United States of America v. 700 Upper Applegate Road, Jacksonville, Jackson County, State and District of Oregon, No. 3:2012cv01997 - Document 21 (D. Or. 2013)
Court Description: OPINION and ORDER. Based on the foregoing, the government's motion to stay (#9) is GRANTED. This action shall be stayed for a period of 120 days from the date of this order. IT IS SO ORDERED. Signed on 04/24/2013 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON UNITED STATES OF AMERICA, 3:12-cv-01997-MA Plaintiff, OPINION AND ORDER v. 700 UPPER APPLEGATE ROAD, JACKSONVILLE, JACKSON COUNTY, STATE AND DISTRICT OF OREGON, REAL PROPERTY WITH BUILDINGS, APPURTENANCES, AND IMPROVEMENTS, and, 746 APPLEGATE ROAD, JACKSONVILLE, JACKSON COUNTY, STATE AND DISTRICT OF OREGON, REAL PROPERTY WITH BUILDINGS, APPURTENANCES AND IMPROVEMENTS, in rem, Defendants. S. AMANDA MARSHALL United States Attorney AMY E. POTTER Assistant United States Attorney 405 East Eighth Avenue, Suite 2400 Eugene, Oregon 97401 Attorneys for Plaintiff Ill . 1 - OPINION AND ORDER MICHAEL R. LEVINE Levine & McHenry, LLC 1001 Southwest Fifth Avenue, Suite 1414 Portland, Oregon 97204 Attorney for Claimant Day W. Boddorff ROBERT L. ABEL 220 Laurel Street Medford, Oregon 97501 Attorney for Claimant Melissa Jean Yager DAVID J. BOULANGER ROCHELLE L. STANFORD Pite Duncan, LLP 621 Southwest Morrison Street, Suite 425 Portland, Oregon 97205 Attorneys for Claimant PNC Mortgage MARSH, Judge The United States of America brings this civil action pursuant to 18 U.S.C. and 1395. stay this § 981, 28 U.S.C. §§ forfeiture 1345, 1355, 1356 Currently before the court is the government's motion to For action. the reasons government's motion to stay is granted, set forth below, the and this proceeding is stayed for a period of 120 days from the date of this order. BACKGROUND The government seeks the forfeiture of two parcels of land allegedly used or intended to be used to commit or facilitate a drug transaction. The alleged probable cause for the seizure of the property is set forth in the declaration of Clark Wheeler, 2 - OPINION AND ORDER Agent, Special States United of Department Drug Justice, Enforcement Administration. three claimants have filed As of the date of this order, claims to at least one of the defendant properties. of both properties is contested. The forfeiture Only claimant Day W. Boddorff, who filed a claim on the 746 Applegate Road property, opposes the government's motion to stay. DISCUSSION Pursuant to 18 U.S. C. § 981 (g) ( 1), "[u) pon the motion of the United States, the court shall stay the civil forfeiture proceeding if the court determines that civil discovery will adversely affect the ability of Government the to conduct a related criminal investigation or the prosecution of a related criminal case. ¢ If the government requests a stay, it may "submit evidence ex parte in order to avoid disclosing any matter that may adversely affect an ongoing criminal investigation or pending criminal trial. ¢ u.s.c. § 18 981(g) (5). A related criminal investigation or proceeding is defined as "an actual prosecution or investigation in progress at the time at >vhich the request 981 (g) ( 4) . for is made." the stay 18 u.s.c. § Among the factors the court is to consider to determine whether the criminal proceeding or investigation is related are "the degree of similarity between the parties, witnesses, and circumstances involved 3 - OPINION AND ORDER in the two proceedings, facts, without requiring an identity with respect to any one or more factors." Id. A stay may be granted regardless of whether the opposing claimant is a target of the criminal investigation or a defendant in the criminal case, so long as the government meets its burden of demonstrating that civil discovery will adversely affect a related criminal investigation or proceeding. See United States v. Aoprox. $69,577 in U.S. Currency, No. C 09-0674 PH, 2009 WL 1404690, at *3 Cal. (N.D. May 19, 2009); United States v. Assorted Firearms- Motorcycles and Other Personal Property, 677 F.Supp.2d 1214, 1216 (C. D. Cal. 2009). The government moved for a stay in this case, and filed an ex affidavit parte from Special Agent Wheeler, asserting that discovery in the instant civil forfeiture proceeding will adversely affect a related ongoing criminal investigation. Claimant Boddorff, through counsel, has served a request for production on the government, requesting, among other documents: 1. The affidavit or declaration and accompanying exhibits underlying the search warrant, issued about September 17, 2012, by the Honorable Mark D. Clarke, that authorized the search of 700 and 746 Upper Applegate Road, Jacksonville, Oregon. 2. A copy of all oral, written, or made by Day Boddorff to any law on the date the search warrant September 18, 2012), or on any 3. A copy of all oral, written, or recorded statements made by James Bowman to any federal, state, or local law enforcement officer that relate in any 4 - OPINION AND ORDER recorded statements enforcement officer was executed (about subsequent date. way to the alleged growing of marijuana at 700 or 746 Upper Applegate Road, Jacksonville, Oregon. * * * 8. A copy of all records from Oregon Medical Program (OMMP) referred to in paragraphs of the declaration of DEA Agent Clark executed on November 5, 2012 (Exhibit Complaint) . 9. A copy of all reports prepared by any federal, state, or local law enforcement agency relating to the alleged growing of marijuana at 700 and 756 Upper Applegate Road, Jacksonville, Oregon. Mr. Marijuana 24 and 27 Wheeler, A to the Boddorff makes several arguments in opposition to the government's motion to stay. First, Mr. Boddorff argues that the government has not met its burden of demonstrating that a stay is necessary to prevent adverse effects on a related criminal case or investigation. Second, Mr. Boddorff suggests that the court should not accept the representations made by Special Agent Wheeler in the ex parte affidavit submitted in support of the government's motion, but rather should hold an evidentiary hearing. submits that ability to the give stay is a Third, Mr. Boddorff inappropriate because it impairs his mortgage on the property government grant to upgrade the property. or apply Fourth, Mr. for a Boddorff argues that the court should deny the stay because the government has unclean hands. Fifth, Mr. Bodorff maintains that a protective order is sufficient to protect the government's interest. Finally, Mr. Boddorff asserts that the court should limit the length of any 5 - OPINION AND ORDER stay to 45 days or require periodic status reports on the continuing need for a stay. Upon review of the parties' submissions, including Special Agent Wheeler's ex parte affidavit submitted with this motion, and the declaration in support of the Complaint in rem for Forfeiture, I find that the government has demonstrated that civil discovery in this case will adversely investigation. Mr. affect Boddorff an has ongoing already related sought criminal very broad discovery in the instant action, and the disclosure of many of the documents sought would very likely adversely affect I government's ongoing related criminal investigation. the further find that a protective order would be insufficient to protect the government's interest in completing the related criminal investigation. Mr. Boddorff relies on United States v. Real Property and Premises Located at 216 Kenmore Avenue for the proposition that the government "cannot discharge its burden by claiming that the discovery process could, theoretically, impair the criminal case." 657 F.Supp.2d 1060, 1063 (D. Minn. 2009). While I agree with the general proposition, as the 216 Kenmore Avenue court noted, courts have granted stays in two types of cases: first, where the parties have served discovery requests before the government sought the stay; and second, where the government has submitted an ex parte affidavit demonstrating 6 - OPINION AND ORDER that civil discovery might impair the criminal investigation. Id. at 1064. categories the described by 216 This case falls into both Kenmore Avenue court, as Mr. Boddorff has served broad discovery requests on the government, and the government has submitted an ex parte affidavit demonstrating that civil discovery is likely to impair a related criminal investigation. I am mindful of Mr. proceeding nonetheless in a timely appropriate prejudice to Mr. Boddorff's interest in concluding this manner, but for reasons the I Boddorff is mitigated, find· that stated a stay above. is The and his constitutional rights are protected, by the definite duration of the stay. Mr. Boddorff has cited no authority, and the court has found none, for the proposition that unclean hands is a basis upon which the court may deny a stay that the government is otherwise entitled to under § 981(g) (5). In any case, I find that Mr. Boddorff has failed to make a colorable showing of unclean hands. In sum, I conclude that the government has demonstrated that discovery in this civil forfeiture proceeding will adversely affect the government's investigation. this order protect the is ability to prosecute the related criminal I find that a stay of 120 days from the date of sufficient, government's criminal investigation. Ill 7 - OPINION AND ORDER but not interest greater in than necessary, prosecuting the to related CONCLUSION Based on the foregoing, the government's motion to stay (#9) is GRANTED. This action shall be stayed for a period of 120 days from the date of this order. IT IS SO ORDERED. DATED this ;2..1-/day of April, 2013. Malcolm F. Marsh United States District Judge 8 - OPINION AND ORDER
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