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United States of America v. Approx. $156

September 8, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
APPROX. $156,000.00 IN U.S. CURRENCY, ET AL., DEFENDANTS.



FINDINGS & RECOMMENDATIONS

Before the court is plaintiff United States of America's July 15, 2011 motion for default judgment, requesting (1) entry of default judgment against the interests of Lily Leticia Garcia ("L. Garcia"), Carlos Garcia ("C. Garcia"), Juan Manuel Hernandez ("Hernandez"), Antenogenes Gonzalez ("Gonzalez"), Yesenia Placencia ("Placencia") and Samuel Zepeda Rodriguez ("Rodriguez") in approximately $156,00.00 and $2,839.00 in U.S. currency ("the defendant currency") and (2) entry of final judgment of forfeiture vesting plaintiff all right, title and interest in the defendant currency.

FACTUAL BACKGROUND

On October 1, 2010, agents of the Butte Interagency Narcotics Task Force ("BINTF") and Bureau of Narcotics Enforcement ("BNF") used a confidential informant ("CI") to conduct an undercover drug purchase from L. Garcia at 3156 Esplanada #265, Chico, California. Compl. at 2. The attempt was unsuccessful. Id.

On October 5, 2010, the CI contacted L. Garcia and requested Oxycontin. Compl. at 2. L. Garcia said she did not have any for sale, but would be able to get some. Id. The CI reported purchasing two Oxycontin 80-mg prescription pills and approximately 2.4 grams of marijuana. Id. The CI also reported that L. Garcia showed him/her a large marijuana grow in the backyard. Id.

On October 11, 2010, the CI again successfully contacted L. Garcia at her residence. Compl. at 2. The CI was equipped with an electronic recording device, a wireless transmitter, a video camera and cash. Id. The CI reported that he/she was able to successfully purchase one prescription 80-mg Oxycontin pill, two prescription 30-mg Oxycontin / Hydrochloride pills and approximately 2.6 grams of marijuana. Id. at 2-3. The CI reported that L. Garcia agreed to sell marijuana from the marijuana plants growing in the backyard. Id.

On October 28, 2010, agents from the BNE and BINTF served a search warrant at L. Garcia's residence at 3156 Esplanade # 265, Chico, California. Compl. at 3. L. Garcia, Gonzalez, Hernandez and two minors were present during the search. Id. L. Garcia told the agents that her husband, C. Garcia, also lives there but was not present during the search. Id.

During the search of the residence, the agents found, inter alia, three large plastic bags containing approximately 6.5 pounds of marijuana, 19 plastic bags containing approximately 10 pounds of marijuana, nine small bags containing approximately 106 grams of marijuana, and loose marijuana bud on the bathroom counter. Compl. at 3-4. Additionally, the agents found 6 quart-sized jars containing approximately 253 grams of marijuana and digital scales on a bedroom closet shelf. Id. In the bedroom, the agents found 15 plastic bags containing approximately $150,100.00 in currency in a dresser drawer, and $5,900.00 in currency was found in a second dresser drawer, for a total of $156,00.00 in currency. Id. The agents also found $2,839.00 in currency inside of L. Garcia's purse, 39 grams of hashish, loose marijuana on the kitchen counter, and 21 foil packages of marijuana in the cupboard. Id. At the exterior of the residence, the agents found two marijuana smoking devices, one of which was within reach of L. Garcia's two young children. Id. at 4.

A BNE agent spoke with L. Garcia during the search and asked if drugs were being sold out of the house. Compl. at 4-5. L. Garcia denied drug trafficking. Id. She asserted that the family lived on $1,200.00 of government-support money a month, which she deposits in the bank. Id. When asked about the large sums of money found at the residence, L. Garcia responded that she "just keeps the money there." Id.

L. Garcia's daughter, Placencia and her boyfriend, Rodriguez, approached the residence during the search. Compl. at 5. Placencia represented that she was unaware of drug trafficking at her mother's residence. Id. Placencia told a BINTF agent that she, L. Garcia, her brother and her uncle have marijuana recommendations and that the marijuana plants in L. Garcia's backyard belong to them. Id.

The Butte County District Attorney charged L. Garcia with violations of California Health and Safety Code*fn1 section 11352(a) (transportation of a controlled substance); section 11360(a) (transportation of marijuana); section 11351 (possession of a controlled substance for sale); section 11358 (cultivation of marijuana); section 11359 (possession of marijuana for sale); and section 273a(a) (child endangerment). Compl. at 6. C. Garcia was charged with the same violations as Garcia with the exception of section 11359. Id. The criminal case is still pending in the Butte County Superior Court. Id.

PROCEDURAL BACKGROUND

On March 31, 2011, plaintiff filed the present complaint for forfeiture in rem against the defendant currency. On April 4, 2011, a warrant for arrest of articles in rem was issued. On April 6, 2011, the warrant was executed.

Service was accomplished in the following manner:

A. L. Garcia and C. Garcia

On April 5, 2011, plaintiff mailed copies of the complaint, application and order for publication, order regarding clerk's issuance of warrant for arrest, warrant for arrest, order setting status conference, notice of availability of a magistrate judge and notice of forfeiture action ("the service documents") to L. Garcia and C. Garcia at the Butte County Jail, 35 County Center Drive, Oroville, California 95965 by first class mail and certified mail number 7008 1140 0001 8038 6951. See Butler Decl. at ¶¶ 3-6, Exs. A-D. The certified mail form was signed by T. Hoffman. Id., Ex. B. Plaintiff also mailed the service documents to John Kucera, the attorney for L. Garcia and C. Garcia.*fn2 Id., Ex. C. The certified mail form was signed on April 6, 2011. Id. Finally, on April 13, 2011, the United States Marshal Service personally served copies of the service documents on L. Garcia and C. Garcia through correctional technician T. Hoffman at Butte County Jail. Id., Ex. D.

B. Juan Manual Hernandez

On April 5, 2011, plaintiff mailed copies of the service documents to Hernandez at 3156 Esplanade # 265 Chico, California 95973 by first class mail and certified mail number 7008 1140 0001 8038 6968. See Butler Decl. at ¶¶ 7-8, Ex. E. The mail was returned to plaintiff's office marked "unclaimed, return to sender." See id. On April 13, 2011, the United States Marshal Service personally served copies of the service documents on Hernandez at 3156 Esplanade # 265, Chico, California 95973. Id., Ex. F.

C. Gonzalez

On April 5, 2011, plaintiff mailed copies of the service documents to Gonzalez at 3156 Esplanade # 265, Chico, California 95973 by first class mail and certified mail number 7008 1140 0001 8038 6845. See Butler Decl. at ¶¶ 9-10, Ex. G. The mail was returned to plaintiff's office marked "unclaimed, return to sender." See id. On April 13, 2011, the United States Marshal Service attempted to personally serve copies of the service documents on Gonzalez at 3156 Esplanade # 265, Chico, California 95973. Id. ¶ ...


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