USA v. Approximately $28,580.00 in U.S. Currency et al

Filing 19

STIPULATION AND ORDER signed by Judge John A. Mendez on 12/16/2010 ORDERING 18 this matter is STAYED pursuant to 18:981(g)(1) and 981(g)(2); and within 30 days after all proceedings in U.S. District Court in U.S. v. Tac Che, 2:10-CR-00168 JAM, have concluded, the parties will advise the court whether a further stay is necessary. CASE STAYED (Reader, L) Modified on 12/17/2010 (Reader, L).

-EFB USA v. Approximately $28,580.00 in U.S. Currency et al

Doc. 19

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BENJAMIN B. WAGNER 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 $28,580.00 IN U.S. ) CURRENCY, ) ) APPROXIMATELY $30,000.00 IN U.S. ) CURRENCY SEIZED FROM BANK OF AMERICA ) SAFE DEPOSIT BOX 1481C, and ) ) APPROXIMATELY $16,039.00 IN U.S. ) CURRENCY, ) ) Defendants. ) )

2:10-cv-02763 JAM-EFB JOINT STATUS REPORT AND STIPULATION FOR STAY OF FURTHER PROCEEDINGS AND ORDER DATE: N/A TIME: N/A COURTROOM: #2, 15th Fl.

Pursuant to this Court's Order Requiring Joint Status Report the plaintiff United States of America and claimants Sally Che, Tac Che, Sinh Ngo, and Pao Thao ("Claimants") submit the following report. A. NATURE OF THE CASE:

Plaintiff contends that the defendant currency is the proceeds of marijuana trafficking and that it is forfeitable to the United States pursuant to 21 U.S.C. § 1 881(a)(6). Claimants

JOINT STATUS REPORT AND STIPULATION FOR STAY OF FURTHER PROCEEDINGS AND ORDER (PROPOSED)

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deny these allegations. B. PROGRESS IN THE SERVICE OF PROCESS:

All known potential claimants to the defendant currency have been served, and the time for filing claims or answers by individuals receiving direct notice of this forfeiture action has expired. However, it is possible (albeit unlikely) that others may file claims. Publication of the forfeiture on the government's

website is now complete, but under Rule G (5)(a)(ii)(B) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions a person who did not receive direct notice of the forfeiture (e.g. by certified mail or personal service), but who sees the notice of forfeiture on the website, can file a claim as late as 60 days after the first day of publication on the government website. The first day of publication in this

case was October 20, 2010; accordingly, other potential claimants have until December 20, 2010, to file claims. C. POSSIBLE JOINDER OF ADDITIONAL PARTIES:

Plaintiff and claimants do not anticipate that there will be any additional parties, but it is possible that a person who sees the notice of forfeiture on the government website will file a claim and answer and will become a party. D. ANY EXPECTED OR DESIRED AMENDMENT OF PLEADINGS:

The parties do not contemplate amending the pleadings. E. JURISDICTION AND VENUE:

Jurisdiction is based on 28 U.S.C. §§ 1345 and 1355(a). Venue is based on 28 U.S.C. §§ 1355(b) and 1395, and 21 U.S.C. § 881(j). 2
JOINT STATUS REPORT AND STIPULATION FOR STAY OF FURTHER PROCEEDINGS AND ORDER (PROPOSED)

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F.

ANTICIPATED MOTIONS AND THE SCHEDULING THEREOF:

Plaintiff intends to file a motion for summary judgment after the completion of discovery. Claimants do not have discovery yet from plaintiff and have not decided which motions if any, might be appropriate. The parties are requesting a stay of further proceedings (see below) and therefore suggest that motions not be scheduled at this time. G. (1) ANTICIPATED DISCOVERY AND THE SCHEDULING THEREOF INCLUDING: what changes, if any, should be made in the timing, form, or requirement for disclosure under Rule 26(a), including a statement as to when disclosures under Rule 26(a)(1) were made or will be made;

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As of the December 1, 2006, amendments to Rule 26 of the Federal Rules of Civil Procedure, civil forfeiture actions are now exempt from the initial disclosure requirements applicable to most other civil actions. See Fed. R. Civ. P. 26(a)(1)(B)(ii).

In addition, the parties request that a stay of further proceedings be entered at this time until all proceedings in the related criminal case now pending in this Court against claimant Tac Che (U.S. v. Tac Che et al., 2:10-cr-00168 JAM) have concluded. The stay is requested pursuant to 18 U.S.C. §§ 881(i). As explained

981(g)(1) and 981(g)(2), and 21 U.S.C. §

above, the plaintiff contends that the claimants were involved in drug trafficking and that the seized funds are the proceeds of that trafficking. If discovery proceeds at this time, claimants will be placed in the difficult position of either invoking their Fifth 3
JOINT STATUS REPORT AND STIPULATION FOR STAY OF FURTHER PROCEEDINGS AND ORDER (PROPOSED)

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Amendment rights against self-incrimination and losing the ability to pursue their claims to the defendant property, or waiving their Fifth Amendment right and submitting to a deposition and potentially incriminating themselves. If they

invoke their Fifth Amendment rights, the plaintiff will be deprived of the ability to explore the factual basis for the claims they filed with this court. In addition, claimants intend to depose, among others, the agents involved in this investigation. Allowing depositions of

the law enforcement officers at this time would adversely affect the ability of federal authorities to prosecute the pending criminal case. The parties recognize that proceeding with this action at this time has potential adverse affects on the prosecution of the pending criminal case, and/or upon claimants' ability to prove their claim to the property and assert any defenses to forfeiture. For these reasons, the parties jointly request that

this matter be stayed until all proceedings in the related criminal case are over. At that time the parties will advise

the court whether a further stay is necessary. (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;

As explained above the parties request a stay of further 24 proceedings. 25 (3) 26 27 28 4
JOINT STATUS REPORT AND STIPULATION FOR STAY OF FURTHER PROCEEDINGS AND ORDER (PROPOSED)

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;

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The parties do not request any changes in the discovery limitations imposed by Fed. R. Civ. P. 26(b)(2), 30, or 33. (4) the timing of the disclosure of expert witnesses and information required by Rule 26(a)(2);

As explained above the parties request a stay of further proceedings, including expert disclosure. H. FUTURE PROCEEDINGS, INCLUDING SETTING APPROPRIATE CUT-OFF DATES FOR DISCOVERY, LAW AND MOTION, AND THE SCHEDULING OF PRETRIAL AND TRIAL:

EVENT Plaintiff to disclose experts

DATE To be scheduled when stay lifted

Claimants to disclose experts 13 14 Plaintiff to disclose rebuttal 15 experts 16 17 18 19 20 21 22 23 24 25 26 27 28 // 5 I. None. Jury trial Final pretrial conference Last day to file dispositive motions Hearing on motions Discovery cutoff

To be scheduled when stay lifted To be scheduled when stay lifted To be scheduled when stay lifted To be scheduled when stay lifted To be scheduled when stay lifted To be scheduled when stay lifted To be scheduled when stay lifted

APPROPRIATENESS OF SPECIAL PROCEDURES:

JOINT STATUS REPORT AND STIPULATION FOR STAY OF FURTHER PROCEEDINGS AND ORDER (PROPOSED)

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J.

ESTIMATE OF TRIAL TIME:

The parties estimate three days for a jury trial. 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 United States v. Tac Che et al., 8 2:10-cr-00168 JAM. 9 December 14, 2010. 10 M. 11 The parties do not believe a settlement conference is 12 appropriate in this case. 13 N. 14 15 None. 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER For the reasons set forth above, this matter is stayed pursuant to 18 U.S.C. §§ 981(g)(1) and 981(g)(2). 6
JOINT STATUS REPORT AND STIPULATION FOR STAY OF FURTHER PROCEEDINGS AND ORDER (PROPOSED)

A Notice of Related Cases was filed on

WHETHER A SETTLEMENT CONFERENCE SHOULD BE SCHEDULED:

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

Date: December 16, 2010

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

Dated: December 16, 2010

/s/Kenny N. Giffard KENNY N. GIFFARD (As authorized on 12/16/10 Attorney for claimants Sally Che, Tac Che, Sinh Ngo, and Pao Thao

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Within 30 days after all proceedings in U.S. District Court in U.S. v. Tac Che, 2:10Cr00168 JAM, have concluded, the parties will advise the court whether a further stay is necessary.

IT IS SO ORDERED. Dated: 12/16/2010 /s/ John A. Mendez JOHN A. MENDEZ UNITED STATES DISTRICT JUDGE

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JOINT STATUS REPORT AND STIPULATION FOR STAY OF FURTHER PROCEEDINGS AND ORDER (PROPOSED)