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United States v. 2014 Ford F450 XLT

United States District Court, E.D. California

May 11, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
2014 FORD F450 XLT, LICENSE PLATE 11855L1; VIN 1FD0X4GT3EEB09948, Defendant.

          FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S EX PARTE APPLICATION FOR DEFAULT JUDGMENT AND FINAL JUDGMENT OF FORFEITURE (DOC. 12)

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.

         In this civil forfeiture action, Plaintiff United States of America (“Government” or “Plaintiff”) moves for entry of default judgment against the interests of Gerardo Zamora in a 2014 Ford F450 XLT, License Plate: 11855L1; VIN: 1FD0X4GT3EEB09948 (“Defendant Vehicle”) and entry of a final forfeiture judgment to vest in the Government all right, title and interest in the Defendant Vehicle. No opposition to the Government's motion was filed, and the Court took the matter under submission pursuant to Local Rule 230(g).

         For the reasons set forth below, the Court RECOMMENDS that the Government's application for default judgment and for final judgment of forfeiture be GRANTED.

         FACTUAL BACKGROUND

         This is a civil action in rem to forfeit to the Government a 2014 Ford F450 XLT, License Plate Number 11855L1, VIN: 1FD0X4GT3EEB09948 (“Defendant Vehicle”) pursuant to 21 U.S.C. § 881(a)(4).[1] The Defendant Vehicle was seized on June 24, 2016, in Exeter, California.

         On June 24, 2016, at about 12:40 p.m., detectives with the Tulare County Sheriff's Office (“TCSO”) conducted a traffic stop of the Defendant Vehicle at Yokohl Drive in Exeter, California for failure to stop at a stop sign in violation of California Vehicle Code § 22450(a). The driver made a sharp yield onto the right dirt shoulder of the road and exited the Defendant Vehicle. The driver was instructed to re-enter his vehicle. The driver returned to his vehicle but left the driver-side door open.

         As law enforcement approached the Defendant Vehicle, the detective smelled the overwhelming odor of marijuana that emitted from the vehicle. The driver of the vehicle was contacted and identified as Gerardo Zamora (“Zamora”), who was also the Defendant Vehicle's registered owner. Zamora was instructed to exit his vehicle. Zamora was asked whether he had any weapons on his person or anything illegal in his vehicle. Zamora responded that he had 100 pounds of weed in his truck and that it was located in the utility compartments from the bed of the Defendant Vehicle. Zamora was detained and placed in the backseat of a marked patrol vehicle, and later transported to TCSO headquarters to be interviewed.

         Detectives obtained and executed a state search warrant for the Defendant Vehicle. Law enforcement located 111 pounds of packaged, processed marijuana in the Defendant Vehicle. The individual packages were weighed at approximately one pound each.

         At the TCSO, Zamora was read his Miranda rights and interviewed. When asked whether he understood his rights, Zamora stated, “Yes, I do.” He then went on to make statements admitting to knowingly transporting the marijuana found in the Defendant Vehicle. When asked why he would involve himself with the transportation of marijuana, Zamora stated that he believed what he was doing was legal and that he needed the extra money. Zamora stated that he expected to be paid $25.00 per pound of marijuana transported, for a total of about $2, 775.00.

         Zamora was arrested and booked on state criminal charges for violation of California Health & Safety Code §§ 11360 and 11359 - Transportation, Importation, or Sale, of Marijuana and Possession of Marijuana for Sale. Law enforcement seized the Defendant Vehicle.

         PROCEDURAL BACKGROUND

         On December 19, 2016, the Government filed its complaint for forfeiture in rem, alleging that the Defendant Vehicle was subject to forfeiture to the Government under 21 U.S.C. § 881(a)(4) because it constitutes property used, or intended to be used, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of controlled substance or listed chemical in violation of 21 U.S.C. § 841, et seq. On January 3, 2017, based on the allegations of the complaint, the Clerk of the Court issued a Warrant for Arrest of Articles In Rem for the Defendant Vehicle. (Doc. 3.) The warrant was executed on January 11, 2017. (Doc. 4.)

         According to the Government's Declaration of Publication, a Notice of Civil Forfeiture was published on the official government internet site (www.forfeiture.gov) for thirty days beginning on December 31, 2016. (Doc. 5.)

         On January 3, 2017, Gerardo Zamora was served with notice of this action by first class and certified mail at his last known business address of Anchor Construction, 1012 E. Clinton Avenue, Fresno, California 93704-5630. The certified mail parcel was returned to the U.S. Attorney's Office marked as “UNCLAIMED.” (Doc. 8-1, Declaration of Elise Rodriguez (“Rodriquez Decl.”) at ¶ 5 and Ex. A.)

         On January 3, 2017, Gerardo Zamora also was served with notice of this action by first class and certified mail at an additional known business address of 1825 W. Clayton Avenue, Fresno, California 93706. The certified mail parcel was marked “Return to Sender/No Such Number/Unable to Forward” and returned to the U.S. Attorney's Office. (Doc. 8-1, Rodriguez Decl. at ¶ 6 and Ex. B.)

         Additionally, on January 3, 2017, Gerardo Zamora was served with notice of this action by first class and certified mail at an additional known business address of 1823 E. Clayton Avenue, Fresno, California 93725-9509. The PS Form 3811 (Domestic Return Receipt) was ...


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