United States v. Any & All Funds in USB AG, Account Number XXXX1138 ( 2016 )

Case: 15-50543 Document: 00513332520 Page: 1 Date Filed: 01/06/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50543 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
January 6, 2016
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Petitioner - Appellee
v.
ANY AND ALL FUNDS IN UBS AG, ACCOUNT NUMBER XXXX1138; ET
AL,
Respondents
FRANCISCO COLORADO CESSA,
Claimant - Appellant
v.
HAWKER BEECHCRAFT GLOBAL CUSTOMER SUPPORT, L.L.C., doing
business as Hawker Beechcraft Services,
Claimant - Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:13-CV-761
Before DAVIS, JONES, and GRAVES, Circuit Judges.
Case: 15-50543 Document: 00513332520 Page: 2 Date Filed: 01/06/2016
No. 15-50543
PER CURIAM:*
Claimant and Appellant, Francisco Colorado Cessa, filed his notice of
appeal contending that the district court abused its discretion in confirming
the interlocutory sale of a seized airplane. For the reasons described below, we
AFFIRM.
BACKGROUND
In August 2013, the government filed the present civil forfeiture action
against Cessa’s various assets. The civil forfeiture complaint rests upon and
incorporates the money laundering allegations contained in the criminal case
against Cessa. One of the assets that the government seeks to forfeit civilly is
a Hawker airplane―at issue in this appeal.
In December 2014, the government moved the district court under
Supplemental Rule G(7) of the Federal Rules of Civil Procedure for an
interlocutory sale of the Hawker airplane. The motion for sale was joined by
Hawker Beechcraft Global Customer Support, LLC (“HBS”) based on a
mechanic’s lien that it holds against the plane for $735.31 of unpaid storage
fees. The government included with its motion three appraisals of the plane
which were for $2,772,131.00, $3,242,600.00, and $4,135,000.00, respectively.
Thereafter, the government sought to sell the Hawker in a private sale to Road
Ranger LLC for $2,250,000.00. The government noted that the plane had
depreciated 14.5% between June 2012 and December 2014, and that it costs
about $1,700.00 per month to store the airplane. The district court approved
the sale. Cessa appeals the sale order. Specifically, Cessa contends that the
district court abused its discretion in confirming the interlocutory sale of the
* 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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seized airplane for more than $1.13 million below its purported fair market
value. Cessa argues that the sale will effectively transfer more than a million
dollars of his wealth to Road Ranger LLC. Moreover, he contends that the
government failed to prove depreciation and that the storage fees for the
airplane are a small percentage of its value.
STANDARD OF REVIEW
This court reviews the district court’s approval of the sale for abuse of
discretion. See United States v. Real Prop. & Residence located at 4816 Chaffey
Lane, 699 F.3d 956, 960 (6th Cir. 2012) (“When a district court exercises its
discretionary authority to act, we review that exercise for abuse of discretion.”).
“[T]he judge can range widely in deciding what factors to consider, and what
weight to give them, in making his ruling. He has, in other words, considerable
discretion, which implies a deferential standard of appellate review.” United
States v. Approximately 81,454 Cans of Baby Formula, 560 F.3d 638, 641 (7th
Cir. 2009).
ANALYSIS
Rule G(7)(b)(i) of the Supplemental Rules for Admiralty or Maritime
Claims and Asset Forfeiture Actions authorizes a court to order an
interlocutory sale of property when:
(A) the property is perishable or at risk of deterioration, decay, or
injury by being detained in custody pending the action; (B) the
expense of keeping the property is excessive or is disproportionate
to its fair market value; (C) the property is subject to a mortgage
or to taxes on which the owner is in default; or (D) the court finds
other good cause.
FED. R. CIV. P. SUPP. RULE G(7)(b)(i).
Here, the district court ordered the interlocutory sale of the Hawker
airplane after finding that the airplane was depreciating in value. Moreover,
the district court found that continued possession would result in excessive
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costs for maintenance and storage. The sale procedures were fair and the
government adequately publicized the sale. Accordingly, the district court
acted within its discretion to approve the sale. Although the sale is for less
than the appraisals which were between $2,772,131.00 and $4,135,000.00, it
cannot be found that the district judge acted unfairly or unreasonably.
The record on appeal supports the district court’s decision to sell the
Hawker airplane in order to avoid the loss in value from depreciation as well
as maintenance and storage costs. Therefore, the district court did not abuse
its discretion and its ruling is AFFIRMED.
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