United States Of America v. Approximately $8,800 in American Express Travelers' Checks et al

Filing 42

STIPULATION AND ORDER CONTINUING CASE MANAGEMENT CONFERENCE [re 41 Case Management Statement filed by United States Of America]. Case Management Statement due by 9/13/2012. Case Management Conference set for 9/20/2012 11:00 AM in Courtroom 8, 19th Floor, San Francisco. Signed by Judge William Alsup on 4/2/2012. (whasec, COURT STAFF) (Filed on 4/2/2012)

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MELINDA HAAG (CSBN 132612)
United States Attorney

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MIRANDA KANE (CSBN 150630)
Chief, Criminal Division

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DAVID B. COUNTRYMAN (CSBN 226995)
Assistant United States Attorney
450 Golden Gate Avenue, 11th Floor
San Francisco, CA 94102
Telephone: [phone]
Facsimile: 415.436.7234
Email: [e-mail]
Attorneys for United States of America

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Plaintiff,
v.
APPROXIMATELY $8,800 IN
AMERICAN EXPRESS TRAVELERS’
CHECKS; AND ONE PENTAX 35mm
CAMERA, SERIAL NUMBER 1318242,
Defendant.

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No. CV 09-02308 WHA
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CASE MANAGEMENT CONFERENCE
) STATEMENT AND [PROPOSED] ORDER TO
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STAY
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Plaintiff, United States of America, and claimant Gary Hardeman respectfully submit this

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Joint Case Management Statement.

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1. Jurisdiction and Service

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This Court has jurisdiction under Title 28, United States Code, Sections 1345 and

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1355(a); Title 18, United States Code, Section 981(a)(1)(A); Title 18, United States Code,

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Sections 2254; Title 18, United States Code, Section 2428. There are no counterclaims. Plaintiff

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has served notice of this action on all persons who may have an interest in the property, including

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the following: Claimant Gary Hardeman

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2. Facts

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On November 30, 2008, Gary Hardeman was arrested at the San Francisco International

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Airport after boarding a flight to Mexico. Among his belongings, agents found and seized the

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defendant property. Hardeman was arrested and indicted for Engaging in Illicit Sexual Conduct

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in Foreign Places (Count One), and committing that offense against a minor while required to

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register as a sex offender (Count Two). United States v. Gary Hardeman, 10-CR-00859-RS,

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Docket No. 1. On August 30, 2011, Hardeman filed a motion to dismiss Count Two. On October

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7, 2011, the district court granted the motion and dismissed Count Two. On January 31, 2012,

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the United States filed a pretrial appeal of that dismissal. United States v. Gary Hardeman,

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11-CA-10540, Docket No. 9. The appeal is currently pending.

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3. Principal Factual and Legal Issues

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The principal factual and legal issues in dispute are: 1) whether plaintiff can establish by

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a preponderance of the evidence that the defendant property is property intended to be used to

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commit or promote the sexual exploitation of children, illegal sexual activity, or child

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pornography; 2) whether plaintiff can establish by a preponderance of the evidence that the

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defendant property is property involved money laundering relating to illegal sexual activity or the

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sexual exploitation of children; 3) whether claimant Gary Hardeman can establish by a

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preponderance of the evidence that he is an innocent owner of the defendant property.

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4. Anticipated Motions

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On December 9, 2011, Court stayed the instant civil forfeiture case until April 12, 2012,

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due to claimant’s pending criminal prosecution: United States v. Hardeman, 10-cr-00859 RS. As

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Mr. Hardeman’s criminal case is still ongoing, the parties respectfully request an additional stay

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of this case, so as not to raise the risk of self-incrimination or adversely affect the ability of the

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government to prosecute the related criminal case.

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5. Relief/Damages

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Plaintiff seeks a judgment of forfeiture of the defendant property. This is not a damages

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case. Claimant Gary Hardeman seeks the return of the defendant property.

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CMC STATEMENT AND
PROPOSED ORDER
No. CV 09-02308 WHA

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6. Settlement

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Given the stay of this action necessitated by the pending criminal cases, it is too early to

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anticipate settlement with any accuracy.

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7. Discovery

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This is an in rem forfeiture case and is exempt from initial disclosures pursuant to

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Federal Rule of Civil Procedure 26(a)(l)(B)(ii). Given the stay of this action necessitated by the

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pending criminal cases, no discovery has occurred.

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8. Alternative Means of Disposition

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The parties would be amenable to the assignment of a settlement magistrate, after the

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resolution of the pending criminal cases.

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9. Related Cases

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This case is related to claimant’s pending criminal prosecution.

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Dated: 4/05/12
/S/ Daniel P. Blank
DANIEL PAUL BLANK
Attorney for Claimant

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Dated: 4/05/12
/S/ David B. Countryman
DAVID B. COUNTRYMAN
Assistant United States Attorney

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CMC STATEMENT AND
PROPOSED ORDER
No. CV 09-02308 WHA

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[PROPOSED] ORDER TO STAY

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Based upon claimant Gary Hardeman’s request to continue the stay of the current

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forfeiture proceedings, the United States’ non-opposition, and for good cause appearing, it is

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HEREBY ORDERED that the instant case be, and hereby is, STAYED, pursuant to 18 U.S.C.

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September 20, 2012, at 11:00 AM.
§ 981(g) until a status conference can be held on ______________________________________.

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Please file a joint case management statement at least seven days prior.

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SO ORDERED.

UNIT
ED

Dated: April 2, 2012.

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WILLIAM H. ALSUP
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United States DistrictSJudge RDER
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CMC STATEMENT AND
PROPOSED ORDER
No. CV 09-02308 WHA

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