Opinion
Case No. 2:10-CR-472-RCJ-(GWF)
11-15-2012
UNITED STATES OF AMERICA, Plaintiff, v. NOLBERTO GONZALEZ, Defendant.
DANIEL G. BOGDEN United States Attorney MICHAEL A. HUMPHREYS Assistant United States Attorney
DANIEL G. BOGDEN
United States Attorney
Nevada State Bar No. 2137
MICHAEL A. HUMPHREYS
Assistant United States Attorney
Lloyd D. George United States Courthouse
333 Las Vegas Boulevard South, Suite 5000
Las Vegas, Nevada 89101
Telephone: (702) 388-6336
Facsimile: (702) 388-6787
Email: Michael.Humphreys@usdoj.gov
Attorneys for the United States of America
NOTICE
The United States of America, by and through Daniel G. Bogden, United States Attorney, and Michael A. Humphreys, Assistant United States Attorney, provides Notice To This Court of the notice/due process steps that it has undertaken to ensure compliance with the notice requirements of 21 U.S.C. § 853 (n).
As the criminal docket of this matter reflects, the United States indicted Nolberto Gonzalez on September 10, 2010, for being an illegal alien in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922 (g)(5). That indictment contained a forfeiture allegation against two handguns: 1) a Beretta 9mm handgun, serial number BER479568; and 2) a F.E.G. model P9R 9mm handgun, serial number R67232.
Collateral investigation of that crime established that both firearms were stolen from separate residences of Claudia Beltran. Because Ms. Beltran might have had an "interest" in either or both of the handguns within the context of 21 U.S.C, 853(n), the United States, through Peter Lazaro, Special Agent with the United States Department of Homeland Security, undertook to locate Ms. Beltran so she could be served with the preliminary order of forfeiture that would trigger her due process rights to come forward to assert an interest in the firearm(s) should she so desire.
Special Agent Lazaros sought to locate Ms. Beltran over the course of several months. See "Declaration of Due Diligence in Service of Process of Special Agent Peter Lazaro " ¶¶ 6-9. (attached, hereto, and incorporated by reference as "Attachment No. 1.") In that declaration, Special Agent Lazaro, lays out the steps that he took to locate and serve Ms. Beltran with the preliminary order of forfeiture. Id. Those steps, all of which proved unsuccessful, included traveling to various addresses where Ms. Beltran was known to reside (or have resided). Ultimately, Agent Lazaro determined that Ms. Beltran is a fugitive from justice in a criminal matter that is wholly unrelated to this case. ¶ 8 Ms. Beltran's fugitive status strongly suggests that she desires to remain hidden for purposes of this criminal case, or any other legal matter.
As such, the United States attaches Agent Lazaro's declaration to this Notice and requests that this Court accept the statements contained in that declaration as 'due diligence' that the Government has taken adequate and necessary steps to satisfy its notice obligations under 21 U.S.C. 853 (n). Under separate filing the United States has and will file an Amended Final Order of Forfeiture in this matter, referencing this Notice and the attached declaration, that will bring finality to the forfeiture aspect of this case.
Dated this 19th day of November, 2012. . . . . . . . . . . . . . . . . . . . . . . . .
Respectfully submitted,
DANIEL G. BOGDEN
United States Attorney
_________________
MICHAEL A. HUMPHREYS
Assistant United States Attorney
IT IS SO ORDERED:
__________________
UNITED STATES DISTRICT JUDGE
ATTACHMENT 1
DECLARATION OF DUE DILIGENCE IN SERVICE OF PROCESS
OF SPECIAL AGENT PETER S. LAZARO
PETERS. LAZARO, Jr., states as follows:
1. I am a Special Agent with the United States Department of Homeland Security ("DHS"), and I have been so employed as a federal law enforcement officer for twenty-three years. Currently, I am assigned to the Assistant Special Agent in Charge Office, located in Las Vegas, Nevada. My investigative assignments include criminal and civil investigation of fraud-related activities. I have received extensive training in fraud investigations as well as immigration enforcement.
2. I was involved in the criminal investigation of Nolberto Gonzalez-Valdez ("Gonzalez-Valdez"), since the government began scrutinizing his activities in May, 2010. I participated in ajoint criminal investigation between DHS and members of Las Vegas Metropolitan Police Department targeting individuals who were unlawfully trafficking in firearms in the Las Vegas valley. I am aware of the facts and circumstances leading to the arrest, prosecution and conviction of Gonzalez-Valdez. I know that Gonzalez-Valdez was arrested on January 5, 2011, and charged with being an illegal alien in possession of a firearm. On information and belief, Gonzalez-Valdez was prosecuted by the United States Attorney's Office for the District of Nevada (Las Vegas Division). Gonzalez pled guilty and was sentenced to, amongst other things, eighteen months incarceration.
3. I know that as a condition of third party rights, the government has an obligation to locate any person that might have an interest in a firearm that is the subject of a criminal prosecution. In this instance, the guns which Gonzalez-Valdez was charged with illegally possessing were stolen. I determined through my investigation that the guns that Gonzalez-Valdez possessed at the time of his arrest belonged to Claudia Beltran.
4. One of the guns is a Baretta 9mm handgun with a serial number of BER479568 and ammunition contained therein. The other gun is a FEG, Model P9R, 9mm semi-automatic handgun, bearing a serial number of R67232 and ammunition contained therein. The Baretta was stolen from Ms. Beltran's residence, located at 8906 Lanta Island Ave., Las Vegas, Nevada, on June 11, 2010. The FEG 9mm was stolen from Ms. Beltran's residence, located at 8985 S. Durango Apt. 1154, Las Vegas in January 2010.
5.1 am aware that to preserve third-party owner rights in property that is the subject of a criminal prosecution, the Government should take steps to locate owners, so that they can reclaim their property. As the investigator on the case, I determined that the guns belonged to Ms. Beltran and I undertook an investigation to determine her location so the government could determine if she had a legitimate claim to re-possess the guns.
6.1 conducted database searches, specifically on Lexus-Nexus and TECS (DHS's internal database search system) to locate Ms. Beltran's address. Both of those databases searches confirmed that Ms. Beltran lived at the Lanta Island address, referenced above. The Las Vegas Metro police report documenting the burglary also listed Ms. Beltran's place of residence as the Lanta Island address.
7.1 traveled to the Lanta Island address in July of 2011 and found that residence is described as a townhouse located in a residential community in southwest Las Vegas. I did not locate Ms. Beltran at that address. I did interview the two current residents of that address who stated that they had been living at that address for approximately four months; and neither of them knew, or had ever heard of, Claudia Beltran. Continuing my investigation, a few days later I spoke to the property manager of the Lanta Island residence. She indicated that Ms. Beltran had been a tenant of that address, but that she had vacated that premises, without notice, in December, 2010 and was several thousand dollars in arrears of rent payments. The property manager concluded that she did not know of Ms. Beltran's new location.
8. In September, 2011, NCIC records indicated that a warrant for Ms. Beltran's arrest had been issued by the Clark County District Attorney for a violation of Fraud-Insufficient Funds Check. The warrant was issued on August 11, 2011.
9. I then conducted further research through NCIC and found a new address for Claudia Beltran of 7474 Grizzly Giant Street, Las Vegas, NV 89139. I traveled to that address and found the apartment vacant. There was orange eviction tape on the property, no vehicles, and no one at home. There was a red sticker affixed to the front door indicating the residence was in the process of foreclosure.
10. I have exhausted all of the resources of the U.S. Immigration and Customs Enforcement to locate Ms. Beltran and based on the foregoing I believe she is a fugitive.
11. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.
_________________
Peter S. Lazaro, Special Agent
Department of Homeland Security
PROOF OF SERVICE
I, Elizabeth Baechler-Warren, Forfeiture Support Associate Paralegal, certify that the following individual was served with a copy of the foregoing on November 19, 2012, by the below identified method of service:
CM/ECF: Jason F. Carr
Federal Public Defender
411 E Bonneville Suite 250
Las Vegas, NV 89101
Email: ECF_Vegas@FD.ORG
Counsel for Defendant Nolberto Gonzalez
_________________
Elizabeth Baechler-Warren
Forfeiture Support Associate Paralegal