Opinion
CRIMINAL NO. 7:12-CR-25 (HL)
10-10-2012
UNITED STATES OF AMERICA v. ALBERT G. KLINE
PRELIMINARY ORDER OF FORFEITURE
WHEREAS, on July 9, 2012, Defendant Albert G. Kline (AKline@) pled guilty to Count One of an Information charging him with knowingly possess a computer and hard drives containing one or more visual depictions which had been mailed, shipped or transported in interstate and foreign commerce. The computer and hard drives possessed by Defendant Kline contained one or more visual depictions which had been mailed, shipped, and transported in interstate and foreign commerce, had been produced using materials which had been mailed and shipped and transported in interstate and foreign commerce, by any means including by computer, involved the use of a minor engaging in sexually explicit conduct (as defined in 18 U.S.C. § 2256(2)) to produce, and was a depiction of a minor engaging in sexually explicit conduct, all in violation of Title 18, United States Code, Section 2252(a)(4)(B);
WHEREAS, the Court has determined, based on the evidence already in the record and Defendants Plea Agreement: (1) that Defendant has an ownership interest in the following property; (2) that the following property is subject to forfeiture pursuant to 18 U.S.C. § 2253; and (3) that the United States has established the requisite nexus between the aforesaid offense and the following property:
a. Any visual depictions of minors engaged in sexually explicit conduct, including but not limited to those visual depictions referred to in Count One;
b. One Compaq Presario desktop computer, Serial Number MXK4291HDP, containing a Seagate 160 GB hard disk drive, Serial Number 3JS3FNXF;
c. One Maxtor 30 GB hard disk drive, Serial Number 3892B253;
d. One Western Digital 1 TB hard disk drive, Serial Number 3892B253;
e. Numerous floppy disks, VHS tapes, CD's, slides, negatives, SD card, white thumb drive, and any other items used to produce or view sexually explicit depictions of minors; and
f. One orange notebook, and miscellaneous papers.
AND WHEREAS, the Defendant agreed to waive the requirements of Federal Rules of Criminal Procedure 32.2 and 43(a) regarding notice of the forfeiture in the charging instrument, announcement of any such forfeiture at sentencing, and incorporation of any such forfeiture in the judgment, and the Court having already forfeited the interest of Kline in the subject property;
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:
1. Upon entry of this Order, the United States Attorney General or his designee is authorized to seize the property, and to conduct proper discovery in identifying, locating or disposing of the property in accordance with FED. R. CRIM. P. 32.2(b)(3).
2. Upon entry of this Order, the United States Attorney General or his designee is authorized to commence any applicable proceeding to comply with statutes governing third-party rights, including giving notice of this Order.
3. The United States shall publish notice of the Order and its intent to dispose of the property in such a manner as the United States Attorney General or his designee may direct. The United States may also, to the extent practicable, provide written notice to any person known to have an alleged interest in the property.
4. Any person, other than the above-named Defendant, asserting a legal interest in the property must, within thirty (30) days after receipt of notice, or no later than sixty (60) days from the first day of publication on the official internet government forfeiture site, www.forfeiture.gov , whichever is earlier, petition the Court for a hearing without a jury to adjudicate the validity of his alleged interest in the property, and for an amendment of the Order of Forfeiture, pursuant to 21 U.S.C. ' 853(n), as incorporated by 18 U.S.C. § 2253.
5. Pursuant to FED. R. CRIM. P. 32.2(b)(4), this Preliminary Order of Forfeiture shall remain preliminary as to third parties until the ancillary procedure has been completed in accordance FED. R. CRIM. P. 32.2(c)(2).
6. Any petition filed by a third-party asserting an interest in the property shall be signed by the petitioner under penalty of perjury, and shall set forth the nature and extent of the petitioners right, title or interest in the property, the time and circumstances of the petitioners acquisition of the right, title or interest in the property, any additional facts supporting the petitioners claim and the relief sought.
7. After the disposition of any motion filed under FED. R. CRIM. P. 32.2(c)(1)(A) and before a hearing on the petition, discovery may be conducted in accordance with the Federal Rules of Civil Procedure upon a showing that such discovery is necessary or desirable to resolve factual issues.
8. The United States shall have clear title to the property following the Courts disposition of all third-party interests, or if none, following the expiration of the period provided in 21 U.S.C. ' 853(n), as incorporated by 18 U.S.C. § 2253, for the filing of third-party petitions.
9. The Court shall retain jurisdiction to enforce this Order, and to amend it as necessary, pursuant to FED. R. CRIM. P. 32.2(e).
________________________
HUGH LAWSON, SENIOR JUDGE
UNITED STATES DISTRICT COURT
PREPARED BY:
DANIAL E. BENNETT
ASSISTANT UNITED STATES ATTORNEY
GEORGIA STATE BAR NO. 052683