Opinion
No. 2:03-CR-458 TC.
June 8, 2004
PRELIMINARY ORDER OF FORFEITURE
IT IS HEREBY ORDERED that:
1. As a result of the plea of guilty to Counts 1, 3, 15, 21, 38, and 54 of the Second Superseding Indictment for which the government sought forfeiture pursuant to 18 U.S.C. §§ 981(a)(1)(C) and (D), and 982(a)(2). The defendant Russell Dana Smith shall forfeit to the United States the following property:
(a) Asia hardwood dining set with four chairs seized from 44 West Broadway # 1401, Salt Lake City, Utah;
(b) Living room furniture including sofa, love seat, chair, round lamp table, and round cocktail table seized from 44 West Broadway # 1401, Salt Lake City, Utah;
(c) One 65 inch HDTV ready television seized from 44 West Broadway # 1401, Salt Lake City, Utah;
(d) Forty (40) Sony laptop computers, Model PCG-GR5700, serial numbers: 13003033+, 130037267, 130030383, 130039337, 130035603, 13003011., 130035377, 13003202$, 130030967, 13003132+, 130036828, 130030743, 130030484, 130031698, 130031261, 13003378A, 13003379B, 13003210, 130033689, 130033825, 130032699, 130032802, 130032813, 130032778, 130032857, 13003387A, 130032745, 130033779, 130033803, 130034163, 130030440, 130030394, 130037043, 130031250, 130032756, 130032734, 130033814, 130033948, 130034095, and 130033836;
(e) Gateway Refurbished Model 4009D4, serial number 0028716951;
(f) Twenty-three (23) Toshiba laptop computers as follows:
1. Model 1135-5155, serial numbers: 43390470K, 43390474K, 433904B5K, 43390459K, 43390450K, 43390454K, 43388271K, 43390455K, 43390460K, 43390452K, 43390463K, 43388277K, 43390461K, 43388270K, and 43390476K;
2. Model 2415-5205, serial numbers: 1315584JP and 13155830P;
3. Model 1415-5173, serial numbers: Z2058440PU, Z2049788PU, Z2041244PU, and Z20B0190PU;
4. Protege 3500, serial number 13039080PU;
5. Model 1110-5153, serial number X2329591KU;
(g) Thirteen (13) Compaq Armada M700 laptops;
(h) Thirteen (13) IBM M/T Model 3678-LUV laptops, serial numbers: 78TTNYA, 78TTPAX, 78WGYTR, 78WHHTF, 78WGYAM, 78TTPXC, 78WHKEN, 78WGXBK, 78TTLLX, 78TTWAY, 78WGXHZ, 78WHGTD, and 78WGX2P;
(i) Two (2) Go Video Sonic Blue DVD players, serial numbers: dvp1100030110410 and dvp1100030119739;
(j) Sony digital Handycam;
(k) IBM Thinkpad laptop;
(l) Sony PC120BT digital camcorder, serial number S01-1344292-B;
(m) Sony PC120BT digital camcorder, serial number S01-1344323-6;
(n) Sony TRV350 digital Handycam, serial number S01-1367784-M;
(o) Sony PS2, serial number PT565839077;
(p) Six 1-ounce $50 gold eagle coins;
(q) Viewsonic flatscreen monitor, serial number A11025239696;
(r) Princeton flatscreen monitor, serial number OGCD0400636;
(s) Princeton flatscreen monitor, serial number OGCD0400637;
(t) CPU, blue in color;
(u) Generic CPUs, serial numbers D7250024600368; D72500244600171; D72500244500756; D7200238300607; D72500249202444; E72500249203070; D72500249203028; D72500244600552; D72500249202714; D72500304700106; D72500244600100; D72500244600099; D72500244600430; D72500244600423; D72500242300349; and D72500249202455.
(v) Any interest defendant may have had in $24,000 seized from a residence on South Davis Boulevard, in Bountiful, Utah.
2. The Court has determined that based on defendant Russell Dana Smith's plea agreement that the above-named property is subject to forfeiture, that the defendant had an interest in such property and that the government has established the requisite nexus between such property and such offense.
3. Upon entry of this Order the Attorney General or its designee is authorized to seize and conduct any discovery proper in identifying, locating, or disposing of the property subject to forfeiture, in accordance with Fed.R.Crim.P. 32.2(b)(3). The order of seizure is to include but is not limited to items listed in paragraphs 1(d), (f), (g), (h), (i), (l), (m), (n), and (o) above.
4. Upon entry of this Order the Attorney General or its designee is authorized to commence any applicable proceeding to comply with statutes governing third party interests, including giving notice of this Order.
5. The United States shall publish notice of this Order on its intent to dispose of the property in such a manner as the Attorney General or its 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 subject property.
6. Any person, other than the above named defendant, asserting a legal interest in the subject property may, within thirty days of the final publication of notice or receipt of notice, whichever is earlier, petition the Court for a hearing without a jury to adjudicate the validity of his alleged interest in the subject property, and amendment of the order of forfeiture pursuant to 21 U.S.C. § 853.
7. Pursuant to Fed.R.Crim. 32.2(b)(3), this Preliminary Order of Forfeiture shall become final as to the defendant at the time of sentencing and shall be made part of the sentence an included in the judgment.
8. Any petition filed by a third party asserting an interest in the subject property shall be signed by the petitioner under penalty of perjury and shall set forth the nature and extent of the petitioner's acquisition of the right, title, or interest in the subject property, any additional facts supporting the petitioners claim an relief sought.
9. 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 Criminal Procedure upon a showing that such discovery is necessary or desirable to resolve factual issues.
10. The United States shall have clear title to the subject property following the Court's disposition of all third party interests, or, if none, following the expiration of the period provided in 21 U.S.C. § 853 which is incorporated by 18 U.S.C. § 982(b) for the filing of third party petitions.
12. The Court shall retain jurisdiction to enforce this Order, and to amend it as necessary, pursuant to Fed.R.Crim.P. 32.2(e).