United States of America et al v. Real Property Located in Ontario, California (Canillas)

Filing 18

CONSENT JUDGMENT OF FORFEITURE by Judge Virginia A. Phillips ( MD JS-6. Case Terminated ) (am)

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1 ANDRÉ BIROTTE JR. 2 United States Attorney ROBERT E. DUGDALE Assistant United States Attorney Chief, Criminal Division STEVEN R. WELK Assistant United States Attorney Chief, Asset Forfeiture Section P. GREG PARHAM Assistant United States Attorney California Bar Number 140310 Federal Courthouse, 14th Floor 312 North Spring Street Los Angeles, California 90012 Telephone: (213) 894-6528 Facsimile: (213) 894-7177 E-mail: Greg.Parham@usdoj.gov 3 4 5 6 7 8 9 10 11 12 JS-6 Attorneys for Plaintiff United States of America 13 UNITED STATES DISTRICT COURT 14 FOR THE CENTRAL DISTRICT OF CALIFORNIA 15 EASTERN DIVISION 16 UNITED STATES OF AMERICA, 17 18 19 20 21 22 23 24 25 26 ) ED CV 11-1608 VAP(SPx) ) Plaintiff, ) ) CONSENT JUDGMENT OF FORFEITURE vs. ) ) REAL PROPERTY LOCATED IN ) ONTARIO, CA, (CANILLAS), ) ) Defendant. ) ) _______________________________ ) MARIANO CANILLAS, LINDA ) GAUKLER, JOHN GAUKLER, DONNA ) SMITH AND JODIE SMITH, ) ) Claimants. ) ) ) ) 27 28 1 1 This action was filed on October 6, 2011. Notice was given 2 and published in accordance with law. 3 Mariano Canillas (“Canillas”) filed a claim on December 13, 4 2011. 5 (“the Gauklers”), and Donna Smith and Jodie Smith (“the Smiths”) 6 filed claims on December 13, 2011. 7 have been filed, and the time for filing claims and answers has 8 expired. 9 Canillas, the Gauklers and the Smiths have reached an agreement 10 that, without further litigation and without an admission of any 11 wrongdoing, is dispositive of the government’s claims against 12 this property, and hereby request that the Court enter this 13 Consent Judgment of Forfeiture. Claimant and titleholder Claimants and lien holders Linda Gaukler and John Gaukler No other claims or answers Plaintiff United States of America (“the government”), 14 WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED: 15 1. As used throughout, the following terms shall have the 16 following meaning: 17 defendant real property located at 5514 Mission Blvd., in 18 Ontario, California; (b) “claimants’ property” shall mean any 19 real property that Canillas, the Gauklers and the Smiths own, 20 maintain, control or manage, including, but not limited to, the 21 defendant property; and (c) “illegal purpose” shall mean any 22 purpose that furthers or facilitates the distribution or sale of 23 marijuana in violation of federal law, including, but not 24 limited to, renting space to a person or entity that sells or 25 distributes marijuana or the renting of space to or permitting 26 the continued tenancy of any person or entity that sells, 27 distributes or facilitates the sale or distribution of 28 marijuana. (a) “defendant property” shall mean the 2 1 2 3 2. This Court has jurisdiction over the parties to this judgment and the subject matter of this action. 3. On or about October 6, 2011, the government filed a 4 Complaint for Forfeiture pursuant to 21 U.S.C. § 881(a)(7) 5 against the defendant real property. 6 4. Canillas, the Gauklers and the Smiths filed claims to 7 the defendant property. 8 action. 9 5. No other claimant has appeared in this Notice of this action has been given in accordance 10 with law. 11 person other than Canillas, the Gauklers and the Smiths, the 12 Court deems that all other potential claimants admit the 13 allegations of the Complaint to be true. 14 valid claim for relief pursuant to 21 U.S.C. § 881(a)(7). 15 6. No appearances having been made in this action by any The Complaint states a Canillas shall retain possession of and title to the 16 defendant property, and in consideration thereof, Canillas, the 17 Gauklers and the Smiths agree to abide by the terms of this 18 Agreement. 19 property in accordance with the restrictions imposed by 20 paragraph 7 below. 21 to comply with any of the terms of paragraph 7, the interest of 22 the non-complying party or parties in the defendant property 23 shall be forfeited to the government pursuant to paragraph 8 24 below. 25 7. Canillas shall lawfully use and occupy the defendant If Canillas, the Gauklers or the Smiths fail Neither Canillas, the Gauklers nor the Smiths shall use 26 or occupy the defendant property, nor shall they allow the 27 defendant property to be used or occupied, for any illegal 28 purpose. Each of Canillas, the Gauklers and the Smiths shall 3 1 take all reasonable precautions to prevent any destruction to or 2 diminution in value of the defendant property and any fixtures 3 thereto. 4 knowingly rent, lease or otherwise allow the use or occupancy of 5 any of claimants’ property to (a) any former tenant who used or 6 occupied any of claimants’ property for any illegal purpose; or 7 (b) any person Canillas, the Gauklers or the Smiths have reason 8 to believe may use or occupy the claimants’ property for any 9 illegal purpose. None of Canillas, the Gauklers or the Smiths shall Neither Canillas, the Gauklers nor the Smiths 10 shall knowingly allow any of the claimants’ property to be 11 listed in any advertisement, publication, directory or internet 12 site which advertises or indicates that marijuana is available 13 at the location of the claimants’ property.1 14 8. In the event that any of Canillas, the Gauklers or the 15 Smiths fail to comply with any of the terms of paragraph 7 of 16 this Consent Judgment during the four (4) year period following 17 the entry of this judgment, the entirety of each non-complying 18 claimant’s interest in the defendant property shall be ordered 19 condemned and forfeited to the United States. 20 forfeiture, the San Bernardino County Recorder shall index this 21 Judgment in the grantor index under the name of Canillas and in 22 the grantee index in the name of the United States of America. 23 If the government believes that Canillas, the Gauklers or the 24 Smiths have failed to comply with any provision of paragraph 7, 25 it shall provide written notice of such failure to Canillas, the 26 Gauklers and the Smiths (as well as their respective undersigned In the event of 27 1 28 The government and claimants are currently informed and believe that there is no location of any claimants’ property currently listed in any such publications. 4 1 counsel), describing the provision believed to have been 2 violated. 3 fifteen (15) days from its receipt of such notice to cure the 4 violation. 5 period, the government shall file a Notice of Non-Compliance and 6 Forfeiture with the Court, setting out the violation and the 7 failure of Canillas, the Gauklers or the Smiths to timely cure 8 the violation. 9 have fifteen (15) court days from the filing of the Notice to Canillas, the Gauklers and/or the Smiths shall have If the violation is not cured within the 15-day Canillas, the Gauklers and/or the Smiths shall 10 seek relief from forfeiture. 11 government shall take no further action until the motion has 12 been determined. 13 defendant property shall be forfeited to the United States on 14 the sixteenth (16th) day after the filing of the Notice of Non- 15 Compliance and Forfeiture, unless the Court orders otherwise. 16 Upon forfeiture under the terms of this paragraph, the 17 government shall have the right to take possession of the 18 defendant property without further order of the Court, and the 19 United States Marshals Service, or its representatives, shall, 20 without further order of the Court, proceed to take physical 21 possession of the defendant property and its fixtures, and may 22 evict any and all persons, pets, livestock, and personal 23 property from the defendant property as it deems necessary or 24 appropriate. 25 accompanied by a "filed"-stamped copy of a Notice of 26 Noncompliance and Forfeiture and/or order of the Court, shall be 27 sufficient to establish the forfeiture of the defendant 28 property. If such a motion is filed, the If no such motion is timely filed, the A "filed"-stamped copy of this Consent Judgment In the event that the defendant property is forfeited 5 1 to the government, Canillas, the Gauklers and the Smiths agree 2 that the United States Marshals Service may proceed to sell the 3 defendant property. 4 Service, or its representatives, shall promptly proceed to 5 dispose of the defendant property and to distribute any proceeds 6 from the sale in accordance with the law. 7 9. Thereafter, the United States Marshals Upon the filing of this Consent Judgment, the United 8 States Marshals Service, or its representatives, shall be 9 allowed to enter the defendant property for purposes of 10 inspection and inventory. 11 Canillas, the Gauklers and the Smiths at a reasonable time to be 12 agreed upon by the parties. 13 government may apply to the Court for a writ of entry for 14 purposes of protecting the government's interests in the 15 defendant property, in connection with which Canillas, the 16 Gauklers or the Smiths may request a hearing. 17 10. Such entry shall be permitted by Absent such agreement, the Canillas, the Gauklers and the Smiths have released 18 the United States of America, its agencies, agents, and 19 officers, including, without limitation, employees and other 20 representatives of the Drug Enforcement Administration, from any 21 and all claims, defenses, actions, or liabilities arising out of 22 or related to this action against the defendant real property, 23 including, without limitation, any and all claims for attorneys' 24 fees, costs or interest which may be asserted by them or on 25 their behalf. 26 11. 27 The Court finds that there was reasonable cause for the initiation of this action, and this Consent Judgment shall 28 6 1 be construed as a certificate of reasonable cause pursuant to 28 2 U.S.C. § 2465. 3 12. 4 5 6 The parties shall each bear their own costs and attorneys' fees in this action. 13. The Court shall retain jurisdiction over this matter to enforce the provisions of this Consent Judgment. 7 8 Dated: March 15, 2012 9 _ THE HONORABLE VIRGINIA A. PHILLIPS UNITED STATES DISTRICT JUDGE 10 11 Approved as to form and content: 12 DATED: March 14, 2012 13 14 15 ANDRÉ BIROTTE JR. United States Attorney ROBERT E. DUGDALE Assistant United States Attorney Chief, Criminal Division /s/ P. Greg Parham STEVEN R. WELK Assistant United States Attorney Chief, Asset Forfeiture Section P. GREG PARHAM Assistant United States Attorney 16 17 18 19 Attorneys for Plaintiff United States of America 20 21 DATED: March 14, 2012 /s/ Jacek W. Lentz JACEK W. LENTZ Attorney for Claimants Mariano Canillas, Linda Gaukler, John Gaukler, Donna Smith and Jodie Smith DATED: March 14, 2012 /s/ Mariano Canillas MARIANO CANILLAS Claimant and Titleholder DATED: March 9, 2012 /s/ Linda Gaukler LINDA GAUKLER Claimant and Lienholder 22 23 24 25 26 27 28 7 1 DATED: March 9, 2012 /s/ John Gaukler JOHN GAUKLER Claimant and Lienholder DATED: March 10, 2012 /s/ Donna Smith DONNA SMITH Claimant and Lienholder DATED: March 10, 2012 /s/ Jodie Smith JODIE SMITH Claimant and Lienholder 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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