The opinion of the court was delivered by: United States District Judge Garland E. Burrell, Jr.
APPLICATION FOR 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 June 16, 2011, during the execution of a state search warrant agents seized the following:
a. Approximately $256,476.00 in U.S. Currency seized at Bryan Smith's residence located at 9700 Palazzo Court, Elk Grove, California, and
b. Approximately $16,990.00 in U.S. Currency seized during the search of Bryan Smith and in
Bryan Smith's truck located at his residence.
On or about June 16, 2011, during the execution of state seizure orders agents seized the following:
c. Approximately $26,231.88 seized from Schools Financial Credit Union account number 3506708110, held in the name of Bryan A. Smith, and
d. Approximately $12,814.82 seized from JP Morgan Chase Bank, account number 845341635, held in the name of R&R Collective, Inc.
Hereinafter, the above-referenced assets are referred to as the "seized assets".
In accordance with 18 U.S.C. § 983(a)(1), the Drug Enforcement Administration ("DEA") sent notice to all potential claimants of its intent to forfeit the seized assets in a non-judicial forfeiture proceeding, and caused notice to be published in a newspaper of general circulation.
On or about September 21, 2011, defendant Bryan Smith filed a claim contesting the administrative forfeiture of the seized assets above pursuant to 18 U.S.C. § 983(a)(2). On or about September 21, 2011, Ashley Nicole Smith filed a claim contesting the administrative forfeiture of the Approximately $256,476.00 in U.S. Currency 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 assets in a criminal indictment. On September 29, 2011, the government elected the third option when it filed an Indictment containing a general forfeiture allegation. On December 9, 2011, the government filed a Bill of Particulars that includes forfeiture of the seized assets. The Indictment and Bill of Particulars are 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 21 U.S.C. § 853. That statute ...