United States Of America v. Approximately $104,770 in United States Currency

Filing 41

ORDER GRANTING PLAINTIFF'S MOTION TO EXTEND STAY; VACATING HEARING. The Government's motion to extend the stay is granted and the instant action is stayed for 90 days, said stay beginning November 30, 2011. The hearing scheduled for December 16, 2011 is vacated. Signed by Judge Maxine M. Chesney on December 12, 2011. (mmclc2, COURT STAFF) (Filed on 12/12/2011)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

For the Northern District of California

United States District Court

10
11

UNITED STATES OF AMERICA
Plaintiff,

12
13
14

APPROXIMATELY $104,770 IN UNITED
STATES CURRENCY,
Defendant.

16

18
19
20
21
22
23
24
25

ORDER GRANTING PLAINTIFF’S
MOTION TO EXTEND STAY; VACATING
HEARING

v.

15

17

No. C 11-0249 MMC

/

Before the Court is plaintiff United States of America’s (the “Government”) motion,
filed October 12, 2011, to extend for 90 days the stay in the above-titled forfeiture action.1
Claimant Frank Joseph Alioto (“Alioto”) has filed opposition, to which the Government has
replied. Having read and considered the papers filed in support of and in opposition to the
motion, the Court deems the matter suitable for decision thereon, VACATES the hearing
scheduled for December 16, 2011, and rules as follows.
Pursuant to 18 U.S.C. § 981, “[u]pon the motion of the United States, the court shall
stay [a] civil forfeiture proceeding if the court determines that civil discovery will adversely
affect the ability of the Government to conduct a related criminal investigation or the

26
27
28

1

In accordance with the Court’s prior order, the Government, on November 30,
2011, filed ex parte and under seal two declarations in support of its motion.

1

prosecution of a related criminal case.”2 See 18 U.S.C. § 981(g)(1). Although the court

2

“may determine that a stay is unnecessary if a protective order limiting discovery would

3

protect the interest of one party without unfairly limiting the ability of the opposing party to

4

pursue the civil case,” see 18 U.S.C. § 981(g)(3), under no circumstances may the court

5

“impose a protective order as an alternative to a stay if the effect of such protective order

6

would be to allow one party to pursue discovery while the other party is substantially unable

7

to do so,” see id.
By order filed June 22, 2011, the Court granted a stay of 90 days, denied Alioto’s

8
9

request for a protective order allowing him partial discovery, and required the Government

10

“to meet the burden placed on it by 18 U.S.C. § 981(g)” in any motion seeking to extend the

11

stay. (See Amended Order Granting Plaintiff’s Motion to Stay at 3:23-24.) By the instant

12

motion, the Government seeks such an extension. In opposition thereto, Alioto again seeks

13

a protective order allowing for the production of “all records and documents relevant to the

14

drug detector dog team’s reliability and performance.” (See Claimant’s Proposed Order Re

15

Motion to Stay, filed October 26, 2011, at 1:18-19.)
The Court, having reviewed the parties’ respective submissions, including the ex

16
17

parte declarations submitted under seal by the Government, finds that lifting the stay “will

18

adversely affect the ability of the Government to conduct a related criminal investigation.”

19

See 18 U.S.C. § 981(g)(1). The Court further finds Alioto’s requested protective order would

20

not “protect the interests of one party without unfairly limiting the ability of the opposing party

21

to pursue the civil case.” See 18 U.S.C. § 981(g)(3).

22

//

23

//

24
25
26
27
28

2

“In [subsection (g)], the terms ‘related criminal case’ and ‘related criminal
investigation’ mean an actual prosecution or investigation in progress at the time at which
the request for the stay, or any subsequent motion to lift the stay is made. In determining
whether a criminal case or investigation is ‘related’ to a civil forfeiture proceeding, the court
shall consider the degree of similarity between the parties, witnesses, facts, and
circumstances involved in the two proceedings, without requiring an identity with respect to
any one or more factors.” See 18 U.S.C. § 981(g)(4).
2

1
2
3

Accordingly, the Government’s motion to extend the stay is hereby GRANTED and
the instant action is hereby STAYED for 90 days, said stay beginning November 30, 2011.
IT IS SO ORDERED.

4
5

Dated: December 12, 2011
MAXINE M. CHESNEY
United States District Judge

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3