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United States v. Real Property Located at 57 Nelsier Place

January 9, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
REAL PROPERTY LOCATED AT 57 NELSIER PLACE, OROVILLE, CALIFORNIA, BUTTE COUNTY, APN: 078-040-036, (FORMERLY APN: 036-291-079) 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 Jess R. Brasier, and claimants Albert and Georgene Brookman, submit the following Status Report pursuant to the Court's September 30, 2008, order.

(a) Parties: The plaintiff is the United States of America. Claimant Jess R. Brasier alleges he is the owner of the defendant property.*fn1 Claimants Albert and Georgene Brookman are the beneficiaries of a promissory note secured by a deed of trust recorded against the defendant property.

(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 evidence of an active indoor marijuana growing operation with approximately 150 plants under cultivation in a barn, and another 80 plants under cultivation in a greenhouse. Claimant Brasier denies the allegations. The Brookmans allege they had no knowledge that marijuana was being grown on the property.

(c) Service of Process: Everyone known to have an interest in the defendant property has been served with the Complaint for Forfeiture In Rem, Notice of Complaint, Application and Order for Publication, Lis Pendens, and Court Notices. Claimant Brasier filed a claim to the property and an answer to the complaint on December 16, 2008. The Brookmans (lienholders) filed a Claim to the property and an answer to the complaint on October 30, 2008.

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) Anticipated Motions with Suggested Law and Motion Dates: 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 claimant Jess R. Brasier about the claim he filed in this case and the facts surrounding the cultivation of marijuana plants on this property. If claimant Jess R. Brasier is not the same person as defendant Jess V. Brasier, plaintiff will also need to depose defendant Jess V. Brasier. If discovery proceeds, claimant and/or defendant Jess V. Brasier would be placed in the difficult position of either invoking their Fifth Amendment rights against self-incrimination and losing the ability to protect their claimed interest in the defendant property, or waiving their Fifth Amendment rights and submitting to depositions and potentially incriminating themselves in the pending criminal matter. If claimant invokes his Fifth Amendment rights, the United States will be deprived of the ability to explore the factual basis for the claims they filed in this action and any defense 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 ...


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