Free Motion for Forfeiture of Property - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona GARY M. RESTAINO Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 017450 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Maria Rosa Barragan-Mercado, Defendant. UNITED STATES' MOTION TO FORFEIT THE CASH SECURITY AND TO SET A HEARING REGARDING ENTRY OF JUDGMENT CR04-1086-PHX-EHC

Plaintiff, United States of America, pursuant to Rule 46(e)(1) and (f)(1), Federal Rules of Criminal Procedure, respectfully moves this Court for an Order forfeiting the cash security in the sum of $10,000.00 which was posted for bail on September 27, 2004, by defendant, through her daughter, Yuliana Barragan. The government also moves for a hearing regarding entry of judgment. A. Factual Background

Defendant had her initial appearance in Yuma on the instant charges of bringing aliens to the United States on September 21, 2004, and was held pending a detention hearing in Phoenix. On September 24, 2004, after a detention hearing, Magistrate Judge Edward Voss ordered defendant released on the payment of a $10,000.00 cash bond and the compliance with other conditions. In particular, defendant was required to avoid committing another federal crime and to avoid ingestion of any controlled substance "unless prescribed for defendant by a licensed medical practitioner in the course of his/her legitimate medical practice." (Dkt. # 7.) A cash

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1 bond of $10,000.00 was tendered on September 27, 2004 by Yuliana Barragan. (Dkt. ## 6, 9.) 2 Yuliana Barragan, defendant's daughter, signed an affidavit as a surety and as the putative owner 3 of the $10,000.00. (Exhibit 1.) Both defendant and her daughter signed the appearance bond 4 and acknowledged the forfeitability of the bond upon breach of release conditions. (Exhibit 2.) 5 Defendant was subsequently released from custody pending trial. 6 Prior to the sentencing in this matter defendant tested positive for cocaine, and Pretrial

7 Services Officer Ruben Salgado filed a Petition to Revoke on June 24, 2005. (Dkt. # 69.) 8 Defendant was detained and held to answer and the Court referred the matter for a revocation 9 hearing, but released the defendant on July 8, 2005 pending a continued sentencing date. (Dkt. 10 ## 73, 74.) On August 13, 2005, prior to the sentencing date, defendant was arrested on a new 11 alien smuggling offense, and subsequently charged in CR05-883-PHX-EHC along with Yuliana 12 Barragan. Defendant was held in custody from the date of her arrest in CR05-883, and her 13 pretrial release in the instant case was revoked on September 6, 2005. (Dkt. # 86). 14 The Court sentenced defendant to a term of imprisonment of 33 months on the instant

15 charge, and also fined defendant $25,000.00. The Court also imposed a separate, consecutive 16 sentence of 11 months in CR05-883-PHX-EHC and an additional $4,000.00 fine. The 17 government filed a motion to forfeit the bond prior to sentencing (Dkt. # 91), and upon the 18 request of the Court files this more comprehensive motion now. 19 20 B. Legal Argument

The Court must order the bond forfeited upon breach of release conditions, pursuant to Fed.

21 R. Crim. P. 46(f)(1), although limited grounds exist to set aside a forfeiture in the interests of 22 justice, pursuant to Fed. R. Crim. P. 46(f)(2)(B). In the instant case, defendant breached a bond 23 condition through the commission of a new alien smuggling offense and through the positive test 24 / / / 25 / / / 26 / / / 27 / / / 28
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1 for cocaine. The forfeiture of $10,000.00 is consistent with the $29,000.00 in criminal fines 2 imposed on defendant for her unlawful activities.1 3 Accordingly, Plaintiff requests the Court to set a date for a hearing, at least thirty (30) days

4 from the date of this filing, in order to give the surety an opportunity to be heard, for the United 5 States to inquire of the surety as to the basis for her purported ownership of the $10,000.00, and 6 to declare the defendant and the obligor liable to the United States for $10,000.00 according to 7 the terms of the bond plus costs and interest, and to declare the cash deposited with the Clerk 8 forfeited to the United States. 9 Plaintiff further requests that, pursuant to Fed. R. Crim. P. 46(f)(3), the proposed Order, if

10 issued by the Court, promptly be served electronically on the defendant, Maria Rosa Barragan11 Mercado, through her attorney, Charles Thomas, and that the Order be mailed to the surety, 12 Yuliana Barragan, at 1827 S. 2nd Avenue, Yuma, Arizona 85364. A proposed Order is attached 13 as Exhibit 3. 14 15 C. Conclusion

For the foregoing reasons, plaintiff requests this Court to order the bond of $10,000.00

16 (posted on September 27, 2004 through Yuliana Barragan) forfeited, and to set a hearing 17 regarding the entry of judgment. 18 No excludable delay is expected as a result of this motion or of any Order based on this

19 Motion. Defendant objects to this Motion and has previously filed a motion to exonerate the 20 bond. 21 22 23 24 25 The equities weigh even more heavily in the favor of the government where, as here, the surety directly participated in the events that gave rise to the breach of the release conditions. 26 Yuliana Barragan is a federal misdemeanant who delivered money on behalf of her mother to undercover agents posing as alien smugglers, and Yuliana Barragan admitted to assisting the 27 illegal entry of the aliens brought to the United States by her mother. 28
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Respectfully submitted this 30th day of June, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Gary Restaino GARY M. RESTAINO Assistant U.S. Attorney CERTIFICATE OF SERVICE

I hereby certify that on the above date, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of 9 Electronic Filing to the following CM/ECF registrants: Charles Thomas. I also certify that on the above date I sent a courtesy copy by first-class certified mail to the putative owner of the cash, Yuliana Barragan, at 1827 S. 2nd Avenue, Yuma, Arizona 11 85364, and an additional courtesy copy by facsimile to Brian Russo, Ms. Barragan's courtappointed counsel in CR05-883. 12 10 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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