United States of America v. One Dell Inspiron Computer

Filing 12

ORDER CONTINUING CASE MANAGEMENT CONFERENCE. The Case Management Conference scheduled for November 13, 2009 is vacated and is rescheduled for February 12, 2010, with an updated Case Management Conference Status Report due no later than February 5, 2010. Signed by Judge Maxine M. Chesney on November 6, 2009. (mmclc1, COURT STAFF) (Filed on 11/9/2009)

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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 JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney BRIAN J. STRETCH (CSBN 163973) Chief, Criminal Division NATALIE K. WIGHT (ORSBN 35576) Special Assistant United States Attorney 450 Golden Gate Avenue, 11th Floor San Francisco, CA 94102 Telephone: 415.436.6937 Facsimile: 415.436.7234 Email: natalie.wight@usdoj.gov Attorneys for United States of America ROBERT J. BELES (CSBN 41993) PAUL McCARTHY (CSBN 139497) One Kaiser Plaza, Suite 2300 Oakland, CA 94612 Telephone: 510.836.0100 Facsimile: 510.832.3690 Email: pablito@lmi.net Attorneys for Claimant, Todd Growney UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) Plaintiff, ) ) v. ) ) ONE DELL INSPIRON COMPUTER (SERIAL NO. 6VHBGD1) AND VISUAL ) ) DEPICTIONS ON THE HARD DRIVE, ) Defendants. ) ) UNITED STATES OF AMERICA, I. Jurisdiction This Court has jurisdiction pursuant to Title 28, United States Code, Sections 1345 and 1355; and Title 18, United States Code, Sections 2253 and 2254. II. Case Description This is a civil forfeiture action. The government contends there is sufficient evidence to show the defendant laptop and visual depictions were used or intended to be used to promote, or No. 09-CV-3174-MMC JOINT CMC STATEMENT AND [PROPOSED] ORDER TO POSTPONE CMC AND ORDER CONTINUING CASE MANAGEMENT CONFERENCE 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 are traceable to, the commission of an offense involving a visual depiction described in 18 U.S.C. 2251, 2251A, 2252, 2252A, 2252B or 2260, found in Chapter 110, Sexual Exploitation and Other Abuse of Children, and are thus subject to forfeiture. Claimant, Todd Growney, denies the claim made by the United States and asserts that the government has failed to state a claim upon which relief can be granted and that the property was seized in violation of Mr. Growney's right to be free from unlawful searches and seizures. III. Service/Parties to the Action All persons known to have an interest in the defendant property have been served, including Todd William Growney and his attorney Robert J. Beles. Mr. Beles filed a verified claim and answer for the defendant laptop on behalf of Mr. Growney on August 14, 2009, and September 2, 2009, respectively. To date, no other claims have been filed. IV. Principal Factual and Legal Issues The principal factual and legal issues in dispute are: (1) whether claimant Todd William Growney can prove that the government failed to state a claim upon which relief can be granted or that the defendant property was seized in violation of claimant's right to be free from unlawful searches and seizures; and (2) whether the government can establish by a preponderance of the evidence that the defendant laptop and visual depictions were used or intended to be used to promote, or are traceable to, the commission of an offense involving a visual depiction described in 18 U.S.C. 2251, 2251A, 2252, 2252A, 2252B or 2260, found in Chapter 110, Sexual Exploitation and Other Abuse of Children. V. Anticipated Motions There is currently an open criminal investigation related to the seizure of Mr. Growney's laptop computer; therefore, whether the government decides to file a criminal indictment against Mr. Growney, will determine if he files a motion to stay the civil forfeiture proceedings. The government would have no opposition to a motion to stay. VI. Relief/Damages The government seeks a judgment of forfeiture of the defendant laptop and visual depictions. Claimant seeks return of the defendant laptop. This is not a damages case. Joint CMC Statement and [Proposed] Order No. 09-CV-3174-MMC 2 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 VII. Settlement The parties are unable to fully engage in settlement discussions until the issues concerning the potential criminal action and civil motion to stay are resolved. VIII. Discovery Both parties anticipate to propound some discovery in this case (interrogatories, document requests and possible depositions); however, the discovery time line will be determined by the Court and the possible request for a stay pending the results of the open criminal investigation related to the seizure of the defendant laptop. The parties suggest postponing the case management conference, and setting up a status report due in 90 days to set any dates related to motions, trial and the completion of discovery. IX. Alternative Means of Disposition At this time the parties do not request reference to arbitration or to a United States Magistrate Judge for trial. X. Pretrial/Trial Issues At this time the parties have not yet discussed any trial issues. XI. Class Action This is not a class action. XII. Related Cases At this time no related cases have been filed. IT IS SO STIPULATED. Dated: November 5, 2009 /s/ NATALIE K. WIGHT Special Assistant United States Attorney /s/ ROBERT J. BELES Attorney for Claimant Todd Growney Dated: November 5, 2009 Joint CMC Statement and [Proposed] Order No. 09-CV-3174-MMC 3 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 DATED:_N_____ber_6,_2009 _ _ ovem __ _ ____ IT IS HEREBY ORDERED. [PROPOSED] ORDER Upon stipulation of counsel, and for good cause shown, the case management conference scheduled for November 13, 2009, at 10:30 a.m. is vacated, and February 12, 2010 Is hereby rescheduled for __________________________________, with an updated case no later than February 5, 2010 management conference status report due to the court _____________________________. HONORABLE MAXINE M. CHESNEY United States District Judge Joint CMC Statement and [Proposed] Order No. 09-CV-3174-MMC 4

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