United States of America v. Approximately $35,900.00 in U.S. Currency et al

Filing 28

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Ex Parte Application for Default Judgment and Final Judgment of Forfeiture be Granted, 26 . Matter referred to Judge O'Neill. Objections to F&R due within fourteen (14) days of service of this recommendation; signed by Magistrate Judge Sheila K. Oberto on 10/24/2017. (Timken, A)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 UNITED STATES OF AMERICA, CASE NO. 1:12-cv-00254-LJO-SKO 9 Plaintiff, 10 FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S EX PARTE APPLICATION FOR DEFAULT JUDGMENT AND FINAL JUDGMENT OF FORFEITURE BE GRANTED v. 11 12 13 APPROXIMATELY $35,900.00 IN U.S. CURRENCY, et al. Defendants. 14 (Doc. 26) 15 16 OBJECTIONS DUE WITHIN 14 DAYS _________________________________/ 17 18 I. INTRODUCTION 19 In this in rem civil forfeiture action, Plaintiff United States of America (the 20 “Government” or “Plaintiff”) filed an Ex Parte Application for Default Judgment and Final 21 Judgment of Forfeiture (the “Application”) seeking entry of a default judgment against the 22 interests of Mark Bagdasarian, Maureen Bagdasarian, and Ryan Bagdasarian and a final 23 judgment of forfeiture against all known and unknown potential claimants to the Approximately 24 $35,900.00 in U.S. Currency, Approximately $5,500.00 in U.S. Currency, Approximately 25 $3,125.00 in U.S. Currency, and Approximately $5,772.08 in U.S. Currency seized from Union 26 Bank account number 1540018207 (collectively the “Defendant Funds”). No opposition to the 27 Application has been filed, and the time to file an opposition has expired. The Court reviewed 28 1 1 the motion and supporting document and found the matter suitable for decision without 2 argument pursuant to Local Rule 230(g); thus the October 25, 2017, hearing was vacated. (Doc. 3 27.) For the reasons set forth below, the undersigned RECOMMENDS that the Government’s 4 Application be GRANTED. 5 II. FACTUAL BACKGROUND1 6 On February 22, 2012, the Government filed a verified complaint alleging that, in 2011, 7 the Drug Enforcement Administration and the Fresno County Sheriff’s Department initiated an 8 investigation into the illegal sales of marijuana at marijuana retail storefronts operating in 9 Fresno County, California. (Doc. 1 (“Compl.”) ¶ 7.) The investigation revealed Mark 10 Bagdasarian was the primary operator and Executive President of Buds 4 Life, a marijuana retail 11 business. (Id.) The investigation determined that Mark Bagdasarian, Ryan Bagdasarian, and 12 others involved with Buds 4 Life, were operating two “cash-only” marijuana retail storefronts: 13 one in Tarpey Village located at 3705 N. Clovis Avenue (hereafter “Buds 4 Life”), and one at 14 16906 Friant Road in Friant, California (hereafter “Buds 4 Life North”). Id. 15 In an interview with Mark Bagdasarian by law enforcement officers, Mr. Bagdasarian 16 admitted that he was the Executive President of Buds 4 Life, a marijuana retail store, and that he 17 established Buds 4 Life with his son, Ryan Bagdasarian. (Compl. ¶ 8.) Mark Bagdasarian 18 identified others involved with his business operations and admitted to the location of his indoor 19 warehouse marijuana cultivation operation. (Id.) Mark Bagdasarian admitted that at the end of 20 each day a portion of the marijuana sale proceeds were deposited in a safe located at 5777 E. 21 Shields Avenue but then were taken to his personal residence where he and his wife, Maureen 22 Bagdasarian re-counted the money. (Id.) Mark Bagdasarian estimated that between February 23 and May 2011, he took home an average of $30,000 to $50,000 per day of marijuana sale 24 proceeds, and was fully aware that his business violated federal law. (Id.) 25 26 1 27 The facts set forth in this factual background section are taken from Plaintiff’s verified complaint filed February 22, 2012. (Doc. 1 (“Compl.”)) 28 2 1 On June 1, 2011, the Drug Enforcement Administration, Internal Revenue Service, 2 Fresno County Sheriff’s Department and other state, local, and federal law enforcement 3 agencies executed state search warrants at seven different locations associated with Buds 4 Life, 4 including: 3705 N. Clovis Avenue, 2675 Shirley, 6129 N. Mitre, 5771 and 5777 E. Shields 5 Avenue. (Compl. ¶ 9.) These searches resulted in the total seizure of approximately 99 6 kilograms of processed marijuana, 3,669 live marijuana plants, 309 grams of concentrated 7 cannabis, hundreds of units of edibles/drinks containing tetrahydrocannabinol (THC)2, over 8 $500,000 in U.S. currency, a Harley-Davison motorcycle, and a 2008 Toyota Scion automobile. 9 (Id.) 10 On October 4, 2011, the Fresno County Sheriff’s Department conducted a traffic stop on 11 Mark Bagdasarian. (Compl. ¶ 11.) Subsequent to the vehicle stop, a detective with the Fresno 12 County Sheriff’s Department utilized his narcotic-detecting canine “Tag” to conduct a sniff 13 search on the vehicle, which resulted in a positive alert for the presence of narcotics near the 14 rear exterior hatch, the interior center console, and front passenger floorboard. (Id.) During a 15 physical search of the vehicle, law enforcement located several small containers containing 16 174.3 gross grams of marijuana, and approximately $35,900.00 in U.S. currency. Id. “Tag” 17 also gave a positive alert to the presence of the odor of narcotics on the approximately 18 $35,900.00. (Id.) Law enforcement took Mark Bagdasarian into custody. (Id.) 19 Following his arrest, law enforcement executed a federal search warrant at Mark 20 Bagdasarian’s residence in Clovis, California. (Compl. ¶ 12.) 21 enforcement located miscellaneous documents, hash oil, Buds 4 Life documents, and three small 22 plastic bags containing marijuana, approximately $5,500.00 in U.S. currency, 4 plastic 23 containers of hashish, three large plastic bags containing processed marijuana, twelve small 24 plastic bags containing processed marijuana, and approximately 56 small plastic containers 25 containing hash oil. (Id.) In the attached garage, law enforcement officers located a makeshift 26 27 2 Tetrahydrocannabinol is the physiologically active component in cannabis. 28 3 Within the residence, law 1 room, which contained marijuana leaves and stems, two large plastic bags with processed 2 marijuana, THC analysis lab reports and marijuana edibles such as peanut butter cups, cookies, 3 drinks, and sauces. (Id. ¶ 13.) 4 On October 4, 2011, law enforcement members of the Drug Enforcement 5 Administration, Internal Revenue Service, and the Fresno County Sheriff’s Department 6 executed a federal search warrant at Buds 4 Life North located at 16906 N. Friant Road, Friant, 7 California. (Compl. ¶ 14.) During the search of Buds 4 Life North, law enforcement officers 8 located and seized approximately 25.25 pounds of processed marijuana, approximately 139 9 bottles of THC beverages, approximately 222.64 pounds of THC edibles, approximately 1.93 10 pounds of THC Joint/Muscle Rub, approximately 0.53 pounds of marijuana hash, approximately 11 37.17 pounds of THC ice cream, approximately 3.17 pounds of THC oil, approximately 2.75 12 pounds of marijuana plants, multiple loaded firearms, miscellaneous Buds 4 Life documents, 13 and approximately $3,125.00 in U.S. currency. (Id. ¶ 15.) The narcotics-detecting canine “Tag” 14 gave a positive alert to the presence of the odor of narcotics on the seized currency. (Id.) Law 15 enforcement arrested Ryan Bagdasarian at his residence in Clovis, California in connection with 16 this case. (Id. ¶ 16.) 17 On or about October 6, 2011, approximately $5,772.08 was seized from Union Bank 18 account number 1540018207, held in the name of Mark Bagdasarian pursuant to a seizure 19 warrant executed on June 1, 2011. (Compl. ¶ 22.) Other than a record associated with Buds 4 20 Life, the California Employment Development Department has no record of employment or 21 wages for the fourth quarter of 2010 through the reporting period in 2011 for either Mark 22 Bagdasarian or Ryan Bagdasarian. (Id. ¶ 23.) 23 III. PROCEDURAL BACKGROUND 24 On October 13, 2011, a Grand Jury in the Eastern District of California indicted Mark 25 Bagdasarian and Ryan Bagdasarian, for narcotics violations of 21 U.S.C. §§ 841(a)(1) and 846, 26 and other related charges. (Compl. ¶ 24.) On February 22, 2012, the Government filed a civil 27 action for forfeiture in rem pursuant to 21 U.S.C. § 881(a)(6) of the Defendant Funds. (See 28 4 1 Doc. 1). Based on the allegations set forth in the Complaint, the Clerk of the Court issued a 2 Warrant for Arrest of Articles In Rem for the Defendant Funds. (Doc. 6.) The United States 3 Marshals Service executed the Warrant for Arrest on the Defendant Funds on March 7, 2012. 4 (See Doc. 8.) 5 The Government published public notice of the action and the arrest of the Defendant 6 Funds via the official internet government forfeiture site www.forfeiture.gov for at least 30 7 consecutive days. (See Doc. 15.) Publication in a manner consistent with Local Rule 500(d) via 8 Supplemental Rule G(4)(a) of the Supplemental Rules for Admiralty or Maritime Claims and 9 Asset Forfeiture Actions (hereafter “Supplemental Rules”) was made beginning May 2, 2012, 10 and proof of such publication was filed with the Court on June 6, 2012. (See id.) The United 11 States also caused notice to be delivered to various individuals with a suspected potential 12 interest in the Defendant Funds in a manner reasonably likely to reach them, as follows: On 13 March 6, 2012, the United States served Ryan Bagdasarian with notice of this action. (See Doc. 14 12-1, Declaration of Autumn Magee in Support of Request to Clerk for Entry of Default against 15 Ryan Bagdasarian (“Magee Decl.”) ¶ 5.) On March 6, 2012, the United States served Mark 16 Bagdasarian and Maureen Bagdasarian with notice of this action. (See Doc. 24-1, Declaration 17 of Elisa Rodriguez in Support of Request to Clerk for Entry of Default against Mark 18 Bagdasarian and Maureen Bagdasarian (“Rodriguez Decl.”) ¶¶ 5–6.) On March 6, 2012, the 19 United States served Anthony P. Capozzi, Esq., defense counsel for Mark Bagdasarian and 20 Ryan Bagdasarian in the related criminal case, United States v. Mark Bagdasarian, et al., 1:11- 21 CR-00352-LJO, with notice of this action. (Id. ¶ 7.) 22 On April 10, 2012, Mark Bagdasarian and Maureen Bagdasarian filed their claim to the 23 Defendant Funds. (Doc. 9.) Mark Bagdasarian and Maureen Bagdasarian filed their answer to 24 the complaint for forfeiture on May 2, 2012. (Doc. 11.) On May 11, 2012, pursuant to Rule 25 55(a) of the Federal Rules of Civil Procedure, the Clerk of Court entered default against Ryan 26 Bagdasarian. (Doc. 13.) 27 28 5 1 On June 5, 2017, the criminal case of United States v. Mark Bagdasarian, et al., 1:11- 2 CR-00352-LJO, resolved with Ryan Bagdasarian’s guilty plea to Possession of Marijuana with 3 the Intent to Distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D), and Mark 4 Bagdasarian’s guilty plea to a violation of 18 U.S.C. § 1956(a)(1)(B)(i) – Money Laundering. 5 (See Doc. 26 at 4:21–24.) 6 That same day, on June 5, 2017, Maureen Bagdasarian filed her withdrawal of claim and 7 answer. (Doc. 21.) Mark Bagdasarian filed his withdrawal of claim and answer on June 7, 8 2017. (Doc. 22.) On September 21, 2017, the Clerk of Court entered default against Mark 9 Bagdasarian and Maureen Bagdasarian. (Doc. 25.) The Government filed the present 10 Application for default judgment and final judgment of forfeiture on September 25, 2017. (Doc. 11 26.) No opposition has been filed to the Government’s Application. 12 IV. DISCUSSION 13 1. 14 The Government seeks judgment against the interests of Mark Bagdasarian, Maureen 15 Bagdasarian, and Ryan Bagdasarian, and also seeks final judgment of forfeiture against all other 16 unknown potential claimants. The Supplemental Rules themselves do not provide a procedure 17 to seek default judgment in an action in rem. However, Supplemental Rule A provides: “The 18 Federal Rules of Civil Procedure also apply to the foregoing proceedings except to the extent 19 that they are inconsistent with these Supplemental Rules.” 20 21 Legal Standard Federal Rule of Civil Procedure 55(b)(2) provides that a court has discretion to enter default judgment against a party and provides as follows: 22 23 24 25 26 27 (2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals— preserving any federal statutory right to a jury trial—when, to enter or effectuate 28 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter. Fed. R. Civ. P. 55(b)(2). In considering whether to enter default judgment, courts consider the following factors: (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff’s substantive claim; (3) the sufficiency of the compliant; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy of favoring decision on the merits. Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). Upon default, the well-pleaded allegations of the complaint relating to liability are taken as true. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917–918 (9th Cir. 1987); United States v. Approximately $30,000.00 in U.S. Currency, No. 1:13–cv–1542 GSA, 2015 WL 5097707, at *5 (E.D. Cal. Aug. 28, 2015). Accord Dundee Cement Co. v. Highway Pipe & Concrete Products, Inc., 722 F.2d 1319, 1323 (7th Cir. 1983). In the context of an in rem forfeiture action, a court considering default judgment should also consider the procedural requirements set forth by the Civil Asset Forfeiture Reform Act of 2000, 18 U.S.C. § 983; the Supplemental Rules; and the Court’s Local Rules for Admiralty and in rem actions. See United States v. $191,910.00, 16 F.3d 1051, 1069 (9th Cir. 1994) (explaining that, because civil forfeiture is a “harsh and oppressive procedure which is not favored by the courts,” the Government carries the burden of demonstrating its strict adherence to procedural rules), superseded by statute on other grounds. 2. Procedural Requirements 22 a. 23 24 25 26 Sufficiency of the Complaint Pursuant to the Supplemental Rules, the Government must file a verified complaint that states the grounds for jurisdiction and venue, describes the property being forfeited, identifies the statute under which the forfeiture action is brought, and includes sufficient factual detail to support a reasonable belief that the Government will be able to meet its burden of proof at trial. 27 28 7 1 Fed. R. Civ. P. Supp. R. G(2). With regard to the sufficiency of the factual detail of the verified 2 complaint, the Government is not required to show a direct relationship between the proceeds of 3 a drug crime and a specific drug transaction. Rather, circumstantial evidence may support the 4 forfeiture of the proceeds of a drug crime. See United States v. $30,670.00, 403 F.3d 448, 467– 5 70 (7th Cir. 2005) (concluding that the totality of the circumstances demonstrated that an airline 6 passenger’s cash hoard was connected to drug trafficking and subject to forfeiture); United 7 States v. $242,484.00, 389 F.3d 1149, 1160 (11th Cir. 2004) (applying totality of the 8 circumstances to determine that cash carried by airline passenger was the proceeds of, or 9 traceable to, an illegal drug transaction); Approximately $30,000.00 in U.S. Currency, 2015 WL 10 5097707, at *6. 11 Here, the Government contends that the verified complaint establishes circumstantial 12 evidence that the Defendant Funds were furnished or intended to be furnished in exchange for a 13 controlled substance or listed chemical and is subject to forfeiture pursuant to 21 U.S.C. § 14 881(a)(6). (See Doc. 26 at 6:11–16.) Pursuant to Section 881, the following is subject to 15 forfeiture to the United States: 16 17 18 19 20 (6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter. 21 U.S.C. § 881(a)(6). 21 The allegations of the Government’s verified complaint provide sufficient circumstantial 22 evidence to reasonably believe that the Defendant Funds constitute “moneys” furnished or 23 intended to be furnished in exchange for a controlled substance or was used or intended to be 24 used to facilitate one or more violations of 21 U.S.C. § 841, et seq. The Defendant Funds were 25 seized from Mark Bagdasarian’s residence and accounts directly associated with two dispensary 26 locations called Buds 4 Life and Buds 4 Life North, run and operated by Mark Bagdasarian and 27 28 8 1 Ryan Bagdasarian. (Compl. ¶¶ 12, 15, 22.) The Defendant Funds were derived from the sales 2 of marijuana at the dispensary locations. (Id. ¶¶ 8, 20.) Further, a drug-detecting canine alerted 3 to the presence of the odor of narcotics on the Defendant Funds. (Id. ¶¶ 11, 15.) 4 “In the absence of assertion of interests in the Defendant [Funds], the Court will not 5 question the facts supporting its forfeiture . . . .” Approximately $30,000.00 in U.S. Currency, 6 2015 WL 5097707, at *6. The Court therefore finds that the facts, as alleged, provide a 7 sufficient connection between the Defendant Funds and illegal drug activity to support a 8 forfeiture. 9 b. Notice by Publication 10 Subject to certain exceptions not present here, the Supplemental Rules require the 11 Government to publish notice of the forfeiture in a manner that is reasonably calculated to notify 12 potential claimants of the action. Fed. R. Civ. P. Supp. R. G(4)(a)(iv). The content of the notice 13 must describe the property with reasonable particularity, state the times to file a claim and to 14 answer the complaint, and identify the name of the Government attorney to be served with the 15 claim and answer. Fed. R. Civ. P. Supp. R. G(4)(a)(ii)(A)–(C). This notice requirement may be 16 satisfied by posting a notice on an official internet government forfeiture site for at least 30 17 consecutive days. Fed. R. Civ. P. Supp. R. G(4)(a)(iv)(C). 18 Here, publication occurred on the official internet government forfeiture site 19 (www.forfeiture.gov) for 30 consecutive days. (Doc. 15.) The Government filed a Declaration 20 of Publication stating that notice had been created and published on the forfeiture website for 30 21 days, beginning on May 2, 2012. (Id.) A copy of the notice was attached to the Declaration of 22 Publication, and it described the property with reasonable particularity by the amount of the 23 Defendant Funds. (Doc. 15 at 3.) The notice clearly stated the time requirements to file a claim 24 and an answer. (Id.) Further, the notice provided the name of the attorney to be served with any 25 claim and answer. (Id.) Thus, the Supplemental Rule’s notice-content requirements have been 26 satisfied. Fed. R. Civ. P. Supp. R. G(4)(ii)(A)–(C). Additionally, the notice was published for 27 28 9 1 30 consecutive days from May 2, 2012, through May 31, 2012, on the forfeiture website, which 2 satisfies the Supplemental Rule’s notice requirements with regard to frequency and means. 3 (Doc. 15 at 4.) 4 c. Personal Notice 5 When the Government knows the identity of the property owner, the Due Process Clause 6 of the Fifth Amendment requires “the Government to make a greater effort to give him notice 7 than otherwise would be mandated.” United States v. Real Property, 135 F.3d 1312, 1315 (9th 8 Cir. 1998). In such cases, the Government must attempt to provide notice by means reasonably 9 calculated under all circumstances to apprise the owner of the pendency of the forfeiture action. 10 Dusenbery v. United States, 534 U.S. 161, 168 (2002); see also Fed. R. Civ. P. Supp. R. 11 G(4)(b). “Reasonable notice, however, requires only that the [G]overnment attempt to provide 12 actual notice; it does not require that the [G]overnment demonstrate that it was successful in 13 providing actual notice.” Mesa Valderrama v. United States 417 F.3d 1189, 1197 (11th Cir. 14 2005); Real Property, 135 F.3d at 1316. 15 The Supplemental Rules indicate that the Government must send notice of the forfeiture 16 action “to any person who reasonably appears to be a potential claimant on the facts known to 17 the government.” Fed. R. Civ. P. Supp. R. G(4)(b)(i). The notice must include the following 18 information: the date when the notice is sent; a deadline for filing a claim that is at least 35 days 19 after the notice is sent; that an answer or a motion under Rule 12 must be filed no later than 21 20 days after filing the claim; and the name of the government attorney to be served with the claim 21 and answer. Id. Here, the Government provided notice of the forfeiture action by mailing 22 copies of the required documentation, via both certified and first class mail, to Ryan 23 Bagdasarian at his last known address, and a signed certified mail receipt was received by the 24 Government. (See Magee Decl. ¶ 5 and Ex. A.) The Government mailed copies of the required 25 documentation, via both certified and first class mail, to Mark Bagdasarian and Maureen 26 Bagdasarian at their last known address, and signed certified mail receipts signed by Mark 27 28 10 1 Bagdasarian were received by the Government. (See Rodriguez Decl. ¶¶ 5–6 and Exs. A & B.) 2 Mark Bagdasarian was also sent notice to his defense counsel. (See id. ¶ 7.) Therefore, 3 reasonable attempts at serving notice on the potential claimants were made. 4 d. The Time to File a Claim or an Answer 5 Pursuant to the Supplemental Rules, any person who asserts an interest in or a right in a 6 forfeiture action must file a claim with the Court within the time specified by the direct notice. 7 Fed. R. Civ. P. Supp. G(4)(b)(ii)(B), (5)(a)(ii)(A). Failure to comply with the procedural 8 requirements for opposing the forfeiture precludes a person from establishing standing in the 9 forfeiture proceeding. Real Property, 135 F.3d at 1317. 10 Here, more than 30 days have passed since the completion of publication, and more than 11 35 days have passed since the date that the known potential claimants were provided direct 12 notice of the Government’s complaint in this action. Accordingly, the time to file a claim has 13 expired, and pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, the Clerk of the 14 Court properly entered defaults against Ryan Bagdasarian, Mark Bagdasarian, and Maureen 15 Bagdasarian.3 16 e. Conclusion 17 The Court finds that the Government has met the procedural requirements applicable to 18 civil in rem forfeiture actions as set forth in 18 U.S.C. § 983, the Supplemental Rules, and the 19 Local Rules for the U.S. District Court for the Eastern District of California. This favors the 20 entry of default judgment and the issuance of a final judgment in forfeiture to vest in the United 21 States all right, title, and interest in the Defendant Funds. 22 3. 23 Beyond satisfaction of the procedural requirements, the discretionary Eitel factors 24 outlined by the Ninth Circuit also favor granting the Government’s motion for default judgment. Discretionary Eitel Factors 25 26 3 27 Mark Bagdasarian and Maureen Bagdasarian timely filed their claim and answer, but they have been withdrawn. (See Docs. 21 & 22.) 28 11 1 First, the Government would be prejudiced by the denial of its motion, spending additional time 2 and effort litigating an action in which claimants have withdrawn their claims. Second, the 3 Government’s claims appear to have merit. Third, as set forth above, the Government has 4 adhered to the procedural requirements of a forfeiture action in rem, including the filing of a 5 sufficient complaint. Fourth, the sum of money in dispute here is not substantial enough to 6 warrant the denial of the Government’s motion. See United States v. Approximately $88,029.00 7 in U.S. Currency, No. 1:16-cv-01548-DAD-BAM, 2017 WL 1273768, at *7 (E.D. Cal. Mar. 17, 8 2017) (deeming approximately $88,029.00 “not substantial enough to warrant denial” of the 9 government’s motion for default judgment). Fifth, there are no genuine disputed issues of 10 material fact. Sixth, it does not appear that the failure of any other claimant to answer is due to 11 excusable neglect. Finally, although merits-based decisions are always preferred, it is not 12 practical, where, as here, claimants have withdrawn their claims. Accordingly, there is no 13 impediment to default judgment sought by the Government and the Court will recommend that 14 the Application be granted. V. 15 CONCLUSION AND RECOMMENDATIONS 16 For the reasons discussed above, this Court RECOMMENDS that: 17 1. The Government’s Ex Parte Application for Entry of Default Judgment against 18 the interests of Mark Bagdasarian, Maureen Bagdasarian, and Ryan Bagdasarian (Doc. 26) be 19 GRANTED; 20 2. The Clerk of the Court enter a final judgment of forfeiture pursuant to 21 U.S.C. 21 § 881(a)(6), forfeiting all right, title, and interest in the Defendant Funds to the United States to 22 be disposed of according to law; and 23 3. Within ten (10) days of service of an order adopting these findings and 24 recommendations, the United States shall submit a proposed final judgment of forfeiture 25 consistent with the findings and recommendations and order adopting them. 26 27 28 12 1 These Findings and Recommendations are submitted to the district judge assigned to this 2 action, pursuant to Title 28 of the United States Code § 636(b)(1)(B). Within fourteen (14) days 3 of service of this recommendation, any party may file written objections to these findings and 4 recommendations with the Court and serve a copy on all parties. Such a document should be 5 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district 6 judge will review the magistrate judge’s Findings and Recommendations pursuant to Title 28 of 7 the United States Code section 636(b)(1)(C). 8 objections within the specified time may waive the right to appeal the district judge’s order. 9 Wilkerson v. Wheeler, 772 F. 3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F. 2d 10 The parties are advised that failure to file 1391, 1394 (9th Cir. 1991)); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 12 13 IT IS SO ORDERED. Dated: October 24, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 .

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