E.D.N.Y. 2006). The convicted claimants were, in 9
a word, convicted. The argument that 28 U.S.C. § 2465(b)(2)(B) 10
applies only if the government pursues criminal forfeiture, 11
defies common sense. The plain text of CAFRA bars fee awards if 12
the property was subject to forfeiture under federal law, not 13
just if the property was actually forfeited. Cf. Sullivan v. 14
Stroop, 496 U.S. 478, 484 (1990). 15
7 Were we required to reach the question, we would be inclined 1
to agree with the district court that most, if not all, of the 2
contributor claimants could not recover fees as “prevailing” 3
parties. While we need not firmly decide the question, we think 4
that the Supreme Court’s decision in Buckhannon Board & Care 5
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competing claims to that portion of the property; 1
(iii) does not cause the claimant to incur 2
additional, reasonable costs or fees; and 3
(iv) prevails in obtaining forfeiture with respect 4
to one or more of the other claims. 5
6
28 U.S.C. § 2465(b)(2)(C). It was this “multiple claims 7
exception” that the district court invoked to deny Donohue and 8
Smith’s request for attorney’s fees for their work on behalf of 9
the contributor claimants.6
10
Appellants argue (1) that the bulk cash seized from the 11
convicted claimants is not the “same property” within the meaning 12
of the multiple claims exception (because each dollar bill is a 13
discrete parcel of property) and (2) even if it is, the 14
government did not comply with the four predicates to the 15
exception.7 We disagree. Addressing Appellants’ arguments 16

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Home, Inc. v. West Virginia Department of Health & Human 1
Resources should inform our understanding of the term 2
“substantially prevails” in CAFRA. In Buckhannon, the Court 3
clarified that only “enforceable judgments on the merits and 4
court-ordered consent decrees create the ‘material alteration of 5
the legal relationship of the parties’ necessary to permit an 6
award of attorney’s fees.” 532 U.S. 598, 604 (2001) (quoting 7
Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 8
782, 792-93 (1989)); see also Sole v. Wyner, 127 S. Ct. 2188, 9
2195-97 (2007) (holding that a party who obtained a preliminary 10
injunction but subsequently saw her case dismissed on summary 11
judgment did not attain “prevailing party” status required to 12
obtain fees). Indeed, we are inclined to agree with the Ninth 13
Circuit that the text of CAFRA suggests that Congress meant the 14
fee-shifting provision to apply only in the event a claimant won 15
in court. See Synagogue v. United States, 482 F.3d 1058, 1062 16
(9th Cir. 2007) (interpreting “‘any civil proceeding to forfeit 17
property’ [to] refer [only] to a proceeding in court”); see also 18
28 U.S.C. § 2465(b)(2)(D) (providing for reduction in fees if the 19
court “enters judgment in part for the claimant and in part for 20
the Government”) (emphasis added). 21
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seriatim, claims need not be “competing,” viz. mutually 1
exclusive, as Appellants apparently believe, in order for the 2
claims to relate “to the same property.” Indeed, were we to read 3
the statute as Appellants do, we would nullify the second clause 4
of § 2465(b)(2)(C), which affords the government leeway to return 5
property more slowly if there are “competing claims.” Cf. South 6
Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 510 n.22 7
(1986). 8
In addition, under Appellants’ reading, the multiple claims 9
exception could apply to currency only when the claims exceed the 10
value of the seized money. We read the statute more broadly; we 11
see situations involving several, mutually exclusive claims to 12
the same currency as just one of the many situations covered by 13

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the multiple claims exception. That exception also applies 1
where, as here, the “same property” is a pool of fungible 2
currency that matches or exceeds the “multiple” but non-exclusive 3
claims lodged against it. 4
Appellants’ second argument is that the government has not 5
satisfied the four prerequisites to the multiple claims 6
exception. It is equally unavailing. Appellants cannot 7
seriously contest two of the prerequisites. They concede, as 8
they must, that the government has “prevail[ed] in obtaining 9
forfeiture with respect to one or more of the other claims.” 28 10
U.S.C. § 2465(b)(2)(C)(iv). It is also clear on this record -- 11
despite Appellants’ attack on the government’s discovery practice 12
-- that the government did not cause Appellants to incur 13
additional fees. Cf. id. § 2465(b)(2)(C)(iii). As the district 14
court noted, “[t]he government . . . [wa]s doing its job in 15
trying to find out whether these are the people or in fact 16
criminals taking money out illegally . . . and therefore . . . it 17
[wa]s perfectly sound for the government to make inquiries.” 18
Appellants principally argue that the government neither promptly 19
recognized their claims nor promptly returned their money. 20
Cf. id. § 2465(b)(2)(C)(i), (ii). 21
The Supreme Court has discussed the meaning of 22
“prompt[ness]” with respect to civil forfeiture. In United 23
States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) 24

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8 With respect to the Ali Sher Khan contributors, for 1
instance, verified claims were filed in January 2004 and the 2
government recognized the vast majority of those claims in August 3
2004, a span of eight months. 4
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in United States Currency, the Court explained that “the 1
Government and the claimant have an interest in a rule that 2
allows the Government some time to investigate the situation in 3
order to determine whether the facts entitle the Government to 4
forfeiture so that, if not, the Government may return the money 5
without formal proceedings.” 461 U.S. 555, 565 (1983). In that 6
case, the Court considered reasonable for the purposes of due 7
process an eighteen-month delay between the seizure of property 8
and the institution of forfeiture proceedings, in light of “the 9
Government’s diligent efforts in processing the petition for 10
mitigation or remission and in pursuing related criminal 11
proceedings.” Id. at 569; see also United States v. Banco 12
Cafetero Panama, 797 F.2d 1154, 1163 (2d Cir. 1986) (discussing 13
$8,850). While this analysis does not control our interpretation 14
of CAFRA, it does inform it. 15
The government acted more quickly in this case to recognize 16
claims than it did in $8,850 in deciding whether to pursue 17
forfeiture.8 The government, and the district court, gave 18
Appellants every opportunity to file verified claims to the 19
seized currency, as they were required to do by the Supplemental 20
Rules. Appellants did so only belatedly; moreover, since one 21

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contributor claimant filed false claims and one convicted 1
claimant modified the amount he claimed downward on the eve of a 2
hearing, the government’s careful pace was certainly 3
understandable. 4
Appellants also suggest that the government should have 5
returned the claimed funds earlier; for instance, they argue that 6
the government should have returned money to the forty-one 7
contributor claimants the government recognized on August 4, 8
2004. But Appellants ignore that there were “competing claims to 9
that portion of the property” that were resolved only a few 10
months before the government had begun issuing checks. 28 U.S.C. 11
§ 2465(b)(2)(C)(ii). Indeed, had the government returned money 12
to those forty-one contributor claimants, it might ultimately 13
have lacked sufficient funds to pay the remaining four 14
contributor claimants. As to the Ali Akbar Khan contributors, 15
the government was still receiving documents in May 2005, again 16
only a few months before it ultimately distributed the seized 17
funds. All things considered, the government acted with 18
reasonable dispatch under these complicated circumstances. Thus, 19
we agree with the district court that Appellants are not entitled 20
to attorney’s fees for their work on behalf of the contributor 21
claimants. 22
II. The Equal Access to Justice Act 23
Attorneys Donohue and Smith also seek fees for their work on 24

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behalf of the convicted claimants under the EAJA. The EAJA 1
provides for the recovery of attorney’s fees under either the 2
common law or “under the terms of a[] statute which specifically 3
provides for such an award” provided that no other statute bars 4
the fee award. 28 U.S.C. § 2412(b); see also id. § 2412(d)(1)(A) 5
(permitting fees “[e]xcept as otherwise specifically provided by 6
statute”). 7
Courts have taken two basic approaches to the construction 8
of § 2412. Some circuits view that provision as a supplement to 9
existing fee-shifting provisions. See Gavette v. Office of Pers. 10
Mgmt., 808 F.2d 1456, 1463-65 (Fed. Cir. 1986) (en banc); United 11
States v. 329.73 Acres of Land, 704 F.2d 800, 803-10 (5th Cir. 12
1983) (en banc); United States v. 101.80 Acres of Land, 716 F.2d 13
714, 724 n.16, 726-27 (9th Cir. 1983). Under this view, the EAJA 14
is only preempted when it is in irreconcilable tension with 15
another fee-shifting statute. Other circuits, by contrast, have 16
construed the EAJA to apply only in the absence of any other fee- 17
shifting mechanisms. See E.E.O.C. v. O & G Spring & Wire Forms 18
Speciality Co., 38 F.3d 872, 882 (7th Cir. 1994); Natural Res. 19
Def. Council, Inc. v. United States E.P.A., 703 F.2d 700, 704-06 20
(3d Cir. 1983); Envtl. Def. Fund, Inc. v. E.P.A., 716 F.2d 915, 21
919 (D.C. Cir. 1983) (per curiam). 22
We need not decide the question here, for the EAJA and CAFRA 23

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9 We note, however, that the latter view better accords with 1
the text of the EAJA and with its legislative history. See H.R. 2
Rep. No. 96-1418, at 18 (1980), as reprinted in 1980 U.S.C.C.A.N. 3
4984, 4997 (explaining that “this section is not intended to 4
replace or supercede any existing fee-shifting statutes . . . or 5
to alter the standards or the case law governing those Acts. It 6
is intended to apply only to cases (other than tort cases) where 7
fee awards against the government are not already authorized”). 8
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are irreconcilably at odds.9 Section 2465(b)(2)(A) expressly and 1
unequivocally provides that “[t]he United States shall not be 2
required to . . . make any other payments to the claimant not 3
specifically authorized by this subsection.” (emphasis added). 4
Thus, CAFRA is exclusive of all other remedies. And, since 5
Appellants are not entitled to fees under CAFRA for their work on 6
behalf of the convicted claimants, see supra Part I, they cannot 7
obtain through the backdoor of the EAJA what Congress has 8
forbidden them to obtain through the front door of CAFRA. 9
We thus agree with the district court that Appellants are 10
not entitled to attorney’s fees for their work on behalf of the 11
convicted claimants. 12
* * * * * 13
Whether or not each dollar carried by the convicted 14
claimants could be traced to a different contributor claimant, we 15
will not require the district court to engage in such 16
metaphysical slicing-and-dicing. Cf. Frazier v. Cupp, 394 U.S. 17
731, 740 (1969). Rather, we recognize that complications often 18
attend transactions involving scores of persons, across many 19

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miles, and involving several hundreds of thousands of dollars. 1
Untangling the skein of ownership in cases like this one is a 2
difficult and complicated task. Those complications will often 3
mean that attorney’s fees are properly withheld, even from 4
innocent contributors. While we understand that many aliens use 5
couriers to deliver money to friends and relatives because the 6
couriers speak their language, charge no fees, and serve areas 7
remote from the nearest Western Union branch, and while we are 8
equally mindful that Donohue and Smith invested considerable time 9
in helping the contributor claimants recover their money, under 10
CAFRA those facts cannot justify the imposition of another burden 11
on the public fisc. 12
CONCLUSION 13
For the foregoing reasons, we AFFIRM the judgment of the 14
district court. 15
16

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