1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-1-

JOSEPH P. RUSSONIELLO (CSBN 44332)

United States Attorney

BRIAN J. STRETCH (CSBN 163973)

Chief, Criminal Division

SUSAN B. GRAY (CSBN 100374)

Assistant United States Attorney

450 Golden Gate Ave., Box 36055

San Francisco, CA 94102

Telephone: (415) 436-7324 

Facsimile: (415) 436-7234

Email: susan.b.gray@usdoj.gov

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

UNITED STATES OF AMERICA 

Plaintiff,

 v.

 1. REAL PROPERTY AND

IMPROVEMENTS LOCATED AT 15000

BRICELAND THORN ROAD,

WHITETHORN, CALIFORNIA, et.al.,

Defendants. 

 

 

Fowler Family Trust, Syd and Barbara

Green, Robert Butler, and Donovan and

Lynn Henry,

Claimants. 

____________________________________

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

No. C 08-3080 JSW

JOINT CASE MANAGEMENT

STATEMENT AND REQUEST TO

CONTINUE CASE MANAGEMENT

CONFERENCE 

and 

[PROPOSED] ORDER

CMC Date: February 19, 2010

Time: 1:30 p.m.

Courtroom: 11, 19 Floor th

Plaintiff, United States of America and claimants, Fowler Family Trust, Syd and Barbara

Green, Robert Butler, and Donavan and Lynn Henry, by and through their respective attorneys,

respectfully submit this Joint Case Management Statement and request to continue the Case

Management Conference. 

1. Jurisdiction and Service

This Court has jurisdiction pursuant to Title 28, United States Code, Sections 1345 and 1355 and

Case 3:08-cv-03080-JSW Document 50 Filed 02/10/10 Page 1 of 6 Case3:08-cv-03080-JSW Document49 Filed02/09/10 Page1 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The following individuals were also served and appeared: Alishia Stone, represented by 1

Ismail J. Ramsey, Wendy Anne Fetzer and Gary Button, represented by Stephen Johnson, 

Mendocino Clearwater Corporation and John and Judith Brown, represented by Barry Meyer. 

With the dismissal of the complaint against 3602 Thomas Road, these claimants are no longer a

party to this action. 

-2-

Title 21, United States Code, Section 881(a)(7). There are no counterclaims. Plaintiff contends that

it has served notice of this action on all persons who may have a legal interest in the properties

remaining in this case, including the following: Syd and Barbara Green, Robert Butler, Donovan and

Lynn Henry, D.G and Sydell Fowler, and the Fowler Family Trust.1

 The following individuals or entities have filed claims: the Fowler Family Trust and Syd and

Barbara Green, represented by Eugene Denson, Robert Butler, represented by Mark Eibert, and

Donovan and Lynn Henry, represented by David Michael and James Bustamonte. 

2. Facts

This is an in rem forfeiture actions brought by the United States under Title 28, United States

Code, Sections 1345 and 1355(a), and Title 21, United States Code, Section 881(a)(7). The United

States alleges that defendant real properties represent property which facilitated a violation of Title

21, United States Code, Section 841(a)(1)-marijuana cultivation, and are thus subject to forfeiture

to the United States pursuant to Title 21, United States Code, Section 881(a)(7).

Parties: Plaintiff is the United States of America. Defendants are real properties located in

Humboldt County.

Claimants are owners or lien holders of the defendant properties.

Transaction or event: The complaint alleges that on June 24, 2008, federal law enforcement

agents, acting pursuant to federal warrants, executed searches at the defendant properties and, during

the course of their search of the defendant properties agents found extensive evidence of marijuana

cultivation operations. Specifically, the government alleges that the agents found the following:

Briceland/Donavan Henry Property: 8 pounds of processed marijuana located in the master

bedroom, 72 marijuana plants in the attic, and 172 plants in greenhouses on the property;

Par Avenue/Fowler Family Trust Property: 15 pounds of processed marijuana in three garbage

bags in a bedroom, 148 marijuana plants, four indoor grow lights and bags of fertilizer in a second

Case 3:08-cv-03080-JSW Document 50 Filed 02/10/10 Page 2 of 6 Case3:08-cv-03080-JSW Document49 Filed02/09/10 Page2 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-3-

bedroom, and an additional indoor grow room in the attic with 144 marijuana plants, four indoor

grow lights and water supplied from the house shower;

Eel River/Robert Butler Property: 400 marijuana plants in a green house on the property. The

twelve motorized grow lights hanging over the plants drew electricity from the house on the

property.

3. Principal Factual and Legal Issues

The principal factual and legal issues in dispute are: 1) whether plaintiff can establish by a

preponderance of the evidence that the defendant properties were used to facilitate marijuana

cultivation and are thus forfeitable under Title 21, United States Code, Section 881(a)(7), and 2)

whether claimants can establish by a preponderance of the evidence that they are innocent owners

of the defendant properties, or 3) the other affirmative defenses alleged in some of the Answers. 

4. Anticipated Motions

 All parties may move for summary judgment at the close of discovery. Some of the claimants

may allege that the forfeiture of their whole interest in the property will constitute an excessive fine

under the Eighth Amendment. Some claimants may also seek to challenge the search warrant and

subsequent search and seizure on Fourth Amendment grounds. 

5. Relief/Damages 

Plaintiff seeks a judgment of forfeiture of the defendant properties. This is not a damages case.

Claimants Syd and Barbara Green, seek an order from this Court declaring that their interest in

one the parcels named in this action, which is secured by a note and deed of trust, is not subject to

forfeiture and that their interest in the property is that of an innocent owner. 

6. Settlement

At this juncture, matters are far too undeveloped to ascertain the possibility of settlement.

However, see, Section 12, infra.

7. Discovery

This is an in rem forfeiture case and is exempt from initial disclosures pursuant to Federal Rule

of Civil Procedure 26 (a)(1)(B)(ii). The parties suggest another case management conference would

be appropriate in four months for the reasons set forth in Section 11 and 12, infra. 

Case 3:08-cv-03080-JSW Document 50 Filed 02/10/10 Page 3 of 6 Case3:08-cv-03080-JSW Document49 Filed02/09/10 Page3 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 The Fowler residence, one of the defendant properties in this case, is owned by the 2

Fowler Family Trust, which is the actual claimant in the civil forfeiture action. Sydell Fowler is

one of the trustees.

-4-

8. Alternative Means of Disposition

 Plaintiff does not request reference to arbitration.

9. Pretrial/Trial Issues

 The parties have not yet discussed any trial issues.

10. Class Action

 This is not a class action.

11. Related Case

The government alleges the following regarding the issue of related cases:

In 2004, Robert Juan formed the Lost Paradise Land Corporation and designated himself as

CEO. On March 30, 2004, Lost Paradise Land Corporation bought 945 acres of land in Humboldt

and Mendocino Counties from Diane and Eddie Mendes. According to the plan Juan set up, each

member of the Lost Paradise Land Corporation owned “shares” of the Land Corporation, including

Donavan Henry, one of the claimants in the case before this court. 

In 2005 the Colburn Creek Land Corporation was formed, with Robert Juan’s involvement.

Each member of the Colburn Creek Land Corporation owned “shares” of the Land Corporation,

including Robert Butler, and Jonathan and Sydell Fowler , claimants in the case before this court.

2

In 2005 Robert Juan also purchased approximately 960 acres of land in Mendocino County from

Barnum Timber Company. However, Robert Juan never transferred title of the 960 acres purchased

from Barnum Timber to Colburn Creek Land Corporation.

On June 24 and 25, 2008, law enforcement officers executed 30 search warrants at the homes

of the shareholders of Colburn Creek Land Corporation, Lost Paradise Land Corporation and on the

rural property described above, and recovered from various locations marijuana with an estimated

value of between 25 and 60 million dollars, weapons and cash. 

On June 25, 2008, the United States filed a civil forfeiture complaint against the rural

properties described above. C 08-3093 WHA. Also, on June 25, 2008, the United States filed a civil

forfeiture complaint against four residential properties owned by shareholders of the Colburn Creek

Case 3:08-cv-03080-JSW Document 50 Filed 02/10/10 Page 4 of 6 Case3:08-cv-03080-JSW Document49 Filed02/09/10 Page4 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-5-

Land Corporation and the Lost Paradise Land Corporation. C 08-3080 JSW. Shortly thereafter, the

United States filed an Administrative Motion to Relate the two cases. The motion was denied by

this Court on September 23, 2008. Since that time Judge Alsup has stayed the case before him,

pending the criminal investigation. The next case management conference before Judge Alsup is

set for February 25, 2010. The parties to that action continue to request a stay, given the pending

criminal indictments against two of the claimants, Paul Sayers and Graeson Prescott.

On November 24, 2009, the grand jury returned numerous indictments against several

shareholders of the Lost Paradise Land Corporation and other associates of Robert Juan. Donavan

Henry, the claimant to Briceland Thorn Road, was among those indicted. Each of the criminal

indictments involve similar violations of law, and they all arose out of the same investigation and

involve the same underlying affidavit in support of the search warrants executed on June 24 and 25,

2008, and described above. On January 22, 2010, the United States filed a Notice of Related Case

notifying this Court of the related nature of the civil forfeiture and pending criminal cases. On

February 4, 2010, this Court notified the Assistant United States Attorney handling the criminal

cases that the cases would not be related.

12. Other Matters

 Given the recent indictment, the United States and claimant Butler have discussed requesting

a stay of the civil forfeiture proceedings. However, rather than make such a formal motion, the

parties suggest that the court continue the case management conference for an additional 120 days.

As noted in prior case management statements, the parties have engaged in settlement discussions

and have had the properties reappraised to aid those discussions. Those discussions continue. The

parties suggest that the current case management conference should be continued for approximately

120 days to allow for settlement discussions to continue and/or stay motions to be filed. In the

alternative, if the Court is not inclined to continue the case management conference, several of the

parties intend to move for a stay so that they will not be forced to choose between complying with

discovery in this case and with exercising their privilege against self-incrimination in a criminal

investigation.

Finally, the Assistant United States Attorney assigned this case will be out of the state the week

Case 3:08-cv-03080-JSW Document 50 Filed 02/10/10 Page 5 of 6 Case3:08-cv-03080-JSW Document49 Filed02/09/10 Page5 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-6-

of February 15-19 and respectfully requests that if the court does not decide to continue the currently

scheduled case management conference for 120 days, that it be continued for several weeks. The

parties have conferred regarding their respective schedules and suggest April 2, 2010, as an

alternative date. Mr. Denson is unavailable on any prior dates. 

DATED: February 9, 2010

_________/s/_______________________

SUSAN B. GRAY

Assistant United States Attorney

DATED: February 9, 2010 

________/s/____________________________

EUGENE DENSON

Attorney for Claimants Fowler Family Trust, 

 and Syd and Barbara Green

DATED: February 9, 2010 ________/s/_____________________

DAVID MICHAEL

JAMES BUSTAMONTE

Attorney for Claimants Donavan and Lynn Henry

DATED: February 9, 2010 ________/s/____________________

MARK EIBERT

Attorney for Claimant Robert Butler

[PROPOSED] ORDER

GOOD CAUSE APPEARING THE CASE MANAGEMENT CONFERENCE

SCHEDULED FOR FEBRUARY 19, 2010, IS CONTINUED TO _________, 2010, at ________.

IT IS SO ORDERED.

__________________________

JEFFREY S. WHITE

United States District Judge

Case3:08-cv-03080-JSW Document49 Filed02/09/10 Page6 of 6

August 13 1:30 p.m. Dated: February 10, 2010

Case 3:08-cv-03080-JSW Document 50 Filed 02/10/10 Page 6 of 6