Case: 12-20780       Document: 00512433465         Page: 1     Date Filed: 11/07/2013




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

                                                                            FILED
                                                                         November 7, 2013

                                     No. 12-20780                          Lyle W. Cayce
                                   Summary Calendar                             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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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, 

, 505–07 (5th Cir. 2004) (examining probable
      cause based on the totality of circumstances and a common sense view).

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                                No. 12-20780

    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, 

, 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., 

, 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, 

, 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,
    

, 

(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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