United States of America v. Approximately $17,872 in United States Currency et al

Filing 10

ORDER CONTINUING CMC. Signed by Judge Maria-Elena James on 10/9/2008. (mejlc1, COURT STAFF) (Filed on 10/9/2008)

Case 3:08-cv-03346-MEJ

Document 9

Filed 10/09/2008

Page 1 of 4

1 2 3 4 5 6 7 8

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

9 10 11 12 UNITED STATES OF AMERICA 13 14 15 16 17 18 19 20 21 22 23 Joint Case Management Statement. 24 1. 25 26 27 28 John Denn passed away on August 1, 2008. The United States includes his name on this pleading because the status of his claims and those of his girlfriend/wife and/or estate are unclear. The United States does not waive any challenges to the claim and answered filed on Mr. Denn's behalf or to the standing of the estate or Ms.Lehn aka Denn to pursue the claim. -11

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) Plaintiff, ) ) v. ) ) 1. APPROXIMATELY $17,872 IN ) UNITED STATES CURRENCY, et.al. ) ) ) Defendants. ) ) ) John Denn, ) ) Claimant ) ___________________________________ ) No. C 08-3346 MEJ JOINT CASE MANAGEMENT STATEMENT ORDER CONTINUING CMC CMC Date: October 16, 2008 Time: 10:00 a.m. Courtroom B, 15th Floor

Plaintiff, United States of America and claimant John Denn,1 respectfully submit this

Jurisdiction and Service

Case 3:08-cv-03346-MEJ

Document 9

Filed 10/09/2008

Page 2 of 4

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)(6). Plaintiff contends that it has served notice of this action on all persons who may have an interest in the defendant assets, including the following: John Denn, Christina Lehn, by and through their attorney, Jesse J. Garcia, Esq. On August 26, 2008, Jesse Gracia, Esq. filed a claim and answer, purportedly on behalf of John Denn. However, John Denn passed away on August 1, 2008, and the claim was not verified by Mr. Denn2, Ms. Lehn or an executor for the estate. To date, no other claims have been filed in this action. 2. Facts This is a forfeiture action. The government contends that there is sufficient evidence to believe that the defendant assets are subject to forfeiture, pursuant to Title 21, United States Code, § 881(a)(6), as money furnished or intended to be furnished in exchange for a controlled substance, constitute proceeds from such an exchange, traceable to such an exchange or used or intended to be used to facilitate a violation of Subchapter I, Chapter 13 of title 21 United States Code. Claimant alleges that the defendant assets do not represent proceeds or money used to facilitate drug trafficking. The facts regarding the seizure of the defendant assets (funds, vehicles and motorcycles) are set forth in the civil complaint at ¶¶ 7-25, and incorporated herein by reference. 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 assets are the proceeds of drug trafficking and/or purchased with drug proceeds and thus forfeitable under Title 21, United States Code, Section 881(a)(6) and 2) whether claimant Christina Lehn or the Estate of John Denn can establish by a preponderance of the evidence that she is the innocent owner of the defendant Although Mr. Denn had filed a verified claim in the administrative forfeiture proceeding, a separate claim and answer must be filed in the judicial forfeiture action to obtain standing to challenge the judicial forfeiture. Supplemental Rules of Admiralty or Maritime Claims and Asset Forfeiture Actions, Rule G(5)(a)(b). -22

Case 3:08-cv-03346-MEJ

Document 9

Filed 10/09/2008

Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

vehicles and funds The United States also will challenge Christina Lehn's standing to pursue any claim for the defendant properties. 5. Anticipated Motions All parties may move for summary judgment at the close of discovery. 6. Relief/Damages Plaintiff seeks a judgment of forfeiture of the defendant assets. This is not a damages case. Claimant seek the return of the defendant assets. 7. Settlement At this juncture, matters are far too undeveloped to ascertain the possibility of settlement. 8. 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). The parties have not engaged in any significant discovery of the case. The parties suggest another case management conference would be appropriate in four months. 9. Alternative Means of Disposition Plaintiff does not request reference to arbitration. 10. Pretrial/Trial Issues The parties have not yet discussed any trial issues. 11. Class Action This is not a class action. 12. Related Case There are no related cases.

24 13. Other Matters ­ 25 As noted above, the status of the claim in this case has been affected by the death of John

26 Denn, the individual from whom the assets were seized. The identity of the executor of Mr. 27 Denn's estate has not been determined. Both parties suggests that the Court consider continuing 28 the case management conference for approximately four months to allow the Estate of John Denn

-3-

Case 3:08-cv-03346-MEJ

Document 9

Filed 10/09/2008

Page 4 of 4

1 2 3 4 5 6 7 8 9 10 11 12

and/or Ms. Lehn to evaluate their position in the case. The parties propose January 22, 2008, for the next Case Management Conference or at any time convenient for the Court. DATED: October 7 , 2008 ____________/S/__________________ SUSAN B. GRAY Assistant United States Attorney

DATED: October 7, 2008 ________________________________ JESSE GARCIA AUSTIN THOMPSON Attorneys for Claimant John Denn

13 GOOD CAUSE APPEARING: the Case Management Conference currently scheduled for January 22 10:00 a.m. 14 October16, 2008, at 10:00 a.m. is hereby continued to _______________, 2009, at _________. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: October 9, 2008 ______________________________ MARIA ELENA JAMES United States Magistrate Judge IT IS SO ORDERED.

-4-