United States of America et al v. Benchick

Filing 11

STIPULATION AND ORDER for entry settling and resolving 3 Petition filed by Adrian Farm Fund, LLC Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
UNITED STATES OF AMERICA,
Plaintiff,
vs.

Case No. 17-mc-50074
(Related to Case No. 13-cr-20453)
Honorable Robert H. Cleland

D-1 JOHN S. BENCHICK,
Defendant.
______________________________/
STIPULATION FOR ENTRY OF ORDER SETTLING AND RESOLVING
PETITION FILED BY ADRIAN FARM FUND, LLC
Plaintiff, by and through its counsel, together with Adrian Farm Fund, LLC,
(Petitioner) by and through its attorney, Jorin Rubin, hereby submit this Stipulation
for Entry of an Order Settling and Resolving the Petition to Adjudicate the Validity
of Interest in Property filed by Petitioner (17-mc-50074; ECF 3) concerning the
following property (hereinafter the “Subject Property”):
Three Hundred Seven Thousand Five Hundred Eighteen Dollars and
Seventy-Three Cents ($307,518.73) in U.S. currency in net proceeds from
the sale of, and in lieu of, real property located at 2850 E. US 223, Adrian,
MI, 49221 and 2850 E US 223, Madison Township, MI, 49221.
On October 6, 2016, this Court entered a Preliminary Order of Forfeiture in
Criminal Case No. 13-cr-20453 (ECF 89) ordering the forfeiture to the United
States of all defendant Benchick’s right, title and interest in the Subject Property.
However, the forfeiture order provides that if defendant Benchick appeals from his

conviction on Count One of the Second Superseding Indictment, the government
will stay the execution of forfeiture as to the Subject Property to ensure that it
remains available pending appellate review. (13-cr-20453; ECF 89). The
forfeiture order further provides,
the stay will not delay the ancillary proceeding or the determination
of a third party's rights or interests. If the Court rules in favor of any
third party while an appeal is pending, the Court may amend the
order of forfeiture but must not transfer any property interest to a
third party until the decision on appeal becomes final, unless
Defendant consents in writing or on the record.
(13-cr-20453; ECF 89). Defendant Benchick filed an appeal, which is
currently pending before the United States Court of Appeals, for the
Sixth Circuit (Case No. 16-2471, USA v. John Benchick) (the “Benchick
Appeal”).1
Petitioner filed a petition claiming an interest in the Subject Property in the
amount of $115,000.00. (17-mc-50074; ECF 3).
The period for filing an ancillary petition asserting an interest in the Subject
Property has expired and with the exception of Petitioner and David Slates, no
other persons have filed a petition.2

1 Oral

argument is scheduled for December 7, 2017.
2 A separate stipulation between the government and David Slates addresses the
petition filed by Mr. Slates.
2

The undersigned parties recognize the inherent potential risks of litigation,
are aware of their respective rights, and wish to resolve this matter without further
litigation and expense. Accordingly, the undersigned parties have reached a
settlement regarding the Subject Property.
NOW, THEREFORE, the parties, whose signatures appear below, hereby
stipulate and agree, and seek the immediate entry of an Order as follows:
1.

These are ancillary proceedings under 21 U.S.C. § 853(n) stemming

from the criminal case of defendant John Benchick, 13-cr-20453 (E.D. Mich., Hon.
Cleland).
2.

The Court has jurisdiction and venue pursuant to 21 U.S.C. § 853(l).

3.

The position of the United States was at all times meritorious.

Petitioner hereby releases, remises and forever discharges the United States of
America, and its agents, officers, employees, past and present, and all other persons
assisting in any manner in the facts, events and circumstances giving rise to the
forfeiture action against the Subject Property, from any liability, responsibility or
obligation of any kind whatsoever, as well as all claims or causes of action which
Petitioner, and its assigns, agents and successors in interest, past and present, have,
and hereafter can, shall or may have for, or on account of the incidents or
circumstances giving rise to, and in connection with, the forfeiture action against
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the Subject Property.
4.

Upon entry by the Court of the Order submitted herewith, or as soon

thereafter as is practicable, the government will file an application requesting that
the Court enter an Amendment to the Preliminary Order of Forfeiture in Case No.
13-cr-20453 (E.D. Mich., Hon. Cleland) that authorizes the United States to release
and transfer Fifty Seven Thousand Five Hundred Dollars ($57,500.00) to Petitioner
less any debt owed by Petitioner to the United States, any agency of the United
States, or less any other debt which the United States is authorized to collect from
Petitioner, including but not limited to any debts collected through the Treasury
Offset Program, in full satisfaction of the claims set forth in Petitioner’s petition as
it pertains to this ancillary matter upon the happening of the first of the following
to occur:
a)

b)

5.

the decision by the Sixth Circuit Court of Appeals on
the Benchick Appeal, affirming the conviction on
Count One of the Second Superseding Indictment,
becomes final, or
defendant Benchick consents in writing or on the
record.

Upon being authorized to release/transfer the funds described in

Paragraph 4 above, such funds shall be disbursed through the Electronic Payment
System after Petitioner’s attorney has supplied Automated Clearing House
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information to the government for electronic deposit of the funds into the
attorney’s then current IOLTA/client trust account, or other account designated by
Petitioner’s attorney.
6.

Petitioner hereby withdraws and releases its claim/petition against the

government to the remainder of the Subject Property that Petitioner sought to
recover in its petition, and agrees to accept the payment of the funds described in
Paragraph 4 above in full satisfaction of the claim set forth in its petition as
against the government.
7.

By signing below, the parties to this Stipulation affirm that they have

reviewed this Stipulation with counsel of their choice; understand it, and are aware
of their rights and obligations under it; and understand fully the consequences of
entering into it.
8.

Petitioner hereby knowingly and voluntarily waives any and all right

to reimbursement by the United States of reasonable attorney fees and litigation
costs in connection with this action under 28 U.S.C. § 2465(b)(1)(A) or any other
statute that might conceivably apply.
9.

Given the parties’ agreement set forth in this stipulation, there is no

need to litigate the claims set forth in Petitioner’s petition in this ancillary action.
Accordingly, upon entry of the Order submitted with this Stipulation, this matter,
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Case No. 17-mc-50074, shall be CLOSED. However, the Court shall retain
jurisdiction to enforce this Order.
10.

Nothing in this Stipulation should be interpreted or construed as an

agreement, admission or finding that Petitioner holds a lien, free and clear of all
other liens and encumbrances held by any third party, on the Subject Property.
11.

In the event that defendant John Benchick’s conviction on Count One

of the Second Superseding Indictment in Criminal Case No. 13-cr-20453 is
vacated, and the government decides not to retry defendant Benchick on Count
One and/or dismisses the charge, then the United States will disburse the Subject
Property as authorized by statute and directed by the Court. Additionally,
notwithstanding anything stated herein to the contrary, in the event that defendant
John Benchick’s conviction on Count One of the Second Superseding Indictment
in Criminal Case No. 13-cr-20453 is vacated, and the government decides not to
retry defendant Benchick on Count One and/or dismisses the charge, then the

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interest that Petitioner claims in the Subject Property as set forth in its Verified
Petition is preserved.
Agreed as to form and substance:
DANIEL L. LEMISCH
Acting United States Attorney
s/ Linda Aouate
LINDA M. AOUATE (P70693)
Assistant United States Attorney
211 W. Fort Street, Suite 2001
Detroit, MI 48226
[phone]
[e-mail]
Dated: October 18, 2017

s/Jorin G. Rubin
JORIN G. RUBIN (P60867)
Counsel for Petitioner
550 W. Merrill Street, Suite 100
Birmingham, MI 48009-1443
[phone]
[e-mail]
Dated: October 19, 2017

s/Robert Ameriguian, please see attached page
ROBERT AMERIGUIAN
Managing Member
Adrian Farm Fund, LLC
Petitioner
Dated: October __, 2017

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
UNITED STATES OF AMERICA,
Case No. 17-mc-50074
(Related to Case No. 13-cr-20453)

Plaintiff,
vs.

Honorable Robert H. Cleland

D-1 JOHN S. BENCHICK,
Defendant.
______________________________/
ORDER SETTLING AND RESOLVING
PETITION FILED BY ADRIAN FARM FUND, LLC
This Court, having reviewed the Stipulation submitted by the government
and Adrian Farm Fund, LLC, HEREBY ORDERS the following:
1.

These are ancillary proceedings under 21 U.S.C. § 853(n) stemming from
the criminal case against defendant John Benchick.

2.

The Court has jurisdiction and venue pursuant to 21 U.S.C. § 853(l).

3.

The position of the United States was at all times meritorious. Adrian Farm
Fund, LLC releases, remises and forever discharges the United States of
America, and its agents, officers, employees, past and present, and all other
persons assisting in any manner in the facts, events and circumstances giving
rise to the forfeiture action against the Subject Property, from any liability,
responsibility or obligation of any kind whatsoever, as well as all claims or
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causes of action which Adrian Farm Fund, LLC, and its assigns, agents and
successors in interest, past and present, have, and hereafter can, shall or may
have for, or on account of the incidents or circumstances giving rise to, and
in connection with, the forfeiture action against the Subject Property.
4.

Upon entry of this Order, or as soon thereafter as is practicable, the
government will file an application requesting that the Court enter an
Amendment to the Preliminary Order of Forfeiture in Case No. 13-cr-20453
that authorizes the United States to release and transfer Fifty Seven Thousand
Five Hundred Dollars ($57,500.00) to Adrian Farm Fund, LLC less any debt
owed by Adrian Farm Fund, LLC to the United States, any agency of the
United States, or less any other debt which the United States is authorized to
collect from Adrian Farm Fund, LLC, including but not limited to any debts
collected through the Treasury Offset Program, in full satisfaction of the
claims set forth in Adrian Farm Fund, LLC’s petition upon the happening of
the first of the following to occur:
a)

the decision by the Sixth Circuit Court of Appeals on the
appeal filed by defendant Benchick Appeal (Case No. 162471), affirming the conviction on Count One of the Second
Superseding Indictment, becomes final, or

b)

defendant Benchick consents in writing or on the record.

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5.

Upon being authorized to release/transfer the funds described in Paragraph 4
above, such funds shall be disbursed through the Electronic Payment System
after Adrian Farm Fund, LLC’s attorney has supplied Automated Clearing
House information to the government for electronic deposit of the funds into
the attorney’s then current IOLTA/client trust account, or other account
designated by Adrian Farm Fund, LLC’s attorney.

6.

Adrian Farm Fund, LLC withdraws and releases its claim/petition against the
government to the remainder of the Subject Property that it sought to
recover in its petition and accepts the payment of the funds described in
Paragraph 4 above in full satisfaction of the claims set forth in its petition as
against the government.

7.

Adrian Farm Fund, LLC and the government have affirmed that each has
reviewed the Stipulation with counsel of their choice; understand it, and are
aware of their rights and obligations under it; and understand fully the
consequences of entering into it.

8.

Adrian Farm Fund, LLC knowingly and voluntarily waives any and all right
to reimbursement by the United States of reasonable attorney fees and
litigation costs in connection with this action under 28 U.S.C. §
2465(b)(1)(A) or any other statute that might conceivably apply.
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9.

Given the Stipulation between the government and Adrian Farm Fund, LLC,
litigating Adrian Farm Fund, LLC’s petition in this ancillary matter is
unnecessary. Accordingly, upon entry of this Order, this ancillary matter is
CLOSED. However, the Court shall retain jurisdiction to enforce this
Order.

10.

Nothing in this Order should be interpreted or construed as a finding that
Adrian Farm Fund, LLC holds a lien, free and clear of all other liens and
encumbrances held by any third party, on the Subject Property.

11.

In the event that defendant John Benchick’s conviction on Count One of the
Second Superseding Indictment in Case No. 13-cr-20453 is vacated, and the
government decides not to retry Mr. Benchick on Count One and/or
dismisses the charge, then the United States will disburse the Subject
Property as authorized by statute and directed by the Court. Additionally,
notwithstanding anything stated herein to the contrary, in the event that
defendant John Benchick’s conviction on Count One of the Second
Superseding Indictment in Criminal Case No. 13-cr-20453 is vacated, and
the government decides not to retry defendant Benchick on Count One
and/or dismisses the charge, then the interest that Adrian Farm Fund, LLC

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claims in the Subject Property as set forth in its Verified Petition is
preserved.
SO ORDERED.
S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

Dated: October 25, 2017

I hereby certify that a copy of the foregoing document was mailed to counsel of record
and/or pro se parties on this date, October 25, 2017, by electronic and/or ordinary mail.

S/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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