United States of America v. 3039.375 Pounds of Copper Coins et al
Filing
65
ORDER granting 62 Motion to Stay and discovery as well as all other proceedings in this civil matter are STAYED up to and inclusive of December 10, 2011, at which time such stay shall automatically dissolve unless the Government can show by motion (accompanied by a status report) reasons why the stay should not be lifted. Signed by Magistrate Judge Dennis Howell on 06/29/11. (Pro se litigant served by US Mail.)(emw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:08cv230
UNITED STATES OF AMERICA
Plaintiff,
v.
3039.375 POUNDS OF COPPER
COINS, et al.,
Defendants.
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ORDER
Pending before the Court is the Motion to Stay [# 62]. The Government moves
to extend the current stay in this matter until December 10, 2011, pursuant to 18
U.S.C. § 981(g)(1). No response to the motion was filed.
The Court has considered the Motion to Stay. The Government has shown that
there is an on going criminal prosecution, United States v. NotHaus, et al., 5:09cr27
(W.D.N.C. 2009), in which it is alleged that Bernard von NotHaus, William Kevin
Innes, Sarah Jane Bledsoe, and Rachelle L. Moseley, have violated Title 18, United
States Code, Sections 371, 1341 and 2,485 and 2,486 and 2,1341 and 2. In addition
to such alleged Title 18 violations, allegations of criminal forfeiture have also been
made in the case. Mr. Von Nothaus is both a claimant in this action and a defendant
in the criminal proceeding.
The Court will assume that at least one claimant could have renewed their
opposition to such continued stay, and the Court will respectfully consider such
objection renewed. The undersigned has conducted an independent review of the
official docket in 5:09cr27. The District Court has not yet issued a forfeiture ruling
in the case and a Motion for New Trial is pending. The Court determines, therefore,
that such related proceeding is both active and ongoing and that the stay of this
proceeding is not only necessary to protect Constitutional rights of claimants herein
and defendants in the criminal action, it is mandated by Congress as the language of
the statute is obligatory:
(g)
(1) Upon the motion of the United States, the court shall stay the
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 prosecution of a
related criminal case.
***
(3) With respect to the impact of civil discovery described in
paragraphs (1) . . . the court may determine that a stay is
unnecessary if a protective order limiting discovery would protect
the interest of one party without unfairly limiting the ability of the
opposing party to pursue the civil case. In no case, however, shall
the 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
pursue discovery while the other party is substantially unable to
do so.
18 U.S.C. § 981(g)(1) & (3) (emphasis added). Civil discovery in this matter would
adversely impact the ability of the Government to conduct the prosecution of a related
criminal case and allowing discovery in this case at this time 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 Procedure, which does not allow
the broad inquiry provided under Rule 26, Federal Rules of Civil Procedure. See
United
States
v.
All Funds
on
Deposit in
Suntrust Account
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
Government contends that the res in this matter is contraband in both this civil action
and in the criminal proceeding. A determination in the criminal proceeding as to
whether 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
may bar relitigating a forfeiture finding in this action. Concepcion v. United States,
298 F.Supp.2d 351, 357 (E.D.N.Y. 2004). Further, the affidavit of the case agent
earlier filed in this action indicates that the res in this action is needed as evidence in
the criminal prosecution, (Aff. of Romagnuolo, at ¶ 7), and it would appear that
allowing this civil action to move forward would impact the fifth amendment rights
of 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
indictment. If the defendant property is found by the court in the criminal action to
be contraband, it could not be returned to claimants in this action.
The Motion to 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 by 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 Stay
[# 62] is GRANTED, and discovery as well as all other proceedings in this civil
matter are STAYED up to and inclusive of December 10, 2011, at which time such
stay shall automatically dissolve unless the Government can show by motion
(accompanied by a status report) reasons why the stay should not be lifted.
Signed: June 29, 2011
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