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United States v. 2007 Yamaha Rhino ATV

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


June 2, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
2007 YAMAHA RHINO ATV, VIN: 5Y4AM04Y27A033940, CALIFORNIA LICENSE NUMBER: 78E45A, 2004 MITSUBISHI KOYKER TRACTOR, SERIAL NUMBER: 110337, 2004 TERRY TRAILERS FLATBED TRAILER, VIN: 1T9CS18274W709850, CALIFORNIA LICENSE NUMBER: 4GG7716, 2008 SPCNS TRAILER PTI, VIN: CA1056326, CALIFORNIA LICENSE NUMBER: 4JJ2908, AND 2008 YAMAHA 700R RAPTOR ATV, VIN: JY4AM07Y56C025552, DEFENDANTS.

JOINT STATUS REPORT AND REQUEST TO STAY FURTHER PROCEEDINGS AND ORDER

DATE: June 15, 2009

Plaintiff United States of America and claimants Deborah Brasier and Jess R. Brasier (hereafter "claimants") submit the following Status Report pursuant to the Court's April 2, 2009, order.

(a) Parties: The plaintiff is the United States of America. Claimants alleges they are the owners of 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)(4) and (6) because the vehicles were purchased with the proceeds of drug trafficking, and/or because they were used to facilitate the manufacture of marijuana. Specifically, on September 16, 2008, agents with the Drug Enforcement Administration and deputies from the Butte County Sheriff's Department executed federal search warrants at several locations (57 Nelsier Place, 22 Nelsier Place, and 2091 Debbie Ann Court), associated with the Brasier family.*fn1 During the search at 57 Nelsier Place 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. Officers followed a dirt road from 57 Nelsier place to 2091 Debbie Ann Court officer where they found 70 large marijuana plants. During a search at 22 Nelsier Place officers found approximately 90 large marijuana plants.

Officer located the defendant 2004 Mitsubishi Koyker Tractor, the defendant 2004 Terry Trailers Flatbed Trailer hitched to the back of a truck, and the defendant 2008 SPCNS Trailer PTI. A drug-detection dog alerted to the truck. Plaintiff alleges the tractor was used to grade and tend the marijuana gardens, and that the trailers were being used to transport the various equipment, vehicles, and components for the marijuana operation.

(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. Claimants filed a claim to the property and an answer to the complaint on April 22, 2009. 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 March 18, 2009, 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 April 20, 2009.

(d) Possible Joinder of Additional Parties: On April 30, 2009, this Court appointed the Federal Defender's Office to represent Jess V. Brasier, and extended the time for filing his claim and answer to June 24, 2009. The Federal Defender's Office represents Jess V. Brasier in the related criminal action, United Stats v. Jess Vernon Brasier and Dean Teskey, 2:08-cr-00453 LKK. Jess V. Brasier will be an additional party if he files a timely claim and answer.

(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 vehicles that are subject to forfeiture were 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 property was used to facilitate a violation of federal drug laws (cultivation of marijuana) and/or were purchased with the proceeds of drug trafficking, and are therefore forfeitable to the United States. The United States intends to depose claimants about the claims they filed in this case and the facts surrounding the cultivation of marijuana plants on the three locations associated with the Brasier family. If discovery proceeds, claimants 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 claimants invoke their 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, 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 22 Nelsier Place, Oroville, CA, 2:08-cv-02326 LKK-EFB; United States v. Real Property Located at 57 Nelsier Place, Oroville, CA, 2:08-cv-02309 LKK-GGH; and

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

A Notice of Related Cases was filed on March 30, 2009, and a Related Case order was signed on April 1, 2009, assigning all cases 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: None.

DATED: June 1, 2009

LAWRENCE G. BROWN Acting United States Attorney KRISTIN S. DOOR Assistant U.S. Attorney Attorneys for plaintiff United States of America

JOHN H. FEINER Attorney for claimants Jess R. Brasier and Deborah Brasier (Original signatures retained by AUSA Door)

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 December 1, 2009. The parties will advise the court at least 10 days prior to December 1, 2009, whether a further stay is necessary.

The scheduling conference scheduled for June 15, 2009, is hereby vacated.

IT IS SO ORDERED.


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