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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 93-3803

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENE BADEAUX,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Louisiana

(December 22, 1994)
Before HIGGINBOTHAM, SMITH, and PARKER, Circuit Judges.
PER CURIAM:
A federal jury convicted Rene Badeaux of manufacturing
marijuana in violation of 21 U.S.C. § 841(a)(1) and of maintaining
his residence for the purpose of manufacturing marijuana in
violation of 21 U.S.C. § 856(a)(1). In addition to the
convictions, the jury returned a special verdict finding Badeaux's
residence subject to forfeiture pursuant to the government's notice
of forfeiture under 21 U.S.C. § 853(a)(2).
During the sentencing hearing, the court inquired as to
Badeaux's position on the government's motion to forfeit his
property. The following exchange occurred between the court,
counsel for the United States, and Badeaux's lawyer:

MR. BIZAL:
Your Honor, I was faxed a copy of [the
government's motion to forfeit] yesterday, and
I have had a chance to look at it. I don't
think that there is any question under the
existing law that you have no choice but to
forfeit it. What I would like to do is
reserve Mr. Badeaux's right to argue that it
is a disportionate [sic] taking.
And I am not sure, under the most recent
Supreme Court case that came down, if I have
to do that prior to the court ordering the
forfeiture, or if that is an issue purely to
be brought up on appeal. I don't know if I
need to reserve my right to bring that up on
appeal prior to the order being directed.
THE COURT:
Why don't we leave it this way? There
certainly is no great urgency from the
Government's standpoint. Even if they said
they [sic] were, I would say there is not, and
I'm sure you wouldn't say there is.
MR. EIG:
No.
THE COURT:
I will give you until Monday, but don't go
past that to respond one way or another to me:
"Yes," you have something to submit, or "No,"
you don't. If you have something, submit it.
No filing was made by Badeaux or his lawyer in opposition to the
motion to forfeit. The district judge concluded that § 853(a)
required him to order the forfeiture. Accordingly, on November 8,
1993, an order of forfeiture was entered and the house was seized.
Badeaux claims that the district court erred by failing to
determine whether the forfeiture of his residence violated the
Eighth Amendment's prohibition against excessive fines. However,
as the above exchange and Badeaux's subsequent inaction
demonstrate, Badeaux failed to properly preserve error on the
issue. Moreover, this is not a case of plain error since this
circuit has yet to articulate a method of inquiry or even a test
2

for determining whether a criminal forfeiture is excessive. See
United States v. Olano, 113 S. Ct. 1770, 1777 (1993) (error not
plain when law is uncertain); United States v. Calverley, 37 F.3d
160, 162-63 (5th Cir. 1994) (en banc) (same).
For these reasons the district court's order of forfeiture is
AFFIRMED.
3