BRENDA GRANTLAND, ESQ.

pro hac vice (California Bar #165899)

20 Sunnyside Suite A-204

Mill Valley CA 94941

415/380-9108

Attorney for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

ALBUQUERQUE DIVISION

UNITED STATES OF AMERICA                            )

                                                                                     )

            Plaintiff,                                                         ) Crim. No. 92-0486-JC

                                                                                     )

            v.                                                                    ) REPLY TO GOVERNMENT’S

                                                                                     ) STATEMENT OF UNDISPUTED

GABRIEL RODRIGUEZ AGUIRRE                       ) MATERIAL FACTS

ELENO AGUIRRE, DOLORAS CONTRERAS      )

and TONY BENCOMO,                                            )

                                                                                     )

            Defendants.                                                   )

                                                                                    )  

                                                                                    )

            Defendants reply to the government’s Statement of Undisputed Material Facts as follows.

A. Explanation regarding factual contentions the defendants do not dispute

            Defendants do not dispute their convictions, since they are established as a matter of law by the jury verdicts. The allegations of fact stated in paragraphs numbered 1 - 15 are factual contentions that were alleged in the criminal trial. Some of these factual issues were not submitted to the jury for specific findings, nor decided by the judge as part of sentencing, nor necessary to the outcome of the criminal verdicts – and therefore collateral estoppel would not apply. However, there is no reason to undertake a retrial of these contentions from the criminal case because the factual contentions in these paragraphs are not material to the outcome of this motion for return of unforfeited property. See Defendants’ Opposition to the Government’s Motion for Summary Judgment, part F.

            If, as we contend, the government has missed it’s statute of limitations for forfeiting the items, they have missed their opportunity for showing a nexus between this property and the criminal offenses charged. Therefore it is irrelevant what evidence they would have put on had they timely instituted forfeiture proceedings against this property.

            Therefore, we are not contesting the allegations in paragraphs 1-15, other than to argue that they are immaterial.

B. Paragraph by paragraph response to government’s “undisputed material facts”

            1. Admitted but immaterial (see explanation in section A above.)

            2. Admitted but immaterial (see explanation in section A above.)

            3. Admitted but immaterial (see explanation in section A above.)

            4. Admitted but immaterial (see explanation in section A above.)

            5. Admitted but immaterial (see explanation in section A above.)

            6. Admitted but immaterial (see explanation in section A above.)

            7. Admitted but immaterial (see explanation in section A above.)

            8. Admitted but immaterial (see explanation in section A above.)

            9. Admitted but immaterial (see explanation in section A above.)

            10. Admitted but immaterial (see explanation in section A above.)

            11. Admitted but immaterial (see explanation in section A above.)

            12. Admitted but immaterial (see explanation in section A above.)

            13. Admitted but immaterial (see explanation in section A above.)

            14. Admitted but immaterial (see explanation in section A above.)

            15. Admitted but immaterial (see explanation in section A above.)

            16. Admitted

            17. Admitted

            18. Admitted

            19. The government has submitted no documentation supporting the allegation that “[o]n August 23, 1993, stipulated agreements and a judgment and order of forfeiture, between the United States and Tony Bencomo and Teresa Bencomo, were filed in Civil No. 92-1155.” Defendants do not have these documents and cannot speculate on the contents or legal effect of this agreement and judgment. To the extent that paragraph 5 of the Judgment and Order entered December 23, 1993, purports to forfeit property other than the named parcels of real estate themselves, it is subject to interpretation. As a matter of law an in rem judgment cannot reach items not specifically identified in the forfeiture complaint. See Part II of defendants’ argument in their Motion for Partial Summary Judgment, pp. 8 - 12.

            20. Defendants dispute the government’s contention that “the Bencomos had forfeited all their right, title and interest in the property seized from them.” As defendants pointed out in response to paragraph 19 above, the government had submitted no documents purporting to be the “stipulated agreements and a judgment and order of forfeiture” between the Bencomos and the United States. Furthermore, the September 2, 1993 letter from the Bencomos lawyer [Government’s Exhibit 33] shows that the Bencomos believed that they had forfeited the underlying real estate, but not the personal property contained therein.

            21. Defendants admit that the December 23, 1993 judgment in Civil 92-1155-JC purports to forfeit the 51 items of real property and other specified items of personal property as “contents of real property” but contend that the complaint in that case does not support such a judgment – for the reasons outlined in part II of their Motion for Partial Summary Judgment.

            22. Defendants admit most of the allegations in paragraph 22. However, they dispute that any of the items on their list of unforfeited property were named as defendants in the forfeiture complaint in United States v. 247 Horses, etc., CIV 93-0102-JC. Declaration of Gabriel Rodriguez-Aguirre Regarding Unforfeited Personal Property p. 2 ¶ 4. (Attached to the Rule 41(e) motion, and reprinted as Exhibit 9, Volume III of Exhibits in Support of Defendants’ Motion for Partial Summary Judgment, p. 22.) See also Excerpts from Forfeiture Complaint in CIV 93–0102-JC, Exhibit 8, Volume III of Exhibits in Support of Defendants’ Motion for Partial Summary Judgment, p.1.

            23. Admitted.

            24. Admitted.

            25. Admitted.

            26. Admitted.

            27. Admitted.

            28. Admitted, except that a bill of particulars – which is what the Magistrate Judge called the pleading he was ordering defendants to file, at the insistence of the government – is read in conjunction with the original complaint in determining whether the complaint is sufficient under the rules.

            29. This paragraph contains argument and vague and unsupported allegations and is not a proper Statement of Material Fact. There is no sworn document substantiating the allegations of paragraph 29. The Response List, which was incorporated by reference, is not sworn. Defendants have submitted sworn declarations stating that the items on Defendants’ List of Properties Claimed were all present on their real properties at the time the real estate was seized. See Declarations of Gabriel Aguirre (Vol. III exhibit 9, p. 22), Eleno Aguirre (Vol. III exhibit 11, p. 35), and Doloras Contreras (Vol. III exhibit 10, p. 32). Furthermore, items listed on the government’s Response List as not having been seized appear on the government’s Non-Drug Evidence List from the criminal trial. See exhibit 12 in Volume III of Defendants’ Exhibits, pp. 36-49, numbers N-161 (army duffel bag w/ $1 million), N-406 (air compressor), N-450 (miscellaneous furniture), N-455 (2 grandfather clocks), N-456 (misc. furniture), N-540-544 (Lincoln welders & air compressors), N-546-547 (2 computers), N-564 (physical fitness equipment), N-565-569 (4 satellite dishes and air compressor), N-571-573 (assorted tools), N-576 (Tony’s weights), N-577-578 (weight equipment).

            30. This paragraph contains argument and unsupported allegations and is not a proper Statement of Material Fact. The Supplement to the Response List, Government’s Exhibit 35, is not sworn and does not indicate that the author has conducted an exhaustive search of available records, nor does it state what records were consulted in compiling the list. Furthermore, the author of the document is unidentified. The fact that the Supplemental Response list corrected misinformation in the original Response List lends further doubt to the accuracy of these documents.

            31. Admitted.

                                                                                    Respectfully submitted,