The opinion of the court was delivered by: The Honorable VIRGINIA A. Phillips United States District Judge
ANDRE BIROTTE JR. United States Attorney JS-6 ROBERT E. DUGDALE Assistant United States Attorney Chief, Criminal Division STEVEN R. WELK Assistant United States Attorney Chief, Asset Forfeiture Section P. GREG PARHAM Assistant United States Attorney California Bar Number 140310 Federal Courthouse, 14th Floor 312 North Spring Street Los Angeles, California 90012 Telephone: (213) 894-6528 Facsimile: (213) 894-7177 E-mail: Greg.Parham@usdoj.gov Attorneys for Plaintiff United States of America
CONSENT JUDGMENT OF FORFEITURE
This action was filed on October 6, 2011. Notice was given and published in accordance with law. Claimant and titleholder Mariano Canillas ("Canillas") filed a claim on December 13, 2011. Claimants and lien holders Linda Gaukler and John Gaukler ("the Gauklers"), and Donna Smith and Jodie Smith ("the Smiths") filed claims on December 13, 2011. No other claims or answers have been filed, and the time for filing claims and answers has expired. Plaintiff United States of America ("the government"), Canillas, the Gauklers and the Smiths have reached an agreement that, without further litigation and without an admission of any wrongdoing, is dispositive of the government's claims against this property, and hereby request that the Court enter this Consent Judgment of Forfeiture.
WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED:
1. As used throughout, the following terms shall have the following meaning: (a) "defendant property" shall mean the defendant real property located at 5514 Mission Blvd., in Ontario, California; (b) "claimants' property" shall mean any real property that Canillas, the Gauklers and the Smiths own, maintain, control or manage, including, but not limited to, the defendant property; and (c) "illegal purpose" shall mean any purpose that furthers or facilitates the distribution or sale of marijuana in violation of federal law, including, but not limited to, renting space to a person or entity that sells or distributes marijuana or the renting of space to or permitting the continued tenancy of any person or entity that sells, distributes or facilitates the sale or distribution of marijuana.
2. This Court has jurisdiction over the parties to this judgment and the subject matter of this action.
3. On or about October 6, 2011, the government filed a Complaint for Forfeiture pursuant to 21 U.S.C. § 881(a)(7) against the defendant real property.
4. Canillas, the Gauklers and the Smiths filed claims to the defendant property. No other claimant has appeared in this action.
5. Notice of this action has been given in accordance with law. No appearances having been made in this action by any person other than Canillas, the Gauklers and the Smiths, the Court deems that all other potential claimants admit the allegations of the Complaint to be true. The Complaint states a valid claim for relief pursuant to 21 U.S.C. § 881(a)(7).
6. Canillas shall retain possession of and title to the defendant property, and in consideration thereof, Canillas, the Gauklers and the Smiths agree to abide by the terms of this Agreement. Canillas shall lawfully use and occupy the defendant property in accordance with the restrictions imposed by paragraph 7 below. If Canillas, the Gauklers or the Smiths fail to comply with any of the terms of paragraph 7, the interest of the non-complying party or parties in the defendant property shall be forfeited to the government pursuant to paragraph 8 below.
7. Neither Canillas, the Gauklers nor the Smiths shall use or occupy the defendant property, nor shall they allow the defendant property to be used or occupied, for any illegal purpose. Each of Canillas, the Gauklers and the Smiths shall take all reasonable precautions to prevent any destruction to or diminution in value of the defendant property and any fixtures thereto. None of Canillas, the Gauklers or the Smiths shall knowingly rent, lease or otherwise allow the use or occupancy of any of claimants' property to (a) any former tenant who used or occupied any of claimants' property for any illegal purpose; or (b) any person Canillas, the Gauklers or the Smiths have reason to believe may use or occupy the claimants' property for any illegal purpose. Neither Canillas, the Gauklers nor the Smiths shall knowingly allow any of the claimants' property to be listed in any advertisement, publication, directory or internet site which advertises or indicates that marijuana is available at the location of the claimants' property.*fn1
8. In the event that any of Canillas, the Gauklers or the Smiths fail to comply with any of the terms of paragraph 7 of this Consent Judgment during the four (4) year period following the entry of this judgment, the entirety of each non-complying claimant's interest in the defendant property shall be ordered condemned and forfeited to the United States. In the event of forfeiture, the San Bernardino County Recorder shall index this Judgment in the grantor index under the name of Canillas and in the grantee index in the name of the United States of America. If the government believes that Canillas, the Gauklers or the Smiths have failed to comply with any provision of paragraph 7, it shall provide written notice of such failure to Canillas, the Gauklers and the Smiths (as well as their respective undersigned counsel), describing the provision believed to have been violated. Canillas, the Gauklers and/or the Smiths shall have fifteen (15) days from its receipt of such notice to cure the violation. If the violation is not cured within the 15-day period, the government shall file a Notice of Non-Compliance and Forfeiture with the Court, setting out the violation and the failure of Canillas, the Gauklers or the Smiths to timely cure the violation. Canillas, the Gauklers and/or the Smiths shall have fifteen (15) court days from the filing of the Notice to seek relief from forfeiture. If such a motion is filed, the government shall take no further action until the motion has been determined. If no such motion is timely filed, the defendant property shall be forfeited to the United States on the sixteenth (16th) day after the filing of the Notice of Non-Compliance and Forfeiture, unless the Court orders otherwise. Upon forfeiture under the terms of this paragraph, the government shall have the right to take possession of the defendant property without further order of the Court, and the United States Marshals Service, or its representatives, shall, without further order of the Court, proceed to take physical possession of the defendant property and its fixtures, and may evict any and all persons, pets, livestock, and personal property from the defendant property as it deems necessary or appropriate. A "filed"-stamped copy of this Consent Judgment accompanied by a "filed"-stamped copy of a Notice of Noncompliance and Forfeiture and/or order of the Court, shall be sufficient to establish the forfeiture of the defendant property. In the event that the defendant property is forfeited to the government, Canillas, the Gauklers and the Smiths agree that the United States Marshals Service may proceed to sell the defendant property. Thereafter, the United States Marshals Service, or its representatives, shall promptly proceed to dispose of the defendant property and to distribute any proceeds from the sale in accordance with the law.
9. Upon the filing of this Consent Judgment, the United States Marshals Service, or its representatives, shall be allowed to enter the defendant property for purposes of inspection and inventory. Such entry shall be permitted by Canillas, the Gauklers and the Smiths at a reasonable time to be agreed upon by the parties. Absent such agreement, the government may apply to the Court for a writ of entry for purposes of protecting the government's interests in the defendant property, in connection with which Canillas, the Gauklers or the Smiths may request a hearing.
10. Canillas, the Gauklers and the Smiths have released the United States of America, its agencies, agents, and officers, including, without limitation, employees and other representatives of the Drug Enforcement Administration, from any and all claims, defenses, actions, or liabilities arising out of or related to this action against the defendant real property, including, without limitation, any ...