### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-20780 Summary Calendar

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 C laude and his mother Joset t e C l a u de appeal the district court’s civil forfeiture order of a 2 004 Ferrari 360 Modeno that was purchased by Evens. Evens was convicted of conspiracy and uttering c o u n t e r f eit o bligations and U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Nov em ber 7, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-20780 Document: 00512433465 Page: 1 Date Filed: 11/07/2013No. 12-20780

securities, in violation of 18 U.S.C. §§ 371 and 472. The district court found after

a hearing that t he Ferrari was used to transport the counterfeit money and was therefore subject to f

orfeiture pursuant to 4 9 U.S.C. § 80303. We affirm for the following reasons: 1. The Government established a “ s u b stantial connection between” the vehicle a n d Evens C laude’s offense with circumstantial evidence that Evens transported the counterfeit money in t he vehicle. Se e 1 8 U.S.C. § 9 8 3 (c)(3), 49 U .S.C. § 80302(b). The record s howed that Evens Claude

was known to pass the same t ype of counterfeit bills in Philadelphia and that he traveled from Philadelphia to Houston. He then p u r c hased the Ferrari and drove i t, a long with Steven Montrose, to the Galleria. Evens and Montrose were b oth found at t he Galleria in possession of counterfeit bills. Evens had ninety-eight counterfeit $100 bills o n his p e r s o n , and Montrose had nine other counterfeit bills on him. A Secret Service agent testified t hat t h e video surveillance at the Galleria did not show Evens obtaining the counterfeit money t here. It was n ot error f or the district court to find, based on a prepond e r ance of t he e vidence, that Evens transported the counterfeit money in t he Ferrari. See 18 U.S.C. § 983(c)(1) (“[T]he b u rden of proof is on the G overnment to establish, by a preponderance of the e vidence, that t h e property is subject to forfeiture.”). 2. T here is no merit to the argument t hat the Government lacked probable cause to seize the vehicle or t hat the complaint was not prepared by and b ased on p ersonal knowledge of the case agent. The record shows that both Evens and Montrose told Secret S ervice agents that t he two men drove to the G all e r i a i n the Ferrari. The case agent s igned a sworn statement averring t o the f a cts. Se e U

n ited States v. Melrose East Subdivision , 357 F.3d 493, 505–07 (5th C ir. 2 004) (examining probable cause based on the totality of circumstances and a common sense view).

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3. The district court d id not err by holding that Josette Claude lacked standing to challenge the forfeiture of the vehicle, and that t h ere was no bailment or joint venture under controlli n g P ennsylvania 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 p e rson listed as the buyer on the invoice, and the seller indicated by affidavit that Evens

never mentioned his mother while purchasing t he vehicle. Nothing in the record suggests that at the t ime of sale Evens was purchasing the vehicle

on behalf of h is mother. Moreover, nothing supports a claim that Josette

ever possessed the vehicle, delivered it t o Evens, or could exercise a right of mutual control over it. See, e.g., Smallich v. Westfall , 269 A.2d 4 76, 480 (Pa. 1970) (a bailment r equires possession and delivery of the personalty that is t he subje c t o f t h e bailment agreement); Tax Review Bd. v. Lou Green, Inc. , 187 A.2d 572, 574 (Pa. 1 963) (joint v enture r equires a right of mutual control). Although Josette allegedly provided money t o Evens, which he used to purchase the Ferrari, at mos t t h i s m a kes J osette an unsecured creditor and is insufficien t to afford h er standing. See 18 U.S.C. § 983(d)(6); United S tates v. $ 47,875.00 i n 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. U n like United States v. Bajakajian, 524 U.S. 321, 118 S

. C t

. 2 0 28 (1998), the sole authority upon which the Claudes rely, the v alue 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 b y i t s e l f 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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