United States of America v. $296,835.00 in United States Currency, No. 2:2012cv01489 - Document 30 (D. Nev. 2013)

Court Description: ORDER Accepting 29 Report and Recommendation. Final Judgment shall be b entered in this case in the form attached hereto as Exhibit 1. Granting 26 Motion for Default Judgment. Signed by Judge Gloria M. Navarro on 12/19/2013. (Copies have been distributed pursuant to the NEF - SLR)
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United States of America v. $296,835.00 in United States Currency Doc. 30 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 6 7 8 9 10 UNITED STATES OF AMERICA, ) ) Plaintiff, ) vs. ) ) $296,835.00 in United States Currency, ) ) Defendant. ) ) Case 2:12-cv-01489-GMN-VCF ORDER ACCEPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE CAM FERENBACH Before the Court for consideration is the Report and Recommendation (ECF No. 29) of 11 the Honorable Cam Ferenbach, United States Magistrate Judge, entered November 25, 2013, 12 regarding Plaintiff’s Motion for Magistrate Judge to Reconsider (ECF No. 28) the Report and 13 Recommendation (ECF No. 27) entered on November 15, 2013 regarding Plaintiff’s Motion for 14 Default Judgment (ECF No. 26), filed on July 10, 2013. 15 Pursuant to Local Rule IB 3-2(a), objections to the Report and Recommendation (ECF 16 No. 29) were due by December 12, 2013. No objections have been filed. In accordance with 28 17 U.S.C. § 636(b)(1) and Local Rule IB 1-4, the Court has reviewed the record in this case and has 18 determined that Magistrate Judge Ferenbach’s Recommendation should be ACCEPTED. 19 IT IS THEREFORE ORDERED that Final Judgment shall be entered in this case in the 20 form attached hereto as Exhibit “1”, which adjudicates the claims, rights and liabilities of all 21 defendants, including those of Ms. Agero-Simon, as established by the Settlement Agreement, 22 Stipulation for Entry of Judgment of Forfeiture as to Mercedes Agero-Simon, and Order 23 approving same (ECF Nos. 20 and 21). 24 25 IT IS FURTHER ORDERED that Plaintiff’s Motion for Default Judgment is hereby GRANTED consistent with this Court’s Order. Dockets.Justia.com 1 2 3 IT IS FURTHER ORDERED that the Clerk of Court shall docket the attached Final Judgment so the same can be signed by this Court, and entered on the docket. DATED this 19th day of December, 2013. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ________________________________ Gloria M. Navarro United States District Judge Case 2:12-cv-01489-GMN-VCF Document 29 Filed 11/25/13 Page 3 of 8 Exhibit 1 EXHIBIT "1" Exhibit 1 "1" EXHIBIT Case 2:12-cv-01489-GMN-VCF Document 29 Filed 11/25/13 Page 4 of 8 1 2 3 4 5 6 7 8 DANIEL G. BOGDEN United States Attorney Nevada Bar No. 2137 MICHAEL A. HUMPREYS Assistant United States Attorney U.S. ATTORNEY’S OFFICE 333 Las Vegas Boulevard South, Suite 5000 Las Vegas, Nevada 89101 Telephone: 702-388-6336 Facsimile: 702-388-6787 Email: michael.humphreys@usdoj.gov Attorneys for the United States 9 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 *** 13 14 UNITED STATES OF AMERICA, 15 16 Plaintiff, 2:12-cv-01489-GMN-VCF vs. 17 $296,835.00 IN UNITED STATES CURRENCY, 18 Defendant. 19 20 21 22 DEFAULT JUDGMENT OF FORFEITURE AS TO EAN HOLDINGS, LLC, AND ALL PERSONS OR ENTITIES WHO CLAIM AN INTEREST IN THE DEFENDANT PROPERTY IN THE ABOVE-ENTITLED ACTION AND FINAL JUDGMENT OF FORFEITURE AS TO $296,835.00 IN UNITED STATES CURRENCY AND MERCEDES AGERO-SIMON 23 The United States filed a verified Complaint for Forfeiture in Rem (ECF No. 1) on August 22, 24 2013. The Complaint (ECF No. 1) alleges the defendant property: 25 Case 2:12-cv-01489-GMN-VCF Document 29 Filed 11/25/13 Page 5 of 8 1 a. was furnished or was intended to be furnished in exchange for controlled substances in violation of Title II of the Controlled Substances Act, 21 U.S.C. § 2 3 801 et seq., and is subject to forfeiture to the United States pursuant to 21 U.S.C. 4 § 881(a)(6); 5 b. is proceeds traceable to exchanges of controlled substances in violation of Title II 6 of the Controlled Substances Act, 21 U.S.C. § 801 et seq., and is subject to 7 forfeiture to the United States pursuant to 21 U.S.C. § 881(a)(6); 8 c. 9 was used or was intended to be used to facilitate violations of Title II of the Controlled Substances Act, 21 U.S.C. § 801 et seq., and is subject to forfeiture to 10 the United States pursuant to 21 U.S.C. § 881(a)(6); 11 Public notice of the forfeiture action and arrest was given to all persons and entities by 12 publication on the official government website www.forfeiture.gov from September 8, 2012, through 13 14 15 October 7, 2012. Notice of Filing Proof of Publication, ECF No. 6. On August 27, 2012, the Court entered an Order for Summons and Warrant of Arrest in Rem for 16 the Property and Notice (ECF No. 4) and issued the Summons and Warrant of Arrest in Rem for the 17 Property (ECF No. 5). 18 Pursuant to the Order (ECF No. 4), the Complaint (ECF No. 1), the Order (ECF No. 4), the 19 Summons and Warrant (ECF No. 5), and the Notice of Complaint for Forfeiture (ECF No. 9, p. 3-4, 18- 20 19, 34-35, 48-49, 61-62, and 79-80) were served on the defendant property and all persons claiming an 21 interest in the defendant property. All persons interested in the defendant property were required to file 22 their claims with the Clerk of the Court no later than 35 days after the notice of this action was sent by 23 mail, followed by the filing of an answer to the Complaint within 21 days after the filing of their 24 respective claims. Complaint, ECF No. 1; Order for Summons and Warrant of Arrest in Rem for the 25 2 Case 2:12-cv-01489-GMN-VCF Document 29 Filed 11/25/13 Page 6 of 8 1 2 3 Property and Notice, ECF No. 4; Summons and Warrant Issued by the Clerk, ECF No. 5; Notice of Filing Service of Process, ECF No. 9. On September 17, 2012, the United States Marshals Service served the Complaint, the Order, the 4 Summons and Warrant of Arrest in Rem for the Property, and the Notice by executing them on the 5 defendant property. Notice of Filing Service of Process, ECF No. 9, p. 2-15. 6 On October 10, 2012, the United States Marshals Service served the Complaint, the Order, the 7 Summons and Warrant of Arrest in Rem for the Property, and the Notice on Mercedes Agero-Simon, 8 aka Mercedes Berriz, by regular mail and certified return receipt mail. Notice of Filing Service of 9 Process, ECF No. 9, p. 16-46. 10 On October 3, 2012, the United States Marshals Service served the Complaint, the Order, the 11 Summons and Warrant of Arrest in Rem for the Property, and the Notice on Mercedes Agero-Simon, 12 aka Mercedes Berriz, by and through her counsel David Z. Chesnoff, by personal service. Notice of 13 14 Filing Service of Process, ECF No. 9, p. 47-60. 15 On October 10, 2012, the United States Marshals Service served the Complaint, the Order, the 16 Summons and Warrant of Arrest in Rem for the Property, and the Notice on CT Corporation Systems, 17 Agent for Service of EAN Holdings, LLC, by regular mail and certified return receipt mail. Notice of 18 Filing Service of Process, ECF No. 9, p. 61-91. 19 20 21 22 On January 11, 2013, a Verified Claim and Demand for Return of Property was filed with the Court by Mercedes Agero-Simon. Verified Claim and Demand for Return of Property, ECF No. 14. On January 22, 2013, an Answer to Civil Complaint for Forfeiture In Rem was filed by Mercedes Agero-Simon with the Court. Answer to Civil Complaint for Forfeiture In Rem, ECF No. 15. 23 24 25 3 Case 2:12-cv-01489-GMN-VCF Document 29 Filed 11/25/13 Page 7 of 8 1 2 3 4 5 6 7 8 9 On June 19, 2013, a proposed Settlement Agreement, Stipulation for Entry of Judgment of Forfeiture as to Mercedes Agero-Simon and Order was filed with the Court. Settlement Agreement, Stipulation for Entry of Judgment of Forfeiture, ECF No. 20. On June 25, 2013, the Court entered an Order granting the Settlement Agreement, Stipulation for Entry of Judgment of Forfeiture as to Mercedes Agero-Simon. Order, ECF No. 21. No other person or entity has filed a claim, answer, or responsive pleading within the time permitted by 18 U.S.C.§ 983(a)(4) and Fed. R. Civ. P. Supp. Rule G(4) and (5). On July 9, 2013, the United States filed an Amended Request for Entry of Default against the defendant property and all persons or entities who claim an interest in the defendant property in the 10 above-entitled action. Amended Request for Entry of Default, ECF No. 24. 11 On July 10, 2013, the Clerk of the Court entered a Default against the defendant property and all 12 persons or entities who claim an interest in the defendant property in the above-entitled action. Default, 13 14 ECF No. 25. 15 The allegations of the Complaint are sustained by the evidence and should be adopted as findings 16 of fact. The Court should conclude as a matter of law that the United States is entitled to the relief 17 requested in the Complaint. 18 NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that 19 Default Judgment of Forfeiture is entered against EAN Holdings, LLC, and all persons or entities who 20 claim an interest in the defendant property in the above-entitled action. 21 22 FURTHER ORDERED, ADJUDGED, AND DECREED that Final Judgment of Forfeiture is entered against the $296,835.00 in United States Currency and Mercedes Agero-Simon. 23 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that said property be, and the 24 same is hereby forfeited to the United States of America, and no right, title, or interest in the property 25 4 Case 2:12-cv-01489-GMN-VCF Document 29 Filed 11/25/13 Page 8 of 8 1 2 shall exist in any other party, other than Merceds Agero-Simon, whose rights and liabilities are adjudged below. 3 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, the property having been 4 forfeited, within a practicable time hereafter for the United States, the United States must release to 5 MERCEDES AGERO-SIMON, through David Z. Chesnoff, Esq., one payment of $103,892.25 in 6 United States Currency, less any debt owed to the United States, any agency of the United States, or any 7 debt in which the United States is authorized to collect. 8 9 10 IT IS HEREBY CERTIFIED, pursuant to 28 U.S.C. § 2465(a)(2), that there was reasonable cause for the seizure or arrest of the defendant property. DATED this _____ day December, 2013. DATED this 19th day ofof _____________, 2013. 11 12 13 ___________________________ UNITED STATES DISTRICT JUDGE ________________________________ Gloria M. Navarro United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 5