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United States v. 2006 Haulmark Featherlite Transport DLX Trailer

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


December 22, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
2006 HAULMARK FEATHERLITE TRANSPORT DLX TRAILER, VIN: 16HGB18236U046824, DATE: N/A CALIFORNIA LICENSE NO: 4GK3664, TIME: N/A COURTROOM: N/A 2006 HAULMARK FEATHERLITE TRANSPORT DLX TRAILER, VIN: 16HGB18206U049373, CALIFORNIA LICENSE NO: 4GU3031, AND 2004 TOYOTA TACOMA SR5 TRUCK, VIN: 5TEWN72N04Z464442, CALIFORNIA LICENSE NO: 7P49605, DEFENDANTS.

The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

JOINT STATUS REPORT; STIPULATION FOR STAY; ORDER

Pursuant to this Court's Order Requiring Joint Status Report the plaintiff United States of American and claimants Robert Thompson and Jacqueline Thompson ("Claimants") submit the following report.

(a) Brief summary of the claims and legal theories under which recovery is sought or liability denied:

Plaintiff United States of America contends the defendant trailers and truck are forfeitable to the United States under 21 U.S.C. § 881(a)(4) because they were used to facilitate the transportation, sale, receipt, possession, or concealment of marijuana, in violation of 21 U.S.C. § 841 et seq.

Claimants deny the allegations and contend that their cultivation of marijuana complied with state law.

(b) Status of service upon all defendants and cross-defendants and claimants:

All potential claimants to the vehicles have been served.

(c) Possible joinder of additional parties:

None known at this time.

(d) Contemplated amendments to the pleadings:

Plaintiff has advised claimants that their Answers do not comply with the Federal Rules of Civil Procedure and has suggested that Amended Answers be filed. In light of the requested stay (see below) plaintiff does not object if claimants defer filing their Amended Answers until the stay is lifted.

(e) Statutory basis for jurisdiction and venue: Jurisdiction is based on 28 U.S.C. §§ 1345 and 1355(a). Venue is based on 28 U.S.C. §§ 1355(b) and 1395, and 21 U.S.C. § 881(j).

(f) Anticipated discovery and the scheduling of discovery, including:

(1) what changes, if any, should be made in the timing, form, or requirement for disclosure under Rule 26(a), including a statement as to when disclosures under Rule 26(a)(1) were made or will be made;

As of the December 1, 2006, amendments to Rule 26 of the Federal Rules of Civil Procedure, civil forfeiture actions are now exempt from the initial disclosure requirements applicable to most other civil actions. See Fed.R.Civ.P. 26(a)(1)(B)(ii).

In addition, the parties request that a 90-day stay of further proceedings be entered at this time pending the outcome of a related criminal investigation against claimants. Each of the claimants has filed a claim to the defendant property and an Answer to the Verified Complaint for Forfeiture In Rem.

The stay is requested pursuant to 18 U.S.C. §§ 981(g)(1) and 981(g)(2). The plaintiff contends that claimants were growing marijuana in violation of federal law, and that they were using the defendant vehicles to facilitate those violations. To date no one has been charged with any criminal offense by state, local, or federal authorities, and the statute of limitations has not expired on potential criminal charges. Nevertheless, the plaintiff intends to depose claimants regarding their claims and their involvement in the cultivation of marijuana. If discovery proceeds at this time, claimants will be placed in the difficult position of either invoking their Fifth Amendment rights against self-incrimination and losing the ability to pursue their claims to the defendant property, or waiving their Fifth Amendment right and submitting to a deposition and potentially incriminating themselves. If they invoke their Fifth Amendment rights, the plaintiff will be deprived of the ability to explore the factual basis for the claims they filed with this court.

In addition, claimants intend to depose, among others, the agents involved in this investigation, including but not limited to the agents with the Drug Enforcement Administration. Allowing depositions of the law enforcement officers at this time would adversely affect the ability of federal authorities to investigate the underlying criminal conduct.

The parties recognize that proceeding with this action at this time has potential adverse affects on the investigation of the underlying criminal conduct and/or upon claimants' ability to prove their claim to the property and assert any defenses to forfeiture. For these reasons, the parties jointly request that this matter be stayed for 90 days. At that time the parties will advise the court of the status of the criminal investigation and will advise the court whether a further stay is necessary.

(2) the subjects on which discovery may be needed; when discovery should be completed; and whether discovery should be conducted in phases;

As explained above the parties request a stay of further proceedings.

(3) what changes, if any, should be made in the limitations on discovery imposed under the Civil Rules and what other limitations, if any, should be imposed;

The parties do not request any changes in the discovery limitations imposed by Fed.R.Civ.P. 26(b)(2), 30, or 33.

(4) the timing of the disclosure of expert witnesses and information required by Rule 26(a)(2);

As explained above the parties request a stay of further proceedings, including expert disclosure.

(5) Proposed dates for discovery cut-off:

Not applicable in light of requested stay of further proceedings.

(g) Contemplated dispositive motions and proposed date by which all non-discovery motions shall be heard:

Not applicable in light of the requested stay of further proceedings.

(h) Proposed date for final pretrial conference:

Not applicable in light of the requested stay of further proceedings.

(i) Proposed date for trial, estimate of days of trial, and whether any party has demanded a jury:

Not applicable in light of the requested stay of further proceedings.

(j) Appropriateness of special procedures such as reference to a special master or agreement to try the matter before a magistrate judge pursuant to 28 U.S.C. § 636(c):

None.

(k) Proposed modification of standard pretrial procedures because of the simplicity or complexity of the case:

None.

(l) Whether the case is related to any other case pending in this district, including the bankruptcy courts of this district:

No.

(m) Prospects for settlement, including whether a settlement conference should be scheduled and whether, in the case of a jury trial, the parties will stipulate to the trial judge acting as settlement judge:

Prospects for settlement are unknown at this time.

(n) Any other matter that may be conducive to the just and expeditious disposition of the case.

None.

Date: December 22, 2009

BENJAMIN B. WAGNER United States Attorney

KRISTIN S. DOOR Assistant U.S. Attorney Attorneys for Plaintiff United States of America

Dated: December 22, 2009

STEPHEN A. MUNKELT Attorney for claimants Robert Thompson and Jacqueline Thompson (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 March 26, 2010. On or before March 26, 2010, the parties will advise the court whether a further stay is necessary.

IT IS SO ORDERED.

20091222

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