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United States v. Cazares

United States District Court, Ninth Circuit

July 29, 2013

United States of America, Plaintiff,
v.
Francisco Gomez Cazares, et al., Defendants.

ORDER

JAMES A. TEILBORG, Senior District Judge.

Pending before the Court is pro se third party movants', Angelina Mendoza Ochoa and Jesus Arely Salazar's (the "movants"), Motion for Leave to File for a Hearing of a Third Party Property Interest Under § 853(n)(2) Out of Time (Doc. 217). The Government has filed a Response (Doc. 220) and the movants have filed a Reply (Doc. 224).

Also pending before the Court is the movants' Motion for Appointment of Counsel (Doc. 229). The movants have also filed an Affidavit in Support (Doc. 230). The Government has filed a Response (Doc. 231) and a Supplemental Response in Opposition to the movants' motion (Doc. 232). Finally, the movants have filed a Reply (Doc. 236). Pending before the Court is also the movants' Motion for an Enlargement of Time to file their Reply (Doc. 233). The Court denies the movants' three motions for the following reasons.

I. BACKGROUND

This case arose after an Indictment was returned in this action on May 20, 2010, charging five Defendants with two counts of violating laws concerning a Schedule II controlled substance. (Doc. 9). The movants were not among the Defendants. As part of the Indictment, it was ordered that upon conviction of one or more of the offenses, Defendants shall forfeit to the Government all right, title, and interest in a parcel of real estate commonly referred to as 6542 West Coolidge Street, Phoenix, Arizona 85033 and more particularly described as: Lot two hundred thirty-two (232), Parkside Unit Three, According to the Plat of Records in the Office of the County Recorder of Maricopa County, Arizona in Book 161 of Maps, Page 7 (the "Property"). (Doc. 9 at 2-3).

At the time of the Indictment the Property was titled in the name of Evangelina Gomez and Jose Alfredo Garcia Mendoza who were not named as Defendants. In order to protect the interest of the Government in the Property, a Lis Pendens was recorded with Maricopa County Recorder, Helen Purcell, on May 27, 2010, giving notice to all interested persons that the Property was subject to forfeiture and any interest of the Defendants, specifically the interests of Evangelina Gomez and Jose Alfredo Garcia Mendoza, was subject to the Government's interest pending to the outcome of this action. (Doc. 220-1 at 2-3).

Over one year after the Lis Pendens was filed, on May 31, 2011, an Order of Forfeiture was entered by the Court condemning and forfeiting the Property. (Doc. 114, 115, 116). The Order of Forfeiture directed the Government to publish notice of the Order in a manner as the Government may direct and stated the Government "may also, to the extent practicable, provide written notice to any person known to have an alleged interest in the Subject Property." ( Id. at 2).

On June 2, 2011, Evangelina Gomez and Jose Alfredo Garcia Mendoza purported to convey their interest in the Property by Quit Claim Deed to Martin Chavez. (Doc. 220-1 at 5). However, the legal description of this Quit Claim Deed incorrectly identified the Property as Lot 202 rather than Lot 232. See ( Id. ). On August 8, 2011, a new Quit Claim Deed was filed by Evangelina Gomez and Jose Alfredo Garcia Mendoza, again purporting to convey their interest in the Property to Martin Chavez. ( Id. at 7). Seventeen days later, on August 25, 2011, Martin Chavez purported to convey his interest in the Property by Quit Claim Deed to the movants. (Doc. 217 at 4).

Almost two years after the Lis Pendens was filed and a year after the Order of Forfeiture was entered, on May 7, 2012, the Government sent a Notice of Third Party Claimant Procedure (the "Letter") to the movants, addressed to Evangelina Gomez, informing any third party that the Property was subject to forfeiture. The Letter contained a cover letter ( id. at 5) explaining the situation to the movants and a Notice of Forfeiture (Doc. 220-1 at 9) describing the Property and the Order of Forfeiture entered by the Court over a year earlier. The cover letter instructed the movants that the Notice of Forfeiture describes the property forfeited and the procedure for filing a claim to any of the property in which they may have a legal right, title or interest. (Doc. 217 at 5). The cover letter stated that the movants must file a claim by mail within thirty days of the receipt of the Notice of Forfeiture or within thirty days of the last publication of the Order of Forfeiture, whichever is earlier, and as of the date of the cover letter, the Notice of Forfeiture had not yet been published so movants would likely only have thirty days from receipt of the Letter to file a claim. ( Id. ). Further, the cover letter erroneously instructed the movants to file any petition they may file in the "Untied States District Court for the District of Columbia" with a copy to the undersigned attorney for the Government, Reid C. Pixler. ( Id. ). The cover letter also instructed the movants that the appropriate addresses for filing a claim "appear in the enclosed Notice of Forfeiture." ( Id. ). Finally, the cover letter instructed the movants that any petition they file "must identify the particular property or properties which the petitioner claims a legal right, title or interest, " and the only reference to the Property at issue was contained in the enclosed Notice of Forfeiture. ( Id. ).

The movants sent a letter back to the Government in October 2012, acknowledging receipt of the Government's "letter" and pointing out the typographical error in the cover letter whereby the Government instructed the movants to file any petition they may file with the "United States District Court for the District of Columbia." ( Id. at 7). The movants told the Government that they "consider the notice defaulted" due to the error and that the error "should be basis to toll the time for a proper and adequate petition." ( Id. ).

On October 25, 2012, the movants filed the pending motion for a Hearing of a Third Party Property Interest Under § 853(n)(2) (Doc. 217).

On March 19, 2013, the movants filed the pending motion for appointment of counsel (Doc. 229). The movants claim they are unable to retain counsel due to economic conditions and concede that "the appointment of counsel in a Civil Case is not a right, but the Court may do so in the interest of justice and fairness to protect due process and the integrity of the judicial process." ( Id. at 2).

II. ANALYSIS

A. Motion for a Hearing ...


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