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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

2002 CADILLAC ESCALADE, VIN:

1GYEK63N52R122808, 

CALIFORNIA LICENSE 4UHN183,

Defendant.

____________________________/

VICTORIA VELAZQUEZ, 

Claimant. 

____________________________/

No. 2:05-cv-0418-MCE-KJM

Related Cases: 

No. 2:04-cr-0388-MCE

No. 2:05-cv-0371-MCE-GGH

No. 2:05-cv-0372-MCE-PAN 

FINAL PRETRIAL ORDER

TRIAL DATE: August 23, 2006

TIME: 9:00 a.m. 

After reviewing the parties' Final Pretrial Statement, the

Court makes the following orders: 

I. JURISDICTION/VENUE

Jurisdiction is predicated upon 28 U.S.C. §§ 1345, 1355,

and 21 U.S.C. § 881. Jurisdiction and venue are not contested. 

///

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II. JURY

Claimant timely demanded a jury trial pursuant to Rule

38(b) of the Federal Rules of Civil Procedure. 

III. UNDISPUTED FACTUAL ISSUES

The remaining claim(s) for trial is/are:

1. Michael Ayala was convicted in 1996 of possession of a

controlled substance in violation of Section 11377(A) of

California's Health and Safety Code.

2. According to law enforcement officials, on and before

August 24, 2004, Ayala was under investigation state and federal

law enforcement agencies in connection with drug trafficking.

3. According to law enforcement officials, on August 24,

2004, Michael Ayala shipped 677.6 grams of methamphetamine via

Federal Express to a customer in Minnesota.

4. According to law enforcement officials, on August 28

and August 30, 2004, law enforcement officers, acting under the

authority of a court order, intercepted telephone conversations

between Michael Ayala and others in which Ayala negotiated with

potential buyers to sell them methamphetamine.

5. According to law enforcement officials, on September

7, 2004, surveillance officers observed Michael Ayala drive the

defendant vehicle from his home in Yuba City, California, to The

UPS Store in Yuba City. When Ayala arrived at The UPS Store,

another person got out of the defendant vehicle; carried a box

into the store; and made arrangements to ship the box to Hawaii.

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6. According to law enforcement officials, they seized

the box which contained 166.5 grams of methamphetamine.

7. According to law enforcement officials, on September

9, 2004, an individual working with law enforcement (hereafter

"confidential source") ordered 1⁄2 pound of methamphetamine from

Pablo Velazquez. Velazquez is claimant's adult son.

8. According to law enforcement officials, surveillance

officers observed Velazquez and Ayala drive the defendant

vehicle to a restaurant in Yuba City. The confidential source

called Velazquez while he was at the restaurant and Velazquez

informed the confidential source that the methamphetamine would

be "ready soon." After lunch Velazquez drove Ayala in the

defendant vehicle to Ayala's residence and they then went their

separate ways. They met again later at Velazquez' home. A

third party arrived by car at Velazquez' home; handed Ayala an

object through the car window, and drove off. The confidential

source arrived at Velazquez' home a few minutes later and

purchased 1⁄2 pound of methamphetamine from Velazquez.

9. As a result of the events described in paragraphs

III(A)(2-8), a criminal prosecution is now pending in this court

in U.S. v. Ayala, et al. Pablo Velazquez has entered a "not

guilty" plea in that case. 

10. Velazquez was convicted in 1997 of possessing

marijuana for sale in violation of Section 11359 of the

California Health and Safety Code. 

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11. Claimant knew of her son's 1997 drug conviction before

the incidents that gave rise to this forfeiture action occurred.

All issues of fact remaining in dispute are subject to

proof at the time of trial.

IV. MOTIONS IN LIMINE

In limine motions shall be filed by August 2, 2006. 

Opposition must be filed by August 9, 2006 and any reply must be

filed by August 16, 2006. In limine motions will be heard by

the Court on August 22, 2006 at 2:00 p.m. 

V. TRIAL BRIEFS

The parties are free to brief any additional points of law 

necessary for resolution at trial. Counsel are directed to 

Local Rule 16-285 regarding the content of trial briefs. Trial 

briefs shall be filed by August 16, 2006. 

VI. WITNESSES

 Plaintiff anticipates calling the witnesses listed on

Attachment "A".

Claimant anticipates calling the witnesses listed on

Attachment "B".

Each party may call a witness designated by the other.

A. No other witnesses will be permitted to testify

unless:

(1) The party offering the witness demonstrates that

the witness is for the purpose of rebutting evidence which could

not be reasonably anticipated at the Pretrial Conference, or

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(2) The witness was discovered after the Pretrial

Conference and the proffering party makes the showing required

in "B" below.

B. Upon the post-pretrial discovery of witnesses, the

attorney shall promptly inform the Court and opposing parties of

the existence of the unlisted witnesses so that the Court may

consider at trial whether the witnesses shall be permitted to

testify. The evidence will not be permitted unless:

(1) The witnesses could not reasonably have been

discovered prior to pretrial;

(2) The Court and opposing counsel were promptly

notified upon discovery of the witnesses;

(3) If time permitted, counsel proffered the

witnesses for deposition;

(4) If time did not permit, a reasonable summary of

the witnesses' testimony was provided opposing counsel.

C. The parties shall provide an original and three (3) 

copies of their proposed witness list.

VII. EXHIBITS - SCHEDULES AND SUMMARIES

At present, Plaintiff contemplates by way of exhibits those

listed on Attachment "C".

At present, Claimant contemplates by way of exhibits those

listed on Attachment "D". 

Plaintiff's exhibits shall be listed numerically. 

Claimant's exhibits shall be listed alphabetically. 

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The parties shall use the standard exhibit stickers provided by

the Court: pink for Plaintiff and blue for Claimant. All multi

page exhibits shall be stapled or otherwise fastened together and

each page within the exhibit shall be numbered. The list of

exhibits shall not include excerpts of depositions which may be

used to impeach witnesses.

Each party may use an exhibit designated by the other. In

the event that Plaintiff and Claimant offer the same exhibit

during trial, that exhibit shall be referred to by the

designation the exhibit is first identified. The Court cautions

the parties to pay attention to this detail so that all

concerned, including the jury, will not be confused by one

exhibit being identified with both a number and a letter.

A. No other exhibits will be permitted to be introduced

unless:

(1) The party proffering the exhibit demonstrates that

the exhibit is for the purpose of rebutting evidence which could

not be reasonably anticipated at the Pretrial Scheduling

Conference, or

(2) The exhibit was discovered after the Pretrial

Scheduling Conference and the proffering party makes the showing

required in paragraph "B", below.

B. Upon the post-pretrial discovery of exhibits, the

attorneys shall promptly inform the Court and opposing counsel of

the existence of such exhibits so that the Court may consider at

trial their admissibility. 

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The exhibits will not be received unless the proffering party

demonstrates:

(1) The exhibits could not reasonably have been

discovered prior to pretrial;

(2) The Court and counsel were promptly informed of

their existence;

(3) Counsel forwarded a copy of the exhibit(s) (if

physically possible) to opposing counsel. If the exhibit(s) may

not be copied, the proffering counsel must show that he has made

the exhibit(s) reasonably available for inspection by opposing

counsel.

C. As to each exhibit, each party is ordered to exchange a

copy identical to the Court's copy, or other reproduction of the

exhibit(s) in a three-ring binder(s) by August 9, 2006. The

attorney or representative for each party is directed to present

the original exhibit(s) and two (2) copies for the Court. The

exhibits should be delivered to the clerk's office on the fourth

floor of this courthouse, to the attention of Amanda

Souvannarath, Deputy Courtroom Clerk, no later than 3:00 p.m.,

August 16, 2006, or at such earlier time as may be ordered by the

Court. 

D. The Court shall be presented with a copy of the

exhibit(s) in a 3-ring binder(s) with a side tab identifying each

exhibit by number or letter. Each binder shall be no larger than

three inches in width and have an identification label on the

front and side panel. 

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If this requirement is not practicable, please contact the

courtroom deputy not later than August 14, 2006 to make other

arrangements.

E. The parties shall also provide a 3-ring binder(s), 

identical to the Court's copy, for use on the witness stand.

F. The parties shall provide an original and three (3) 

copies of an exhibit list (corresponding to the marked exhibits).

VIII. DISCOVERY DOCUMENTS

A. Filing Depositions. It is the duty of counsel to 

ensure that any deposition which is to be used at trial has been

filed with the Clerk of the Court. Counsel are cautioned that a

failure to discharge this duty may result in the Court precluding

use of the deposition or imposition of such other sanctions as

the Court deems appropriate.

B. Use of Depositions. The parties are ordered to file

with the Court and exchange between themselves by August 16, 2006

a statement designating portions of depositions intended to be

offered or read into evidence (except for portions to be used

only for impeachment or rebuttal).

C. Interrogatories. The parties are ordered to file with

the Court and exchange between themselves by August 16, 2006 the

portions of Answers to Interrogatories which the respective

parties intend to offer or read into evidence at the trial

(except portions to be used only for impeachment or rebuttal).

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IX. FURTHER DISCOVERY OR MOTIONS

Pursuant to the Court's Pretrial Scheduling Order, all

discovery and law and motion was to have been conducted so as to

be completed as of the date of the Final Pretrial Conference. 

That Order is confirmed. The parties are free to engage in

informal agreements regarding discovery and law and motion

matters. However, any such agreements will not be enforceable in

this Court.

X. AGREED STATEMENTS - JOINT STATEMENT OF CASE

The parties shall submit a short, jointly-prepared statement

concerning the nature of this case that can be read to the jury at

the commencement of trial (NO EXCEPTIONS). The joint statement of

the case shall include in plain concise language the claims of 

Plaintiff and claims of other parties, if any, and the 

corresponding defense to the claims. The purpose of the joint 

statement of the case is to inform the jury at the outset, what the

case is about. The statement shall be provided to the Court by 

August 16, 2006 before the commencement of trial.

XI. PROPOSED JURY INSTRUCTIONS, VOIR DIRE, VERDICT FORM

A. Jury Instructions

Counsel are directed to meet and confer and to attempt to 

agree upon a joint set of jury instructions. Counsel shall use the

Ninth Circuit Model Jury Instructions and any revisions. Alternate

instruction or authority may only be used if a Ninth Circuit Model

Jury Instruction is unavailable. 

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The joint set of instructions shall be lodged with the court clerk

by August 16, 2006 and shall be identified as the "Jury 

Instructions Without Objection." 

As to instructions on which there is dispute, the parties 

shall adhere to the following procedure:

1. The party offering contested instruction (s) shall

submit the instruction(s) and a brief memorandum in support of the

contested instruction(s).

2. The party shall number the contested instruction 

in a manner that shows where each contested instruction should be

placed in the tendered joint instructions.

3. The contested instruction(s) and memorandum shall 

be filed with the joint set of instructions.

4. The party opposed to the contested instruction(s) 

shall submit a brief memorandum succinctly stating the legal basis

of the objection(s) by August 23, 2006. 

All instructions shall be, to the extent possible, concise, 

understandable, and free from argument. See Local Rule 51-163(c).

Parties shall also note that any modifications of instructions from

statutory authority, case law or from any form of pattern 

instructions must specifically state the modification by 

underlining additions and bracketing deletions, except in the 

"clean version" for use by the jury.

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B. Verdict Form

The parties shall lodge a joint verdict form(s) concurrently

with proposed jury instructions by August 16, 2006. If necessary,

a special verdict or interrogatories shall be included for all 

factual disputes submitted to the jury that must be resolved before

questions of law can be decided, and for any other issue on which

specific responses are desired. See Local Rule 51-163(e). Where

disagreement exists, the parties shall explain the disagreement and

submit points and authorities supporting their respective positions

by August 23, 2006. 

C. Voir Dire

The Court reserves the right to conduct all examination of 

prospective jurors. Notwithstanding this reservation, the Court 

will permit each side up to fifteen minutes to conduct voir dire 

"for cause", if desired. The parties are directed to meet and 

confer and attempt to agree upon a joint set of proposed voir dire

questions. These questions shall include any voir dire questions

supplied by the Court that the parties believe are necessary. The

joint set of voir dire questions shall be lodged with the Court by

August 16, 2006. Parties may also submit proposed voir dire 

questions which are disputed. Disputed voir dire questions shall

also be lodged with the Court by August 16, 2006.

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D. Submission of Documents to the Court

At the time of lodging their respective proposed jury 

instructions, verdict form(s), and voir dire questions, counsel 

shall also electronically mail to the Court in digital format and

compatible with Microsoft Word or WordPerfect, the proposed jury 

instructions ("clean version"), verdict form(s), and voir dire 

questions. These documents should be sent to 

mceorders@caed.uscourts.gov.

E. Failure to Participate

The failure of one or more of the parties to participate in 

the preparation of joint jury instructions, proposed verdict 

form(s), or voir dire questions does not excuse the other party or

parties from their obligation to timely file these documents with

the Court in accordance with this order. In the event of such 

failure, the party or parties timely submitting these documents 

shall include a declaration setting forth the reason for the lack

of participation.

XII. AUDIO/VISUAL EQUIPMENT

The parties are required to make a joint request, in writing

to the Courtroom Deputy, Amanda Souvannarath, by August 2, 2006 if

they wish to reserve and arrange for orientation with all parties

on the Court's mobile audio/visual equipment for presentation of 

evidence. There will be one date and time for such orientation.

Because each courtroom is not individually equipped with the mobile

audio/visual equipment, the equipment may already be reserved for

another courtroom. 

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In such, case, the parties will need to consult with Ms. 

Souvannarath if they wish to furnish their own equipment and 

operator with the permanent equipment in the courtroom. 

XIII. DAUBERT/KUMHO PROCEDURE

Any motions based on Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993) and/or Kumo Tire Co. v. Carmichael, 119

S. Ct. 1167 (1999) must be filed by August 2, 2006. Oppositions 

must be filed by August 9, 2006 and any reply must be filed by 

August 16, 2006. The motions will be heard by the Court on August

22, 2006 at 2:00 p.m. 

XIV. DATE AND LENGTH OF TRIAL

A trial is scheduled for August 23, 2006. The estimated 

length of trial is three (3) days. The trial will consist of seven

(7) jurors. Counsel are to call Amanda Souvannarath, Courtroom 

Deputy, at (916) 930-4207, by August 2, 2006 to ascertain the 

status of the trial date.

XV. OBJECTIONS TO PRETRIAL ORDER

Each party is granted five (5) court days from the date of 

this Final Pretrial Order to object to any part of the Order or to

request augmentation to it. A Final Pretrial Order will be 

modified only upon a showing of manifest injustice. 

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If no objection or modifications are made, this Order will become

final without further order of the Court and shall control the

subsequent course of the action, pursuant to Rule 16(e) of the

Federal Rules of Civil Procedure. 

IT IS SO ORDERED.

DATED: June 20, 2006

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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