Free Response in Opposition - District Court of Colorado - Colorado

Case 1:04-cr-00429-MSK

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Filed 03/10/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-CR-00429-MSK UNITED STATES OF AMERICA, Plaintiff, v. RAMON MARTINEZ, Defendant. ______________________________________________________________________________ RESPONSE IN OPPOSITION TO MOTION FOR RETURN OF 2003 CHEVROLET AVALANCHE VIN #3GNEK13T23G165552 ______________________________________________________________________________ COMES NOW the United States of America, by and through Assistant United States Attorney James S. Russell, and opposes the Motion for Return of 2003 Chevrolet Avalanche, VIN #3GNEK13T23G165552. As grounds therefor, the United States states that: 1. Ramon Martinez as "Petitioner" has filed a Motion for Return of 2003 Chevrolet

Avalanche, VIN #3GNEK13T23G165552, and other property pursuant to Fed. R. Crim. P. 41(g); or in the alternative, Petition for Writ of Mandamus. Although Martinez included a Court of Appeals case number, the Clerk of this court has assigned the Motion as ECF Document 191 to this criminal case, in which defendant was convicted and sentenced. VENUE IS NOT PROPER. 2. Martinez indicates the subject Chevrolet Avalanche was seized in Albuquerque,

New Mexico. He here seeks return of that vehicle pursuant to Fed. R. Crim P. 41(g). However, Rule 41(g) itself indicates, "The motion must be filed in the district where the property was seized." Accordingly, since the subject 2003 Chevrolet Avalanche was, by Martinez' own -1-

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admission, seized in Albuquerque, New Mexico, any such motion must be filed within the District of New Mexico, and venue is not proper here in the District of Colorado. MARTINEZ HAS NO RIGHT TO THE SUBJECT VEHICLE. 3. Without stating any reason, Martinez demands that the subject 2003 Chevrolet

Avalanche be returned to him. However, Martinez is less than forthright with this Court, as all right, title, and interest in and to the subject vehicle was long ago forfeited to the United States in a judicial proceeding to which Martinez was a party (Exhibit 1, a Docket Sheet from the District of New Mexico, Case Number 05-cv-00581). a. In District of New Mexico, Case Number 05-cv-00581-WJ-KBM, on

May 25, 2005 the United States filed a civil forfeiture action against the subject 2003 Chevrolet Avalanche, indicating that this same Ramon Martinez a/k/a Eidi Ramon Burciaga-Orozco and Luis Alvarado were claimants (Exhibit 2, ECF Document 1 in D. New Mexico, Case Number 05cv-00581). b. Martinez was served with Notice (ECF Document 5 from D. New Mexico,

Case Number 05-CV-00581), and Martinez a/k/a Burciaga-Orozco entered his appearance in July 25, 2005 (Exhibit 3, ECF Document 7 in D. New Mexico, Case Number 05-cv-00581). c. On December 14, 2005, the United States moved for a default judgment

and forfeiture of the subject vehicle, with a Certificate of Service to Martinez/Burciaga-Orozco at his given address at the Federal Detention Center in Littleton, Colorado (Exhibit 4, ECF Documents 15 and 16 from D. New Mexico, Case Number 05-cv-00581). d. On January 10, 2006, the New Mexico District Court issued its

Memorandum Opinion and Order granting default judgment and forfeiture (Exhibit 5, ECF Document 17 from D. New Mexico, Case Number 05-cv-00581). On that same date, the New -2-

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Mexico District Court also issued its Judgment of Forfeiture against the subject vehicle, forfeiting all right, title, and interest in the subject 2003 Chevrolet Avalanche to the United States (Exhibit 6, ECF Document 18 from D. New Mexico, Case Number 05-cv-00581). As reflected in the New Mexico Docket Sheet, Exhibit 1, copies of the Memorandum, Opinion, Order, and Judgment were sent to all counsel, which included Martinez. 4. In summary, the subject 2003 Chevrolet Avalanche has already been forfeited to

the United States pursuant to proper judicial proceeding with full notice to Martinez. Accordingly, Martinez and the subject 2003 Chevrolet Avalanche have been afforded full due process, and there are no grounds for further proceedings under Fed. R. Crim. P. 41(g). AS THE VEHICLE HAS BEEN DESTROYED, IT CANNOT BE RETURNED. 5. The Docket Sheet from New Mexico Case Number 05-cv-00581 (Exhibit 1) does

not indicate a stay or appeal was sought from the Order and Judgment of Forfeiture. Accordingly, over four months later, the subject 2003 Chevrolet Avalanche was "destroyed by crushing". Exhibit 7, ECF Document 19 from D. New Mexico, Case Number 05-cv-00581. WHEREFORE, as such a Fed. R. Crim. P. 41(g) Motion must be filed not here in Colorado but in the District of New Mexico, as the subject 2003 Chevrolet Avalanche has been forfeited to the United States by full and proper judicial proceedings in the District of New Mexico, and as the subject 2003 Chevrolet Avalanche has been destroyed subsequent to the Court Order in the District of New Mexico, the Motion for the Return of 2003 Chevrolet Avalanche here should be DENIED. Dated this 10th day of March, 2008.

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Respectfully submitted, TROY A. EID United States Attorney By: s/ James S. Russell James S. Russell Assistant United States Attorney 1225 Seventeenth Street, Ste. 700 Denver, Colorado 80202 Telephone (303) 454-0100 FAX: (303) 454-0402 E-mail: [email protected] Attorney for Plaintiff

CERTIFICATE OF MAILING I hereby certify that on this 10th day of March, 2008, a true and correct copy of the foregoing RESPONSE IN OPPOSITION TO MOTION FOR RETURN OF 2003 CHEVROLET AVALANCHE VIN #3GNEK13T23G165552 was mailed, postage pre-paid and certified mail, return receipt requested to: Ramon Martinez Federal Correctional Institution, Herlong P.O. Box 800 Herlong, CA 96113 Cert No. 7006 2760 0000 6860 7939

By: s/Donna Seago Office of United States Attorney

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