United States of America v. Real property located at 105 Three Hills Road, Hayfork, California, APN: 019-530-23-00 et al

Filing 31

STIPULATION and ORDER signed by Judge Garland E. Burrell, Jr on 4/8/13 VACATING pretrial conference and trial dates and SETTING Status Conference for 10/28/2013 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr. A joint status report shall be filed 14 days prior to the hearing. (Meuleman, A)

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1 4 BENJAMIN B. WAGNER United States Attorney KEVIN C. KHASIGIAN Assistant U.S. Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2700 5 Attorneys for the United States 2 3 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 Plaintiff, 13 14 15 16 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) v. REAL PROPERTY LOCATED AT 105 THREE HILLS ROAD, HAYFORK, CALIFORNIA, TRINITY COUNTY, APN: 019-530-23-00 INCLUDING ALL APPURTENANCES AND IMPROVEMENTS THERETO, 17 18 Defendants. 19 20 2:11-CV-02738-GEB-DAD STIPULATION TO STAY FURTHER PROCEEDINGS AND ORDER The United States and claimants Lapoe Smith and Katherine 21 Renee Smith, by and through their respective counsel, hereby 22 stipulate that a stay is appropriate in the above-entitled 23 action, and request that the Court enter an order staying further 24 proceedings for six months until October 4, 2013. 25 the proposed stay is the federal criminal action against claimant 26 Lapoe Smith, filed April 3, 2013 in the Western District of 27 Texas, United States v. Lapoe Smith, Case No. 13-CR-0280. 28 federal indictment, Lapoe Smith is charged with one count of 1 The basis for In the Stipulation to Stay Further Proceedings and Order 1 evading taxes in violation of 26 U.S.C. § 7201, from August 10, 2 2005 continuing to May 11, 2011; and four counts of subscribing a 3 false tax return in violation of 26 U.S.C. § 7206(1), from April 4 2007 to October 2010. 5 1. Each of the claimants have filed claims and answers to 6 the defendant properties, (ECF Nos. 5-6, 12), which were sold 7 pursuant to an interlocutory sale in March 2013, (ECF No. 23). 8 The net sale proceeds were deposited into a U.S. Treasury bank 9 account and constitute the substitute res. ECF No. 23. 10 11 12 2. The stay is requested pursuant to 18 U.S.C. §§ 981(g)(1), 981(g)(2), and 21 U.S.C. § 881(i). 3. Claimant Lapoe Smith has been charged with violations 13 of federal tax laws, United States v. Lapoe Smith, Case No. 13- 14 CR-0280, substantially based on the joint tax return filed on 15 behalf of himself and co-claimant Katherine Smith. 16 Katherine Smith has not been charged with any federal crimes and 17 it is the parties’ understanding that the statute of limitations 18 has not expired on potential criminal charges relating to filing 19 of the tax returns for the relevant years and/or the alleged tax 20 evasion scheme. 21 written discovery from claimants regarding their income and tax 22 return information, as well as information regarding their 23 financial ability to purchase the defendant properties in May 24 2010. 25 some of them, will be placed in the difficult position of either 26 invoking their Fifth Amendment rights against self-incrimination 27 or waiving their Fifth Amendment rights and submitting to a 28 deposition and potentially incriminating themselves regarding Claimant The United States intends to depose and request If discovery proceeds at this time, these individuals, or 2 Stipulation to Stay Further Proceedings and Order 1 their income and ability to purchase the property forming the 2 basis of this civil in rem case. 3 Amendment rights, the United States will be deprived of the 4 ability to explore the factual basis for the claims they filed 5 with this court. 6 4. If they invoke their Fifth Further, claimants intend to depose, among others, the 7 agents involved with this investigation, including but not 8 limited to the agents with the Internal Revenue Service. 9 Allowing depositions of the law enforcement officers at this time 10 would adversely affect the ability of the federal authorities to 11 prepare for the criminal trial and/or further investigate the 12 alleged underlying criminal conduct. 13 5. The parties recognize that proceeding with these 14 actions at this time could have potential adverse effects on the 15 investigation of the underlying criminal conduct and/or upon the 16 claimants' ability to prove their claims to the defendant 17 properties and to assert any defenses to forfeiture. 18 reasons, the parties jointly request that these matters be stayed 19 until October 4, 2013, in accordance with the terms of this 20 stipulation. 21 the status of the criminal case and will advise the court whether 22 a further stay is appropriate. 23 6. For these At that time the parties will advise the court of Prior to the federal indictment against claimant Lapoe 24 Smith, the United States planned to amend the complaint to 25 reflect information learned during depositions taken on March 1, 26 2013. 27 complaint, based on the above information or otherwise, will be 28 addressed by the Court when the stay expires. The parties agree that any potential amendment to the 3 Stipulation to Stay Further Proceedings and Order 1 7. The United States does not waive a potential challenge 2 to each claim based on lack of statutory and/or Article III 3 standing. 4 lifted under 18 U.S.C. §§ 981(g)(7). 5 6 8. That issue of standing is preserved until the stay is For good cause shown, any party to this stipulation may seek relief from this stay prior to October 4, 2013. 7 8 Dated: 4/5/13 BENJAMIN B. WAGNER United States Attorney 9 10 By: 11 /s/ Kevin C. Khasigian KEVIN C. KHASIGIAN Assistant U.S. Attorney 12 Dated: 4/5/13 /s/ David M. Michael DAVID M. MICHAEL Attorney for claimants Lapoe Smith and Katherine Renee Smith (Authorized by email) 13 14 15 16 ORDER 17 18 For the reasons set forth above, this matter is stayed until 19 October 4, 2013. 20 vacated. 21 at 9:00 a.m. 22 prior to the hearing. 23 24 The pretrial conference and trial dates are A status conference is scheduled for October 28, 2013, A joint status report shall be filed fourteen days IT IS SO ORDERED. Dated: April 8, 2013 25 26 27 GARLAND E. BURRELL, JR. Senior United States District Judge 28 4 Stipulation to Stay Further Proceedings and Order

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