United States of America v. Real Property and Improvements Located at 15000 Briceland Thorn Road, Whitehorn, California, Humbolt County, APN 215-172-045 et al

Filing 37

ORDER CONTINUING CASE MANAGEMENT CONFERENCE. Signed by Judge Jeffrey S. White on 2/9/09. (jjo, COURT STAFF) (Filed on 2/9/2009)

Case 3:08-cv-03080-JSW

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/// JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney BRIAN J. STRETCH (CSBN 163973) Chief, Criminal Division SUSAN B. GRAY (CSBN 100374) Assistant United States Attorney 450 Golden Gate Ave., Box 36055 San Francisco, CA 94102 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Attorneys for Plaintiff

8 9 10 11 UNITED STATES OF AMERICA 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) Plaintiff, ) ) v. ) ) 1. REAL PROPERTY AND ) IMPROVEMENTS LOCATED AT 15000 ) BRICELAND THORN ROAD, ) WHITETHORN, CALIFORNIA, et.al., ) ) ) Defendants. ) ) ) Wendy Anne Fetzer, Gary R. Button, Fowler ) Family Trust, Syd and Barbara Green, ) Mendocino Clearwater Corporation, John ) W. Brown, Judith B. Brown, Robert Butler, ) Donovan and Lynn Henry, and Alishia ) Stone, ) ) Claimants. ) ____________________________________) No. C 08-3080 JSW JOINT CASE MANAGEMENT STATEMENT ; ORDER CONTINUING CASE MANAGEMENT CONFERENCE CMC Date: February 13, 2009 Time: 1:30 p.m. Courtroom 2, 17th Floor UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

Plaintiff, United States of America and claimants, Wendy Anne Fetzer, Gary R. Button, Fowler Family Trust, Syd and Barbara Green, Mendocino Clearwater Corporation, John W. Brown, Judith B. Brown, Robert Butler, Alishia Stone, and Donavan and Lynn Henry, by and through their respective attorneys, respectfully submit this Joint Case Management Statement. 1. Jurisdiction and Service

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Case 3:08-cv-03080-JSW

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/// 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Court has jurisdiction pursuant to Title 28, United States Code, Sections 1345 and 1355 and Title 21, United States Code, Section 881(a)(7). There are no counterclaims. Plaintiff contends that it has served notice of this action on all persons who may have a legal interest in the property including the following: Alishia Stone, Wendy Anne Fetzer, Gary R. Button, Syd and Barbara Green, Mendocino Clearwater Corporation, John W. Brown, Judith B. Brown, Robert Butler, Redwood Trust Deed Services, Donovan and Lynn Henry, Robert Juan, D.G and Sydell Fowler, the Fowler Family Trust, Kenneth Barton and Gladys Swinnock. To date the following individuals or entities have filed claims: Alishia Stone, represented by Ismail J. Ramsey, Wendy Anne Fetzer and Gray Button, represented by Stephen Johnson, the Fowler Family Trust, Syd and Barbara Green, and Robert Butler, represented by Eugene Denson, Mendocino Clearwater Corporation and John and Judith Brown, represented by Barry Meyer, and Donovan and Lynn Henry, represented by David Michael and James Bustamonte. 2. Facts This is an in rem forfeiture actions brought by the United States under Title 28 United States Code, Sections 1345 and 1355(a), and Title 21 United States Code, Section 881(a)(7). The United States alleges that defendant real properties represent property which facilitated a violation of Title 21, United States Code, Section 841(a)(1)-marijuana cultivation, and are thus subject to forfeiture to the United States pursuant to Title 21 United States Code, Section 881(a)(7). Parties: Plaintiff is the United States of America. Defendants are real properties located in Humboldt County. Claimants are owners or lien holders of the defendant properties. Transaction or event: The complaint alleges that on June 24, 2008, federal law enforcement agents, acting pursuant to federal warrants, executed searches at the defendant properties and, during the course of their search of the defendant properties agents found extensive evidence of marijuana cultivation operations. The affidavit in support of the search warrants is currently under seal. The execution of the search warrants was part of an ongoing criminal investigation. No charges have been filed in the

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/// investigation. 3. Principal Factual and Legal Issues The principal factual and legal issues in dispute are: 1) whether plaintiff can establish by a preponderance of the evidence that the defendant properties were used to facilitate marijuana cultivation and are thus forfeitable under Title 21, United States Code, Section 881(a)(7), and 2) whether claimants can establish by a preponderance of the evidence that they are innocent owners of the defendant properties. 4. Anticipated Motions All parties may move for summary judgment at the close of discovery. Some of the claimants may allege that the forfeiture of their whole interest in the property will constitute an excessive fine under the Eighth Amendment. Some claimants may also seek to challenge the search warrant and subsequent search and seizure on Fourth Amendment grounds. In addition, given the ongoing criminal investigation, the United States and/or several claimants may seek to stay the civil action pursuant to 18 U.S.C. 981 (g)(1) and (2). 5. Relief/Damages Plaintiff seeks a judgment of forfeiture of the defendant properties. This is not a damages case. Claimants Alishia Stone, Robert Butler, Wendy Anne Fetzer, Gary R. Button, Syd and Barbara Green, Mendocino Clearwater Corporation, John W. Brown, Judith B. Brown, may seek an order from this Court declaring that their interest in certain of the parcels named as defendants in this action, which are secured by a note and deed of trust, are not subject to forfeiture and that their interest in the property is that of an innocent owner. In addition, several claimants1 and the United States are in discussion regarding an order permitting the interlocutory sale of the property in order to preserve the value of the property. As a part of the interlocutory sale process and/or to aid in settlement negotiations, the owners of the defendant properties, Claimants Donovan Henry, Alisha Stone, Robert Butler and The Fowler Family Trust, have agreed to allow

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Robert Butler excepted. -3-

J o in t CMC Statement

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/// a new updated appraisal of their properties.2 The parties recognize the changing nature of the real estate market and believe it is the best interest of all parties to have a "on-the-ground" appraisal of the properties before engaging in costly discovery. In addition, the initial appraisals were conducted prior to the execution of the search warrants, thus, no on-site evaluation of the properties was made for water damage to the houses, or any environmental issues that may affect the value of the properties. All of these issues will affect how the United States and/or Claimants may wish to proceed. The United States Marshals Service has already contracted with the appraisers for these properties and the parties are awaiting the results. 6. Settlement At this juncture, matters are far too undeveloped to ascertain the possibility of settlement. However, settlement discussions and informal discovery has commenced with several parties. In addition, as noted in Section 5 above, the parties are engaged in evaluating the properties in light of the changing real estate market and the ever increasing liens on some of the properties. 7. Discovery This is an in rem forfeiture case and is exempt from initial disclosures pursuant to Federal Rule of Civil Procedure 26 (a)(1)(B)(ii). As noted above, the owners and claimants are engaged in settlement discussions and informal discovery. The parties suggest another case management conference would be appropriate in four months. 8. Alternative Means of Disposition Plaintiff does not request reference to arbitration. 9. Pretrial/Trial Issues The parties have not yet discussed any trial issues. 10. Class Action This is not a class action. 11. Related Case In compliance with the local rules, the United States filed an Administrative Motion to

A Writ of Entry, pursuant to 18 U.S.C. §985§§ (b)(2) and 983(j) is not necessary because the owners have given consent for the appraiser to enter the property to conduct the appraisal.
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/// Relate Case #08-3093 WHA to the case currently pending before this Court. The Motion was denied by this Court on September 23, 2008. 12. Other Matters ­ Attorneys Stephen Johnson, Eugene Denson and Ismail Ramsey request to appear telephonically. As stated in Sections 5 and 6 above, the owners of the properties have agreed to have an updated market analysis and appraisal conducted for all four of the defendant properties. Rather than engage in costly discovery over an asset that may have diminished in value, the parties request that they be allowed to continue with their updated market appraisal and their discussions

10 of an interlockatory sale or settlement. The parties suggest that the Case Management Conference 11 currently scheduled for February 13, 2009, at 1:30 be continued for approximately four months. 12 This will allow time for the appraisals to be completed and, if appropriate, the properties to be 13 listed for sale. 14 DATED: February 6, 2009 15 16 17 DATED: February 6, 2009 18 19 20 DATED: February 6, 2009 21 22 23 24 25 26 27 28 DATED: February 6, 2009 ///
J o in t CMC Statement

________/S/________________________ SUSAN B. GRAY Assistant United States Attorney ________/S/________________________ STEPHEN F. JOHNSON Attorney for Claimants Wendy Fetzer and Gary Button ________/S/________________________ EUGENE DENSON Attorney for Claimants Fowler Family Trust, and Syd and Barbara Green DATED: February 6, 2009 ________/S/________________________ BARRY MEYER Attorney for Claimants John and Judith Brown and Mendocino Clearwater Corporation ________/S/________________________ DAVID MICHAEL JAMES BUSTAMONTE Attorney for Claimants Donavan and Lynn Henry -5-

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/// DATED: February 6, 2009

_______/S/_______________________ ISMAIL RAMSEY Attorney for Claimant Alishia Stone _______/S/_______________________ MARK EIBERT Attorney for Robert Butler

DATED: February 6, 2009

GOOD CAUSE APPEARING, the case management conference in the above entitled case is June 19 continued to ____________, 2009, at 1:30 p.m. _______. IT IS SO ORDERED Dated: February 9, 2009 _______________________ Jeffrey S. White United States District Judge

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