United States of America v. Approximately $23,032.07 in U.S. Currency seized from Bank of America Account No. 03842-03399 et al

Filing 19

STIPULATION and ORDER signed by Judge John A. Mendez on 2/5/09 ORDERING 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 August 1, 2009, the parties will advises the court whether a further stay is necessary. Case stayed. (Becknal, R)

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LAWRENCE G. BROWN Acting United States Attorney KRISTIN S. DOOR, SBN 84307 Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: [phone] Attorneys for Plaintiff United States of America

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

) ) Plaintiff, ) ) v. ) ) APPROXIMATELY $23,032.07 IN U.S. ) CURRENCY SEIZED FROM BANK OF ) AMERICA ACCOUNT NO. 03842-03399, ) HELD IN THE NAME OF PAY-LESS ) WHOLESALE, ) ) APPROXIMATELY 135,455 CIGARS, ) (SMOKEABLE OTP) IN PACKS OF 5, 10, ) AND 20 RECOVERED FROM PAY-LESS ) WHOLESALE, ) ) APPROXIMATELY 2,297 CIGARS ) (SMOKEABLE OTP) IN PACKS OF 50 ) RECOVERED FROM PAY-LESS WHOLESALE, ) ) APPROXIMATELY 151 CIGARS ) (SMOKEABLE OTP) IN PACKS OF 240 ) RECOVERED FROM PAY-LESS WHOLESALE, ) ) APPROXIMATELY 326,942 INDIVIDUAL ) CIGARS (SMOKEABLE OTP) RECOVERED ) FROM PAY-LESS WHOLESALE, ) ) APPROXIMATELY 57 CASES OF ) SMOKEABLE OTP RECOVERED FROM ) PAY-LESS WHOLESALE, ) ) 1

2:08-cv-02753 JAM-GGH JOINT STATUS REPORT AND STIPULATION FOR STAY AND ORDER

DATE: N/A TIME: N/A COURTROOM: N/A

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APPROXIMATELY 4,952 BOXES OF SMOKEABLE OTP RECOVERED FROM PAY-LESS WHOLESALE,

) ) ) ) APPROXIMATELY 11,584 CANS OF ) SMOKEABLE OTP RECOVERED FROM ) PAY-LESS WHOLESALE, ) ) APPROXIMATELY 6,914 TUBS OF ) SMOKEABLE OTP RECOVERED FROM ) PAY-LESS WHOLESALE, ) ) APPROXIMATELY 15,141 UNITS OF ) SMOKEABLE OTP IN PACKS OF 5, 10, ) AND 20 RECOVERED FROM PAY-LESS ) WHOLESALE, ) ) APPROXIMATELY 136,221 BAGS/POUCHES ) OF SMOKEABLE OTP RECOVERED FROM ) PAY-LESS WHOLESALE, ) ) APPROXIMATELY 855 CASES ) (CONTAINING APPROXIMATELY 10,608 ) UNITS) OF AL FAKHER TOBACCO ) SMOKEABLE OTP EVIDENCE RECOVERED ) FROM PAY-LESS WHOLESALE, ) ) APPROXIMATELY 272 CASES ) (CONTAINING APPROXIMATELY 6,676 ) UNITS) OF AL WAHA MOLASSES TOBACCO ) SMOKEABLE OTP EVIDENCE RECOVERED ) FROM PAY-LESS WHOLESALE, ) ) APPROXIMATELY 995 CASES ) (CONTAINING APPROXIMATELY 46,112 ) UNITS) OF EVA MODSAL TOBACCO ) SMOKEABLE OTP EVIDENCE RECOVERED ) FROM PAY-LESS WHOLESALE, ) ) APPROXIMATELY 420 CASES ) (CONTAINING APPROXIMATELY 5,040 ) UNITS) OF JAWATTER TOBACCO ) SMOKEABLE OTP EVIDENCE RECOVERED ) FROM PAY-LESS WHOLESALE, ) ) APPROXIMATELY 1,473 CASES ) (CONTAINING APPROXIMATELY 16,674 ) UNITS) OF LAYALINA TOBACCO ) SMOKEABLE OTP EVIDENCE RECOVERED ) FROM PAY-LESS WHOLESALE, ) ) APPROXIMATELY 352 UNITS OF ) MISCELLANEOUS SMOKEABLE OTP ) 2

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EVIDENCE RECOVERED FROM PAY-LESS WHOLESALE,

) ) ) APPROXIMATELY 2,124 CASES ) (CONTAINING APPROXIMATELY 14,740 ) UNITS) OF MOLASSES TOBACCO ) SMOKEABLE OTP EVIDENCE RECOVERED ) FROM PAY-LESS WHOLESALE, ) ) APPROXIMATELY 640 CASES ) (CONTAINING APPROXIMATELY 19,884 ) UNITS) OF PRIME TIME CIGARS ) SMOKEABLE OTP EVIDENCE RECOVERED ) FROM PAY-LESS WHOLESALE, ) ) APPROXIMATELY 113 CASES ) (CONTAINING APPROXIMATELY 5,112 ) UNITS) OF ERIK CIGARS SMOKEABLE ) OTP EVIDENCE RECOVERED FROM ) PAY-LESS WHOLESALE, ) ) APPROXIMATELY 11 CASES ) (CONTAINING APPROXIMATELY 440 ) UNITS) OF HAV-A-TAMPA JEWLS ) CIGARS SMOKEABLE OTP EVIDENCE ) RECOVERED FROM PAY-LESS ) WHOLESALE, ) ) APPROXIMATELY 5,906 POUCHES OF ) MOLASSES SMOKEABLE OTP EVIDENCE ) RECOVERED FROM PAY-LESS ) WHOLESALE, ) ) APPROXIMATELY 1,200 PACKS OF ) PHILLIES CIGARILLOS SMOKEABLE ) OTP EVIDENCE RECOVERED FROM ) PAY-LESS WHOLESALE, ) ) Defendants. ) ___________________________________)

Plaintiff United States of America, and Claimants Adib Sirope and Rimoun Mansour(hereafter referred to collectively as "Claimants"), by and through their respective counsel, submit the following Joint Status Report and Stipulation for Stay of Further Proceedings and Order [Proposed]. 3

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A.

THE NATURE OF THE CASE:

Plaintiff seeks to forfeit the defendant property under 18 U.S.C. §§ 981(a)(1)(A) and 981(a)(1)(C) on the theory that the

defendant property constitutes or is derived from proceeds of a scheme to defraud the California Board of Equalization out of excise taxes due on the sale of tobacco products in California. The plaintiff alleges that the U.S. mail and interstate communications systems were used to perpetrate the fraud. Claimants deny these allegations. B. PROGRESS IN THE SERVICE OF PROCESS:

All known potential claimants have been personally served with the Complaint for Forfeiture In Rem, Notice of Complaint, Application and Order for Publication, and Court Notices. Claimants have filed claims to the defendant property and an Answer to the complaint. C. None. D. None. E. JURISDICTION AND VENUE: ANY EXPECTED OR DESIRED AMENDMENT OF PLEADING: POSSIBLE JOINDER OF ADDITIONAL PARTIES:

This Court's jurisdiction is based on 28 U.S.C. §§ 1345 and Venue is based on 28 U.S.C. §§ F. 1355(b) and 1395(a).

ANTICIPATED MOTIONS AND THE SCHEDULING THEREOF:

As explained below, the parties are requesting that the court stay further proceedings pending the outcome of a related criminal investigation and therefore do not believe this case should be scheduled at this time. 4

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G.

ANTICIPATED DISCOVERY AND THE SCHEDULING THEREOF, INCLUDING: any, should be made in the timing, for disclosure under Rule 26(a), as to when disclosures under Rule will be made;

(1) what changes, if form, or requirements including a statement 26(a)(1) were made or

(2) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues; (3) what changes, if any, should be made in the limitations on discovery imposed under the Civil Rules and what other limitations, if any, should be imposed; (4) the timing of the disclosure of expert witnesses and information required by Rule 26(a)(2); See Paragraph F above. H. FUTURE PROCEEDINGS, INCLUDING SETTING APPROPRIATE CUT-OFF DATES FOR DISCOVERY, LAW AND MOTION, AND THE SCHEDULING OF PRETRIAL AND TRIAL:

(1) The stay is requested pursuant to 18 U.S.C. §§ 981(g)(1) and 981(g)(2). The plaintiff contends that Sirope and Mansour and

other conspired to defraud the California Board of Equalization out of excise taxes due on the sale of tobacco products in California. The plaintiff alleges that the U.S. mail and interstate communications systems were used to perpetrate the fraud. Claimants Sirope and Mansour deny these allegations. (2) To date claimants Sirope and Mansour, the owners of the

property, have not been charged with any criminal offense by state, local, or federal authorities, and the statute of limitations has not expired on potential criminal charges relating to the fraud scheme. Nevertheless, the plaintiff intends to depose Sirope and 5

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Mansour regarding their claim to the defendant property, their operation of Pay-Less Wholesale Tobacco, and their business dealings with others in the tobacco industry. If discovery

proceeds at this time, Sirope and Mansour will be placed in the difficult position of either invoking their Fifth Amendment rights against self-incrimination and losing the ability to pursue their claim to the defendant real property, or waiving their Fifth Amendment right and submitting to a deposition and potentially incriminating themselves. If either person invokes his Fifth

Amendment right, the plaintiff will be deprived of the ability to explore the factual basis for the claims they filed with this court. (3) In addition, claimants intend to depose the law Allowing

enforcement agents involved in this investigation.

depositions of the law enforcement officers at this time would adversely affect the ability of federal authorities to investigate the underlying criminal conduct. (4) The parties recognize that proceeding with this action at this time has potential adverse affects on the investigation of the underlying criminal conduct and/or upon claimant's ability to prove his claim to the property and assert any defenses to forfeiture. For these reasons, the parties jointly request that this matter be stayed for six months. At that time the parties will advise the

court of the status of the criminal investigation, if any, and will advise the court whether a further stay is necessary. I. None. 6 APPROPRIATENESS OF SPECIAL PROCEDURES:

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J.

ESTIMATE OF TRIAL TIME:

Unknown at this time. K. MODIFICATION OF STANDARD PRETRIAL PROCEDURES SPECIFIED BY THE RULES DUE TO THE RELATIVE SIMPLICITY OR COMPLEXITY OF THE ACTION OF PROCEEDINGS:

None. L. WHETHER THE CASE IS RELATED TO ANY OTHER CASE, INCLUDING ANY MATTERS IN BANKRUPTCY:

This case is related to five other cases: United States v. 12001 Victory Boulevard, 2:08-cv-2074 JAM-GGH; United States v.

6525 South Bruce Street, 2:08-cv-2075 JAM-GGH; United States v. $23,770.87 et al., 2:08-cv-2752 JAM-GGH; and United States v. $23,032.07 et al., 2:08-cv-2753 JAM-GGH; United States v. $4,023 et al., 2:09-cv-0111 JAM-GGH; and United States v. $6,085 et al., 2:09-cv-151 JAM-GGH. A Notice of Related Cases was filed on

January 16, 2009, and a Related Case Order was entered on January 21, 2009. M. WHETHER A SETTLEMENT CONFERENCE SHOULD BE SCHEDULED:

The parties do not believe a settlement conference is appropriate in this case. // //

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N.

ANY OTHER MATTERS THAT MAY ADD TO THE JUST AND EXPEDITIOUS DISPOSITION OF THIS MATTER:

None.

Dated: January 30, 2009

LAWRENCE G. BROWN Acting United States Attorney By /s/ Kristin S. Door KRISTIN S. DOOR Assistant U.S. Attorney Attorneys for Plaintiff United States of America

Dated: February 4, 2009 By

GERAGOS & GERAGOS /s/ Shepard S. Kopp SHEPARD S. KOPP Attorneys for claimants Adib Sirope and Rimoun Mansour ORDER

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED. Dated: February 5, 2009

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 August 1, 2009, the parties will advise

the court whether a further stay is necessary.

/s/ John A. Mendez _________________________ JOHN A. MENDEZ UNITED STATES DISTRICT JUDGE

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