United States of America v. Real Property Located at 6642 Merchandise Way, Diamond Springs, California, El Dorado County, APN: 329-392-05

Filing 10

ORDER signed by Judge John A. Mendez on 5/22/12: This matter is stayed pursuant to 18 U.S.C. §§ 981(g)(1), 981(g)(2), and 21 U.S.C. § 881(i) until September 1, 2012. On or before September 1, 2012, the parties shall advise the court whether a further stay is necessary. (Kaminski, H)

1 BENJAMIN B. WAGNER
United States Attorney
2 KEVIN C. KHASIGIAN
Assistant U.S. Attorney
3 501 I Street, Suite 10-100
Sacramento, CA 95814
4 Telephone: [phone]
5 Attorneys for the United States
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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,

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Plaintiff,

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2:12-CV-01046-JAM-KJN
REQUEST FOR STAY OF FURTHER
PROCEEDINGS AND ORDER

v.
REAL PROPERTY LOCATED AT 6642
MERCHANDISE WAY, DIAMOND
SPRINGS, CALIFORNIA, EL DORADO
COUNTY, APN: 329-392-05,
INCLUDING ALL APPURTENANCES
AND IMPROVEMENTS THERETO,
Defendant.

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The United States, and Claimant Harold Bollenbacher, Trustee of The Family

21 Trust Created Under the Bollenbacher Family Trust Dated September 27, 1995
22 (hereafter referred to as "claimant"), by and through their respective counsel, hereby
23 request that the Court enter an order staying further proceedings until September 1,
24 2012, pending the outcome of a related criminal case against defendant James Kirk
25 Short, Case No. 2:12-CR-00164-JAM. Harold Bollenbacher, Trustee of The Family
26 Trust Created Under the Bollenbacher Family Trust Dated September 27, 1995, is the
27 recorded owner of the defendant property, which is a commercial building that was
28 leased to James Kirk Short who used it to grow marijuana.
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Stipulation to Stay Proceedings

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1.

On May 15, 2012, Harold Bollenbacher, Trustee of The Family Trust

2 Created Under the Bollenbacher Family Trust Dated September 27, 1995 filed a claim
3 in this action alleging an interest in the defendant property. Claimant has not yet filed
4 an Answer and will not be required to do so until the stay contemplated by this
5 stipulation expires.
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2.

The stay is requested pursuant to 18 U.S.C. §§ 981(g)(1), 981(g)(2), and 21

7 U.S.C. § 881(i). The United States contends that the defendant property is subject to
8 forfeiture to the United States pursuant to 21 U.S.C. § 881(a)(7) because it was used
9 and intended to be used to commit or facilitate a violation of 21 U.S.C. §§ 841 et seq.,
10 specifically, the cultivation of marijuana.
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3.

To date, James Kirk Short has been charged with federal criminal crimes

12 related to marijuana cultivation at the defendant property, Case No.
13 2:12-CR-00164-JAM; Harold Bollenbacher has not been charged with any criminal
14 offense by state, local, or federal authorities. It is the United States' position that the
15 statute of limitations has not expired on potential criminal charges relating to the
16 marijuana grow at the defendant property. Nevertheless, the United States intends to
17 depose claimant Harold Bollenbacher regarding his ownership of the defendant
18 property, as well as his knowledge and participation in the marijuana grow at the
19 defendant property. If discovery proceeds at this time, claimant will be placed in the
20 difficult position of either invoking his Fifth Amendment rights against
21 self-incrimination and jeopardizing the ability to pursue his claim to the defendant
22 property, or waiving his Fifth Amendment rights and submitting to a deposition and
23 potentially incriminating himself. If he invokes his Fifth Amendment rights, the
24 United States will be deprived of the ability to explore the factual basis for the claim he
25 filed with this court.
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4.

In addition, claimant intends to depose, among others, the agents involved

27 with this investigation, including but not limited to the agents with the Drug
28 Enforcement Agency. Allowing depositions of the law enforcement officers at this time
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Stipulation to Stay Proceedings

1 would adversely affect the ability of the federal authorities to investigate the alleged
2 underlying criminal conduct.
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5.

The parties recognize that proceeding with these actions at this time has

4 potential adverse effects on the investigation of the underlying criminal conduct and/or
5 upon the claimants' ability to prove their claim to the property and to assert any
6 defenses to forfeiture. For these reasons, the parties jointly request that these matters
7 be stayed until September1, 2012, in accordance with the terms of this stipulation. For
8 these reasons, the parties jointly request that this matter be stayed until September 1,
9 2012. At that time the parties will advise the court of the status of the criminal case
10 and will advise the court whether a further stay is necessary.
11 Dated: 5-22-12

BENJAMIN B. WAGNER
United States Attorney

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By:

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/s/ Kevin C. Khasigian
KEVIN C. KHASIGIAN
Assistant U.S. Attorney

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16 Dated: 5-21-2012
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/s/ Brenda Grantland
BRENDA GRANTLAND
Attorney for claimant
Harold Bollenbacher, Trustee of The Family
Trust Created Under the Bollenbacher Family
Trust Dated September 27, 1995

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(Original signatures retained by attorney)
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ORDER

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For the reasons set forth above, this matter is stayed pursuant to 18 U.S.C. §§

23 981(g)(1), 981(g)(2), and 21 U.S.C. § 881(i) until September 1, 2012. On or before
24 September 1, 2012, the parties will advise the court whether a further stay is necessary.
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IT IS SO ORDERED.

26 Dated: May 22, 2012

/s/ John A. Mendez
JOHN A. MENDEZ
United States District Court Judge

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Stipulation to Stay Proceedings