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United States v. Real Property Located at 22 Nelsier Place

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 9, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
REAL PROPERTY LOCATED AT 22 NELSIER PLACE, OROVILLE, CALIFORNIA, BUTTE COUNTY, APN: 078-040-022, (FORMERLY ) APN: 036-291-074 INCLUDING ALL APPURTENANCES AND IMPROVEMENTS THERETO, DEFENDANT.

JOINT STATUS REPORT AND STIPULATION TO STAY FURTHER PROCEEDINGS AND ORDER THEREON

DATE: January 20, 2009 TIME: 10:00 a.m. COURTROOM: 4/Chambers

Plaintiff United States of America, claimant Rebecca Gayle Powell, and claimants/lienholder John and Yvonne Stanton, and claimant/judgment creditor Ford Motor Company, submit the following Status Report pursuant to the Court's October 2, 2008, order.

(a) Parties

The plaintiff is the United States of America. Claimant Rebecca Gayle Powell alleges she is the owner of the defendant property although only Dean E. Teskey is listed as the owner in the title report for the defendant property. At this point in the litigation plaintiff is not prepared to concede that Rebecca Powell has any interest in the defendant property. Plaintiff is informed and believes that Powell is the daughter of Jess V. Brasier, one of the defendants in United States v. Jess V. Brasier and Dean Teskey, 2:08-cr-0453 LKK. The plaintiff believes that claimant Powell was involved in a scheme with her father to conceal the true ownership of the defendant property. Claimant Powell denies this contention.

Claimants John and Yvonne Stanton are the beneficiaries of a promissory note secured by a deed of trust recorded against the defendant property.

Claimant Ford Motor Credit Company is a judgment creditor of Jess V. Brasier and recorded an Abstract of Judgment against the defendant property on January 12, 2005.

(b) Summary of Facts and Legal Theories

The United States alleges this property is subject to forfeiture to the United States pursuant to 21 U.S.C. § 881(a)(7) because it was used to facilitate a felony violation of 21 U.S.C. § 841. Specifically, on September 16, 2008, agents with the Drug Enforcement Administration and deputies from the Butte County Sheriff's Department executed a federal search warrant at the defendant property. During the search officers found approximately 90 large marijuana plants.

Claimant Powell denies the allegations. The Stantons allege they had no knowledge that marijuana was being grown on the property. Ford Motor Credit Company has not filed an answer to the complaint but will do so not later than January 20, 2009.

(c) Service of Process

The plaintiff has served, or made reasonable attempts to serve, everyone known to have an interest in the defendant property with the Complaint for Forfeiture In Rem, Notice of Complaint, Application and Order for Publication, Lis Pendens, and Court Notices.

The plaintiff attempted to serve the owner of record, Dean Teskey, with the Complaint and related documents by certified mail, but the documents were returned by the Postal Service marked "unclaimed." Thereafter, plaintiff mailed the documents by certified mail to Shari Rusk, Teskey's attorney of record in United States v. Jess V. Brasier and Dean Teskey, 2:08-cr-0453 LKK. The PS Form 3811 (the "green card") shows that Rusk's office received the documents on November 10, 2008. To date Teskey has not filed a claim to the property or an answer to the complaint, and the time for doing so has expired.

Claimant Powell filed a claim to the property and an answer to the complaint on December 16, 2008. The Stantons (lienholders) filed a Claim to the property and an answer to the complaint on November 3, 2008.

Ford Motor Company filed a claim in this action on November 11, 2008, but has not yet filed an Answer to the Complaint. Because of the confusion over whether Jess V. Brasier and Jess R. Brasier are the same person, and over the true ownership of the defendant property, plaintiff is not prepared at this point to concede that Ford has a legitimate claim against the defendant property.

On October 17, 2008, the U.S. Marshal posted the Notice of Complaint and the Complaint on the real property.

Accordingly, service is complete.

In addition, notice of the forfeiture was posted on the official government internet site (www.forfeiture.gov) for at least 30 consecutive days, beginning on November 19, 2008, as required by Rule G(4)(a)(iv)(C) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. A Declaration of Publication was filed on December 31, 2008.

(d) Possible Joinder of Additional Parties

None contemplated.

(e) Any Expected or Desired Amendment of Pleadings

None.

(f) Jurisdiction and Venue

The Court has jurisdiction in this matter pursuant to 28 U.S.C. §§ 1345, 1355. Venue is proper in this district pursuant to 28 U.S.C. § 1395(b) because the real property that is subject to forfeiture is located in this district.

(g) Dates

Anticipated Motions with Suggested Law and Motion

The parties request that this case not be scheduled at this time because they are requesting a stay of further proceedings for six months as explained in the following paragraph.

(h) Anticipated Discovery And The Scheduling Thereof

Pursuant to 18 U.S.C. §§ 981(g)(1) and 981(g)(2) the parties suggest that a stay of further proceedings in this case is necessary. The United States contends that the defendant real property was used to facilitate a violation of federal drug laws (cultivation of marijuana) and is therefore forfeitable to the United States. The United States intends to depose Jess R. Brasier (who has filed a claim in the related case, U.S. v. 57 Nelsier Place, 2:08-cv-0236 LKK-GGH), about the claim he filed in that case and the facts surrounding the cultivation of marijuana plants at 22 and 57 Nelsier Place. Plaintiff also intends to depose Jess V. Brasier, the defendant in the pending criminal action.*fn1

If discovery proceeds, Jess V. Brasier would be placed in the difficult position of either invoking his Fifth Amendment right against self-incrimination and losing the ability to protect provide information that might support claimant Rebecca Powell's claim of ownership and/or her claim to be an innocent owner, or waiving his Fifth Amendment rights and submitting to depositions and potentially incriminating himself in the pending criminal matter. If Brasier invokes his Fifth Amendment rights, the United States will be deprived of the ability to explore the factual basis for the claim Rebecca Powell filed in this action and any defenses raised in the Answer.

In addition, all claimants intend to depose law enforcement officers who were involved in the investigation that led to the search at the defendant property. Allowing depositions of these officers would adversely affect the ability of the United States to conduct its related criminal investigation.

Accordingly, the parties contend that proceeding with this action at this time has potential adverse affects on the investigation and possible prosecution of the related-criminal case and/or upon claimants' ability to prove their claim to the property and to contest the government's allegations that the property is forfeitable. For these reasons, the parties request that this matter be stayed for a period of six months. At that time the parties will advise the Court whether a further stay is necessary.

(i) Further Proceedings, Suggested Case Schedule

The parties request that the case not be scheduled at this time.

(j) Special Proceedings

None.

(k) Demand For Jury Trial

No claimant made a timely demand for a jury trial.

(l) Estimate of Trial Time

No more than 4 court days.

(m) Modification of Standard Pretrial Procedures

None.

(n) Related Matters

The following cases are related:

1. United States v. Real Property Located at 57 Nelsier Place, Oroville, CA, 2:08-cv-02309 LKK-EFB.

2. United States v. Jess Vernon Brasier and Dean Teskey, 2:08-cr-0453 LKK.

A Notice of Related Cases was filed on October 28, 2008, and all cases are assigned to this Court.

(o) Settlement Judge

The government requests that another judge be assigned as the settlement judge.

(p) Use of the Voluntary Dispute Resolution Program

The parties do not believe VDRP is appropriate in this case.

(q) Other matters

Counsel for the government has been advised that Dean Teskey, the obligor on the promissory note secured by a deed of trust recorded against the defendant property, has stopped making payments on the promissory note. Unless claimant Rebecca Powell brings all the payments current, the United States intends to seek a stipulation permitting the interlocutory sale of the property. It is not the parties' intention that a stay would prevent the parties jointly or the United States separately from seeking an order permitting an interlocutory sale. If the parties will not stipulate, the United States will seek an order from this court permitting a sale. Upon the sale of the property the net proceeds will be substituted as the res in this action. If the United States determines that the Stantons and Ford Motor Credit Company are innocent owners within the meaning of 18 U.S.C. § 983(d), their claims would be paid out of escrow. If the United States determines that the Stantons are not innocent owners, those funds would also be substituted as the res in this action. Their entitlement to the funds would thereafter be determined by at trial.

DATED :January 6, 2009

ORDER

For the reasons set forth above, this matter is stayed pursuant to 18 U.S.C. §§ 981(g)(1) and 981(g)(2) until July 5, 2009. The parties will advise the court at least 10 days prior to July 5, 2009, whether a further stay is necessary.

The scheduling conference scheduled for January 20, 2009 is hereby vacated.

IT IS SO ORDERED.


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