IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) CR. NO. 2:06cr169-WHA

)

CECILLO PACHACHE; )

DEMETRIOUS TERRELL PEGUES; )

CLIFF JOHNSON; )

TERRENCE ANTWAN NEWKIRK, )

a.k.a. Rock and Rocky; )

CHARLES DANIEL CRAIG; )

KOWOSKY TYWAN CHRISTIAN; )

CHRISTOPHER IMAN ULMER; )

DEMETRIA MILLS; )

DARRYL LAMONT BROWN; )

DARNELL MONTREZE BROWN; )

RODRIGUEZ CHILDRES; )

ROGER WALTON; )

JAMES EARL HUBBARD; )

JAMES CALVIN TALLEY, )

a.k.a. Noosie; )

WILMONT TIMOTHY BARNETT; and )

WILLIAM EARL ULMER, )

a.k.a. Michael Ulmer. )

GOVERNMENT’S APPLICATION FOR ORDER REGARDING

CRIMINAL FORFEITURE OF THIRTY THOUSAND ONE HUNDRED FORTY

ONE AND 84/100 DOLLARS ($30,141.84) IN UNITED STATES CURRENCY

SEIZED FROM MUTUAL SAVINGS CREDIT UNION ACCOUNT

IN GOVERNMENT CUSTODY

18 U.S.C. § 983(a)(3)(B)(ii)(II)

The United States of America, through its counsel, hereby

moves for an order allowing the Government to maintain custody of

property already in the Government’s possession pending the

resolution of a criminal forfeiture matter. In support of its

motion, the Government says the following:

On April 14, 2006, agents of the Drug Enforcement

Administration (hereinafter, “DEA”) seized Thirty Thousand One

Hundred Forty One and 84/100 Dollars ($30,141.84) in United States

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Currency (hereinafter, “the seized asset”) from a Mutual Savings

Credit Union account maintained by James Calvin Talley for the

purpose of initiating civil forfeiture proceedings. In accordance

with Title 18, United States Code, Section 983(a)(1), the DEA sent

notice to the defendant of its intent to forfeit the seized asset

in a non-judicial forfeiture proceeding, and caused that notice to

be published in a newspaper of general circulation.

On August 22, 2006, defendant James Calvin Talley filed a

claim contesting the administrative forfeiture pursuant to Title

18, United States Code, Section 983(a)(2). Consequently, pursuant

to Title 18, United States Code, Section 983(a)(3), the United

States was required to (1) return the property to defendant, (2)

commence a civil judicial forfeiture action, or (3) commence a

criminal forfeiture action by including the seized asset in a

criminal indictment.

On March 29, 2007, the Government elected the third option

when it filed its Bill of Particulars concerning the seized asset.

The indictment obtained June 11, 2006 is now unsealed and pending

in this Court.

Title 18, United States Code, Section 983(a)(3)(B)(ii)(II)

provides that when the Government elects the third option, it must

“take the steps necessary to preserve its right to maintain custody

of the property as provided in the applicable criminal forfeiture

statute.” The applicable forfeiture statute in this case is Title

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21, United States Code, Section 853. That statute prescribes

several methods for preserving property for the purpose of criminal

forfeiture.

Section 853(f) authorizes the issuance of a criminal seizure

warrant. However, in cases like this one, where the property in

question is already in Government custody, it is not appropriate

for a court to issue a seizure warrant directing the Government to

seize property from itself. See In re 2000 White Mercedes ML320,

220 F.Supp.2d 1322 (M.D.Fla. 2001)(if property is already in

Government custody, no Section 853(f) seizure warrant can be

issued, as an order under Section 853(e) would be sufficient to

preserve the property), affirming 174 F.Supp. 2d 1268 (M.D.Fla.

2001).

Second, Section 853(e) authorizes the court to issue a

restraining order or an injunction to preserve the property for

forfeiture. Again, as courts have pointed out, it is unnecessary

to issue an order enjoining the Government from disposing of

property that the Government has taken into its custody for the

purpose of forfeiture, and that the Government has represented it

will preserve for that purpose through the conclusion of the

pending criminal case. Id., 174 F.Supp.2d 1268 (M.D.Fla. 2001).

Finally, as Section 853(e)(1) also authorizes a court to “take

any other action to preserve the availability of property” subject

to forfeiture. One court has suggested that this provision is the

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one that should be involved when the Government seeks to comply

with Section 983(a)(3)(B)(ii)(II). In re 2000 White Mercedes ML320,

220 F.Supp.2d 1322, n.5 (M.D.Fla. 2001) (noting that Section

853(e)(1) was not limited to injunctions and restraining orders,

and suggesting that “there might be some order short of an

injunction or restraining order that will assure the availability

of the property subject to forfeiture” when it is already in

Government custody).

In this case, the seized asset is already in Government

custody and the Government must preserve the asset for the purpose

of forfeiture through the conclusion of the pending criminal case.

Hence, neither a seizure warrant under Section 853(f) nor a

restraining order or injunction under Section 853(e) is required to

preserve the property for forfeiture. See White Mercedes, 174

F.Supp.2nd 1268 (M.D.Fla. 2001)(the law should not be interpreted

to require the courts to do useless and unnecessary things).

Rather, all that is required to comply with Section

983(a)(3)(B)(ii)(II) is an Order from this Court stating that the

United States and its agencies, including DEA and/or the United

States Marshals Service, may continue to maintain custody of the

seized asset until the criminal case and the related forfeiture

matter regarding this property are concluded.

WHEREFORE, pursuant to Section 853(e)(1), the United States

respectfully moves this Court to issue an order directing that the

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United States may maintain custody of the seized asset through the

conclusion of the pending criminal case and the related forfeiture

matter, and stating that such order satisfied the requirements of

Title 18, United States Code, Section 983(a)(3)(B)(ii)(II).

A proposed Order is attached.

Respectfully submitted this 29 day of March, 2007. th

FOR THE UNITED STATES ATTORNEY

 LEURA G. CANARY

 /s/John T. Harmon 

John T. Harmon

Assistant United States Attorney

Office of the United States Attorney

Middle District of Alabama

One Court Square, Suite 201 (36104)

Post Office Box 197

Montgomery, Alabama 36101-0197

Telephone:(334) 223-7280

Facsimile:(334) 223-7560

E-mail: John.Harmon@usdoj.gov

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CERTIFICATE OF SERVICE

I hereby certify that on March 29, 2007, I electronically

filed the foregoing with the Clerk of the Court using the CM/ECF

system which will send notification of such filing to all counsel

of record.

 /s/John T. Harmon 

John T. Harmon

Assistant United States Attorney

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