IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-CV-02106-PAB-CBS

UNITED STATES OF AMERICA,

Plaintiff,

v.

DEFENDANT NO 1: ONE PARCEL PROPERTY LOCATED AT

927 COLE STREET, GOLDEN, COLORADO, WITH ALL

APPURTENANCES, IMPROVEMENTS AND ATTACHMENTS

THEREON;

DEFENDANT NO 2: ONE 2008 TOYOTA HIGHLANDER,

VIN # JTEES42A182076495;

Defendants.

MOTION FOR ORDER FOR SEIZURE AND INTERLOCUTORY SALE

OF REAL PROPERTY - EXIGENT CIRCUMSTANCES

The United States of America, by and through Attorney General of the United States Eric

Holder, Barry R. Grissom, United States Attorney for the District of Kansas, through Special

Attorneys, Richard L. Hathaway and Christine E. Kenney, respectfully requests this Court to find

exigent circumstances and to enter an order pursuant to 18 U.S.C. § 985 (d)(1)(B)(ii) and the

Supreme Court’s decision in United States v. James Daniel Good Real Property, 510 U.S. 43,

114 S.Ct. 492 (1993), authorizing the seizure of Defendant No. 1, One Parcel Property Located

At 927 Cole Street, Golden, Colorado, with all personal property located within, and all

appurtenances, improvements, attachments and accessories attached thereto, and more fully

described in the United States Verified Complaint for Forfeiture In Rem. (Doc. 1.) The United

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States further requests this Court to order the interlocutory sale of Defendant No. 1. As grounds

therefor, the United States states that:

1. This is a civil forfeiture case, seeking forfeiture under 18 U.S.C. § 981 of

Defendant No. 1 as involved in and as proceeds of numerous violations of federal Mail Fraud,

Wire Fraud, Interstate Transportation of Stolen Property, and Money Laundering statutes. 

2. 18 U.S.C. § 985 (d)(1)(B)(ii) and (d)(2) allow the Court to enter an order to seize

real property without prior notice and an opportunity for the property owner to be heard if there

are exigent circumstances such that less restrictive measures, such as a lis pendens, restraining

order, or bond would not protect the United States' interests in preventing the destruction of the

property.

3. Similarly, in Good, supra, the Court held that in exigent circumstances, the Due

Process Clause of the Fifth Amendment allows the United States in a civil forfeiture case such as

this to arrest and seize real property without first affording the owner notice and an opportunity

to be heard. To demonstrate such exigent circumstances, the United States must show that less

restrictive measures are insufficient to prevent the sale, destruction, or continued unlawful use of

the real property. Good, supra 510 U.S. at 62. See also:, United States v. All Right, Title, and

Interest in Real Property . . . . . The Kenmore Hotel, 888 F. Supp. 580 (S.D.N.Y. 1995) (judge

entered ex parte order seizing real property finding exigent circumstances where drug activity

was rampant.)

4. Such exigent circumstances exist in this case as set forth below. 

a. On or about November 20, 2010, the titled owner of Defendant No. 1,

Marie Dalton, left the United States for South Africa subsequent to being served with documents

in a civil proceeding that involved the purchase of Defendant No. 1 with proceeds from a

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fraudulent investment scheme. Prior to leaving the country, Dalton left $3000 in cash with her

daughter to pay the utilities on Defendant No. 1. The daughter moved out of Defendant No. 1 in

April 2011, and terminated all utility services, except the water which was to be terminated on

September 9, 2011. 

b. On September 30, 2011, Dalton was expelled from South Africa. Upon

arrival in Atlanta, Georgia, Dalton and her husband, Richard Dalton, were arrested in case no.

11-00430-CMA. Both have been in pre-trial detention since. As a result, Defendant No. 1 1

remains unoccupied.

c. On December 21, 2011, Ted Lair, a Special Agent for the United States

Treasury Department, Internal Revenue Service, Criminal Investigation, Denver Field Office,

drove by Defendant No. 1 and noted the following conditions with regards to the properties. 

Agent Lair checked the outside of the property to determine whether there has been any

vandalism and noted there was none. However, the door leading into the garage was unsecured. 

Agent Lair entered the garage and noted that the door leading into the kitchen also was

unsecured. According to Agent Lair, the house appeared to be abandoned. There was a note on

the door from a cable service company from approximately 30 days earlier, attempting to retrieve

some equipment. Agent Lair talked with a neighbor who had not seen anyone present on the

property for some time. Agent Lair noted that the power was on, and the heat was turned low. 

However, Agent Lair was advised that the utility bill for Defendant No. 1 is 60 days past due, and

the power is scheduled to be disconnected, which will occur at any time now. Finally, according

to the Jefferson County Colorado Treasurers Office, the 2010 property taxes are unpaid, and

The Indictment includes notice of the United States’s intention to seek criminal 1

forfeiture of Defendant No. 1.

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there is now a tax lien against Defendant No. 1 in the amount of $6,407.36.

5. Thus, according to the observations of Special Agent Lair, Defendant No. 1 is

uninhabited, and will remain uninhabited during the Winter.

6. In addition, with the amount of snowfall and winter conditions in the area, along

with the fact that the utility company will soon terminate the heating service, Defendant No. 1 is

subject to broken pipes, with a threat of extreme water damage to the structures and to the

personal property if pipes were to break, or if the water in the toilets should freeze.

7. A restraining order under 18 U.S.C. § 981(2) would be insufficient because

Defendant No. 1 has been abandoned, the titled owner is not taking steps necessary to preserve

the property, and thus Defendant No. 1 is subjected to waste and deterioration.

8. The United States seeks an order for interlocutory sale so that Defendant No. 1

can be sold as soon as possible in order to preserve its value and prevent deterioration pending

resolution of this case. 

9. Dalton has been served with the Verified Complaint. To date, no entity has filed a

response, although Dalton has filed a verified claim September 21, 2011. (Doc. 16.) An answer

was due 20 days after filing the claim. 

10. All net proceeds (after deduction for the costs of sale and any unpaid real estate

taxes) derived from the sale of these properties, will be held by the IRS pending the resolution of

this case. Thus, the interest of any future petitioners will not be impaired by an interlocutory

sale of the properties. Accordingly, in order to protect the value and equity of Defendant No. 1

during the pendency of this case, and to prevent further interest and taxes from accruing against

the properties, the United States seeks an order from the Court allowing an interlocutory sale of

Defendant No. 1 which the sale proceeds will first be applied to the costs of sale and any unpaid

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real property taxes, with the remainder escrowed with the United States Treasury Department

pending further order from the Court.

11. Attorneys representing Dalton, and her husband Richard Dalton, in case no. 11-

00430-CMA have been notified of the United States’s intent to seek this relief. The attorney for

Dalton stated that he did not represent her in this matter and therefore could not advise of

Dalton’s position on this matter. The attorney for Richard Dalton reported that he would waive

any rights he may have in Defendant No. 1.

WHEREFORE, as the Verified Complaint amply establishes that Defendant No. 1 is

forfeitable, and as the observations of Special Agent Lair and the evidence of flight and

abandonment of the property establish exigent circumstances, the United States submits that

exigent circumstances exist pursuant to 18 U.S.C. § 985 and United States v. James Daniel

Good, and moves that the Court order Defendant No. 1 be seized and arrested, and that the Court

enter an order allowing for the interlocutory sale of Defendant No. 1 and this action continue

against the proceeds as if the proceeds were the real property.

DATED: December 27, 2011.

Respectfully submitted,

ERIC H. HOLDER, JR.

ATTORNEY GENERAL OF THE UNITED STATES

&

BARRY R. GRISSOM, # 10866

UNITED STATES ATTORNEY

DISTRICT OF KANSAS

barry.grissom@usdoj.gov

by:

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s/Richard L. Hathaway

rich.hathaway@usdoj.gov

&

s/Christine E. Kenney

christine.kenney@usdoj.gov

Special Attorneys 

444 SE QUINCY, SUITE 290

TOPEKA, KS 66683

Phone: (785) 295-2850

Fax: (785) 295-2853

CERTIFICATE OF SERVICE

I hereby certify that on December 27, 2011, I electronically filed the foregoing with the

Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to

any counsel of record, and true copies were mailed via certified mail, return receipt requested to

the individuals at the addresses listed below, and thereafter I will cause a copy of the same to be

personally served upon Marie Dalton and Richard Dalton:

Marie Dalton #11-5145 Cert # 7009 1680 0000 4542 2031

Douglas County Jail

4000 Justice Way

Castle Rock, CO 80109

Richard Dalton Cert # 7009 1680 0000 4542 2048

FCI Englewood

Federal Correctional Institution

9595 West Quincy Avenue

Littleton, CO 80123

s/Christine E. Kenney

christine.kenney@usdoj.gov

Special Attorneys 

444 SE QUINCY, SUITE 290

TOPEKA, KS 66683

Phone: (785) 295-2850

Fax: (785) 295-2853

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