USA v. 2004 Ferrari 360 Modeno

Filing

UNPUBLISHED OPINION FILED. [12-20780 Affirmed ] Judge: TMR , Judge: EHJ , Judge: ECP Mandate pull date is 12/30/2013 [12-20780]

Case: 12-20780

Document: 00512433465

Page: 1

Date Filed: 11/07/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
November 7, 2013

No. 12-20780
Summary Calendar

Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
2004 FERRARI 360 MODENO
Defendant
EVENS CLAUDE, JOSETTE CLAUDE,
Claimants-Appellants

Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-4474

Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
Evens Claude and his mother Josette Claude appeal the district court’s
civil forfeiture order of a 2004 Ferrari 360 Modeno that was purchased by Evens.
Evens was convicted of conspiracy and uttering counterfeit obligations and

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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No. 12-20780
securities, in violation of 18 U.S.C. §§ 371 and 472. The district court found after
a hearing that the Ferrari was used to transport the counterfeit money and was
therefore subject to forfeiture pursuant to 49 U.S.C. § 80303. We affirm for the
following reasons:
1. The Government established a “substantial connection between” the
vehicle and Evens Claude’s offense with circumstantial evidence that
Evens transported the counterfeit money in the vehicle. See 18 U.S.C.
§ 983(c)(3), 49 U.S.C. § 80302(b). The record showed that Evens Claude
was known to pass the same type of counterfeit bills in Philadelphia and
that he traveled from Philadelphia to Houston. He then purchased the
Ferrari and drove it, along with Steven Montrose, to the Galleria. Evens
and Montrose were both found at the Galleria in possession of counterfeit
bills. Evens had ninety-eight counterfeit $100 bills on his person, and
Montrose had nine other counterfeit bills on him. A Secret Service agent
testified that the video surveillance at the Galleria did not show Evens
obtaining the counterfeit money there. It was not error for the district
court to find, based on a preponderance of the evidence, that Evens
transported the counterfeit money in the Ferrari. See 18 U.S.C. § 983(c)(1)
(“[T]he burden of proof is on the Government to establish, by a
preponderance of the evidence, that the property is subject to forfeiture.”).
2.

There is no merit to the argument that the Government lacked

probable cause to seize the vehicle or that the complaint was not prepared
by and based on personal knowledge of the case agent. The record shows
that both Evens and Montrose told Secret Service agents that the two men
drove to the Galleria in the Ferrari. The case agent signed a sworn
statement averring to the facts.

See United States v. Melrose East

Subdivision, 357 F.3d 493, 505–07 (5th Cir. 2004) (examining probable
cause based on the totality of circumstances and a common sense view).
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3. The district court did not err by holding that Josette Claude lacked
standing to challenge the forfeiture of the vehicle, and that there was no
bailment or joint venture under controlling Pennsylvania law. Evens
purchased the vehicle solely in his own name with a cashier’s check
showing only his name as remitter. Evens was the only person listed as
the buyer on the invoice, and the seller indicated by affidavit that Evens
never mentioned his mother while purchasing the vehicle. Nothing in the
record suggests that at the time of sale Evens was purchasing the vehicle
on behalf of his mother. Moreover, nothing supports a claim that Josette
ever possessed the vehicle, delivered it to Evens, or could exercise a right
of mutual control over it. See, e.g., Smallich v. Westfall, 269 A.2d 476, 480
(Pa. 1970) (a bailment requires possession and delivery of the personalty
that is the subject of the bailment agreement); Tax Review Bd. v. Lou
Green, Inc., 187 A.2d 572, 574 (Pa. 1963) (joint venture requires a right of
mutual control). Although Josette allegedly provided money to Evens,
which he used to purchase the Ferrari, at most this makes Josette an
unsecured creditor and is insufficient to afford her standing. See 18
U.S.C. § 983(d)(6); United States v. $47,875.00 in U.S. Currency, 746 F.2d
291, 293–94 (5th Cir. 1984).
4. The forfeiture was not grossly disproportional to the offense and did not
violate the Excessive Fines Clause. Unlike United States v. Bajakajian,
524 U.S. 321, 118 S. Ct. 2028 (1998), the sole authority upon which the
Claudes rely, the value of the Ferrari, for which Evens paid $61,000, did
not exceed the maximum statutory fine for Evens’ offenses ($250,000 for
each count). Bajakajian is therefore insufficient by itself as support for
the claim that the forfeiture here was disproportional. See United States
v. $78,882.00 in U.S. Currency, 464 F. App’x 382, 384 (5th Cir. 2012).
AFFIRMED.
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