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United States v. Camarillo

United States District Court, D. Arizona

July 6, 2016

United States of America, Plaintiff,
v.
Norberto Camarillo, Defendant. Norberto Camarillo, Sr., Third-Party Petitioner.

          USA, Plaintiff, represented by Angela M. Martinez, U.S. Attorney's Office.

          REPORT AND RECOMMENDATION

          BRUCE G. MacDONALD, Magistrate Judge.

         Pending before the Court is Norberto Camarillo Sr.'s Petition for Hearing for Reconsideration and Relief from Forfeiture of 2000 Ford F-250 Truck, VIN: 1FTNW21F5TEA70658 (Doc. 28) seeking relief from the Preliminary Order of Forfeiture entered by Magistrate Judge Bernardo P. Velasco on April 7, 2016. Prelim. Order of Forfeiture (Doc. 24). Pursuant to LRCrim. 57.6, this matter came before Magistrate Judge Bruce G. Macdonald for an evidentiary hearing and a report and recommendation. Accordingly, an ancillary hearing took place on June 13, 2016 consistent with 21 U.S.C. §853(n). Minute Entry 6/13/2016 (Doc. 35). Norberto Camarillo, Sr. was present and testified. The Government presented one witness, Border Patrol Agent Elizabeth Flores, and admitted five exhibits. The Magistrate Judge recommends that the District Court, after its independent review, deny the Petition for Reconsideration, and affirm the Preliminary Order of Forfeiture.

         I. FACTUAL BACKGROUND

          A. Defendant's 2015 Alien Smuggling Case

         On April 1, 2015, Norberto Leo Camarillo, Jr. ("Defendant"), drove a 2000 Ford F-250 pickup truck, VIN: 1FTNW21F5YEA70658, ("vehicle") near Amado, Arizona. A search of the vehicle revealed three undocumented illegals hiding inside the bed of the truck. United States v. Norberto Camarillo, Case No. CR-15-777-TUC-RCC (BGM), Compl. (Doc. 1). On April 22, 2015, Defendant pleaded guilty to a felony Information which charged Conspiracy to Transport Illegal Aliens for Profit. Id., Info. (Doc. 27). As such, Defendant admitted that he knowingly agreed with at least one other person to Transport Illegal Aliens for Profit in violation of Title 8, United States Code, Section 1324. See id., Plea Agreement (Doc. 32).

         On April 30, 2015, Norberto Leo Camarillo, Sr., ("Petitioner") filed a petition with the United States Customs and Border Protection ("CBP") in the administrative forfeiture proceeding stating he was the registered owner of the vehicle his son used to transport illegal aliens and he was unaware his son would be using the vehicle for illegal purposes. Case No. CR-16-717-TUC-RCC (BGM), Govt.'s Memo. Re Ancillary Hr'g (Doc. 31), Pet. for Relief from Forfeiture 4/23/2015 (Exh. "1").

         On May 5, 2015, CBP granted the petition and the vehicle was returned to the Petitioner. See Case No. CR-16-717-TUC-RCC (BGM), Govt.'s Memo. Re Ancillary Hr'g (Doc. 31), Hold Harmless Agreement 5/5/2015 (Exh. "2"). As a condition of CBP's return of the vehicle, Petitioner signed a Hold Harmless Agreement, in which he agreed, inter alia, to the following condition: "You will take all necessary precautions to ensure the property will not be used by you or anyone else in violation of the law and you will not allow Norberto Camarillo Jr. to use or take possession of the property. You will take all reasonable steps to prevent the illegal use of the property." Id.

         On October 29, 2015, Chief Judge Raner C. Collins placed the Defendant on probation for a term of five years and ordered him to pay a special assessment fee of $100. Case No. CR-15-777-TUC-RCC (BGM), Judgment (Doc. 56).

          B. Defendant's Current Alien Smuggling Case

         On March 24, 2016, while on probation, Defendant was again arrested by United States Border Patrol agents for Transportation of Illegal Aliens, in violation of Title 8, United States Code, Section 1324. Case No. CR-15-777-TUC-RCC (BGM), Compl. (Doc. 1). The Defendant was driving the same vehicle used in his first offense. Id. Border Patrol searched the vehicle and five (5) undocumented illegal aliens were found concealed inside the vehicle. Id.

         On April 7, 2016, Defendant pleaded guilty before the Honorable Magistrate Judge Bernardo P. Velasco to an Information which charged Transportation of Illegal Aliens for Profit in the instant case. Case No. CR-15-777-TUC-RCC (BGM), Minute Entry 4/7/2016 (Doc. 20). At the time of the guilty plea, Judge Velasco also signed a Preliminary Order of Forfeiture ordering the defendant to forfeit the vehicle. Case No. CR-15-777-TUC-RCC (BGM), Amended Info. (Doc. 17); Prelim. Order of Forfeiture (Doc. 24).

         On April 18, 2016, Petitioner filed another petition with CBP in the administrative forfeiture proceeding requesting CBP consider his petition as he had no knowledge that the vehicle would be used again by his son to conduct illegal activity. Case No. CR-16-717-TUC-RCC (BGM), Govt.'s Memo. Re Ancillary Hr'g (Doc. 31), Pet. for Relief from Forfeiture (Exh. "4"). On April 25, 2016, the United States Attorney's Office notified the Petitioner, via certified mail, that a Preliminary Order of Forfeiture was entered for the vehicle and detailed the procedure for filing a petition. Case No. CR-16-717-TUC-RCC (BGM), Govt.'s Memo. Re Ancillary Hr'g (Doc. 31), Ltr. USDOJ to Camarillo 4/25/2016 (Exh. "5"). On April 28, 2016, CBP notified the Petitioner that his administrative petition was denied based on the fact that he allowed his son, Defendant, access to the same vehicle involved in the previous criminal act for which the Defendant was arrested on April 1, 2015. Case No. CR-16-717-TUC-RCC (BGM), Govt.'s Memo. Re Ancillary Hr'g (Doc. 31), CBP Ltr. to Camarillo 4/28/2016 (Exh. "6"). CBP also referred to the Hold Harmless Agreement Petitioner signed on May 12, 2015, agreeing he would not allow the Defendant to use or take possession of the vehicle. Id.

         On May 17, 2016, Petitioner filed his petition requesting a hearing for reconsideration and relief from forfeiture of the vehicle that was seized from Defendant on March 24, 2016. Pet. for Hr'g for Recon. and Relief from Forfeiture of 2000 Ford ...


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