United States of America v. 2005 Toyota Tundra, License Number 7T31820, VIN: 5TBET34125S470786, No. 1:2008cv00229 - Document 22 (E.D. Cal. 2009)
Court Description: FINAL JUDGMENT OF FORFEITURE signed by Judge Oliver W. Wanger on 4/17/2009. CASE CLOSED. (Figueroa, O)
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United States of America v. 2005 Toyota Tundra, License Number 7T31820, VIN: 5TBET34125S470786 1 5 LAWRENCE G. BROWN Acting United States Attorney DEANNA L. MARTINEZ Assistant United States Attorney United States Courthouse 2500 Tulare Street, Suite 4401 Fresno, California 93721 Telephone: (559) 497-4000 Facsimile: (559) 497-4099 6 Doc. 22 Attorneys for Plaintiff 2 3 4 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 UNITED STATES OF AMERICA, ) 1:08-CV-00229-OWW-GSA ) Plaintiff, ) ) v. ) FINAL JUDGMENT OF FORFEITURE ) 2005 TOYOTA TUNDRA, LICENSE ) NUMBER 7T31820, ) VIN: 5TBET34125S470786 , ) ) Defendant. ) _____________________________________) 17 18 Pursuant to the Stipulation for Final Judgment of Forfeiture filed herein, the Court finds: 19 1. 20 21 This is a civil forfeiture action against defendant 2005 Toyota Tundra, License Number 7T31820, VIN: 5TBET34125S470786 (hereafter "defendant vehicle"). 2. A Verified Complaint for Forfeiture In Rem was filed on February 15, 2008, seeking 22 the forfeiture of the defendant vehicle, alleging said vehicle is subject to forfeiture to the United 23 States of America pursuant to 21 U.S.C. § 881(a)(4), on the grounds that the defendant vehicle 24 constitutes a conveyance used or intended to be used to transport, or in any manner to facilitate the 25 transportation, sale, receipt, possession, or concealment of a controlled substance in violation of 21 26 U.S.C. § 841 et seq. 27 28 3. On February 19, 2008, in accordance with said Complaint, a Warrant For Arrest of Articles In Rem for the defendant vehicle was issued and duly executed on March 19, 2008. Dockets.Justia.com 1 4. On or about April 11, 2008, a Public Notice of Arrest of the defendant vehicle 2 appeared by publication in the Business Journal, a newspaper of general circulation in the county 3 in which the defendant vehicle was seized (Fresno County). The Declaration of Publication was 4 filed with the Court on April 24, 2008. 5 5. In addition to the Public Notice of Arrest having been completed, actual notice was 6 personally served upon Boonpheng Phiachantharath and Chansamouth Phiachantharath. Claimant 7 Boonpheng Phiachantharath filed a Verified Claim and Answer to the Complaint on April 9, 2008. 8 To date, no other parties have filed claims or answers in this matter, and the time for which any 9 person or entity may file a claim and answer has expired. 10 Based on the above findings, and the files and records of the Court, it is hereby 11 ORDERED AND ADJUDGED: 12 1. 13 14 15 16 The Court adopts the Stipulation for Final Judgment of Forfeiture entered into by and between the parties to this action. 2. Judgment is hereby entered against Boonpheng Phiachantharath, Chansamouth Phiachantharath, and all other potential claimants who have not filed claims in this action. 3. Upon entry of this Final Judgment of Forfeiture Claimant Boonpheng Phiachantharath 17 agrees to pay to the United States the sum of $9,875.00 as a substitute res in lieu of the defendant 18 vehicle within forty-five (45) days from the date of signing the Stipulation for Final Judgment of 19 Forfeiture. Claimant Boonpheng Phiachantharath shall send a cashier’s check in the amount of 20 $9,875.00 made payable to the U.S. Marshals Service. The check shall be sent to the U.S. Attorneys 21 Office, Att: Asset Forfeiture Unit, 2500 Tulare Street, Suite 4401, Fresno, California 93721. Said 22 $9,875.00 shall be substituted as the res herein, and shall be forfeited to the United States pursuant 23 to 21 U.S.C. § 881(a)(4), to be disposed of according to law. Upon payment of the sub res the 24 United States agrees to forego any further action against the defendant vehicle based on the facts 25 alleged in the Verified Complaint. Upon payment of the sub res, the United States will release the 26 defendant vehicle to Claimant Boonpheng Phiachantharath, through his attorney, Jim T. Elia, 2300 27 Tulare Street, Suite 140, Fresno, California 93721. 28 2 1 4. If Claimant Boonepheng Phiachantharath fails to pay $9,875.00 as the sub res herein 2 to the United States, as provided in paragraph 3 above, then on or after the forty-fifth day from the 3 date of signing the Stipulation for Final Judgment of Forfeiture filed herein, all right title and interest 4 in the defendant vehicle shall be forfeited to the United States pursuant to 21 U.S.C. § 881(a)(4) to 5 be disposed of according to law. 6 7 5. Boonpheng Phiachantharath hereby acknowledges that he is the sole owner of the defendant vehicle and that no other person or entity has any legitimate claim of interest therein. 8 6. Plaintiff United States of America and its servants, agents, and employees, and all 9 other public entities, their servants, agents, and employees, are released from any and all liability 10 arising out of or in any way connected with the arrest, seizure, or forfeiture of the defendant vehicle. 11 This is a full and final release applying to all unknown and unanticipated injuries, and/or damages 12 arising out of said arrest, seizure, or forfeiture, as well as to those now known or disclosed. The 13 parties waive the provisions of California Civil Code § 1542, which provides: “A general release 14 does not extend to claims which the creditor does not know or suspect to exist in his or her 15 favor at the time of executing the release, which if known by him or her must have materially 16 affected his or her settlement with the debtor.” 17 7. Until Claimant has paid the $9,875.00 sub res, Claimant Boonpheng Phiachantharath 18 shall maintain any and all loan payments, if any, and insurance policies currently in effect with 19 respect to the defendant vehicle, including policies covering liability to persons injured by said 20 vehicle and for property damage to the defendant vehicle. 21 8. Until Claimant has paid the $9,875.00 sub res in full, Claimant Boonpheng 22 Phiachantharath shall not convey, transfer, encumber, lien, or otherwise pledge the defendant vehicle 23 without the prior written approval of the United States. 24 25 9. There was reasonable cause for the seizure and arrest of the defendant vehicle, and the Court may enter a Certificate of Reasonable Cause pursuant to 28 U.S.C. § 2465. 26 10. Pending payment of the $9,875.00 sub res for forfeiture of the defendant vehicle, the 27 Court shall maintain jurisdiction to enforce the terms of the Final Judgment of Forfeiture. 28 /// 3 1 2 12. All parties will bear their own costs and attorneys’ fees. SO ORDERED THIS 17th day of April, 2009. 3 /s/ OLIVER W. WANGER OLIVER W. WANGER United States District Judge 4 5 6 CERTIFICATE OF REASONABLE CAUSE 7 Based upon the allegations set forth in the Complaint for Forfeiture In Rem filed February 8 15, 2008, and the Stipulation for Final Judgment of Forfeiture filed herein, the Court enters this 9 Certificate of Reasonable Cause pursuant to 28 U.S.C. § 2465, that there was reasonable cause for 10 the seizure and arrest of the defendant vehicle. 11 Dated: April 17, 2009 12 /s/ OLIVER W. WANGER OLIVER W. WANGER United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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