Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona LISA ROBERTS Assistant U.S. Attorney 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Member of New York Bar Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-0952-PHX-SMM Plaintiff, v. Tatia Marie Valenzuela, Defendant. The United States of America, by its undersigned counsel, respectfully submits its Motion for a Preliminary Order of Forfeiture in the above-entitled case for the reasons set forth below. A proposed order is submitted with this motion. 1. On September 4, 2004, a federal grand jury sitting in the District of Arizona, returned a twenty-four count Indictment against the defendant, Tatia Marie Valenzuela. The defendant was charged with violations of 18 U.S.C. §1344(1) and (2), Bank Fraud, 18 U.S.C. §1014, False Statements to a Bank and 18 U.S.C. §§1028(a) and 2, Aggravated Identity Theft, and 42 U.S.C. §408(a)(7)(B), Misuse of a Social Security Number. 2. The Indictment also sought forfeiture, pursuant to 18 U.S.C. §1028 (b)(5), 982, and 21 U.S.C. §853, of any personal property used or intended to be used to commit the offense, and any property constituting or derived from, proceeds obtained directly or indirectly, as the result of such violation. 3. On June 6, 2005, the defendant, Tatia Marie Valenzuela entered into a plea agreement with the United States in which she agreed to plead guilty to Count 6 of the Indictment charging violation of Title 18, United States Code, Section 1344(1), Bank Fraud, MOTION FOR A PRELIMINARY ORDER OF FORFEITURE

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1 a Class B felony offense. The defendant also admitted to the forfeiture allegations contained 2 in the Indictment, and agreed to forfeit to the United States, the following property: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Description of Item 1 Canon-Elura 65 Digital Video Camcorder 2 Husky Tool Set, 254 Piece purchased from Home Depot 3 Sony Network Handycam iP DCR - iP220 Digital Camcorder 4 Sony Sub-Woofer S/N 0826078 - Model STRK4800PW/059 5 Cider Mill - 18" Easy Turn and 20' Chain 6 Cider Mill Treg Trolley 32" Cable 7 Tie Out Stake 18" Spiral Stake 8 2 - Candy Jewelry Purse "Best Sweet" 9 Sony Handycam DCR-HC20 10 Dewalt DC4KITA 18 volt 4-tool combo 11 Sony CD/DVD Player DVP-NC675F 5-Disc Changer S/N 2025484 12 Bissell - "Little Green" Compact Multi-Purpose Cleaner, SKU#409559 P/O # 54162747 13 Dewalt DG4KITA 18 volt 4 piece tool set 14 Dewalt DC4KITA 18 volt 4 piece tool set 15 Panasonic - VDR-M5 DPP DVD Video Camera S/N 40522069 16 Panasonic VDR - M5 DPP 17 Sony Receiver Surround Sound w/5 speakers and Sub-Woofer S/N P812419 18 Dyson - Steel Yellow Vac. 329-99 S/N 110-US-034902 19 Magnavox TV/DVD/VCR Silver Casing S/N DD01411126518 20 Emerson TV/DVD/VCR Combo Silver No Lock S/N N41396444

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21 Philips TV Silver/Grey S/N 20PT643R01 22 Pet Mint Tent "The Pet Set" 23 Apple Power Book G4 15" Widescreen display S/N W84172EFQHX 24 HP Pavilion Z+ 334DUS Laptop S/N CND42404Q3 25 Dewalt 18 volt 4 tool set 26 Dewalt DC 988SA Heavy Duty XRP Cordless 4 piece set 18 volt 27 Honeywell Quiet Care HEPA Air Cleaner 28 Bushnell Imageview Binoculars W/Digital Camera 29 Canon Multipass Printer MP370 Photo/Printer/Copier/Scanner S/N UDB03172 30 Panasonic KX-FHD 331 Fax/Copier 31 Whirlpool True HEPA Air Purifier S/N QP5211790 32 Camping Comforts Deluxe Lounge Chair 33 Initial - Portable DVD Player IDM-1210 S/N DAB4231045424N 34 Sony DVD/VCR Combo Silver (color) 4. Based upon the evidence set forth in the plea agreement, the United States has

18 established the requisite nexus between the property and the offense of which the defendant 19 has been found guilty, and that the defendant has an interest in this property. Accordingly, 20 that property is subject to forfeiture to the United States pursuant to 18 U.S.C. §982. 21 22 23 24 25 26 27 28 5. Rule 32.2 (b)(1), (b)(2), and (b)(3), Federal Rules of Criminal Procedure, provide that: (1) As soon as practicable after entering a guilty verdict or accepting a plea of guilty or nolo contendere on any count in an indictment or information with regard to which criminal forfeiture is sought, the court shall determine what property is subject to forfeiture under the applicable statute. If forfeiture of specific property is sought, the court shall determine whether the government has established the requisite nexus between the property and the offense. If the government seeks a personal money judgment against the defendant, the court shall determine the amount of money that the defendant will be ordered to pay. The court's determination may be based on evidence already in the record, including any written plea agreement or, if the forfeiture is contested, on evidence or information presented by the parties at a hearing after the verdict or finding of guilt.
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1 2 3 4 5 6 7 8 9 6. Upon the issuance of a Preliminary Order of Forfeiture the United States Marshals 10 Service/Department of Treasury will publish at least once for three successive weeks in a 11 newspaper of general circulation, notice of this Order, notice of the U.S. Marshal's Service 12 intent to dispose of the property in such manner as the Attorney General/Department of 13 Treasury may direct and notice that any person, other than the defendant, having or claiming 14 a legal interest in the property must file a petition with the Court and serve a copy on LISA 15 ROBERTS, Assistant United States Attorney within thirty (30) days of the final publication 16 of notice or of receipt of actual notice, whichever is earlier. This notice shall state that the 17 petition shall be for a hearing to adjudicate the validity of the petitioner's alleged interest in 18 the property, shall be signed by the petitioner under penalty of perjury and shall set forth the 19 nature and extent of the petitioner's right, title or interest in the forfeited property and any 20 additional facts supporting the petitioner's claim and the relief sought. The United States 21 may also, to the extent practicable, provide direct written notice to any person known to have 22 alleged an interest in the property that is the subject of the Preliminary Order of Forfeiture, as 23 a substitute for published notice as to those persons so notified. 24 7. In accordance with the provisions of 28 U.S.C. §2461 and Rule 32.2(b)(3) of the 25 Federal Rules of Criminal Procedure, the United States requests that it be permitted to 26 27 28
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(2) If the court finds that property is subject to forfeiture, it shall promptly enter a preliminary order of forfeiture setting forth the amount of any money judgment or directing the forfeiture of specific property without regard to any third party's interest in all or part of it. Determining whether a third party has such an interest shall be deferred until any third party files a claim in an ancillary proceeding under Rule 32.2©. (3) The entry of a preliminary order of forfeiture authorizes the Attorney General (or a designee) to seize the specific property subject to forfeiture; to conduct any discovery the court considers proper in identifying, locating, or disposing of the property; and to commence proceedings that comply with any statutes governing third-party rights. At sentencing - or at any time before sentencing if the defendant consents - the order of forfeiture becomes final as to the defendant and shall be made part of the sentence and included in the judgment. The court may include in the order of forfeiture conditions reasonably necessary to preserve the property's value pending any appeal.

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1 undertake whatever discovery is necessary to identify, locate, or dispose of property subject 2 to forfeiture, or substitute assets for such property. 3 WHEREFORE, the United States respectfully requests that this Court enter a

4 Preliminary Order of Forfeiture forfeiting to the United States the property described in the 5 Indictment and order the United States Marshals Service/Department of Treasury to seize and 6 maintain custody of the forfeited property and dispose of it in accordance with the law. 7 Undersigned counsel has contacted Roger Todd Margolis, counsel for the defendant, and 8 there is no objection to the requested relief. 9 10 11 12 s/Lisa Roberts 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 28th day of September, 2005. PAUL K. CHARLTON United States Attorney

LISA ROBERTS Assistant United States Attorney

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s/Lisa Roberts Lisa Roberts Roger Todd Margolis [email protected] David Roland Fuller [email protected] Jerry Matthew Hernandez [email protected]

CERTIFICATE OF SERVICE
T
I hereby certify that on September 28, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Daniel R. Drake [email protected]

I hereby certify that on , I served the attached document by U.S. Mail on the following, who is not a registered participant of the CM/ECF System:

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