Free Order on Motion to Substitute Attorney - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 United States of America, 9 Plaintiff, 10 11 12 13 14 15 16 17 The court has before it a series of motions. We now rule. 18 The court has before it Robert Johnson's and Groupe Angelil International Holdings' 19 "Application for Substitution of Counsel with Client Consent" (doc. 242). Mr. Poulos wishes 20 to appear as counsel for Johnson and Angelil (hereinafter referred to as third parties), in place 21 of Mr. Rivera. 22 construe the application as a request to represent third parties in an ancillary proceeding 23 under Rule 32.2(c), Fed. R Crim. P. IT IS ORDERED GRANTING the application and Mr. 24 Poulos will therefore represent the third parties (doc. 242). 25 The court has before it "Robert Johnson's and Group Angelil International Holdings' 26 Motion for Hearing Regarding Plaintiff's Motion for Entry of Final Forfeiture Orders" (doc. 27 244), "Robert Johnson's and Group Angelil International Holdings' First Amended Petition 28
Case 2:02-cr-00993-FJM Document 267 Filed 12/19/2007 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CR 02-993-PHX-FJM ORDER

vs. Kwikmed. Inc.; Cymedic Health Group, Inc., Keith B. Salvato; Ronald N. Wanchuk; Janice G. Gamblin; William J. Clemans; Adalberto Robles, Defendants.

The parties to this case are the United States and the defendants. We

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for Hearing Regarding Entry of Final Forfeiture Orders and Motion to Set Aside Forfeiture Judgment" (doc. 251), and Robert Johnson's and Group Angelil International Holdings' "Motion to Amend Robert Johnson's and Group Angelil International Holdings' First Amended Petition for Hearing Regarding Entry of Final Forfeiture Orders and Motion to Set Aside Forfeiture Judgment" (doc. 266), the government's Response (doc. 259) and the third parties' Reply (doc. 263). This is a criminal case in which the defendants have been sentenced and the preliminary order of forfeiture became final as to the defendants under Rule 32.2(b)(3), Fed. R. Crim. P. These third party petitions seek to invoke the jurisdiction of the court to conduct an ancillary proceeding under Rule 32.2(c), Fed. R. Crim. P. Johnson and Angelil claim to be victims of the defendants' criminal conduct. They assert a violation of due process and seek to set aside the forfeiture judgments. The government contends that the third parties are not victims of the offenses of conviction. This was an illegal drug dispensing case, and the third parties were not caused economic harm by the defendants' crimes. Instead, the government argues that to the extent that the third parties were harmed at all, their remedy against the defendants would be by way of civil action for breach of any duty the defendants owed the third parties in connection with their business venture. We agree with the government that the third parties are not victims of the offenses of conviction. Even if the third parties were victims of the offenses of conviction, the government argues that the petitions are untimely under 21 U.S.C. § 853(n)(2), because they were not filed within thirty days of final publication. It is undisputed that the government is right about this. Nevertheless, the third parties contend that the government should have given them actual notice because they knew of their existence as victims. To be sure, 21 U.S.C. § 853(n)(1) allows the government to the extent practicable to give direct written notice to any person known to have an interest in the property. But there is no evidence that the government knew of any third party interest in the property. Moreover, the government correctly points out that under Rule 32.2(c)(1), "no ancillary proceeding is required to the -2Case 2:02-cr-00993-FJM Document 267 Filed 12/19/2007 Page 2 of 3

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extent that the forfeiture consists of a money judgment." Virtually all of the assets here consist of money judgments. The government also raises other arguments in defense but we need not reach them because the third parties' status as non-victims and the untimeliness of their petitions are fatal to their claims. Accordingly, IT IS ORDERED DENYING Johnson's and Angelil's motion for hearing (doc. 244), DENYING Johnson's and Angelil's first amended petition for hearing and motion to set aside forfeiture judgment (doc. 251). IT IS FURTHER ORDERED DENYING Johnson's and Angelil's motion to amend their first amended petition on grounds of mootness (doc. 266). The court has before Johnson's and Angelil's "Motion to Produce and to Preserve Documents and Motion to Unseal Court File" (doc. 258), Gamblin's Response (doc. 261), the government's Response (doc. 262), and the third parties' Reply (doc. 264). Neither the defendants nor the government object to the unsealing of court filed documents. Accordingly, IT IS ORDERED GRANTING the third parties' motion to unseal this case with respect to all documents filed with the clerk of the court (doc. 258). In all other respects, the motion is DENIED on grounds of mootness. Finally, the court has before it the United States' "Motion to Dismiss against Corporate Defendants" (doc. 260), to which no response has been filed. Accordingly, IT IS ORDERED GRANTING the United States' motion to dismiss (doc. 260) and therefore IT IS ORDERED dismissing the indictment against corporate defendants Kwikmed, Inc., and Cymedic Health Group, Inc. IT IS FURTHER ORDERED quashing the warrants issued as to the corporate defendants Kwikmed, Inc., and Cymedic Health Group, Inc. (doc. 260). DATED this 18th day of December, 2007.

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