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United States v. Cuong Mach Binh Tieu

United States District Court, N.D. California

November 25, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
CUONG MACH BINH TIEU; SKYLER CHANG ET AL., Defendants

For Jin Fa Tan, also known as Ah Faht, Defendant: John David Forsyth, LEAD ATTORNEY, Attorney at Law, San Francisco, CA.

For Artichoke Joe's, Interested Party: Elliot Remsen Peters, Matan Shacham, LEAD ATTORNEYS, Keker & Van Nest LLP, San Francisco, CA.

For Weylin Fong, Interested Party: Charles Frederick Bourdon, LEAD ATTORNEY, Law Offices of Charles F. Bourdon, San Francisco, CA.

For USA, Plaintiff: Aaron D. Wegner, United States Attorney's Office, Oakland, CA; David Countryman, U.S. Attorney's Office, Criminal Division, Asset Forfeiture, San Francisco, CA; Robert David Rees, U.S. Attorneys Office, San Francisco, CA; Stephanie M. Hinds, Assistant United States Attorney, San Francisco, CA.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO VACATE

CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE.

On September 22, 2014, this Court issued a Final Order of Forfeiture in the case United States v. Chang et al (Case No. CR 11-0097 CRB). Artichoke Joe's and Weylin Fong, nonparties to the Chang case whose property was implicated in the order, now request that the Court reopen and vacate the order as to items " g., " " h., " " i., " " j., " and " k." to allow ten days for them to file a claim. Artichoke Joe's and Mr. Fong argue that the government failed to provide adequate notice of its intention to seek forfeiture of their property. The Court finds that the government complied with Federal Rule of Criminal Procedure 32.2(b)(6)(B)'s notice requirements as to Artichoke Joe's but not as to Mr. Fong. For that reason, the Court GRANTS the motion as to Mr. Fong but DENIES the motion as to Artichoke Joe's.

II. BACKGROUND

On March 18, 2013, this Court entered a Preliminary Order of Forfeiture (" Preliminary Order") for property seized from Artichoke Joe's Casino and from Mr. Fong's office inside the casino during a March 2, 2011 raid. Prelim. Order of Forfeiture (dkt. 625). Following entry of the Preliminary Order, the government published notice of the order on www.forfeiture.gov until April 23, 2013. Bourdon Decl. at Ex. K. Neither Artichoke Joe's nor Mr. Fong filed a claim during that time period. Id.

From July 2013 to December 2013, Chris Young of Keker & Van Nest, who represented Artichoke Joe's, spoke with Assistant United States Attorney Aaron Wegner regarding the seized property. Young Decl. ¶ ¶ 9-13. Mr. Young, representatives from Artichoke Joe's, and Mr. Wegner met on January 15, 2014. Id. ¶ 19. Mr. Young planned to discuss with Mr. Wegner Artichoke Joe's claim to approximately $22, 000 that was seized during the raid. Id. ¶ 19. In preparation for the meeting, Mr. Wegner sent to Mr. Young a Bill of Particulars that the government had filed in the Chang case on July 29, 2011. Id. ¶ 16. The Bill of Particulars contained a clause that read: " The United States hereby gives notice that pursuant to forfeiture statute 18 U.S.C. § 1963, as indicated in the indictment, the United States seeks forfeiture of the following property . . . ." Bill of Particulars (dkt. 156) at 1. The approximately $22, 000 that Artichoke Joe's claimed was listed as item " m." on the Bill of Particulars. Id. The January 15 meeting did not go as Mr. Young planned; instead of discussing Artichoke Joe's claim to the property, the government " used the time primarily to cross-examine" Artichoke Joe's representatives about Mr. Fong and the valuables seized from his office, leaving Mr. Young and Artichoke Joe's feeling " blindsided." Young Decl. ¶ 20. When Mr. Young did bring up Artichoke Joe's claim to the $22, 000, the government " responded that there is a process for getting this property returned." Id. ¶ 21. Charles Bourdon, counsel for Mr. Fong, did not attend the January 15, 2014 meeting and did not receive the Bill of Particulars that the government sent to Mr. Young. See Mot. to Reopen and Vacate (dkt. 731) at 6.

On August 6, 2014--seventeen months after entry of the Preliminary Order--the government mailed the Preliminary Order and a Certificate of Service to Elliot Peters (who assumed representation of Artichoke Joe's after Mr. Young left the firm on August 1, 2014) at Keker & Van Nest and to Mr. Bourdon. Countryman Decl. ¶ 2; Bourdon Decl. ¶ 14.

Mr. Peters' office received the government's mailing on August 11, 2014, but neither he nor anyone else at the firm filed a petition contesting forfeiture. See Peters Decl. ¶ 4. Mr. Peters argues that the year-and-a-half old order and certificate of service were insufficient to notify him that the government intended to seek forfeiture of his client's property. See Mot. to Reopen and Vacate at 15. Mr. Peters maintains that it was not until September 22, 2014, when his office received the government's application for a Final Order of Forfeiture, that he was adequately notified of the government's plan to seek forfeiture of his client's property. See Mot. to Reopen and Vacate at 16.

Similarly, Mr. Bourdon claims that he did not receive adequate notice until September 23, 2014, when his office received the government's application for a Final Order of Forfeiture. Bourdon Decl. ¶ ¶ 13-14. The government's August 6, 2014 mailing apparently did not reach Mr. Bourdon because his address was printed incorrectly. Mot. to Reopen and Vacate at 13. Mr. Bourdon's correct street address is 179 11th Street, 2nd ...


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