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United States v. Real Property Located in Nevada County

January 13, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
REAL PROPERTY LOCATED IN NEVADA COUNTY, CALIFORNIA, APN: 61-160-02, INCLUDING ALL APPURTENANCES AND IMPROVEMENTS THERETO, REAL PROPERTY LOCATED IN NEVADA COUNTY, CALIFORNIA, APN: 61-160-03, INCLUDING ALL APPURTENANCE AND IMPROVEMENTS THERETO, REAL PROPERTY LOCATED IN NEVADA COUNTY, CALIFORNIA, ORIGINAL APN: 61-160-04, CURRENTLY KNOWN AS APN: 61-160-22, APN: 61-160-23 AND APN: 61-160-24, INCLUDING ALL APPURTENANCES AND IMPROVEMENTS THERETO, AND, REAL PROPERTY LOCATED IN NEVADA COUNTY, CALIFORNIA, APN: 61-160-06, INCLUDING ALL APPURTENANCE AND IMPROVEMENTS THERETO, DEFENDANTS.
UNITED STATES OF AMERICA, PLAINTIFF,
v.
REAL PROPERTY LOCATED IN NEVADA COUNTY, CALIFORNIA, APN: 61-160-05, INCLUDING ALL APPURTENANCES AND IMPROVEMENTS THERETO, DEFENDANT.
UNITED STATES OF AMERICA, PLAINTIFF,
v.
REAL PROPERTY LOCATED AT 24271 HOYT CROSSING ROAD, NEVADA COUNTY, CALIFORNIA, APN: 60-360-15, INCLUDING ALL APPURTENANCES AND IMPROVEMENTS THERETO, DEFENDANT.



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

JOINT STATUS REPORT AND STIPULATION FOR STAY OF FURTHER PROCEEDINGS AND ORDER THEREON

Pursuant to this Court's Order Requiring Joint Status Report the plaintiff United States of America and claimants Charles M. Hilkey and Joseph Titland ("Claimants") submit the following report.

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

Plaintiff has filed a total of four civil in rem forfeiture complaints against real property owned by Charles M. Hilkey. This status report applies only to the first three cases filed: U.S. v. Real Property in Nevada County, APN: 61-160-02, et al., 2:09-cv-03062 FCD-GGH (referred to hereafter as "Hilkey #2-Sparky/Cherokee"); U.S. v. Real Property in Nevada County, APN: 61-160-05, 2:09-cv-03063 FCD-GGH, referred to hereafter as "Hilkey #3-Roth"); and U.S. v. Real Property Located at 24271 Hoyt Crossing Road, in Nevada County, APN: 60-360-15, 2:09-cv-03085 FCD-GGH (referred to hereafter as "Hilkey #4-Lewis).*fn1 All known potential claimants in these three cases have been served, or reasonable attempts to serve them have been made, and the time for these potential claimants to file a claim, and the time for filing answers, in these cases, has expired.

In addition, publication of the forfeiture on the government's website is not yet complete. Under Rule G (5)(a)(ii)(B) a person who did not receive direct notice of the forfeiture (e.g. by certified mail or personal service), but who sees the notice of forfeiture on the website, can file a claim as late as 60 days after the first day of publication on the government website. The first day of publication was January 4, 2010; accordingly, other potential claimants have until March 5, 2010, to file claims in any of the three actions.

The facts are complicated, but the legal theories in all three cases are straightforward: Plaintiff United States of America contends the Charles M. Hilkey structured the proceeds of drug trafficking (marijuana) into various bank accounts and then used those funds to purchase the defendant property; and/or used the funds to reduce the principal balance due on a mortgage encumbering the defendant property. The property is therefore forfeitable to the United States under one or more forfeiture statutes: 18 U.S.C. § 981(a)(1)(A) which provides for the forfeiture of property involved in a money laundering transaction in violation of 18 U.S.C. § 1956(a)(1)(B)(i); under 18 U.S.C. § 981(a)(1)(A) which provides for the forfeiture of property involved in another kind of money laundering transaction in violation of 18 U.S.C. § 1957; 31 U.S.C. § 5317(c)(2) which provides for the forfeiture of property involved in structuring transactions in violation of 31 U.S.C. § 5324 (a)(3); and 21 U.S.C. § 881(a)(6) which provides for the forfeiture of property derived from the proceeds of drug trafficking.

Claimants deny the allegations. In addition, with respect to the property identified herein as Hilkey #4-Lewis, claimant Joseph Titland alleges that he is an innocent owner of a secured interest in said property within the meaning of 18 U.S.C. § 983(d)(1). Claimant further asserts that forfeiture of his interest in said property would violate the Eighth Amendment Excessive Fines Clause.

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

All potential claimants to the real property have been served, and the time for filing claims or answers has expired.

(c) Possible joinder of additional parties:

Plaintiff does not anticipate that there will be any additional parties, but it is possible that a person who sees the notice of forfeiture on the government website will file a claim and answer and will therefore become a party.

(d) Contemplated amendments to the pleadings:

The parties do not complete amending the pleadings. Claimant Charles M. Hilkey will be filing claims in each of the three cases on or before February 1, 2010. In light of the requested stay (see below) plaintiff does not object if claimant Hilkey defers filing his Answers until the stay is lifted.

Joseph Titland, a claimant in Hilkey #4-Lewis, filed a timely verified claim and answer on December 1, 2009.

(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. §§ ...


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