United States of America v. 3039.375 Pounds of Copper Coins et al

Filing 58

ORDER granting 57 Motion for Extension of Time to stay up to and inclusive of 01/11/2011. Signed by Magistrate Judge Dennis Howell on 07/07/2010. (Pro se litigant served by US Mail.)(thh)

U n i t e d States of America v. 3039.375 Pounds of Copper Coins et al

D o c . 58

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA A S H E V IL L E DIVISION 1 :0 8 cv 2 3 0 U N IT E D STATES OF AMERICA, P l a i n t if f , V s. 3 0 3 9 .3 7 5 POUNDS OF COPPER C O IN S , et al., D efen d a n ts. _______________________________ ) ) ) ) ) ) ) ) ) ) )

ORDER

T H IS MATTER is before the court on the government's fifth Motion to E x ten d Stay to January 1, 2011, Pursuant to 18 U.S.C. § 981(g)(1). The court has considered the Motion to Extend Stay, pursuant to 18 U.S.C. § 9 8 1 (g )(1 ). The government has shown that there is an on going criminal prosecution, U n ite d States v. NotHaus, et al., 5:09cr27 (W.D.N.C. 2009), in which it is alleged that B e rn ard von NotHaus, William Kevin Innes, Sarah Jane Bledsoe, and Rachelle L. M o seley, have violated Title 18, Unites States Code, Sections 371, 1341 and 2, 485 an d 2, 486 and 2, 1341 and 2. In addition to such alleged Title 18 violations, alleg atio n s of criminal forfeiture have also been therein made. See United States v. N o tH au s, 5:09cr27, Docket Entry #3. Mr. Von Nothaus is both a claimant in this actio n and a defendant in the criminal proceeding.
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Dockets.Justia.com

T h e court will assume that at least one claimant will renew its opposition to su ch continued stay, and the court will respectfully consider such objection renewed. T h e undersigned has conducted an independent review of the official docket in 5 :0 9 cr2 7 and it appears that such matter is calendared for trial September 7, 2010. T h e court determines, therefore, that such related proceeding is both active and o n g o in g and that the stay of this proceeding is not only necessary to protect C o n s titu tio n al rights of claimants herein and defendants in the criminal action, it is m an d ated by Congress as the language of the statute is obligatory: (g) (1 ) Upon the motion of the United States, the court shall stay the civ il forfeiture proceeding if the court determines that civil d isco v ery will adversely affect the ability of the Government to c o n d u c t a related criminal investigation or the prosecution of a related criminal case. *** (3) With respect to the impact of civil discovery described in p arag rap h s (1) . . . the court may determine that a stay is u n n e c es sa ry if a protective order limiting discovery would protect th e interest of one party without unfairly limiting the ability of the o p p o sin g party to pursue the civil case. In no case, however, shall th e court impose a protective order as an alternative to a stay if the effect of such protective order would be to allow one party to p u rsu e discovery while the other party is substantially unable to d o so.

18 U.S.C. § 981(g)(1) & (3) (emphasis added). Clearly, civil discovery in this matter w o u ld adversely impact the ability of the government to conduct the prosecution of a related criminal case, to wit, 5:09cr27, and allowing discovery in this case at this

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tim e would run afoul of the criminal discovery orders entered in 5:09cr27. Discovery in a federal criminal case is governed by Rule 16, Federal Rules of Criminal P r o c ed u r e, which does not allow the broad inquiry provided under Rule 26, Federal R u les of Civil Procedure. See United States v. All Funds on Deposit in Suntrust A c c o u n t Number XXXXXXXXX8359, in Name of Gold , 456 F.Supp.2d 64, 65 (D .D .C . 2006). Unlike typical forfeiture cases involving United States currency, the g o v ern m en t contends that the res in this matter is contraband in both this civil action an d in the criminal proceeding. A determination in the criminal proceeding as to w h eth er the coins are counterfeit or contraband may impact the claims of ownership in this action, 18 U.S.C. § 983(d)(4), as collateral estoppel from the criminal matter m a y bar relitigating a forfeiture finding in this action. Concepcion v. United States, 2 9 8 F.Supp.2d 351, 357 (E.D.N.Y. 2004). Further, the affidavit of the case agent e ar lie r filed in this action indicates that the res in this action is needed as evidence in th e criminal prosecution, Aff. of Romagnuolo, at ¶ 7, and it would appear that a llo w in g this civil action to move forward would impact the fifth amendment rights o f those indicted in the criminal action. Further, it appears that the defendant property in this action is the same property that has been noticed for forfeiture in the in d ictm en t. Motion, at ¶ 3(b). If the defendant property is found by the court in the

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crim in al action to be contraband, they could not be returned to claimants in this action. M o tio n , at ¶ 3(h). T h e Motion to Extend Stay will, therefore, be granted and discovery as well as all other proceedings in this civil matter shall be stayed for an additional six months, at which time such stay shall automatically dissolve unless the government can show b y motion (accompanied by a status report) reasons why the stay should not be lifted.

ORDER IT IS, THEREFORE, ORDERED that the government's Motion to Extend S tay to January 1, 2011 Pursuant to 18 U.S.C. § 981(g)(1) (#57) is GRANTED, and d is co v e ry as well as all other proceedings in this civil matter are STAYED up to and in c lu siv e of January 1, 2011, at which time such stay shall automatically dissolve u n less the government can show by motion (accompanied by a status report) reasons w h y the stay should not be lifted.

Signed: July 7, 2010

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