14. Joseph Messino reported gross income of $ 2,520 in 1989 and $ 9,018 in 1990.
15. Joseph Messino's claim in the civil forfeiture proceeding, Michelle's Lounge, did not state an interest in or identify any of the improvements to the Corvette that he now claims in this proceeding.
16. In his claim in the civil forfeiture proceeding, and initially in the proceeding before this court, Joseph Messino claimed a one-half interest in the Corvette.
17. Joseph Messino's sworn petition filed in this proceeding on October 18, 1995, states that the improvements he made to the Corvette consisted of a teak steering wheel that he purchased for approximately $ 1,700 and a set of custom wheels that he purchased for approximately $ 2,500, for a total of $ 4,200 in improvements.
18. Joseph Messino now claims that he made $ 4,500 in improvements to the Corvette.
19. Joseph Messino's sworn petition filed in this proceeding on October 18, 1995, states that he contributed to the purchase price of the Corvette.
20. Joseph Messino testified on his own behalf regarding the motorcycle at the February 12, 1996, hearing before this court.
21. Rod Saboury, who sold the Corvette to Clement Messino, testified at the criminal trial of Clement and Christopher Richard Messino.
22. Joseph Messino was not a wholly credible witness. The court doubts the portion of Joseph Messino's testimony in the February 12, 1996, hearing before this court about how he came up with the money to buy almost $ 6,300 worth of components for the Corvette. Joseph Messino claims that by February 1991, he had earned over $ 8,000 from work and had given the money to his father to keep for him. However, he also claims that he used the money to pay his father back for the Sturgis motorcycle. Thus, according to Joseph Messino, he bought about $ 14,300 worth of goods with his own money, but only had about $ 8,000.
The court also notes that Joseph Messino several times has changed his claim, from an interest in the car itself to merely the improvements he allegedly made to the car. Moreover, Joseph Messino several times has changed his claim as to the cost of the improvements.
The court finds that Joseph Messino's own testimony in the hearing before this court suffers from contradictions. The court also finds that Joseph Messino's testimony in the proceeding before this court is inconsistent with his testimony before the court in Michelle's Lounge. The court finds further that Joseph Messino's testimony in the hearing before this court is inconsistent with his written claim for the Corvette.
23. Rod Saboury did not testify at the recent forfeiture hearing before this court, and the court was not the trier of fact in the criminal trial. Therefore, this court is not able to judge the credibility of this witness. However, the Court notes that the trier of fact at the criminal trial, the jury, returned a special verdict of forfeiture against the Corvette based on the testimony of this witness. Thus, the inference is that the jury found the witness credible. The court also notes that the witness seems to be a disinterested one, with nothing at stake to induce him to testify falsely.
B. CONCLUSIONS OF LAW
1. In addition to the testimony and evidence presented at the February 12, 1996, hearing before the court, the court shall consider the relevant portions of the record of the criminal case that resulted in the order of forfeiture against the Corvette. 21 U.S.C. § 853(n)(5).
2. In order for claimant Joseph Messino to succeed on his claim for the Corvette, he must establish by a preponderance of the evidence that he has a legal right, title, or interest in the Corvette, and that his right, title, or interest renders the order of forfeiture for the Corvette invalid in whole or in part, because the right, title, or interest was vested in Joseph Messino rather than in Clement Messino or was superior to any right, title, or interest of Clement Messino at the time of the commission of the acts that gave rise to the forfeiture of the Corvette. See 21 U.S.C. § 853(n)(6)(A).
3. Claimant Joseph Messino has failed to meet the foregoing burden, and therefore has not established that he has a right to a 19.15 percent interest in the Corvette.
Joseph Messino's claim to a 19.15 percent interest in the 1963 Chevrolet Corvette is denied.
Date: MAR 11 1996
JAMES H. ALESIA
United States District Judge