ORDER REGARDING CRIMINAL FORFEITURE OF PROPERTY IN GOVERNMENT CUSTODY - 18 U.S.C. ) § 983(a)(3)(B)(ii)(II)
The United States of America, through its counsel, hereby moves for an order allowing the government to maintain custody of property already in the government's possession pending the resolution of a criminal forfeiture matter. The grounds for the motion are as follows:
On or about January 7, 2010, Magistrate Judge Drozd issued a civil seizure warrant pursuant to 18 U.S.C. § 981(b) and 31 U.S.C. § 5317(c)(2) based on probable cause for the following funds in a bank account. On that same day, agents of the Internal Revenue Service - Criminal Investigation ("IRS") seized the following asset ("the seized asset") for the purpose of initiating civil forfeiture proceedings:
Criminal Forfeiture of Property
a). Approximately $105,500.00 in U.S. Currency seized from JP Morgan Chase personal money market account number 4178013903, held in the name Veronica C. Padilla.
In accordance with 18 U.S.C. § 983(a)(1), the IRS sent notice to Veronica C. Padilla of its intent to forfeit the seized asset in a non-judicial forfeiture proceeding, and caused that notice to be published in a newspaper of general circulation.
On or about March 18, 2010, defendant Raymond Padilla, Jr. filed a claim contesting the administrative forfeiture of the seized asset pursuant to 18 U.S.C. § 983(a)(2).
Pursuant to 18 U.S.C. § 983(a)(3), the United States has 90 days in which to 1) return the property to the defendant, 2) commence a civil judicial forfeiture action, or 3) commence a criminal forfeiture action by including the seized asset in a criminal indictment. The parties entered into several stipulations and orders to extend the United States time to file against this seized asset in U.S. v. Approximately $105,500.00 in U.S. Currency seized from JP Morgan Chase personal money market account number 4178013903, held in the name Veronica C. Padilla, 2:10-MC-00060-FCD-KJN. The last Order filed on December 21, 2010, extended the filing deadline to February 25, 2011. On December 8, 2010, the Government elected the third option when it filed an Indictment under seal containing a forfeiture allegation concerning the seized asset. That Indictment was unsealed on February 14, 2011, and is now pending in this Court.
Title 18 U.S.C. § 983(a)(3)(B)(ii)(II) provides that when the government elects the third option, it must "take the steps necessary to preserve its right to maintain custody of the property as provided in the applicable criminal forfeiture statute". The applicable forfeiture statute in this case is 18 U.S.C. § 982. Title 18 U.S.C. § 982(b)(1) incorporates the forfeiture procedures set forth in 21 U.S.C. § 853. That statute prescribes several methods for preserving property for the purpose of criminal forfeiture.
Section 853(f) authorizes the issuance of a criminal seizure warrant. However, in cases like this one, where the property in question is already in Government custody, it is not appropriate for a court to issue a seizure warrant directing the Government to seize property from itself. In turn, Section 853(e) authorizes the court to issue a restraining order or an injunction to preserve the property for forfeiture. However, that provision is not pertinent because there is no need to enjoin the government from disposing of property that the government has taken into its custody for the purpose of forfeiture, and that the Government intends to preserve for that purpose through the conclusion of the pending criminal case.
Finally, Section 853(e)(1) also authorizes a court to "take any other action to preserve the availability of property" subject to forfeiture. The government contends that this provision applies in circumstances where, as here, the government has already obtained lawful custody of the seized asset pursuant to a federal seizure warrant, and the government seeks to comply with Section 983(a)(3)(B)(ii)(II). Thus, all that is required to comply with Section 983(a)(3)(B)(ii)(II) is an order from this Court stating that the United States and its agencies, including IRS, may continue to maintain custody of the seized asset until the criminal case is concluded.
Accordingly, pursuant to Section 853(e)(1), the United States respectfully moves this court to issue an order directing that the United States may maintain custody of the seized asset through the conclusion of the pending criminal case, and stating that such order satisfies the requirements of 18 U.S.C. § 983(a)(3)(B)(ii)(II).
BENJAMIN B. WAGNER United States Attorney By: JEAN M. HOBLER Assistant U.S. Attorney
This matter comes before the Court on the motion of the United States for an Order authorizing the government and its agencies to maintain custody of certain property pending the conclusion of the pending criminal case. For the reasons provided ...