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United States v. Real Property Located At 80 Coon Creek Road

November 13, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
REAL PROPERTY LOCATED AT 80 COON CREEK ROAD, COON CREEK ROAD, BURNT RANCH, CALIFORNIA, DEFENDANT.



FINDINGS & RECOMMENDATIONS

Previously pending on this court's law and motion calendar for November 5, 2008, was plaintiff's ex parte motion for entry of default judgment pursuant to E.D. Cal. L.R. A-540(d). This is a civil forfeiture action against real property located at 80 Coon Creek Road, in Trinity County, California, APN: 008-770-11-000 (also known as Lot 0-21), including all appurtenances and improvements thereto (hereafter referred to as "defendant real property").*fn1 Plaintiff United States of America ("Government") seeks default judgment against the interests of Ronald Dale Nortrup and Jeanne Bass Nortrup, previously husband and wife, and the record title owners of defendant real property as joint tenants. Plaintiff seeks entry of a Final Judgment of Forfeiture that vests in the Government all right, title, and interest in defendant real property, subject to the interest of lienholder Roy L. Gazaway.

This case was referred to the undersigned pursuant to Local Rule 72-302(c)(19) and 28 U.S.C. § 636(b)(1). Assistant United States Attorney Kristin S. Door appeared at the hearing on behalf of plaintiff United States, and lienholder Roy L. Gazaway has appeared pursuant to the stipulation he entered with plaintiff. Neither Ronald Dale Nortrup and Jeanne Bass Nortrup appeared at the hearing.

Upon review of the motion, supporting documents, and the oral arguments of plaintiff and lienholder, and good cause appearing, the court now issues the following findings and recommendations.

BACKGROUND

This case is proceeding on the Verified Complaint for Forfeiture in Rem ("complaint") filed July 13, 2007. The complaint makes the following factual allegations: § 5. On or about March 20, 2007, Sergeant Grossman with the Trinity County Sheriff's Department Narcotic Task Force was contacted by members of the Drug Enforcement Administration ("DEA") assigned to work drug and parcel interdiction at the Minneapolis - St. Paul International Airport in Minnesota. A drug-detection dog had alerted to a package addressed to Ron Nortrup, Lot 0-21 Coon Creek Road in Burnt Ranch, California. § 6. On or about March 21, 2007, a search warrant was served on the parcel in Minnesota. Inside the parcel, law enforcement officers found a Honeywell safe containing more than $40,000.00 in U.S. Currency. Interviews with the persons who attempted to ship the package stated that the currency was payment to Ron Nortrup for the last ten pounds, of the 15 to 20 pounds, of marijuana Nortrup had shipped and/or delivered to Minnesota. § 7. On or about March 22, 2007, officers with the Trinity County Sheriff's Department executed a search warrant at the defendant real property. Officers seized the following items from inside the residence: approximately 30 pounds of high quality marijuana bud manicured and packaged; pay/owe sheets and inventory; plant yield records; concentrated cannabis; cocaine; an indoor marijuana grow with approximately 15 growing plants; a large pile of marijuana stalks from the 2006 outdoor cultivation season; approximately $3,573.00 in U.S. Currency; two Honeywell safes; and evidence of marijuana being dried in several of the outbuildings on the defendant real property.

Ver. Compl., at 2-3.

The complaint alleges that defendant real property was used or intended to be used, to commit or to facilitate the commission of, a violation of 21 U.S.C. §§ 841, et seq. (prohibiting the manufacture, distribution, dispensing or possessing of a controlled or counterfeit substance), an offense punishable by more than one year's imprisonment, and therefore subject to forfeiture pursuant to 21 U.S.C. § 881(a)(7).*fn2

The U.S. Marshals Service posted defendant property with the verified complaint and notice of complaint on July 25, 2007. Declaration of FSA Supervisory Paralegal Sherri Swanson in Support of Ex Parte Motion for Default Judgment ("Swanson Decl."), § 23; Docket ("Dckt.") No. 4. On July 18, 2007, the Government recorded a Lis Pendens (Notice of Pending Action) against defendant real property with the Trinity County Recorder. See Dckt. No. 5.

On July 25, 2007, the U.S. Marshals Service attempted unsuccessfully to personally serve the complaint and related documents upon the Nortrups at defendant real property. See Swanson Decl., §§ 3, 11, and Exhibit ("Exh,") A. Personal service upon the Nortrups was again attempted on August 9 and 15, 2007; the documents were left at the residence on August 15, 2007. Id., §§ 4, 12, Exh. A, H. On August 23, 2007, copies of the complaint and related documents were sent by certified mail to the Nortrups to their respective postal boxes. After three attempts at notice, the certified mail envelope addressed to Ronald Nortrup was returned as "unclaimed."

Id., § 5, Exh. B. A Return Receipt was signed by Jeanne Nortrup and returned on August 29, 2007. Id., § 13, Exh. I.

On September 13, 2007, after learning that Ronald Nortrup was in custody at High Desert State Prison, the Government sent by certified mail the verified complaint and related documents to the prison c/o Ronald D. Nortrup. The Return Receipt was signed by J. Spencer on September 15, 2007. Id., § 6, Exh. C. Further notice was provided Ronald Nortrup's criminal defense attorney, Ben Okin, on September 13, 2007, the Return Receipt signed on September 17, 2008. Id., § 7, Exh. D. Ronald Nortrup sent a letter to the U.S. Attorney's Office on September 21, 2007, expressing, inter alia, his interest in being present in any civil forfeiture proceeding. Id., § 8, Exh. E. On November 30, 3007, Assistant U.S. Attorney Kristin Door wrote a letter to Mr. Nortrup explaining the procedure for contesting this civil forfeiture action, and instructing him to file a claim and answer by the close of business December 17, 2007. Id., § 9, Exh. F. On December 13, 2007, the Government received a letter from Mr. Nortrup in which he stated that he would not contest the forfeiture of defendant real property. Id., § 10, Exh. G.

From August 30 to November 30, 2007, Jeanne Nortrup had various communications with the U.S. Attorney's Office, including informing the Government that she and Ronald Nortrup had divorced and she had quitclaimed defendant property to him. Id., §§ 14-19. Despite being informed of her right to file a claim to defendant real property and answer the complaint, Jeanne Nortrup did neither. Id.

The Government's review of Trinity County records demonstrates that on April 26, 2007, Jeanne Nortrup sold defendant real property to Ronald Nortrup, and a quitclaim deed was recorded on June 14, 2007. Id., § 20, Exh. J. On July 16, 2007, copies of the complaint and related documents were sent by certified mail to potential lienholders Godfather Bail Bonds, Inc., and Linda L. and Roy L. Gazaway, former owners of defendant real property. Id., § 21, Exh. K. On August 27, 2007, Roy L. Gazaway filed a verified claim to defendant real property, pursuant to a deed of trust, and subject to a quitclaim deed filed by Linda Gazaway. Id., § 21; see also, Dckt. No. 7. On May 9, 2008, Roy Gazaway filed a verified answer to the complaint. Id., § 21; Dckt. No. 21.

Pursuant to order of this court filed July 17, 2007, notice of this action was published on August 15, 22, 29 and September 5, 2007, in the Trinity Journal, a newspaper of general circulation in the county in which defendant real property is located, as required by Rule G (4) of the Supplemental Rules of Admiralty or Maritime Claims and Asset Forfeiture Actions. Id., § 24; Dckt. Nos. 3 (Order) and 12 (Affidavit of Publication filed Sept. 26, 2007).

To date, no claim or answer has been filed by, or on behalf of, Ronald or Jeanne Nortrup, as required by Rule G (5) of the Supplemental Rules of Admiralty or Maritime Claims and Asset Forfeiture ...


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