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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1 2 MELINDA HAAG (CSBN 132612) United States Attorney 3 MIRANDA KANE (CSBN 150630) Chief, Criminal Division 4 5 6 7 8 9 DAVID B. COUNTRYMAN (CSBN 226995) Assistant United States Attorney 450 Golden Gate Avenue, 11th Floor San Francisco, CA 94102 Telephone: 415.436.7303 Facsimile: 415.436.7234 Email: david.countryman@usdoj.gov Attorneys for United States of America 10 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 UNITED STATES OF AMERICA, 14 15 16 17 18 19 Plaintiff, v. APPROXIMATELY $8,800 IN AMERICAN EXPRESS TRAVELERS’ CHECKS; AND ONE PENTAX 35mm CAMERA, SERIAL NUMBER 1318242, Defendant. ) ) No. CV 09-02308 WHA ) ) ) CASE MANAGEMENT CONFERENCE ) STATEMENT AND [PROPOSED] ORDER TO ) STAY ) ) ) ) ) ) 20 21 Plaintiff, United States of America, and claimant Gary Hardeman respectfully submit this 22 Joint Case Management Statement. 23 1. Jurisdiction and Service 24 This Court has jurisdiction under Title 28, United States Code, Sections 1345 and 25 1355(a); Title 18, United States Code, Section 981(a)(1)(A); Title 18, United States Code, 26 Sections 2254; Title 18, United States Code, Section 2428. There are no counterclaims. Plaintiff 27 has served notice of this action on all persons who may have an interest in the property, including 28 the following: Claimant Gary Hardeman 1 2. Facts 2 On November 30, 2008, Gary Hardeman was arrested at the San Francisco International 3 Airport after boarding a flight to Mexico. Among his belongings, agents found and seized the 4 defendant property. Hardeman was arrested and indicted for Engaging in Illicit Sexual Conduct 5 in Foreign Places (Count One), and committing that offense against a minor while required to 6 register as a sex offender (Count Two). United States v. Gary Hardeman, 10-CR-00859-RS, 7 Docket No. 1. On August 30, 2011, Hardeman filed a motion to dismiss Count Two. On October 8 7, 2011, the district court granted the motion and dismissed Count Two. On January 31, 2012, 9 the United States filed a pretrial appeal of that dismissal. United States v. Gary Hardeman, 10 11-CA-10540, Docket No. 9. The appeal is currently pending. 11 3. Principal Factual and Legal Issues 12 The principal factual and legal issues in dispute are: 1) whether plaintiff can establish by 13 a preponderance of the evidence that the defendant property is property intended to be used to 14 commit or promote the sexual exploitation of children, illegal sexual activity, or child 15 pornography; 2) whether plaintiff can establish by a preponderance of the evidence that the 16 defendant property is property involved money laundering relating to illegal sexual activity or the 17 sexual exploitation of children; 3) whether claimant Gary Hardeman can establish by a 18 preponderance of the evidence that he is an innocent owner of the defendant property. 19 4. Anticipated Motions 20 On December 9, 2011, Court stayed the instant civil forfeiture case until April 12, 2012, 21 due to claimant’s pending criminal prosecution: United States v. Hardeman, 10-cr-00859 RS. As 22 Mr. Hardeman’s criminal case is still ongoing, the parties respectfully request an additional stay 23 of this case, so as not to raise the risk of self-incrimination or adversely affect the ability of the 24 government to prosecute the related criminal case. 25 5. Relief/Damages 26 Plaintiff seeks a judgment of forfeiture of the defendant property. This is not a damages 27 case. Claimant Gary Hardeman seeks the return of the defendant property. 28 CMC STATEMENT AND PROPOSED ORDER No. CV 09-02308 WHA 2 1 6. Settlement 2 Given the stay of this action necessitated by the pending criminal cases, it is too early to 3 anticipate settlement with any accuracy. 4 7. Discovery 5 This is an in rem forfeiture case and is exempt from initial disclosures pursuant to 6 Federal Rule of Civil Procedure 26(a)(l)(B)(ii). Given the stay of this action necessitated by the 7 pending criminal cases, no discovery has occurred. 8 8. Alternative Means of Disposition 9 The parties would be amenable to the assignment of a settlement magistrate, after the 10 resolution of the pending criminal cases. 11 9. Related Cases 12 This case is related to claimant’s pending criminal prosecution. 13 14 Dated: 4/05/12 /S/ Daniel P. Blank DANIEL PAUL BLANK Attorney for Claimant 15 16 17 Dated: 4/05/12 /S/ David B. Countryman DAVID B. COUNTRYMAN Assistant United States Attorney 18 19 20 21 22 23 24 25 26 27 28 CMC STATEMENT AND PROPOSED ORDER No. CV 09-02308 WHA 3 [PROPOSED] ORDER TO STAY 1 2 Based upon claimant Gary Hardeman’s request to continue the stay of the current 3 forfeiture proceedings, the United States’ non-opposition, and for good cause appearing, it is 4 HEREBY ORDERED that the instant case be, and hereby is, STAYED, pursuant to 18 U.S.C. 5 September 20, 2012, at 11:00 AM. § 981(g) until a status conference can be held on ______________________________________. 6 Please file a joint case management statement at least seven days prior. 7 SO ORDERED. UNIT ED Dated: April 2, 2012. ISTRIC ES D TC AT T RT U O WILLIAM H. ALSUP ED United States DistrictSJudge RDER I SO O RT 13 IFIED D AS MO Judge W ER H 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CMC STATEMENT AND PROPOSED ORDER No. CV 09-02308 WHA 4 R NIA NO 12 IT up ls illiam A FO 11 LI 10 S 9 A 8 N F D IS T IC T O R C

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