Opinion
Civil No. 00-1506-FR
May 17, 2001
Kristine Olson United States Attorney Leslie J. Westphal Assistant United States Attorney Portland, Oregon, Attorneys for Plaintiff.
Kristen L. Winemiller Tennyson Winemiller Portland, Oregon, Attorneys for Claimant Piedad Barajas.
OPINION AND ORDER
The matter before the court is the motion to stay filed by claimant Piedad Barajas (#12).
BACKGROUND
On November 6, 2000, the plaintiff, United States of America, filed a complaint in rem for forfeiture of the property located at 14280 N.W. Tradewinds Street, Portland, Oregon (the defendant property). The complaint alleges that 1) the property represents proceeds traceable to an exchange of controlled substances and is subject to forfeiture and condemnation pursuant to 21 U.S.C. § 881(a)(6); and 2) the property was used to commit or to facilitate the commission of a violation of 21 U.S.C. § 801 et seq. and is forfeitable pursuant to 21 U.S.C. § 881(a)(7).
On November 8, 2000, an indictment was filed against Piedad Barajas-Avalos and others charging them with the manufacture of methamphetamine. United States v. Barajas-Avalos, CR00-537-01-RE.
On January 17, 2001, Piedad Barajas filed a claim to the defendant property as its lawful owner and possessor. In an affidavit in support of his claim, claimant Barajas states that he is the legal owner of the defendant property; that he purchased the defendant property in 1999 on a contract; and that he estimates his equity in the defendant property to be approximately $75,000.00.
CONTENTIONS
On February 6, 2001, claimant Piedad Barajas filed a motion to stay this forfeiture proceeding as to his claim to the defendant property until the final resolution of the related case CR00-537-01-RE. Claimant Barajas contends that he is entitled to a stay under the plain language of 18 U.S.C. § 981(g)(2). Claimant Barajas contends that he is the subject of a related criminal proceeding; that he has filed a verified claim of ownership and possession; and that he cannot file an answer to the complaint to participate in discovery without running a substantial risk of compromising his interests in the related criminal case or otherwise burdening his right against self-incrimination.
The government opposes the motion to stay filed by claimant Barajas on the grounds that claimant Barajas has not filed an answer to the complaint. The government contends that claimant Barajas has no standing to request a stay until he has filed an answer. The government explains that if claimant Barajas files an answer, "the United States is open to consider a stay in this action with appropriate conditions." Government's Opposition to Claimant Piedad Barajas' Motion to Stay, p. 5.
APPLICABLE LAW
18 U.S.C. § 981(g)(2) provides:
Upon the motion of a claimant, the court shall stay the civil forfeiture proceeding with respect to that claimant if the court determines that —
(A) the claimant is the subject of a related criminal investigation or case;
(B) the claimant has standing to assert a claim in the civil forfeiture proceeding; and
(C) continuation of the forfeiture proceeding will burden the right of the claimant against self-incrimination in the related investigation or case.
RULING OF THE COURT
The government does not dispute that claimant Barajas is the subject of a related criminal case or that the continuation of the forfeiture will burden the right of claimant Barajas against self-incrimination in the related criminal case as required by 18 U.S.C. § 981(g)(2)(A) and (C). Claimant Barajas "has standing to assert a claim in the civil forfeiture proceeding" as required by 18 U.S.C. § 981(g)(2)(B). Claimant Barajas has timely filed a verified statement identifying his interest or right in the defendant property pursuant to the requirements of Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims. 18 U.S.C. § 981(g)(2) provides that the court "shall stay the civil forfeiture proceeding with respect to that claimant."The motion to stay filed by claimant Piedad Barajas (#12) is GRANTED until the entry of a plea to the charges or a verdict in the case of United States v. Barajas-Avalos, CR00-537-01-RE. Claimant Piedad Barajas must serve an answer within twenty (20) days after the entry of a plea or the entry of a verdict in the related criminal case of United States v. Barajas-Avalos, CR00-537-01-RE. The court notes that the parties have agreed that the parties may proceed with an interlocutory sale of the defendant property while the stay is in effect.
IT IS SO ORDERED.