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United States of America v. Approximately $129

May 11, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
APPROXIMATELY $129,190.00 IN U.S. CURRENTLY, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S APPLICATION FOR DEFAULT JUDGMENT AND FINAL JUDGMENT OF FORFEITURE (Docket No. 53)

I. INTRODUCTION

On March 23, 2012, Plaintiff United States of America (the "Government" or "Plaintiff") filed an application for default judgment and for final judgment of forfeiture in this in rem forfeiture action. (Doc. 53.) No opposition to the Government's application has been filed, and the time to file an opposition has expired. The Court has reviewed the motion and supporting documentation and has determined that this matter was suitable for submission without oral argument pursuant to Local Rule 230(g). For the reasons set forth below, Plaintiff's application for default judgment and for final judgment of forfeiture is GRANTED.

II. FACTUAL BACKGROUND

Plaintiff's complaint, filed on August 30, 2010, alleges that February 20, 2010, an officer ("Officer 1") with the California Highway Patrol ("CHP") stopped a 2004 Porsche Cayenne bearing no license plates or registration traveling southbound on Interstate 5. (Doc. 1, ¶ 5.) Officer 1 contacted the driver of the vehicle, Argenis Amitt Valentin Nevarez ("Nevarez"), and observed three additional occupants in the vehicle -- Ivan Espino Figueroa ("Figueroa"), Jorge Ruiz Jimenez, and a juvenile passenger. (Doc. 1, ¶ 6.) Nevarez handed Officer 1 his driver's license and Figueroa handed the officer the other documentation for the vehicle. (Doc. 1, ¶ 6.) Officer 1 noticed that one of the documents for the vehicle was a California Salvage Title for a different 2004 Porsche Cayenne and requested that Nevarez step over to the patrol car to discuss the vehicle documents. (Doc. 1, ¶ 6.)

Officer 1 spoke briefly with Nevarez and became concerned that the vehicle could be a Vehicle Identification Number ("VIN") switched vehicle. (Doc. 1, ¶ 7.) Officer 1 patted down Nevarez and observed what he believed to be a large bundle of currency in Nevarez' pants pocket. (Doc. 1, ¶ 7.) When asked about the bundle, Nevarez pulled out a large bundle of currency from his pocket held together by a rubber band that appeared to contain several smaller bundles. (Doc. 1, ¶ 7.) Nevarez stated that he was carrying approximately $1,000.00 to $2,000.00 to be used for the purchase of stereo equipment for his stereo shop located in San Francisco. (Doc. 1, ¶ 7.) The money was later counted and totaled $10,100.00, all in $100 bills. (Doc. 1, ¶ 7.)

Officer 1 requested additional assistance from a CHP K-9 unit. (Doc. 1, ¶ 8.) While waiting for the backup to arrive, Officer 1 returned to the vehicle to check the VIN and conversed with Figueroa to determine what he knew about the vehicle. (Doc. 1, ¶ 8.) Figueroa informed Officer 1 that Nevarez had borrowed the vehicle for the trip. (Doc. 1, ¶ 8.) Officer 1 returned to the patrol car where Nevarez was waiting, and issued Nevarez a citation for failure to display license plates and for expired registration. (Doc. 1, ¶ 8.)

The second officer ("Officer 2") and his narcotic-detecting canine "Timo" arrived and, after the Officer 1 relayed his suspicions to Officer 2, Officer 2 approached the vehicle and began conversing with Figueroa, who informed Officer 2 that he was in possession of approximately $4,000.00 to $5,000.00. (Doc. 1, ¶ 8.) Officer 1 advised Nevarez that he was free to go and then asked and received verbal and written consent to search the vehicle. (Doc. 1, ¶ 9.) The occupants of the vehicle informed the officers that there was nothing in the vehicle that they did not want searched and that there was no additional money in the vehicle. (Doc. 1, ¶ 9.)

"Timo" conducted a sniff-search of the exterior and interior of the vehicle and made positive alerts to an article of luggage where a large amount of cash was hidden. (Doc. 1, ¶ 10.) The cash consisted of several bundles held together with rubber bands; Figueroa stated that there was approximately $100,000.00 in the suitcase and that he was afraid to mention the money because he believed he would get in trouble for possessing that amount of cash. (Doc. 1, ¶ 10.) Figueroa stated that he acquired the money from the sale of real property in Mexico, but was unable to state the location of the city or the property. (Doc. 1, ¶ 10.) Figueroa then changed his statements and informed the officers that the money actually belonged to his mother and stepfather, and that his mother had sold the property in Mexico. (Doc. 1, ¶ 10.) Figueroa stated that he was delivering the money to someone in Los Angeles, but did not know the name of the person or when he would be delivering the money. (Doc. 1, ¶ 10.)

In a handbag also claimed by Figueroa, the officers located approximately $4,700.00 in denominations ranging form $10 bills to $100 bills. (Doc. 1, ¶ 11.) The currency in the luggage and the handbag totaled approximately $129,100.00. (Doc. 1, ¶ 11.) Nevarez and Figueroa were unable to produce receipts to legitimately claim the money and informed the officers that they did not have employment records that could justify having earned any money through legal employment. (Doc. 1, ¶ 12.) Nevarez subsequently disclaimed any ownership in the $129,190.00. (Doc. 1, ¶ 12.)

III. PROCEDURAL BACKGROUND

On August 30, 2010, the Government filed a civil action for forfeiture in rem pursuant to 21 U.S.C. § 881(a)(6) of the defendant currency of approximately $129,190.00 and approximately $10,100.00 (collectively "defendant currency"). On May 26, 2011, the Clerk of Court issued a Warrant for Arrest of Articles In Rem for the defendant currency. (Doc. 5.)

On September 23, 2010, the Court granted the Government's application for publication, authorizing public notice of the action and the arrest of the defendant currency via the official internet government forfeiture cite (www.forfeiture.gov) for at least 30 consecutive days. (Doc. 6.) Publication in a manner consistent with the Court's order commenced on September 28, 2010. (Doc. 10.)

The government also caused notice to be served to the following individuals with suspected potential interest in the defendant currency -- Figueroa, Nevarez, Perla Espino ("Espino"), and Cipriano Estrada ("Estrada") (aka Cipriano Espino). (Doc. 53, 4:19-8:3.)

On September 21, 2010, copies of the Complaint, Application and Order For Publication, Order Re Issuance of Clerk's Arrest Warrant, Warrant for Arrest of Articles In Rem, Order Setting Mandatory Scheduling Conference, Notice of Availability of Magistrate Judge, Notice of Availability of Voluntary Dispute Resolution, and notice-of-forfeiture letter dated September 21, 2010, ("the case documents") were sent via first class mail and certified mail to Figueroa's last known address, 1607 McGinnis Avenue, San Jose, California 95127. (Doc. 21-1, Rodriguez Decl., ¶ 5.) While the certified receipt was not returned, the United States Postal Service's online Track & Confirm website indicated that the certified mailing was delivered on September 23, 2010. (Doc. 21-1, Rodriguez Decl., ¶ 5.) On October 8, 2010, the United States Marshals Service ("U.S. Marshals") attempted to personally serve Figueroa and spoke with Patricia Torres, who stated that she had lived at that residence for 18 months and no one with Figueroa's name had lived there during that time. (Doc. 21-1, Rodriguez Decl., ¶ 6.)

On September 21, 2010, the case documents were served on Espino and Estrada at their last know address, 27333 Tyrrell Avenue, Hayward, California 94544. (Doc. 22-1, Rodriguez Decl., ¶ 5; Doc. 53, 7:5-8.) The certified return receipt cards were signed by Guadalupe Lopez. (Doc. 22-1, Rodriguez Decl., ¶ 5; Doc. 53, 7:8.) On October 7 and 12, 2010, the U.S. Marshals attempted to personally serve the case documents on Espino and Estrada; on the latter date they spoke with Lupe Lopez, who stated that she rents the residence from Espino but that she did not have Espino's address or phone number; Ms. Lopez also stated that she did not know Estrada. (Doc. 22-1, Rodriguez Decl., ¶ 6; Doc. 53, 7:19-23.) The U.S. Marshals left process for both Espino and Estrada with Ms. Lopez to give to Espino when the rent was collected. (Doc. 22-1, Rodriguez Decl., ¶ 6, Doc. 53, 7:24-8:1.)

On September 21, 2010, the case documents were mailed to Nevarez at his last known address, 5450 Monterey Road, #41A, San Jose, California 95111. (Doc. 46-1, Rodriguez Decl., ¶¶ 5, 7.) The certified mailing was returned to the United States Attorney's Office as unclaimed. (Doc. 46-1, Rodriguez Decl., ¶ 5.) The U.S. Marshals attempted personal service of the case documents on Nevarez on October 8, 2010, at his last know ...


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