Free Motion to Dismiss - District Court of Colorado - Colorado

Case 1:04-cv-00022-REB

Document 33

Filed 09/08/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00022-REB-OES UNITED STATES OF AMERICA, Plaintiff, v. THE DOMINGUEZ / VENZOR RANCH PROPERTY IN PEYTON, COLORADO, Defendant. ______________________________________________________________________________ UNCONTESTED MOTION TO DISMISS ______________________________________________________________________________

COMES NOW the United States of America by and through United States Attorney Troy A. Eid and Assistant United States Attorney James S. Russell, and claimants Francisco Dominguez through counsel Dennis Hartley, Esq., Fermin Venzor through counsel Richard Tegtmeier, Esq., Kirkpatrick Bank through counsel Bart Boren, Esq., and Amo Acres LLC through counsel Jason Anderson, Esq., and move this Court to order the dismissal of this forfeiture action. In support, the parties state: 1. On January 8, 2004 the United States filed a Verified Complaint for

Forfeiture In Rem pursuant to 18 U.S.C. §881 for the forfeiture of the defendant property. 2. The United States Marshals Service subsequently executed a Writ of Entry

for the property and published notice of the forfeiture action as required. 3. On November 4, 2004, claimant Kirkpatrick Bank f/k/a/ American Bank &

Trust filed a Verified Claim and an Answer to the Complaint, as lienholder for defendant Page 1 of 4

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property. 4. On November 10, 2004, claimant Amo Acres, LLC filed a Verified Claim

as lienholder for defendant property, and on November 29, 2004 filed an Answer to the Complaint. 5. On December 16, 2004, claimants Francisco and Magdelena Dominguez

filed a Statement of Interest and an Answer to the Complaint. 6. On January 31, 2005, claimants Fermin and Soledad Venzor filed a

Statement of Interest and Answer to the Complaint. 7. Based in part on the facts stated in the Verified Complaint, claimants

Francisco Dominguez Fermin Venzor, and others were charged with various drug violations in Criminal Case Nos. 03-cr-465-REB and 03-cr-466-REB. On April 8, 2005, this Court stayed the civil forfeiture case herein until resolution of the underlying criminal cases. 8. The United States and claimants have been in frequent contact regarding

resolution of this case. In light of the dismissal of claimant Francisco Dominguez from the criminal cases, and the lack of net proceeds in that portion of defendant property owned by claimant Fermin Venzor, the parties agree that this civil forfeiture case should be dismissed. 9. The parties agree that the facts and verification as set forth in the Verified

Complaint provide probable cause and an ample basis for seizure and arrest of the defendant property, and that a Certificate of Reasonable Cause pursuant to 28 U.S.C. §2465 shall enter. 10. The parties also agree that any attorney's fees incurred by claimants will

be his sole responsibility and obligation. 11. The parties forever and irrevocably release the other party from any Page 2 of 4

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claims, damages, causes of action, whether in law or in equity, or founded in contract, tort, or any other legal or equitable theory with respect to the defendant property in this forfeiture action. 12. Pursuant to D.C.COLO.LCivR7.1, the undersigned Assistant U.S.

Attorney has spoken with opposing counsel listed above; all have indicated they have no objection to this Motion and authorize the United States to file the Motion. WHEREFORE, the parties move this Court to order the dismissal of this case for the reasons set forth above, and for a Certificate of Reasonable Cause pursuant to 28 U.S.C. §2465. Respectfully submitted this 8th day of September, 2006. TROY A. EID United States Attorney s/ James S. Russell JAMES S. RUSSELL Assistant United States Attorney 1225 17th Street, Ste. 700 Denver, Colorado 80202 Telephone: (303) 454-0100 FAX: (303) 454-0402 E-mail: [email protected] Attorney for Plaintiff

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CERTIFICATE OF SERVICE (ECF) I hereby certify that on the 8th day of September, 2006, I electronically filed the United States' UNCONTESTED MOTION TO DISMISS with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses: Dennis Hartley, Esq. [email protected] Richard Tegtmeier, Esq. [email protected] Jason Anderson, Esq. [email protected] Phillip Vaglica, Esq. [email protected] Richard Bednarski, Esq. [email protected] I further certify that on this 8th day of September, 2006, the same was mailed, postage prepaid, to the following non-ECF participant: Bart Boren, Esq. Williams & Boren 401 North Hudson Oklahoma City, OK 73102

s/ James S. Russell JAMES S. RUSSELL Assistant United States Attorney 1225 17th Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 FAX: (303) 454-0402 E-mail: [email protected] Attorney for Plaintiff United States

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