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

Filing 50

ORDER GRANTING IN PART PLAINTIFF'S MOTION TO EXTEND STAY. The instant action is stayed for 30 days from the date of the order. Signed by Judge Maxine M. Chesney on April 9, 2012. (mmclc2, COURT STAFF) (Filed on 4/9/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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UNITED STATES OF AMERICA

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No. C 11-0249 MMC

Plaintiff,

ORDER GRANTING IN PART
PLAINTIFF’S MOTION TO EXTEND
STAY

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

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Before the Court are plaintiff United States of America’s (the “Government”)
(1) motion to further extend the stay in the above-titled forfeiture action and (2) motion to
file under seal ex parte evidence in support thereof, both filed February 24, 2012. Claimant
Frank Joseph Alioto (“Alioto”) has filed a separate opposition to each said motion, and the
Government has filed a reply with respect to the motion to extend. The matter came on
regularly for hearing March 30, 2012, Assistant United States Attorney David Countryman
appearing on behalf of the Government, and Edward M. Burch of the Law Offices of David
M. Michael appearing on behalf of Alioto. Having read and considered the papers filed in
support of and in opposition to the motions, and having considered the oral arguments of
counsel, the Court rules as follows.1

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By separate order filed concurrently herewith, the motion to file under seal ex parte
evidence has been granted, said order encompassing both the declaration initially
submitted with the motion and a supplemental declaration submitted thereafter.

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Pursuant to 18 U.S.C. § 981, “[u]pon the motion of the United States, the court shall

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stay [a] civil forfeiture proceeding if the court determines that civil discovery will adversely

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affect the ability of the Government to conduct a related criminal investigation or the

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

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

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

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

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

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

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to do so,” see id.
The Court, having reviewed the parties’ respective submissions, including the ex

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

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

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see 18 U.S.C. § 981(g)(1), and that Alioto’s requested protective order would not “protect

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the interests of one party without unfairly limiting the ability of the opposing party to pursue

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the civil case,” see 18 U.S.C. § 981(g)(3). In light thereof, the Court finds good cause has

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been shown for a further extension of the stay. Given the length of the stay to date,

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however, the extension granted herein is of more limited duration than that requested.

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Accordingly, the Government’s motion to extend the stay is hereby GRANTED in
part, and the instant action is hereby STAYED for 30 days from the date of this order.
IT IS SO ORDERED.
Dated: April 9, 2012
MAXINE M. CHESNEY
United States District Judge

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“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).
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