Opinion
No. CV 09-4182 JSW
05-06-2013
UNITED STATES OF AMERICA, Plaintiff, v. APPROXIMATELY $144,001 IN UNITED STATES CURRENCY, Defendant. JAMES ANTHONY POMPEY, Claimant.
MELINDA HAAG (CSBN 132612) United States Attorney MIRANDA KANE (CSBN 150630) Chief, Criminal Division PATRICIA J. KENNEY (CSBN 130238) Assistant United States Attorney Attorneys for United States of America
MELINDA HAAG (CSBN 132612)
United States Attorney
MIRANDA KANE (CSBN 150630)
Chief, Criminal Division
PATRICIA J. KENNEY (CSBN 130238)
Assistant United States Attorney
Attorneys for United States of America
JOINT CASE MANAGEMENT
STATEMENT AND REQUEST
TO RESCHEDULE THE CMC
FOR AT LEAST 45 DAYS
FROM MAY 10, 2013
AND ORDER THEREON, AS MODIFIED
Date: May 10, 2013
This is a civil judicial forfeiture action. The Court has jurisdiction over defendant $144,001 under 21 U.S.C. § 881(a)(6). The claimant in this action is James Anthony Pompey who was also a defendant in two criminal actions. Following the filing of this action, it was stayed pending resolution of a federal criminal drug trafficking case in the Middle District of Georgia against Pompey and a separate state criminal drug trafficking case in Superior Court for Santa Clara County against Pompey. After those cases were resolved, this Court lifted the stay in this civil action. Due to unforseen circumstances, the parties previously requested the rescheduling of the CMC, and are requesting another rescheduling for a minimum of 45 days from May 10, 2013.
In 2009, a grand jury in the Middle District of Georgia indicted James Anthony Pompey with conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846, 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(l)(A)(ii) and 18 U.S.C. § 2. United States v. Pompey, No. 7:09-CR-15(HL) (M.D. Ga.), Indictment, filed September 16, 2009. On October 6, 2011, Pompey plead guilty to a conspiracy to distribute cocaine between 50 and 150 kilograms of cocaine between early in 2005 to on or about November 2006. See Opposition of the United States to Claimant Pompey's Motion to Release Funds for Legal Fees, filed October 28, 2011, and Exhibit A. In the federal case, Pompey admitted that law enforcement seized $828,970 in November 2006 intended as payment to him for cocaine he had sold. Id.
On August 3, 2012, claimant Pompey plead guilty to Count 9 of an Indictment in Superior Court for Santa Clara County charging him with conspiracy to violate California Health and Safety Code 11352, and admitted a number of overt acts in furtherance of that conspiracy. United States v. Pompey, No. 211412 (Sup. Ct, Santa Clara County), Indictment, filed June 25, 2009; August 3, 2012 Transcript; Certified Docket Sheet. One of the six overt acts which defendant Pompey admitted was that he "on or about March 18, 2009, possessed $144,001 in illegal drug proceeds at 36676 Port Fogwood, Newark, California." Defendant $144,001 in this civil forfeiture action is the same $144,001 which defendant Pompey admitted were drug proceeds. See Complaint for Forfeiture, at 3, paragraph 17.
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An issue has arisen as to defendant Pompey's sentence in the state criminal case. The state court judge sentenced Pompey to 16 years to run concurrently with his federal sentence. Pompey's attorney in this case, David Cohen, is also counsel for defendant Pompey in the criminal cases. Mr. Cohen reports that claimant is being required to complete his state sentence in state prison before starting to serve his federal sentence. As a result, on March 22, 2013, claimant's counsel filed a writ of habeas corpus to withdraw Pompey's plea so that Pompey could be returned to San Jose where the Deputy District Attorney (DDA) Patrick Vanier, Mr. Cohen and Pompey can work out, if possible, the custody and credit issues which have arisen. If the state court were to allow Pompey to withdraw his plea, then Mr. Cohen contends that Pompey's admission during the change of plea in state court that the $144,001 is drug trafficking proceeds could not be used in this forfeiture action. Pompey is scheduled to appear in Superior Court before the judge in his criminal case on May 17, 2013. As a result, Mr. Cohen asks the Court to reschedule the case management conference for at least 45 days from the current CMC scheduled for May 10, 2013 to allow the DDA, Mr. Cohen and Pompey an opportunity to resolve the issues in connection with the state criminal matter. IT IS SO STIPULATED:
MELINDA HAAG
United States Attorney
________________________
PATRICIA J. KENNEY
Assistant United States Attorney
Attorneys for the United States
Bay Area Criminal Lawyers, PC
________________________
DAVID COHEN
Attorney for Claimant
James Anthony Pompey
PURSUANT TO THE FOREGOING STIPULATION IT IS SO ORDERED ON THIS 6th DAY OF MAY, 2013, AND THE CASE MANAGEMENT CONFERENCE IS RESCHEDULED FOR June 28, 2013 AT 9:00 A.M. AND THE PARTIES ARE TO FILE A JOINT CASE MANAGEMENT STATEMENT SEVEN DAYS BEFORE THE CMC. This shall be the final continuance of the case management conference. If these matters are not resolyed, the parties shall appear so that the Court may set a schedule in this case.
________________________
HONORABLE JEFFREY S. WHITE
United States District Judge