Free Motion for Forfeiture of Property - District Court of Colorado - Colorado

Case 1:04-cr-00153-LTB

Document 463

Filed 04/14/2006

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00153-LTB UNITED STATES OF AMERICA, Plaintiff, v. 1. 2. 3. 4. 5. 6. GERALD P. SMALL, III, KELLI B. SMALL, a/k/a Kelli S. Burkhalter, ROBERT E. BICHON, ROBERT J. SIGG, CHARLES E. WINNETT, and CHAD E. HEINRICH,

Defendants. ________________________________________________________________________ MOTION FOR FINAL ORDER OF FORFEITURE ________________________________________________________________________ COMES NOW the United States of America, by and through Assistant United States Attorney Matthew T. Kirsch, and moves this Court to enter a Final Order of Forfeiture in this case pursuant to Title 18, United States Code, Section 982. In support, Plaintiff states: 1. On October 14, 2005, upon motion by the United States, this Court entered

a Preliminary Order of Forfeiture forfeiting to the United States of all of the defendants' right, title, and interest in various assets more particularly described in the list attached to -1-

Case 1:04-cr-00153-LTB

Document 463

Filed 04/14/2006

Page 2 of 5

the motion as Exhibit 1 [Doc. #355]. 2. The Preliminary Order of Forfeiture directed the Internal Revenue Service

and the United States Marshals Service to seize the subject property and to publish notice of the forfeiture and the United States' intent to dispose of the property. The Preliminary Order only affected the interests of the named criminal defendants, not the interests of any potential third parties. 3. The Internal Revenue Service and the United States Marshals Service have

executed the Preliminary Order of Forfeiture against all of the subject property and their Returns have been filed with the Court. 4. Notice of the forfeiture was published in newspapers of general circulation

in Nevada, Colorado, Texas, and Arizona via The Las Vegas Sun, The Daily Journal, The Lampasas Dispatch Record, and The Arizona Business Gazette respectively for four consecutive weeks between November 7, 2005 and December 8, 2005, and again between February 6 and 15, 2005, as evidenced by the Internal Revenue Service Returns previously filed with the Court. Notice was further sent on November 8, 2005 to all third parties known to have an interest in the subject properties. Said Notices informed potential parties claiming an interest in the subject property that they must file their claim within thirty (30) days of the last date of publication. 5. On March 2, 2006, the United States filed a Motion for Final Order of

-2-

Case 1:04-cr-00153-LTB

Document 463

Filed 04/14/2006

Page 3 of 5

Forfeiture as to Defendants' Interest Only [Doc. #422], which this Court granted on March 3, 2006 [Doc. #435]. 6. To date, the only third parties to have filed any claims, motions, petitions,

or other pleadings with regards to the forfeiture are JP Morgan Chase Bank (JP Morgan), which filed a Petition for Ancillary Hearing on December 16, 2005 [Doc. #392], Flagstar Bank (Flagstar), which filed its Petition to Amend Order of Forfeiture on December 8, 2005 [Doc. #387], and Twentieth Century Mortgage, Inc. (Twentieth Century), which filed its Petition to Amend Order of Foreclosure [sic] on January 12, 2006 [Doc. #406]. 7. On March 10, 2006, the United States, Flagstar, Twentieth Century, and

other victim banks identified in this case entered into a Settlement and Distribution Agreement whereby the parties agreed that the forfeited assets shall be paid out in accordance with the Restitution Order entered at the sentencing of defendant Gerald P. Small, III, and that the petitions of Flagstar and Twentieth Century would be withdrawn. 8. On March 24, 2006, JP Morgan filed a Motion to Withdraw its Petition for

Ancillary Hearing [Doc. #449], which the Court granted on March 27, 2006 [Doc. #450]. 9. On March 27, 2006, Flagstar filed a Motion to Withdrew its Petition to

Amend Order of Forfeiture [Doc. #451], which the Court granted on the same date [Doc. #452]. 10. On April 6, 2006, Twentieth Century filed a Notice of Withdrawal of

-3-

Case 1:04-cr-00153-LTB

Document 463

Filed 04/14/2006

Page 4 of 5

Petition to Amend Order of Foreclosure [sic] [Doc. # 459], which the Court granted on April 10, 2006 [Doc. #461]. 11. Accordingly, there are no third parties asserting an interest in any of the

properties subject to forfeiture in this action, which properties are fully described in Exhibit One, attached hereto, and a Final Order of Forfeiture can enter. 12. Upon entry of the requested Final Order of Forfeiture, the United States

Attorney's Office will ask the Department of Justice, Asset Forfeiture and Money Laundering Section, pursuant to Title 18, United States Code, Section 982(b)(1) and Title 21, United States Code, Section 853(i) to restore the proceeds from all forfeited assets, via the Clerk of this Court, to the victims, in keeping with the Settlement Agreement attached as Exhibit 2 to the Judgment and Conviction of Gerald P. Small, III [Doc. #442]. WHEREFORE, the United States moves this Court for entry of the Final Order of Forfeiture tendered herewith in accordance with Title 18, United States Code, Section 982, forfeiting the properties described in Exhibit One to the United States. Respectfully submitted this 14th day of April, 2006. s/Matthew T. Kirsch Matthew T. Kirsch Assistant United States Attorney 1225 17 th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 Email: [email protected] -4-

Case 1:04-cr-00153-LTB

Document 463

Filed 04/14/2006

Page 5 of 5

CERTIFICATE OF SERVICE I hereby certify that on this 14th day of April, 2006, I electronically filed the foregoing MOTION FOR FINAL ORDER OF FORFEITURE with the Court using the CM/ECF systems which will send notification of such filling to the following e-mail addresses: Michael Arvin Esq. [email protected] Matthew J. Smith [email protected] Charles Elliott, Esq. [email protected] Steven M. Feder, Esq. [email protected] Randy S. Reisch, Esq. [email protected] and I hereby certify that I have mailed or served the document or paper to the following non-participants by postage prepaid first class mail to: Dennis J. Jacobson Dennis J. Jacobson, Attorney at Law 333 South Allison Parkway, Suite 300 Lakewood, Colorado 80226 Scott Robinson Scott H. Robinson, PC 1660 Lincoln, Suite 3150 Denver, Colorado 80264 s/Matthew T. Kirsch Matthew T. Kirsch Assistant United States Attorney 1225 17 th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 Email: [email protected] -5Robert McAllister, Esq. [email protected] Earl H. Staelin [email protected] Peter J. Korneffel, Jr., Esq. [email protected] Larry S. Pozner, Esq. [email protected]