United States of America v. Approximately $129,707.00 in U.S. Currency et al

Filing 21

ORDER signed by Judge Frank C. Damrell, Jr on 11/25/09 ORDERING For the reasons set forth above, this matter is STAYED pursuant to 18 U.S.C. §§ 981(g)(1) and 981(g)(2) for a period of six months. On or before May 23, 2010, the plaintiff will advise the court whether a further stay is necessary. (Becknal, R)

1 BENJAMIN B. WAGNER

2 KRISTIN S. DOOR, SBN 84307 3 501 I Street, Suite 10-100 4 Telephone:
Sacramento, CA 95814 [phone] Assistant U.S. Attorney

United States Attorney

5 Attorney for Plaintiff 6 7 8 9 10 11 UNITED STATES OF AMERICA, 12 13 14 15 16 17 18 19 20 21 22
) ) Plaintiff, ) ) v. ) ) APPROXIMATELY $129,707.00 IN U.S. ) CURRENCY, ) ) APPROXIMATELY $100,700.54 IN MONEY ) ORDERS, ) ) APPROXIMATELY $108,460.00 IN U.S. ) CURRENCY, AND ) ) APPROXIMATELY $251,911.00 IN U.S. ) CURRENCY, ) ) Defendants. ) ) 2:07-CV-00692-FCD/KJM EX PARTE APPLICATION TO STAY FURTHER PROCEEDINGS AND ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Plaintiff United States of America, by and through undersigned

23 counsel, requests that the stay in this action be extended an 24 additional six months to May 23, 2010, pending the outcome of a 25 related criminal investigation against claimant Abdurrahman Yousuf. 26 /// 27 /// 28
EX PARTE APPLICATION TO STAY FURTHER PROCEEDINGS AND ORDER 1

1

Abdurrahman Yousuf and Khatiza Madha Yousuf are the claimants Plaintiff was unable to secure the

2 in this forfeiture action.

3 consent of claimants' attorney of record, Bryan Altman, to this 4 extension.
Mr. Altman has advised undersigned counsel that his

5 clients notified him many months ago that they have retained new 6 counsel.
Mr. Altman advised me that he has attempted to contact In addition, the attorney

7 his clients, but they do not respond.

8 who has purportedly taken over this case has not responded to his 9 letters seeking to confirm which attorney is representing 10 claimants.
1

Accordingly, Mr. Altman advised me on November 23,

11 2009, that he will be filing a motion to withdraw as attorney of 12 record.
For that reason Mr. Altman does not believe he has Plaintiff

13 authority to agree to an extension of the current stay. 14 therefore makes this request ex parte. 15 request are set forth below. 16
1.

The reasons for this

Each claimants has filed a claim to the defendant property

17 and an Answer to the Verified Complaint for Forfeiture In Rem. 18
2. The stay is requested pursuant to 18 U.S.C. §§ 981(g)(1) The plaintiff contends that Abdurrahman Yousuf and

19 and 981(g)(2).

20 others were involved in a scheme to defraud the California Board of 21 Equalization out of excise taxes due on the sale of tobacco 22 products. 23 24
1

The plaintiff further contends that proceeds of the

25 stay to November 23, 2009. 26 27 28

On May 22, 2009, plaintiff submitted a stipulation to extend the Attorney Anthony Brooklier, the attorney who represented to undersigned counsel that he would be substituting into this case to represent the claimants, authorized undersigned counsel to sign his name to the stipulation. However, no substitution has ever been filed. Attorney Bryan Altman is still the attorney of record.
EX PARTE APPLICATION TO STAY FURTHER PROCEEDINGS AND ORDER

2

1 fraud scheme are traceable to the property that is the subject of 2 this forfeiture action.
Claimants denied these allegations in

3 their Answers to the forfeiture complaint. 4
3. To date no one has been charged with any criminal offense

5 by state, local, or federal authorities, and the statute of 6 limitations has not expired on potential criminal charges relating 7 to the fraud scheme.
Nevertheless, the plaintiff intends to depose

8 claimants regarding their claims, their ownership of a business 9 called "A to Z Cash & Carry," and their involvement in the sale of 10 tobacco products into California.
If discovery proceeds at this

11 time, claimants will be placed in the difficult position of either 12 invoking their Fifth Amendment rights against self-incrimination 13 and losing the ability to pursue their claims to the defendant real 14 property, or waiving their Fifth Amendment right and submitting to 15 a deposition and potentially incriminating themselves.
If they

16 invoke their Fifth Amendment rights, the plaintiff will be deprived 17 of the ability to explore the factual basis for the claims they 18 filed with this court. 19
4. In addition, in previous stipulations to stay these

20 proceedings, claimants represented that they intend to depose the 21 agents involved in this investigation, including but not limited to 22 the agents with the Bureau of Alcohol, Tobacco, Firearms & 23 Explosives and the California Board of Equalization.
Allowing

24 depositions of the law enforcement officers at this time would 25 adversely affect the ability of federal authorities to investigate 26 the underlying criminal conduct. 27 28
EX PARTE APPLICATION TO STAY FURTHER PROCEEDINGS AND ORDER 3

5.

Based on these facts, plaintiff contends that proceeding

1 with this action at this time has potential adverse affects on the 2 investigation of the underlying criminal conduct and/or upon 3 claimants' ability to prove their claim to the property and assert 4 any defenses to forfeiture.
For these reasons, the plaintiff

5 requests that this matter be stayed for an additional six months. 6 At that time plaintiff will advise the court of the status of the 7 criminal investigation and will advise the court whether a further 8 stay is necessary. 9 10 Dated: November 23, 2009 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
EX PARTE APPLICATION TO STAY FURTHER PROCEEDINGS AND ORDER 4

BENJAMIN B. WAGNER United States Attorney By /s/ Kristin S. Door KRISTIN S. DOOR Assistant U.S. Attorney Attorneys for Plaintiff United States of America ORDER

For the reasons set forth above, this matter is stayed pursuant to 18 U.S.C. §§ 981(g)(1) and 981(g)(2) for a period of six months. On or before May 23, 2010, the plaintiff will advise

the court whether a further stay is necessary. IT IS SO ORDERED. Dated: November 25, 2009 _____________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE