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U. S. v. 456 E. EL NORTE PARKWAY ESCONDIDO

United States District Court, S.D. California


October 5, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
ONE RESIDENTIAL PROPERTY LOCATED AT 456 E. EL NORTE PARKWAY ESCONDIDO, CALIFORNIA AND ALL IMPROVEMENTS AND APPURTENANCES AFFIXED THERETO, Defendant.

The opinion of the court was delivered by: MARILYN HUFF, Chief Judge

STIPULATED JUDGMENT OF FORFEITURE PRESERVING EIGHTH AMENDMENT; ORDER THEREON
The United States of America, by and through its attorneys, Carol C. Lam, United States Attorney, and Garry G. Haehnle, Special Assistant U.S. Attorney, and claimants Martha Rivera and Miguel Rivera, owners of record of the residential property located at 456 E. El Norte Parkway, Escondido, California, and Merle N. Schneidewind, attorney of record for claimant, Martha Rivera and Donovan J. Dunnion, attorney of record for claimant, Miguel Rivera, stipulate as follows: 1. That the claimants stipulate that the above-captioned defendant property, located at 456 E. El Norte Parkway, Escondido, California, and All Improvements and Appurtenances Affixed Thereto described as:

 

That portion of lot 4 of Hillsdale Terrace unit No. 1, in the city of Escondido, County of San Diego, State of California, according to map thereof No. 2607, filed in the office of the county recorder of San Diego County, December 21, 1949, lying southeasterly of a line described as follows: Beginning at the midpoint in the southwesterly line of said lot 4; thence north 69 degrees 41' east parallel with the northwesterly line of said lot, 128.0 feet to the northeasterly line of said lot. San Diego County Assessor's Parcel Number 227-040-32-00.
is subject to forfeiture in all or in part pursuant to Title 21, U.S.C., Section 881 (a) (7) as property facilitating narcotics transactions. Claimants' contend that the forfeiture of the property in its entirety is violative of the excessive fine clause under the Eighth Amendment and as part of this stipulation agree Claimants reserve for the Court's determination what, if any, relief Claimants are entitled to on the issue of disproportionality.

  2. That the United States Department of Justice seeks the forfeiture of the property in its entirety and preserves its right to oppose Claimants' motion. 3. The parties will brief the issue regarding the eighth amendment excessive fine clause argument according to the schedule set by the court.

  ORDER

  Having reviewed the foregoing Stipulation and good cause appearing therefor,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that:
  1. That the above-captioned defendant property, 456 E. El Norte Parkway, Escondido, California, which is legally described as follows:

 

That portion of lot 4 of Hillsdale Terrace unit No. 1, in the city of Escondido, County of San Diego, State of California, according to map thereof No. 2607, filed in the office of the county recorder of San Diego County, December 21, 1949, lying southeasterly of a line described as follows: Beginning at the midpoint in the southwesterly line of said lot 4; thence north 69 degrees 41' east parallel with the northwesterly line of said lot, 128.0 feet to the northeasterly line of said lot. San Diego County Assessor's Parcel Number 227-040-32-00.
is hereby forfeited pursuant to Title 18, U.S.C., Section 881 (a) (7). 2. That the Claimant's right to contest the forfeiture of the defendant property in its entirety pursuant to the Excessive Fines Clause under the Eighth Amendment is hereby preserved.

  3. That the United States right to oppose claimant's Eighth Amendment argument is hereby preserved.

  4. The parties will brief the issue regarding the eighth amendment excessive fine clause argument according to the schedule set by the Court. The United States of America, by and through its attorneys, Carol C. Lam, United States Attorney, and Garry G. Haehnle, Special Assistant U.S. Attorney, and claimants Martha Rivera and Miguel Rivera, owners of record of the residential property located at 456 E. El Norte Parkway, Escondido, California, and Merle N. Schneidewind, attorney of record for claimant, Martha Rivera and Donovan J. Dunnion, attorney of record for claimant, Miguel Rivera, stipulate as follows: 1. That the claimants stipulate that the above-captioned defendant property, located at 456 E. El Norte Parkway, Escondido, California, and All Improvements and Appurtenances Affixed Thereto described as:

That portion of lot 4 of Hillsdale Terrace unit No. 1, in the city of Escondido, County of San Diego, State of California, according to map thereof No. 2607, filed in the office of the county recorder of San Diego County, December 21, 1949, lying southeasterly of a line described as follows: Beginning at the midpoint in the southwesterly line of said lot 4; thence north 69 degrees 41' east parallel with the northwesterly line of said lot, 128.0 feet to the northeasterly line of said lot. San Diego County Assessor's Parcel Number 227-040-32-00.
is subject to forfeiture in all or in part pursuant to Title 21, U.S.C., Section 881 (a) (7) as property facilitating narcotics transactions. Claimants' contend that the forfeiture of the property in its entirety is violative of the excessive fine clause under the Eighth Amendment and as part of this stipulation agree Claimants reserve for the Court's determination what, if any, relief Claimants are entitled to on the issue of disproportionality.

  2. That the United States Department of Justice seeks the forfeiture of the property in its entirety and preserves its right to oppose Claimants' motion. 3. The parties will brief the issue regarding the eighth amendment excessive fine clause argument according to the schedule set by the court.

  ORDER

  Having reviewed the foregoing Stipulation and good cause appearing therefor,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that:
  1. That the above-captioned defendant property, 456 E. El Norte Parkway, Escondido, California, which is legally described as follows:

 

That portion of lot 4 of Hillsdale Terrace unit No. 1, in the city of Escondido, County of San Diego, State of California, according to map thereof No. 2607, filed in the office of the county recorder of San Diego County, December 21, 1949, lying southeasterly of a line described as follows: Beginning at the midpoint in the southwesterly line of said lot 4; thence north 69 degrees 41' east parallel with the northwesterly line of said lot, 128.0 feet to the northeasterly line of said lot. San Diego County Assessor's Parcel Number 227-040-32-00.
is hereby forfeited pursuant to Title 18, U.S.C., Section 881 (a) (7). 2. That the Claimant's right to contest the forfeiture of the defendant property in its entirety pursuant to the Excessive Fines Clause under the Eighth Amendment is hereby preserved.

  3. That the United States right to oppose claimant's Eighth Amendment argument is hereby preserved.

  4. The parties will brief the issue regarding the eighth amendment excessive fine clause argument according to the schedule set by the Court.

20051005

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