UNITED STATES OF AMERICA :
:                                                                                                                 No. CR-93-0505-EFL
Plaintiff, :
:
v. :                                                                                                             DEFENDANT'S REPLY
:                                                                                                                 REGARDING COURT'S POWER TO STAY
RICHARD TOYFOYA, et al., :                                                                   FORFEITURE JUDGMENT PENDING
:                                                                                                                 APPEAL
Defendant. :
 
The Government's Further Memorandum In Opposition to Motion to Stay the Forfeiture Judgment Pending Appeal ignores the arguments defendant made in his Memorandum filed October 25, 1996. No mention is made of the legislative history arguments raised in our memorandum, nor the fact that Rule 38 was amended to allow stays of criminal forfeiture verdicts in the same Comprehensive Crime Bill that enacted Section 853(h). These two provisions have to be construed in a way that they both make sense.

This language which they construe to deprive the defendant and his family of the right to seek a stay does not say that it deprives the defendant of the right to seek a stay -- it merely says "a person, other than the defendant" may seek a stay. Rule 38 says a criminal defendant may seek a stay. These two sections are not in conflict. The government is reading into section 853(h) more than it states.

The government's Further Memorandum urges that the sole authority they have found for their argument that the court is powerless to stay a criminal forfeiture judgment -- a district court opinion from Florida -- is binding precedent. They cite the Florida court's opinion that the statute "unambiguously denies standing to a defendant to file this motion." The Florida court did not notice Rule 38, and if they had they would have realized the necessity of reconciling the two provisions -- particularly since both were drafted as part of the same bill. If Congress meant to deny the defendant standing to request a stay pending appeal -- a right routinely given to litigants on both sides in all litigation, civil and criminal -- it would have made reference to that exception in Rule 38.

Furthermore, if there was any credence to the Florida court's interpretation of this statute, there would surely be other cases following it -- since this statute has been around 12 years, during a period of time when forfeiture cases are abounding. No reported cases have followed United States v. Bachner, 741 F.Supp. 221 (S.D. Fla. 1990), no do any reach the same conclusion without citing Bachner.

WHEREFORE, for the foregoing reasons and any other reasons as may arise in the hearing on this motion, the forfeiture judgment should be stayed pending appeal.

Respectfully submitted,
 

Brenda Grantland, Esq.
20 Sunnyside, Suite A-204
Mill Valley, CA 94941
(415) 380-9108

I hereby certify that a copy of the foregoing was mailed to Assistant U.S. Attorneys Robert Ward and Jeff Bornstein, 450 Golden Gate Avenue, Box 36055, San Francisco, CA 94102, this day of , 1996.
 

Brenda Grantland