are in conflict with earlier statements by Borowski to Special Agents John Sullivan and Michael Priess, and to the court presiding in the civil forfeiture proceeding United States v. Michelle's Lounge. The court also finds that portions of Borowski's testimony in the hearing are contradicted by testimony of other witnesses in the criminal trial, specifically about who owned the race car.
The court finds it highly unlikely that Dick Messino would enter into a contract to have a race car built, give it the name "Shake, Rattle & Run," which he exclusively owned, pay substantial sums of money towards the car, and then virtually give the car away after one racing season. For this reason, the court believes the purported racing agreement between Dick Messino and Borowski is a sham. The court notes that Borowski failed to mention the contract when questioned by Special Agent Sullivan on the day the race car was seized. He also failed to mention it to the judge in the civil forfeiture proceeding.
In sum, the court does not believe Borowski's version of the events surrounding the race car "Shake, Rattle & Run."
2. Special Agent John Sullivan was a credible witness. His testimony was unequivocal, straightforward, and consistent with that of Special Agent Michael Priess.
3. Special Agent Michael Priess was a credible witness. His testimony was unequivocal, straightforward, and consistent with that of Special Agent John Sullivan.
4. Kathy Lewis, Lou Trench, John Platek, Sam Delisi, and Jerry Haas did not testify at the February 12, 1996, hearing before this court, and this court was not the trier of fact at the criminal trial at which they testified. Thus, this court cannot make a credibility finding as to these witnesses. However, the court notes that the trier of fact at the criminal trial, the jury, returned a special verdict of forfeiture against the "Shake, Rattle & Run" race car based on the testimony of these witnesses. Thus, the inference is that the jury found these witnesses credible.
II. 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 race car. 21 U.S.C. § 853(n)(5).
2. In order for claimant Borowski to succeed on his claim for the race car, he must establish by a preponderance of the evidence that he has a legal right, title, or interest in the race car, and that his right, title, or interest renders the order of forfeiture for the race car invalid in whole or in part, because the right, title, or interest was vested in Borowski rather than in Christopher Richard or Clement Messino or was superior to any right, title, or interest of Christopher Richard or Clement Messino at the time of the commission of the acts that gave rise to the forfeiture of the race car. See 21 U.S.C. § 853(n)(6)(A).
3. Claimant Borowski has failed to meet the foregoing burden, and therefore has not established that he has a right to all or part of the race car called "Shake, Rattle & Run."
Claimant Ted Borowski's claim to the race car called "Shake, Rattle & Run" is denied.
Date: MAR 11 1996
JAMES H. ALESIA
United States District Judge
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