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

Filing 51

ORDER TO STAY. Parties to file update after resolution of other action. re 48 Case Management Statement filed by United States Of America (whalc2, COURT STAFF) (Filed on 1/16/2013)

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1 MELINDA HAAG (CSBN 132612) United States Attorney 2 3 MIRANDA KANE (CSBN 150630) Chief, Criminal Division 4 DAVID B. COUNTRYMAN (CSBN 226995) Assistant United States Attorney 5 6 7 450 Golden Gate Avenue, 11th Floor San Francisco, CA 94102 Telephone: 415.436.7303 Facsimile: 415.436.7234 Email: david.countryman@usdoj.gov 8 Attorneys for United States of America 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 13 UNITED STATES OF AMERICA, Plaintiff, 14 15 16 17 v. APPROXIMATELY $8,800 IN AMERICAN EXPRESS TRAVELERS’ CHECKS; AND ONE PENTAX 35mm CAMERA, SERIAL NUMBER 1318242 18 Defendant. 19 ) ) No. CV 09-2308 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, 28 including 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 on an outstanding warrant for failing to register as a 5 sex offender, and charges are currently pending in San Francisco County Superior Court. 6 Hardeman was also arrested for Engaging in Illicit Sexual Conduct in Foreign Places, and 7 charges are currently pending in the federal District Court for the Northern District of California. 8 9 3. Principal Factual and Legal Issues 10 The principal factual and legal issues in dispute are: 1) whether plaintiff can establish by 11 a preponderance of the evidence that the defendant property is property intended to be used to 12 commit or promote the sexual exploitation of children, illegal sexual activity, or child 13 pornography; (2) whether plaintiff can establish by a preponderance of the evidence that the 14 defendant property is property involved money laundering relating to illegal sexual activity or 15 the sexual exploitation of children; 3) whether claimant Gary Hardeman can establish by a 16 preponderance of the evidence that he is an innocent owner of the defendant property. 17 4. Anticipated Motions 18 On January 5, 2011, Court stayed the instant civil forfeiture case until April 7, 2011, due 19 to claimant’s pending criminal prosecution: United States v. Hardeman, 10-cr-00859 RS. On 20 October 20, 2011, the United States filed Notice of Appeal of the District Court’s dismissal of 21 Count Two of the Indictment (Docket No. 79), and on October 21, 2011 the Court vacated the 22 trial and pre-trial dates. Docket No. 82. On January 14, 2012, the Ninth Circuit reversed the 23 district court’s dismissal of Count Two and remanded for further proceedings. As Mr. 24 Hardeman’s criminal cases are still ongoing, the parties respectfully request an additional stay of 25 this case, so as not to raise the risk of self-incrimination or adversely affect the ability of the 26 government to prosecute the related criminal cases. 27 5. Relief/Damages 28 Plaintiff seeks a judgment of forfeiture of the defendant property. This is not a damages CASE MANAGEMENT CONFERENCE STATEMENT AND PROPOSED ORDER No. CV 09-2308 WHA 2 1 case. Claimant Gary Hardeman seeks the return of the defendant property. 2 3 6. Settlement 4 Given the stay of this action necessitated by the pending criminal cases, it is too early to 5 anticipate settlement with any accuracy. 6 7. Discovery 7 This is an in rem forfeiture case and is exempt from initial disclosures pursuant to 8 Federal Rule of Civil Procedure 26(a)(l)(B)(ii). Given the stay of this action necessitated by the 9 pending criminal cases, no discovery has occurred. 10 8. Alternative Means of Disposition 11 The parties would be amenable to the assignment of a settlement magistrate, after the 12 resolution of the pending criminal cases. 13 9. Related Cases 14 This case is related to claimant’s pending criminal prosecution. 15 16 Dated: 01/15/13 /S/ Daniel Paul Blank DANIEL PAUL BLANK Attorney for Claimant 17 18 19 20 21 Dated:01/15/13 /S/ David B. Countryman DAVID B. COUNTRYMAN Assistant United States Attorney 22 23 24 25 26 27 28 CASE MANAGEMENT CONFERENCE STATEMENT AND PROPOSED ORDER No. CV 09-2308 WHA 3 1 2 3 [PROPOSED] ORDER TO STAY Based upon claimant Gary Hardeman’s request to continue the stay of the current 4 forfeiture proceedings, the United States’ non-opposition, and for good cause appearing, it is 5 HEREBY ORDERED that the instant case be, and hereby is, STAYED, pursuant to 18 U.S.C. 6 § 981(g). 7 Pursuant to request of the parties and for good cause shown, this action will be 8 “administratively closed” for purposes of the Civil Justice Reform Act reporting requirements 9 until the resolution of United States v. Hardeman, 10-cr-00859. The parties shall file a status 10 report herein no later than FOURTEEN DAYS after the resolution of the criminal action. 11 12 13 14 SO ORDERED. Dated: January 15, 2013. WILLIAM ALSUP United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE MANAGEMENT CONFERENCE STATEMENT AND PROPOSED ORDER No. CV 09-2308 WHA 4

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