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United States v. Approximately $73

United States District Court, Ninth Circuit

October 18, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
APPROXIMATELY $73, 670 IN UNITED STATES CURRENCY, Defendant.

ORDER GRANTING THE UNITED STATES' MOTION FOR DEFAULT JUDGMENT Re: Dkt. No. 15

JOSEPH C. SPERO, Magistrate Judge.

I. INTRODUCTION

This is an in rem action brought under 18 U.S.C. § 981(a)(1)(C) involving the seizure of Defendant approximately $73, 670.00 in United States currency. The Clerk has entered default, and the United States now brings a Motion for Default Judgment ("Motion") by the Court. No opposition was filed. The Motion came on for hearing on Friday, September 6, 2013 at 1:30 p.m. At the hearing, the Court asked the United States to provide additional materials. The United States submitted some of the requested additional materials on September 13, 2013 but did not address all of the Court's questions. Accordingly, on September 24, 2013, the Court issued an order for additional briefing and evidence. The United States submitted the requested materials and briefing on October 10, 2013. For the reasons stated below, the Court GRANTS Plaintiff's Motion.[1]

II. BACKGROUND

A. The Complaint

In the Complaint, the United States alleges that on or about October 15, 2012, L.G. ("Victim 1") received a letter indicating that she won a $650, 000.00 cash prize from the Publisher's Clearing House. Complaint ¶ 9. Victim 1 is 84 years old and resides in Wisconsin. Id.

It is further alleged that on or about October 18, 2012, Victim 1 followed the instructions in the letter and called Don Beckett, the individual purportedly "handling her case." Id. ¶ 10. Beckett informed Victim 1 that part of the prize was to have her credit card balance paid off. Id. Shortly thereafter, Victim 1 confirmed that the $800.00 balance on her credit card had been paid off. Id. Then, Beckett contacted Victim 1 and told her to send him $10, 000.00 to cover attorney and insurance fees for the prize. Id. Beckett instructed Victim 1 to place the bills in the middle of a magazine and to seal the edges with tape. Id. Further, Beckett told her to send the package to Evelyn Nguyen, [2] 1680 Shore Place #7, Santa Clara, California, 95054. Id. Victim 1 withdrew $10, 000.00 in $100 bills from her savings account and followed Beckett's shipping instructions. Id.

On or about October 19, 2012, Plaintiff alleges, Beckett called Victim 1 and informed her that he had received the $10, 000.00. Id. ¶ 11. Beckett told Victim 1 to send another $10, 000.00 for traveling costs, plane fares, and courier fees. Id. Victim 1 told Beckett that she only had $5, 000.00 to send. Id. Following this conversation, Victim 1 withdrew $5, 000.00 in $100 denominations, followed the same mailing instructions, and sent the package to Evelyn Nguyen, 1680 Shore Place #7, Santa Clara, California, 95054. Id. After sending the second package, Victim 1 realized that she had been scammed. Id. ¶ 12. But Victim 1 was unable to cancel her second shipment because it had already arrived in California. Id.

On or about October 16, 2012, H.K. ("Victim 2") allegedly received a flyer in the mail indicating that she won the Publisher's Clearing House. Id. ¶ 13. Victim 2 is 83 years old and resides in Wisconsin. Id. Victim 2 spoke with Don Beckett over the phone. Id. ¶ 14. Beckett told Victim 2 that part of the prize was to have her credit card balance paid off. Id. Victim 2 gave Beckett her credit card information and then Victim 2 confirmed that the $150.00 balance on her credit card had been paid off. Id. Shortly thereafter, Victim 2 went to U.S. Bank in Wisconsin and withdrew $15, 000.00 in cash. Id. ¶ 15. She left the paper bands on the cash. Id. Per Beckett's instructions, Victim 2 placed the money in the center of a magazine and sent the money via FedEx to Evelyn Nguyen at 3003 Olin Avenue, San Jose, California. Id.

The United States alleges that a few days later, Victim 2 received a phone call from Beckett advising her to send another $15, 000.00 for expenses and taxes. Id. ¶ 15. Beckett instructed Victim 2 to send the package with the money to an address in Mississippi. Id.

Plaintiff further alleges that on October 22, 2012, Victim 2 withdrew $15, 000.00 from her bank account. Id. ¶ 16. She packaged it the same way as the first $15, 000.00. Id. Later that day, the Santa Clara Police contacted Victim 2 to inform her of the scam. Id. Victim 2 was able to cancel the package before it was mailed. Id.

On or about October 20, 2012, it is alleged, the Santa Clara Police Department initiated an investigation regarding an advance fee fraud scheme that originated in Wisconsin. Id. ¶ 8. On October 20, 2012, the Santa Clara Police Department dispatched detectives to 1680 Shore Place, Santa Clara. Id. ¶ 17. The officers located the package sent by Victim 1 on the front porch of 1680 Shore Place and verified the package by matching the name, description of the package, and the FedEx tracking number. Id. The officers opened the package. Id. They discovered that it contained $5, 000.00 in cash, wrapped in a magazine. Id. Shortly thereafter, the officers observed an Asian male, later identified as Peter Huynh[3] drive up to the apartment. Id. He appeared to be searching for something and then proceeded to make a phone call. Id. Detectives made contact with Huynh. Id. Huynh stated he was picking up a FedEx package for his roommate, Jason Nguyen. Id. Huynh agreed to go to the police station for further questioning. Id.

At the police station, Huynh allegedly stated he was picking up a FedEx package at 1680 Shore Place and was going to bring it to Evelyn Nguyen, the sister of Jason Nguyen. Id. ¶ 18. Huynh said Jason Nguyen had offered to pay him $100.00 for picking up the package. Id. Further, Huynh stated he picked up another package at the Shore Place address for Jason Nguyen on October 19, 2012. Id. He stated that he delivered the package to Evelyn Nguyen at her business at the Valley Fair Shopping Mall in San Jose, California. Id. Huynh stated he did not know the contents of the package. Id.

The United States alleges that during the interview, Huynh received numerous phone calls from Jason Nguyen. Compl. ¶ 19. The detectives arranged to have Huynh answer the phone and place the call on speaker so the conversation could be recorded. Id. Jason Nguyen instructed Huynh to bring the package to the apartment of his sister, Evelyn Nguyen, located at 3003 Olin Avenue, San Jose, California, where Jason Nguyen was to meet Huynh. Id.

The detectives allegedly removed the $5, 000.00 from the magazine in the FedEx envelope and placed the magazine only in the FedEx envelope for Huynh to deliver to Jason Nguyen. Id. ¶ 21. Huynh met Jason Nguyen in the parking lot adjacent to 3003 Olin Avenue. Id. Jason Nguyen was subsequently arrested as he approached Huynh to retrieve the package. Id.

During his interview, Plaintiff alleges, Jason Nguyen stated that he worked at 3003 Olin Avenue Apartment #306 as a graphic designer for a business owned by Daniel Ni. Compl. ¶ 22. He stated that Ni is the boyfriend of his sister, Evelyn. Id. Jason Nguyen further stated that Ni and Evelyn reside in the Olin Avenue apartment. Id. Jason Nguyen explained to the detectives that he became involved in the fee scam shortly after an arrest in 2011, in order to pay his court fees. Id. ¶ 23. He explained that the scam entails mailing a letter to a victim advising that the individual has won the "Sweepstakes Clearing House." Id. Victims are instructed to send money to a designated name and address to collect the winnings. Id. Jason Nguyen usually picked up the packages himself and delivered them to his sister, Evelyn. Id. But he asked Huynh to pick up the last two packages because Jason Nguyen had to work. Id.

The United States alleges that on the same day, October 20, 2012, detectives made contact with Evelyn Nguyen at the Panda Hats Kiosk at the Valley Fair Mall in San Jose, California. Id. ¶ 24. Evelyn Nguyen admitted she received a package from Huynh on October 19, 2012. Id. The detectives told Evelyn Nguyen that they wanted to return the packages to the victims. Id. Evelyn Nguyen responded "if they come here in person, I will give it to them." Id. The detectives subsequently arrested Evelyn Nguyen and transported her to the police station. Id.

Plaintiff alleges that on October 21, 2012, detectives executed a state search warrant at 3003 Olin Avenue #306, San Jose, California. Id. ¶ 26. During the search, the detectives located large stacks of money, allegedly totaling approximately $83, 770.00, in several areas of the apartment. Id. In particular, the detectives found a hat box in the bedroom closet, which allegedly contained approximately $56, 670.00 in United States currency in mainly $100, $50, and $20 denominations. Id. ¶ 27. The detectives allegedly found four bundles of cash, which amounted to $15, 000.00, in the top left-hand dresser drawer in the bedroom. Id. ¶ 28. The money was wrapped in currency bands which appeared to be bank-specific indicia. Id. There was one $10, 000.00 band, two $2, 000.00 bands, and one $1, 000.00 band. Id. The $10, 000.00 and $2, 000.00 bundles were in $100 bills. Id. The $1, 000.00 band was in $50 bills. Id. The currency bands indicated they were from U.S. Bank Teller 0011, branch 1220, with tracking #XXXXXXXXX. Id. The tracking number belonged to a U.S. Bank in Sheboygan, Wisconsin. Id. Detectives allegedly contacted U.S. Bank and learned that Victim 2 had withdrawn $15, 000.00 on October 16, 2012 and an additional $15, 000.00 on October 22, 2012. Id. The detectives also allegedly found $2, 000.00 in $20 bills in the top left hand dresser in the bedroom, inside an Office Depot bag. Id. ¶ 29. Further, $10, 000.00 in $100 bills was found in the top drawer of the night stand next to the window. Id. ¶ 30. It is alleged that "indicia" belonging to both Evelyn Nguyen and Daniel Ni were also found inside the apartment. Id. ¶ 31.

B. Claims for Relief

The United States brings this action under 18 U.S.C. § 981(a)(1)(C), which provides, in relevant part, for the forfeiture of any property, real or personal, which constitutes or is derived from proceeds traceable to an offense constituting "specified unlawful activity" as defined in 18 U.S.C. § 1956(c)(7). Under § 1956(c)(7), "specified unlawful activity" includes any act or activity constituting an offense listed in 18 U.S.C. § 1961, which in turn includes violations of §§ 1341 and 1343. In Claim One, Plaintiff seeks forfeiture of $73, 670.00 in United States Currency based on § 1341 ...


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