Opinion
1:14-cr-00045-AWI
02-18-2016
UNITED STATES OF AMERICA, Plaintiff, v. FACUNDO LOPEZ-PEREZ, aka Jose Huerta Maldonado aka Israel Lopez Zasueta, and JORGE PEREZ ROBLES, aka Jorge Perez aka James Gonzalo Jara, Defendants.
BENJAMIN B. WAGNER United States Attorney KATHLEEN A. SERVATIUS JEFFREY A. SPIVAK Assistant U.S. Attorneys 2500 Tulare Street, Suite 4401 Fresno, California 93721 Telephone: (559) 497-4000 Facsimile: (559) 497-4099
BENJAMIN B. WAGNER
United States Attorney
KATHLEEN A. SERVATIUS
JEFFREY A. SPIVAK
Assistant U.S. Attorneys
2500 Tulare Street, Suite 4401
Fresno, California 93721
Telephone: (559) 497-4000
Facsimile: (559) 497-4099 ORDER re UNITED STATES' REQUEST UNDER FED. R. CRIM. P. 32.2(c)(1)(B) FOR AN ORDER AUTHORIZING DISCOVERY IN THE ANCILLARY PROCEEDING
I. INTRODUCTION
Pursuant to Fed. R. Crim. P. 32.2(c)(1)(B), the United States requests the Court allow it to conduct discovery to explore the basis for the claim filed by petitioner Maximina Hernandez Vargas (the "Petitioner") regarding her entitlement to property ordered forfeited from the defendant. Petitioner alleges an interest in the 2012 Ford F-150 Truck "Raptor" Edition, License Number 29954LI, VIN: 1FTEX1R62CFA23036 (the "Subject Vehicle"), that the criminal defendant Facundo Lopez-Perez agreed to forfeit as property that was involved in and/or property traceable to violations of 21 U.S.C. § 846, 841(a)(1), and 841(b)(1)(A)- Conspiracy to Distribute Methamphetamine and Heroine; and Distribution of Methamphetamine, among other related charges. Petitioner is the registered owner of the subject vehicle and claims that the preliminary order of forfeiture should be amended to reflect her bona fide purchaser status.
II. PRIOR PROCEEDINGS
1. In January of 2013, the Fresno Methamphetamine Task Force (FMTF) and Drug Enforcement Administration, Fresno Area Surveillance Team (FAST) began an investigation into the criminal activities of defendants as potential distributors of methamphetamine.
2. Throughout 2013, defendant Facundo Lopez-Perez aka Jose Huerta Maldonado aka Israel Lopez Zasueta ("Lopez-Perez"), directly or indirectly through co-Defendant Jorge Perez, distributed narcotics to an undercover government agent.
3. On/about February 26, 2015, agents searched a Darrel's Mini storage facility controlled by defendant Facundo Lopez-Perez aka Jose Huerta Maldonado aka Israel Lopez Zasueta ("Lopez-Perez"). Inside the unit, agents located and seized two Ford F-150 trucks (1) a 2007 Ford F-150 Harley Davidson edition truck (CA plate 8K42846) and (2) a 2012 Ford F-150 Raptor edition truck (the Subject Vehicle). A narcotics dog alerted to the odor of narcotics emanating from the driver's console of the Subject Vehicle, but no narcotics were found in it.
4. In March 2014, Lopez-Perez was indicted in the present case on various counts of conspiracy and drug trafficking violations. (ECF No. 20.)
5. On September 24, 2015, Lopez-Perez entered a guilty plea to one count of Indictment which charged him with conspiring to distribute methamphetamine and heroine, in violation 21 U.S.C. § 846, 841(a)(1), and 841(b)(1)(A). (ECF No. 56.)
6. On or about November 16, 2015, Lopez-Perez executed a Stipulation for Preliminary Order of Forfeiture wherein he agreed to forfeit the following assets as proceeds traceable to his drug crimes (ECF No. 60-1):
a. Approximately $50,050.00 in U.S. Currency;
b. Approximately $2,980.00 in U.S. Currency;
c. The Subject Vehicle (a 2012 Ford F-150 Truck, License Number 29954LI, VIN: 1FTEX1R62CFA23036).
7. Following the Court's entry of a preliminary order of forfeiture on January 4, 2016 (ECF No. 61), the United States provided notice to potential claimants pursuant to 21 U.S.C. § 853(n), 18 U.S.C. § 1963(1) and Local Rule 171. The deadline to file a petition was February 4, 2016 for those who received direct notice and March 3, 2016 for those that received notice by publication.
8. On January 7, 2016, Petitioner Maximina Hernandez Vargas filed an ancillary petition contesting forfeiture of the 2012 Ford F-150 Truck, License Number 29945LI, VIN: 1FTEX1R62CFA23036. (ECF No. 60.) Petitioner claimed a 100% ownership interest in the Subject Vehicle and stated that she purchased the Subject Vehicle from Lopez-Perez. Id. She stated that Lopez-Perez, had possession of the Subject Vehicle because he was going to repair the vehicle for her. Id.
9. On January 4, 2016, defendant Lopez-Perez was sentenced, and the preliminary order of forfeiture was made final as to him. (ECF Nos. 62 and 64).
10. In January and February of 2016, DEA agents attempted on numerous occasions to make contact with Petitioner to discuss her petition. Petitioner eventually returned the agents' phone calls and agreed to meet with DEA agents to explain her ownership of the Subject Vehicle. On February 5, 2016, she failed to appear for the scheduled meeting.
III. FUTURE PROCEEDINGS.
11. The United States seek to conduct discovery pursuant to Rule 32.2(c)(1)(B).
12. Rule 32.2(c)(1)(B) of the Federal Rules of Criminal Procedure provides that the Court may, before conducting a hearing on the petition, "permit the parties to conduct discovery in accordance with the Federal Rules of Civil Procedure if the court determines that discovery is necessary or desirable to resolve factual issues." In the instant case, discovery is both necessary and desirable so that Petitioner' claim of a bona fide purchaser interest can be resolved. In order to resolve petitioner's claim, bank records, employment verification records, tax returns, and other documents must be subpoenaed and examined by the United States to determine the origin of the funds used to purchase the Subject Vehicle and whether any of those funds are traceable to legitimate sources. The United States also intends to depose the Petitioner and others who may have been involved with or have knowledge of Petitioner's ownership of the Subject Vehicle.
13. To obtain the above information, the parties seek discovery in the manner authorized by the Federal Rules of Civil Procedure, including, but not limited to, depositions, subpoenas, interrogatories and document demands. The United States requests and proposes the following discovery, motion and hearing schedule:
| Event | Timing |
|---|---|
| Discovery Cutoff | May 27, 2016 |
| Last Day to File DispositiveMotions | July 8, 2016 |
| Ancillary Hearing | August 8, 2016 @ 10:00 |
IV. CONCLUSION
14. For the foregoing reasons, the United States moves the Court: (1) to enter an order authorizing the parties to conduct discovery pursuant to Fed. R. Crim. P. 32.2(c)(1)(B); and (2) to adopt the above litigation schedule or set a discovery schedule that the Court deems appropriate. Dated: February 18, 2016
BENJAMIN B. WAGNER
United States Attorney
By: /s/ Jeffrey A. Spivak
JEFFREY A. SPIVAK
Assistant U.S. Attorney
ORDER
IT IS SO ORDERED. Dated: February 18, 2016
/s/_________
SENIOR DISTRICT JUDGE