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United States v. Approximately $10

United States District Court, Ninth Circuit

September 19, 2013

UNITED STATES OF AMERICA. Plaintiff,
v.
APPROXIMATELY $10, 000.00 IN U.S. CURRENCY, Defendant.

ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT ORDER ISSUING FINAL JUDGMENT OF FORFEITURE (Doc. No. 38)

SHEILA K. OBERTO, Magistrate Judge.

I. INTRODUCTION

On November 4, 2011, the United States ("Plaintiff" or the "Government") filed a complaint for forfeiture in rem against approximately $10, 000 in U.S. currency ("defendant currency"). (Doc. 1.) On December 23, 2011, Tony Vue submitted a claim as a real party in interest asserting that he was the rightful owner of the $10, 000. (Doc. 9.) On December 28, 2011, Mr. Vue filed an answer to the complaint. (Doc. 11.) On August 8, 2013, Plaintiff filed a motion to strike and a motion for default judgment and final judgment of forfeiture, and a hearing was noticed for September 27, 2013.[1] (Doc. 38.) No opposition to the motion was filed. Pursuant to U.S. District Court for the Eastern District of California's Local Rule 230(g), the Court finds this matter suitable for decision without oral argument, the matter is therefore taken under submission, and the September 25, 2013, hearing is VACATED.

For the reasons set forth below, Plaintiff's motion to strike is GRANTED; Plaintiff's motion for default judgment is GRANTED, and a final judgment of forfeiture is ISSUED.

II. BACKGROUND

Plaintiff alleges the following with respect to the background investigation:

5. On March 24, 2011, an agent with the California Bureau of Narcotics Enforcement ("BNE"), working the in-bound sort at the FedEx Station in Clovis, California, noticed a suspicious package with an airbill number of XXXX-XXXX-XXXX, which had been sent priority overnight, paid in cash, required no signature, and had no last name listed for either the sender or receiver. Based on the agent[s] training and experience, those factors led the agent to suspect the package contained contraband, such as currency from the sale of narcotics. The agent then placed a telephone call to the phone number listed on the airbill for the sender, listed as "Tony, " and discovered the number was a non-working number. The agent then placed a telephone call to the phone number listed for the recipient, listed as "Pazong." At this number an unidentified male answered and when asked, stated that "Pazong" was not there and hung up. The agent then redialed the number for "Pazong, " and the call went directly to a non-working voicemail.
6. Shortly thereafter, the agent called for a narcotics canine unit f[rom] the California Highway Patrol. The CHP officer arrived with drug-detecting canine D'Jino. The parcel was placed in a room, along with other parcels, and known not to store any controlled substances. Canine D'Jino alerted to the parcel, indicating the presence and/or odor of narcotics on the parcel. The agent then obtained a signed state search warrant that authorized the opening of the parcel. Inside the parcel the agent located a black t-shirt and a manila envelope containing the defendant currency. The defendant currency was in three bundles and secured with rubber bands. The total currency amounted to $10, 00.00 (ten thousand dollars) in U.S. currency, made up of 1 ten-dollar bill, 287 twenty-dollar bills, 15 fifty-dollar bills, and 35 one-hundred-dollar bills.
7. The FedEx Station manager informed the agent that an Asian male came to the counter and wanted to know the whereabouts of his package. He only verbally identified himself as "Jim" - a name which did not appear on the airbill. He was informed that FedEx was trying to locate his package. He then left.
8. Several agents, all wearing identifiable police uniforms, delivered the package to the recipient address located at 6294 E. Balch Avenue in Fresno, California. After knocking on the door of the residence an individual who identified himself as Shoua Vang (hereafter "Vang") answered the door. An agent asked Vang about "Pazong, " the named recipient on the package. Vang stated that Pazong Vue (her[e]after "Pazong") was his wife. Vang further stated that the Balch Ave. residence belonged to Pazong's parents and that he was waiting there for the package because he is never at his own residence.
9. There were additional persons at the Balch Ave. residence - Sam Vue, Anthony Vue, and Nou Vue. The agent spoke with all three, and all denied expecting a package from FedEx, and denied knowing what was inside the package addressed to their residence.
10. When asked what was in the package, Vang initially claimed that he did not know. He [] then stated that there was between $8, 000.00 and $9, 000.00 in the package. When asked who sent the package Vang stated that Pazong's brother Tony Vue had sent the package. When asked what the money was form, Vang claimed that he was out of work and that they needed money for past due bills. Agents asked Vang if his wife Pazong was employed. Vang stated that Pazong worked as a manager for State Farm. Agents asked if Vang and Pazong had a bank account and Vang stated that they had an account at Wells Fargo. Agents asked Vang why Tony Vue had not simply sent a check and Vang stated that it was easier to send cash. Agents asked Vang if Pazong could come to the Balch Ave. residence. Vang called Pazong and she arrived at the residence shortly thereafter.
11. When questioned, Pazong claimed that her brother Tony Vue had sent the package and that it contained $10, 000.00. Pazong stated that the money was to pay for her little sister's wedding. When asked if the money was for overdue bills, Pazong stated that it was not. Pazong stated that she was working two jobs and the money was for the wedding. When asked if she recognized the address and phone numbers listed on the airbill for her brother Tony Vue, Pazong stated that she did not. Pazong stated that she did not know her brother Tony Vue's date of birth, address or telephone number, nor did she know what Tony Vue did for a living. Pazong stated that she had no way of getting in touch with Tony Vue and that he only calls her.
12. The Employment Development Department ("EDD") has no records of employment for Tony Vue.

(Doc. 1, ΒΆΒΆ 5-12.)

Pursuant to the allegations in the complaint and the Order Regarding Clerk's Issuance of Warrant for Arrest of Articles In Rem, on November 21, 2011, the Clerk of Court issued a Warrant for Arrest of Articles In Rem for the defendant currency. The Warrant for Arrest was executed on the defendant currency on November 23, 2011.

On November 16, 2011, the Court issued an order authorizing public notice of the action via the official internet government forfeiture site www.forfeiture.gov for at least 30 consecutive days. (Doc. 4.) On November 22, 2011, Plaintiff published notice of the action consistent with the Court's order and proof of the publication was filed with the Court on March 12, 2013. (Doc. 28.)

In addition to notice by publication, the Government delivered notices to individuals with a suspected potential interest in the defendant currency. On November 21, 2011, Plaintiff sent 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 Voluntary Dispute Resolution, and a notice-of-forfeiture letter dated November 21, 2011 (the "case documents"), to Anthony Vue, Sam Vue, and Nou Vue by first class U.S. Mail to their last-known address located at 6294 E. Balch ...


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