UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 06-cr-071-JD

Elaine A. Brown and

Edward Lewis Brown

SEALED ORDER

A grand jury has returned an indictment alleging that Elaine

A. Brown and Edward Lewis Brown conspired to defraud the United

States and conspired to structure financial transactions, in

violation of 18 U.S.C. § 371, and structured financial

transactions in violation of 31 U.S.C. § 5324(a)(3). The

indictment further alleges that Elaine Brown committed tax

evasion in violation of 26 U.S.C. § 7201 and willfully failed to

collect employment taxes in violation of 26 U.S.C. § 7202. The

grand jury also returned a notice of forfeiture based on a

finding of probable cause that two parcels of real property were

involved in or traceable to the structuring offenses charged in

Counts 15 through 17 of the indictment.

The government has filed a verified ex parte application for

a post-indictment pretrial restraining order (document no. 9),

pursuant to 21 U.S.C. § 853(e)(1)(A), to preserve the

availability of the two parcels of real property which are the

subject of the notice of forfeiture provision in the indictment. 

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The government asks the court to order the defendants, any

persons in active concert or participation with them, and any

person or entity with any interest in or control over the two

parcels of real estate to maintain and preserve the properties,

not to sell or encumber the properties, and to notify the United

States Attorney’s Office if either of the parcels were to be

vacant for more than two weeks. In addition, the government asks

the court to authorize the Secretary of the Treasury or his

designees, along with federal, state, or local law enforcement,

to enter the properties as necessary in the Secretary’s

discretion, “to use any and all force necessary to enter and/or

remain” on the properties, to take whatever steps are considered

necessary if either of the properties is vacant, and to take

custody of the properties if they appear to be abandoned.

An ex parte post-indictment restraining order under 21

U.S.C. § 853(e)(1)(A) may be issued “to preserve the availability

of property” that is subject to forfeiture, based on the probable

cause found by the grand jury in returning the indictment. See

United States v. Jamieson, 427 F.3d 394, 405 (6th Cir. 2006)

(recognizing circuit split and discussing United States v.

Monsanto, 491 U.S. 600, 615 (1989)); United States v. Jones, 160

F.3d 641, 644 (10th Cir. 1998); United States v. Real Property in

Waterboro, 64 F.3d 752, 756 (1st Cir. 1995). After a careful

review of the indictment and the government’s filings in support

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of the application for a restraining order, the court finds that

the indictment provides probable cause to issue a restraining

order to require the defendants and their agents to maintain and

preserve the properties pending resolution of the forfeiture, as

is more specifically provided in the separately issued

restraining order. The indictment does not provide probable

cause to extend the restraining order to include the government’s

requests for authorization of an entry or entries onto the

properties to inspect or appraise them, to use force in executing

the requested entries, to take whatever steps that may be

considered necessary if either of the properties were vacant, or

to take custody of the properties if they appear to be abandoned. 

See, e.g., United States v. Ladson, 774 F.2d 436, 439-40 (11th

Cir. 1985); United States v. Real Prop. Located at Scottsdale,

AZ, 379 F. Supp. 2d 1058, 1061-65 (D. Ariz. 2005). Therefore,

the government’s ex parte request for a restraining order to

require the defendants and their agents to preserve and maintain

the properties is granted to the extent herein provided; the

government’s requests for authorization for any of the other

purposes noted in this order are denied.

A restraining order to preserve and maintain the subject

properties will be issued separately. 

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Conclusion

For the foregoing reasons, the government’s ex parte

application for a post-indictment restraining order (document no.

9) is granted in part and denied in part. The restraining order

is issued separately.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

May 8, 2006

cc: William E. Morse, Esquire

Jean B. Weld, Esquire

U.S. Marshal

U.S. Probation

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