Free Stipulation - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona LISA ROBERTS Assistant U.S. Attorney Member of New York Bar Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

United States of America, Plaintiff, v. CIV03-01504-PHX-ROS
STIPULATION FOR COMPROMISE SETTLEMENT

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One 2002 Cadillac Escalade 4X4; Defendant. And Regarding the Interest of General Motors Acceptance Corporation, nka GMAC, L.L.C. Claimant.

APPLICATION FOR CERTIFICATE OF REASONABLE CAUSE

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Plaintiff, United States of America, by and through its attorney, PAUL K. CHARLTON, United States Attorney for the District of Arizona, and his Assistant, Lisa Roberts, Assistant United States Attorney, and Claimant General Motors Acceptance Corporation, now known as GMAC, L.L.C.("GMAC"), by and through their counsel, Ryan J. Lorenz, Norling, Kolsrud, Sifferman, Davis, PLC., respectfully state as follows: 1. As the result of direct communication between counsel for Claimant's counsel, and

Assistant U.S. Attorney Lisa Roberts, and considering the nature of the legal and factual issues involved, the size of the amount in controversy, the expense of such litigation, and length of time involved in the potential litigation, the parties do hereby agree to settle and compromise the above-entitled action upon the terms indicated below. Each party to pay its own costs and attorneys fees.

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On August 5, 2003, Plaintiff, United States of America, filed a Complaint for

Forfeiture In Rem, naming for forfeiture One 2002 Cadillac Escalade 4X4, VIN 1GYEK63N32R101701 ("Defendant Property" or "Vehicle"). (Dkt. #1) 3. Plaintiff alleged that the Defendant Property was subject to forfeiture because the

Vehicle represented proceeds of trafficking in controlled substances or was used or intended to be used in exchange for controlled substances in violation of Title II of the Controlled Substances Act, 21 U.S.C. §§ 801, and was subject to forfeiture pursuant to 21 U.S.C. § 881; further, that the Vehicle was used and intended to be used to transport, and facilitate the transportation, sale, receipt, possession and concealment of controlled substances as described in 21 U.S.C. § 881(a)(1), (2), and (9), and in violation of Title II of the Controlled Substances Act, 21 U.S.C. §§ 801, and therefore forfeitable pursuant to 21 U.S.C. §881(a)(4); that the Vehicle was involved in a transaction or attempted transaction in violation of 18 U.S.C. §§1956, 1957 and 1960 and therefore forfeitable pursuant to 18 U.S.C. §981(a)(1)(A), and finally, because the Defendant Property represents the proceeds of some form of unlawful activity, which was involved in a financial transaction involving the proceeds of specified unlawful activity with the intent to promote the carrying on of specified unlawful activity, to wit: trafficking in controlled substances in violation of 18 U.S.C. § 1956(a)(1)(A)(I), and therefore forfeitable pursuant to 18 U.S.C. § 981. 4. The Defendant Property was seized on February 4, 2003, when, following a traffic

stop by the Arizona Department of Public Safety, law enforcement found suspicious conduct by the driver, and found that the vehicle contained a false compartment located in the center console area of the vehicle, which contained numerous air fresheners. A narcotic detection canine gave a positive alert, of the vehicle, to at least one of the odors of an illegal substance to which he was trained to alert. The Vehicle was registered to Carl D. Anderson ("Anderson"). Anderson purchased the Vehicle with financing from GMAC on October 29, 2001, under the terms of a Retail Installment Sale Contract­GMAC Flexible Finance Plan (the "Installment Contract").

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Anderson then leased the vehicle to Darryl Scott ("Scott"), in violation of the Installment Contract with GMAC. 5. On August 27, 2003, the Deputy Clerk of the United States District Court, issued

the Warrant of Arrest to the United States Marshals for the District of Arizona, and pursuant thereto, the United States Marshal arrested the Defendant Property on August 27, 2003. 6. On September 8, 2003, Anderson filed a verified Statement of Interest/Claim to the

Complaint. (Dkt. #6) 7. On September 10, 2003, GMAC filed a verified Statement of Interest and an Answer to the Complaint. (Dkt.s #7, 8). 8. On August 6, 2003, Plaintiff, United States of America, filed Notice of Service of

First Set of Non-Uniform Interrogatories, First Request For Production, and First Request For Admissions upon claimant Anderson. 9. The United States Marshal for the District of Arizona gave public notice of this

action and arrest to all persons by advertisement in the Arizona Business Gazette, pursuant to Arizona District Court General Order #98-15 on September 11, 2003, September 18, 2003, and September 25, 2003. The Affidavit of Publication was filed on October 14, 2003. (Dkt. #9) 10. Anderson did not respond to discovery requests. On March 23, 2004, Plaintiff

filed its Motion for Summary Judgment, (Dkt#12) and Statement of Facts in Support of the Motion for Summary Judgment (Dkt.#13), based upon Anderson's failure to respond and provide answers to Plaintiffs requested discovery material. On October 19, 2004, the Court granted Plaintiff's motion for entry of judgment, granting Plaintiff's summary judgment motion. (Dkt.#15) 11. On December 17, 2004, Plaintiff filed a Motion and Application for Entry of

Partial Default regarding the interest of Scott, who had filed a claim in the administrative forfeiture action, but not in the civil judicial action. (Dkt.#22) On September 13, 2005, Partial Default Judgment regarding the interest of Scott and all persons other than claimant GMAC was entered. (Dkt. #47)
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12. Since GMAC's appearance in this matter, the parties have engaged in numerous motions and discovery matters, including claimant GMAC's Motion for Partial Summary Judgment (Dkt. #20), and Plaintiff's Cross-Motion for Summary Judgment (Dkt.#30); both of which were denied by the Court. (Dkt. # 44) 13. The parties now wish to resolve this action, and agree to settle this action upon the terms outlined below, and in full and complete satisfaction of GMAC's claim to the defendant property: A. Claimant GMAC agrees to deliver to the government the sum of $12,000 as a substitute res in lieu of the Defendant Property. The payment will be by certified check or cashier's check made payable to the U.S. Marshals Service and delivered to Lisa Roberts, Two Renaissance Square, 40 N. Central, Phoenix, AZ 85004-4408. The check should note the following - "CIV03-01504-PHX-ROS " Claimant GMAC agrees that payment will be made within ten (10) days of the issuance of the Stipulated Judgment by the Court. B. Upon payment of the above stated amount, and the Court's entry of a

Stipulated Judgment, Plaintiff agrees to release the defendant property to GMAC. 14. Plaintiff acknowledges GMAC has a property interest in the vehicle, but does not acknowledge that GMAC would be able to establish by a preponderance of the evidence that they are an innocent owner. GMAC acknowledges that Plaintiff has had the secret compartment removed, and that GMAC has viewed the Vehicle prior to entering into this agreement, and agrees to accept the Vehicle in its condition at the time of viewing. 15. GMAC agrees to hereby release and forever discharge the United States and the

Department of Justice, the Drug Enforcement Administration, the United States Marshals Service and all officers, employees, contract employees, agents, and task force agents from any and all actions, causes of action, suits, proceedings, debts, dues, contracts, judgments, damages, claims, and/or demands whatsoever in law or equity which claimant, their heirs, successors, or assigns ever had, now have, or may have in the future in connection with the seizure, detention, and forfeiture of the above-captioned defendant.
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16.

GMAC stipulates and agrees that the Court may enter a finding that the agents of

the Drug Enforcement Administration and United States Marshals Service had reasonable grounds to seize Defendant Property described herein. 17. GMAC stipulates and agrees that the $12,000 to be paid by GMAC shall be

declared forfeited to the United States, pursuant to the provisions of 21 U.S.C. §§ 881(a)(4) & (a)(6), and 18 U.S.C. § 981 and disposed of according to law. 18. Pursuant to this settlement agreement, and specifically in reliance upon the terms

contained herein, Plaintiff United States and claimant GMAC hereby requests this Court that upon approval by the Court of this Stipulation, Order that the United States Marshals Service shall immediately dispose of the $12,000 substitute res according to law. There are presently no other parties to this action and default judgment has been entered as to all other persons. The Marshals costs of this action, including the cost of seizure, administration, maintenance, and storage shall be recovered from these funds. 19. The parties agree that each party is responsible for its respective costs and attorney fees. 20. Undersigned certifies that the content of the document is acceptable to counsel for claimants, and that undersigned is authorized to electronically sign for claimant's counsel. RESPECTFULLY submitted this 20th day of October, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/Lisa Roberts

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LISA ROBERTS Assistant United States Attorney S/Ryan J. Lorenz 10/18/2006 _________________________________ RYAN J. LORENZ Date NORLING, KOLSRUD, SIFFERMAN DAVIS, P.L.C. Attorney for Claimant General Motors Acceptance Corporation, nka GMAC, L.L.C.

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CERTIFICATION
I hereby certify that on October 20, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

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Ryan J. Lorenz Norling, Kilsrud, Sifferman, Davis, PLC [email protected]

S/Lisa Roberts

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Lisa Roberts

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