United States of America v. 700 Upper Applegate Road, Jacksonville, Jackson County, State and District of Oregon
Filing
21
OPINION and ORDER. Based on the foregoing, the government's motion to stay (#9) is GRANTED. This action shall be stayed for a period of 120 days from the date of this order. IT IS SO ORDERED. Signed on 04/24/2013 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
3:12-cv-01997-MA
Plaintiff,
OPINION AND ORDER
v.
700 UPPER APPLEGATE ROAD,
JACKSONVILLE, JACKSON COUNTY,
STATE AND DISTRICT OF OREGON,
REAL PROPERTY WITH BUILDINGS,
APPURTENANCES, AND
IMPROVEMENTS, and,
746 APPLEGATE ROAD,
JACKSONVILLE, JACKSON COUNTY,
STATE AND DISTRICT OF OREGON,
REAL PROPERTY WITH BUILDINGS,
APPURTENANCES AND
IMPROVEMENTS, in rem,
Defendants.
S. AMANDA MARSHALL
United States Attorney
AMY E. POTTER
Assistant United States Attorney
405 East Eighth Avenue, Suite 2400
Eugene, Oregon 97401
Attorneys for Plaintiff
Ill .
1 - OPINION AND ORDER
MICHAEL R. LEVINE
Levine & McHenry, LLC
1001 Southwest Fifth Avenue, Suite 1414
Portland, Oregon 97204
Attorney for Claimant Day W. Boddorff
ROBERT L. ABEL
220 Laurel Street
Medford, Oregon 97501
Attorney for Claimant Melissa Jean Yager
DAVID J. BOULANGER
ROCHELLE L. STANFORD
Pite Duncan, LLP
621 Southwest Morrison Street, Suite 425
Portland, Oregon 97205
Attorneys for Claimant PNC Mortgage
MARSH, Judge
The United States of America brings this civil
action pursuant to 18 U.S.C.
and 1395.
stay
this
§
981, 28 U.S.C.
§§
forfeiture
1345, 1355, 1356
Currently before the court is the government's motion to
For
action.
the
reasons
government's motion to stay is granted,
set
forth
below,
the
and this proceeding is
stayed for a period of 120 days from the date of this order.
BACKGROUND
The government seeks the forfeiture of two parcels of land
allegedly used or intended to be used to commit or facilitate a
drug transaction.
The alleged probable cause for the seizure of
the property is set forth in the declaration of Clark Wheeler,
2 - OPINION AND ORDER
Agent,
Special
States
United
of
Department
Drug
Justice,
Enforcement Administration.
three claimants have filed
As of the date of this order,
claims to at least one of the defendant properties.
of both properties is contested.
The forfeiture
Only claimant Day W. Boddorff,
who filed a claim on the 746 Applegate Road property, opposes the
government's motion to stay.
DISCUSSION
Pursuant to 18 U.S. C.
§
981 (g) ( 1), "[u) pon 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
Government
the
to
conduct
a
related
criminal
investigation or the prosecution of a related criminal case.•
If
the government requests a stay, it may "submit evidence ex parte in
order to avoid disclosing any matter that may adversely affect an
ongoing criminal investigation or pending criminal trial. •
u.s.c.
§
18
981(g) (5).
A related criminal investigation or proceeding is defined as
"an actual prosecution or investigation in progress at the time at
>vhich the request
981 (g) ( 4) .
for
is made."
the stay
18
u.s.c.
§
Among the factors the court is to consider to determine
whether the criminal proceeding or investigation is related are
"the degree of similarity between the parties, witnesses,
and
circumstances
involved
3 - OPINION AND ORDER
in
the
two
proceedings,
facts,
without
requiring an identity with respect to any one or more factors."
Id.
A stay may be granted regardless of whether the opposing
claimant is a target of the criminal investigation or a defendant
in the criminal case, so long as the government meets its burden of
demonstrating that civil discovery will adversely affect a related
criminal investigation or proceeding.
See United States v. Aoprox.
$69,577 in U.S. Currency, No. C 09-0674 PH, 2009 WL 1404690, at *3
Cal.
(N.D.
May 19,
2009);
United States v.
Assorted
Firearms-
Motorcycles and Other Personal Property, 677 F.Supp.2d 1214, 1216
(C. D. Cal. 2009).
The government moved for a stay in this case, and filed an ex
affidavit
parte
from
Special
Agent
Wheeler,
asserting
that
discovery in the instant civil forfeiture proceeding will adversely
affect
a
related
ongoing
criminal
investigation.
Claimant
Boddorff, through counsel, has served a request for production on
the government, requesting, among other documents:
1.
The affidavit or declaration and accompanying
exhibits underlying the search warrant, issued
about September 17, 2012, by the Honorable Mark D.
Clarke, that authorized the search of 700 and 746
Upper Applegate Road, Jacksonville, Oregon.
2.
A copy of all oral, written, or
made by Day Boddorff to any law
on the date the search warrant
September 18, 2012), or on any
3.
A copy of all oral, written, or recorded statements
made by James Bowman to any federal, state, or
local law enforcement officer that relate in any
4 - OPINION AND ORDER
recorded statements
enforcement officer
was executed (about
subsequent date.
way to the alleged growing of marijuana at 700 or
746 Upper Applegate Road, Jacksonville, Oregon.
* * *
8.
A copy of all records from Oregon Medical
Program (OMMP) referred to in paragraphs
of the declaration of DEA Agent Clark
executed on November 5, 2012 (Exhibit
Complaint) .
9.
A copy of all reports prepared by any federal,
state, or local law enforcement agency relating to
the alleged growing of marijuana at 700 and 756
Upper Applegate Road, Jacksonville, Oregon.
Mr.
Marijuana
24 and 27
Wheeler,
A to the
Boddorff makes several arguments in opposition to the
government's motion to stay.
First, Mr. Boddorff argues that the
government has not met its burden of demonstrating that a stay is
necessary to prevent adverse effects on a related criminal case or
investigation.
Second, Mr. Boddorff suggests that the court should
not accept the representations made by Special Agent Wheeler in the
ex parte affidavit submitted in support of the government's motion,
but rather should hold an evidentiary hearing.
submits that
ability
to
the
give
stay is
a
Third, Mr. Boddorff
inappropriate because it impairs his
mortgage
on
the
property
government grant to upgrade the property.
or
apply
Fourth, Mr.
for
a
Boddorff
argues that the court should deny the stay because the government
has unclean hands.
Fifth, Mr. Bodorff maintains that a protective
order is sufficient to protect the government's interest.
Finally,
Mr. Boddorff asserts that the court should limit the length of any
5 - OPINION AND ORDER
stay
to
45
days
or
require
periodic
status
reports
on
the
continuing need for a stay.
Upon review of the parties'
submissions,
including Special
Agent Wheeler's ex parte affidavit submitted with this motion, and
the declaration in support of the Complaint in rem for Forfeiture,
I find that the government has demonstrated that civil discovery in
this
case
will
adversely
investigation.
Mr.
affect
Boddorff
an
has
ongoing
already
related
sought
criminal
very
broad
discovery in the instant action, and the disclosure of many of the
documents
sought
would
very
likely
adversely
affect
I
government's ongoing related criminal investigation.
the
further
find that a protective order would be insufficient to protect the
government's
interest
in
completing
the
related
criminal
investigation.
Mr.
Boddorff relies on United States v.
Real Property and
Premises Located at 216 Kenmore Avenue for the proposition that the
government
"cannot
discharge
its
burden
by
claiming
that
the
discovery process could, theoretically, impair the criminal case."
657 F.Supp.2d 1060, 1063 (D. Minn. 2009).
While I agree with the
general proposition, as the 216 Kenmore Avenue court noted, courts
have granted stays in two types of cases: first, where the parties
have served discovery requests before the government sought the
stay; and second, where the government has submitted an ex parte
affidavit
demonstrating
6 - OPINION AND ORDER
that
civil
discovery might
impair
the
criminal investigation.
Id. at 1064.
categories
the
described by
216
This case falls into both
Kenmore Avenue
court,
as
Mr.
Boddorff has served broad discovery requests on the government, and
the government has submitted an ex parte affidavit demonstrating
that
civil
discovery
is
likely
to
impair
a
related
criminal
investigation.
I am mindful of Mr.
proceeding
nonetheless
in
a
timely
appropriate
prejudice to Mr.
Boddorff's interest in concluding this
manner,
but
for
reasons
the
I
Boddorff is mitigated,
find·
that
stated
a
stay
above.
is
The
and his constitutional
rights are protected, by the definite duration of the stay.
Mr.
Boddorff has cited no authority, and the court has found none, for
the proposition that unclean hands is a basis upon which the court
may deny a stay that the government is otherwise entitled to under
§
981(g) (5).
In any case, I find that Mr. Boddorff has failed to
make a colorable showing of unclean hands.
In sum, I conclude that the government has demonstrated that
discovery in this civil forfeiture proceeding will adversely affect
the
government's
investigation.
this
order
protect
the
is
ability
to
prosecute
the
related
criminal
I find that a stay of 120 days from the date of
sufficient,
government's
criminal investigation.
Ill
7 - OPINION AND ORDER
but
not
interest
greater
in
than
necessary,
prosecuting
the
to
related
CONCLUSION
Based on the foregoing, the government's motion to stay (#9)
is GRANTED.
This action shall be stayed for a period of 120 days
from the date of this order.
IT IS SO ORDERED.
DATED this
;2..1-/day of April, 2013.
Malcolm F. Marsh
United States District Judge
8 - OPINION AND ORDER
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