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United States v. Hernandez

United States District Court, E.D. California

June 28, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHNNY HERNANDEZ, JOSE HERNANDEZ, and LESLIE SANCHEZ, Defendants.

          PHILLIP A. TALBERT United States Attorney KIMBERLY A. SANCHEZ JEFFREY A. SPIVAK PATRICK J. SUTER Assistant United States Attorneys Attorneys for Plaintiff United States of America.

          UNITED STATES'S REQUEST FOR AN ORDER AUTHORIZING DISCOVERY IN THE ANCILLARY PROCEEDING; ORDER THEREON [FED. R. CRIM. P. 32.2(C)(1)(B)]

          LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE.

         I. INTRODUCTION

         Pursuant to Fed. R. Crim. P. 32.2(c)(1)(B), the United States requests the Court to allow it to conduct discovery to explore the basis for the claims filed by petitioners Catalina Olivas and Lorena Vizcarra (collectively “Petitioners”) regarding their interest in property forfeited from defendant Jose Hernandez. Petitioners allege an interest in the approximately $30, 761.00 in U.S. Currency (the “Subject Currency”) that was seized pursuant to a Federal search warrant in Sanger, California on November 12, 2015 as part of this criminal investigation.

         II. BACKGROUND

         1. On December 3, 2015, Johnny Hernandez, Jose Hernandez, and Leslie Sanchez were indicted in a three-count indictment for conspiracy to distribute and possess with intent to distribute methamphetamine (all defendants), possession with intent to distribute methamphetamine (Jose Hernandez only), and felon in possession of a firearm (Johnny Hernandez only). (ECF No. 9.)

         2. On August 1, 2016, Johnny Hernandez pleaded guilty to both charges against him. (ECF No. 45). He was sentenced to 87 months of incarceration on October 24, 2017. (ECF No. 57).

         3. On August 1, 2016, Leslie Sanchez pleaded guilty to the conspiracy. (ECF No. 45). She was sentenced to 36 months of incarceration on October 24, 2017. (ECF No. 57).

         4. Forfeiture was not an aspect of either Johnny Hernandez or Leslie Sanchez's pleas or sentences.

         5. On February 6, 2017, Jose Hernandez pleaded guilty to the conspiracy charge. (ECF No. 62). On May 22, 2017, Jose Hernandez was sentenced to five years of probation and agreed to forfeit the Subject Currency. (ECF No. 68).

         6. On May 24, 2017, the Court entered a Preliminary Order of Forfeiture for the Subject Currency, pursuant to 21 U.S.C. § 853(a), which authorizes the forfeiture of narcotics related monies and facilitating property.

         7. Following the Court's entry of a preliminary order of forfeiture, the United States provided notice to potential claimants, pursuant to 21 U.S.C. § 853(n), 18 U.S.C. § 1963(1) and Local Rule 171. The deadline to file a petition was June 29, 2017.

         8. On June 8, 2017, Petitioners Catalina Olivas and Lorena Vizcarra filed a petition for ancillary hearing contesting the forfeiture of the Subject Currency. (ECF No. 72.) Each claims an interest in the Subject Currency and urges that the Subject Currency was derived from a legitimate source.

         III. ...


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