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United States v. Diaz

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 21, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MARYBEL DIAZ (1), DEFENDANT.

The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

PRELIMINARY ORDER OF CRIMINAL FORFEITURE

WHEREAS, in the Superseding Indictment in the above-captioned case, the United States sought forfeiture of all right, title and interest in specific property of the above-named Defendant pursuant to Title 18, United States Code, Section 982(a)(6)(A), as property that was used or intended to be used to facilitate the commission of the violation of Title 8, United States Code, Section 1324 and Title 18, United States Code, Section 1028A, as charged in the Superseding Indictment; and

WHEREAS, on or about April 8, 2010, the above-named Defendant MARYBEL DIAZ ("Defendant"), pled guilty to Counts 2 and 3 of the Superseding Indictment before Magistrate Judge William McCurine, Jr., which plea included consent to the criminal forfeiture allegation pursuant to Title 18 as set forth in the Superseding Indictment; and

WHEREAS, on or about April 30, 2010, the plea of the Defendant, was accepted by the U.S. District Court; and

WHEREAS, by virtue of the facts set forth in the plea agreement, the United States has established the requisite nexus between the forfeited property and the offense; and

WHEREAS, by virtue of said guilty plea, the United States is now entitled to possession of said property, pursuant to 18 U.S.C. § 982, and Rule 32.2(b) of the Federal Rules of Criminal Procedure; and

WHEREAS, pursuant to Rule 32.2(b), the United States having requested the authority to take custody of the following property which was found forfeitable by the Court, namely:

One 2006 Hummer H3, VIN 5GTDN136168116898, CA License No. 5PVV610; and WHEREAS, the United States, having submitted the Order herein to the Defendant MARYBEL DIAZ through her attorney of record, to review, and no objections having been received;

Accordingly, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

1. Based upon the guilty plea of the Defendant, the United States is hereby authorized to take custody and control of the following asset, and all right, title and interest of Defendant Maybel Diaz in the following property are hereby forfeited to the United States for disposition in accordance with the law, subject to the provisions of 21 U.S.C. § 853(n):

One 2006 Hummer H3, VIN 5GTDN136168116898, CA License No. 5PVV610. 2. The aforementioned forfeited asset is to be held by the United States Customs and Border Protection ("CBP") in its secure custody and control.

3. Pursuant to Rule 32.2(b) and (c), the United States is hereby authorized to begin proceedings consistent with any statutory requirements pertaining to ancillary hearings and rights of third parties.

4. Pursuant to the Attorney General's authority under Section 853(n)(1) of Title 21, United States Code, Rule 32.2(b)(3), Fed. R. Crim. P., and Rule G(4) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, the United States forthwith shall publish for thirty (30) consecutive days on the Government's forfeiture website, www.forfeiture.gov, notice of this Order, notice of the CBP's intent to dispose of the properties in such manner as the Attorney General may direct, and notice that any person, other than the Defendant, having or claiming a legal interest in the above-listed forfeited property must file a petition with the Court within thirty (30) days of the final publication of notice or of receipt of actual notice, whichever is earlier.

5. This notice shall state that the petition shall be for a hearing to adjudicate the validity of the petitioner's alleged interest in the property, shall be signed by the petitioner under penalty of perjury, and shall set forth the nature and extent of the petitioner's right, title or interest in the forfeited property and any additional facts supporting the petitioner's claim and the relief sought.

6. The United States may also, to the extent practicable, provide direct written notice to any person known to have alleged an interest in the property that is the subject of the Preliminary Order of Criminal Forfeiture.

7. Upon adjudication of all third-party interests, this Court will enter an Amended Order of Forfeiture pursuant to 21 U.S.C. § 853(n), in which all interests will be addressed.

20100521

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