Free Order - District Court of Arizona - Arizona

1 2 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 The Government seeks to apply the $100,000 cash bond posted by Defendant on July 7, 2004, to the $100,000 money judgment entered by the Court on September 20, 2006. Dkt. #118. The person who posted the bond, attorney Jilbert Tahmazian, asserts that the $100,000 did not belong to Defendant and therefore should not be applied to the judgment. Mr. Tahmazian asserts that the $100,000 was contributed by members of Defendant's family. Dkt. #121. The Government has filed a reply, seeking the right to conduct discovery into the factual assertions made by Mr. Tahmazian. Dkt. #124. The relevant statutory provision provides as follows: On motion of the United States attorney, the court shall order any money belonging to and deposited by or on behalf of the defendant with the court for the purposes of a criminal appearance bail bond (trial or appeal) to be held and paid over to the United States attorney to be applied to the payment of any assessment, fine, restitution, or penalty imposed upon the defendant. 28 U.S.C. § 2044 (emphasis added). By its terms, this statute permits the $100,000 posted for Defendant's appearance to be applied against Defendant's judgment only if the money belonged to and was deposited by or on behalf of Defendant.
Case 2:04-cr-00014-DGC Document 126 Filed 07/03/2008 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs. Ruben Lopez-Felix, Defendant.

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CR 04-0014-PHX-DGC ORDER

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Although Mr. Tahmazian has submitted declarations asserting that the $100,000 belonged to or was borrowed by Defendant's family members, the declarations fail to provide any supporting evidence. The declarations do not explain how the family members raised the money, where it was kept, or when and how it was transmitted to Mr. Tahmazian. No bank statements, checks, transmittal letters, loan documents, or other supporting evidence is provided. In the absence of such verification, the Court cannot determine from the bare declarations that the family members, rather than Defendant, are the owners of the money. The Court will grant the Government's request to conduct discovery. "Enforcement of a bond forfeiture, although arising from a prior criminal proceeding, is nevertheless a civil action." United States v. Viccaro, 51 F.3d 189, 191 (9th Cir. 1995). The Government may conduct discovery under the Federal Rules of Civil Procedure to investigate Mr. Tahmazian's assertion that the money belonged to or was borrowed by Defendant's family members. The Government shall have until September 26, 2008 to conduct this discovery. On or before October 3, 2008, the Government and Mr. Tahmazian shall file a joint memorandum that addresses the following issues: (1) whether the parties have been able to reach agreement on the true ownership of the funds; (2) if the parties have not reached agreement, whether the parties believe the matter can be resolved through cross-motions for summary judgment; (3) whether the parties believe an evidentiary hearing is required; and (4) any other matters the parties find relevant to this issue. Upon receiving and reviewing the memorandum, the Court will take appropriate action, including, possibly, the scheduling of an evidentiary hearing, the establishment of a briefing schedule for summary judgment motions, or the entry of other appropriate orders. In preparing their joint memorandum, the parties should consider the burden of proof. It would appear that Mr. Tahmazian has the burden of proving, by a preponderance of the evidence, that the $100,000 belongs to or was borrowed by Defendant's family members, but the Court will consider this issue further after receiving the parties' joint memorandum.

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DATED this 2nd day of July, 2008.

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