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BRENDA GRANTLAND 
California Bar #165899
265 Miller Avenue
Mill Valley CA 94941
415-380-9108

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA     :
                              				:	No.  
           		Plaintiff,         	:	
                              				:	
       v.                     			:	
                              				:	
REAL PROPERTY located at 1234	:
Elm Street, Anytown, Pennsylvania;	:
2345 Main Street, Boise Idaho;	:	CLAIMANTS’ MOTION 
4567 Bee Street, Los Angeles		:	TO STAY PROCEEDINGS FOR A
California; $____ in U.S. Currency, 	:	PERIOD OF ONE YEAR OR
et al.; and 1000 Shares of Stock	:	UNTIL RESOLUTION OF THE
						:	RELATED CRIMINAL 
		Defendants.          		:	INVESTIGATION, WHICHEVER
                                                              :	OCCURS FIRST; POINTS AND
						:	AUTHORITIES; AND PROPOSED
JOHN DOE, BARBARA DOE,	:	ORDER
DOE ASSOCIATES LLC;		:
						:
		Claimants.			:
                                                              : 

	Claimants, through undersigned counsel, hereby move this Honorable Court for a stay of these civil forfeiture proceedings pending the resolution of the related criminal investigation or for a period of one year, whichever comes first.  As grounds for this motion claimants state the following:
	1.  This case was previously stayed on the motion of the government.  Claimants’ prior counsel opposed the government’s stay, and it was eventually lifted.  Discovery was commenced.  Claimants served interrogatories upon the government which the government answered by objecting, based on the need to preserve the confidentiality of information in the ongoing criminal investigation arising from the same alleged facts that triggered these forfeiture proceedings.  The government sought to depose claimants.  Before the depositions could be held, prior counsel moved to withdraw, and his  motion was granted.  
	2.  Claimants’ financial difficulties delayed their ability to hire substitute counsel, but eventually they were able to make financial arrangements acceptable to undersigned counsel, Brenda Grantland, who enters her appearance today.   Counsel has been reviewing documents and pleadings from the file, and has come to the conclusion that, if claimants are to be deposed, the pending criminal investigation arising from the same allegations would require them to assert the Fifth Amendment to virtually any question that is pertinent to discovery in the civil forfeiture case.  Counsel further concludes that, if the claimants are forced to go to trial in the civil forfeiture case, their need to preserve their Fifth Amendment privilege would prevent them from testifying in defense of their property.  This puts claimants in the untenable position of being forced to choose between giving up their Fifth Amendment privilege with respect to the pending criminal investigation, or giving up their right to an adequate defense of their property.  Counsel cannot imagine what strategy prior counsel was pursuing in trying to force the civil forfeiture case to go forward despite the threat of related criminal charges.  Prior counsel may have had some theory that made him confident that the claimants could never be charged criminally for the crimes alleged in the forfeiture case.  However, that is not a chance undersigned counsel, nor claimants themselves, are willing to take.
	3.  Having the stay last only one year or until the criminal investigation is resolved, whichever occurs sooner, assures claimants that they will not be left in limbo indefinitely in the event undersigned counsel comes to the conclusion that there is no threat of criminal prosecution based on matters claimants disclose in defense of their forfeiture case.
	4.     Undersigned counsel has spoken to Assistant U.S. Attorneys ______ and ________. They do not oppose this motion based on the claimants’ intentions to assert the Fifth Amendment.  Counsel for both parties agree to engage in some noncompulsory informal discovery and to concentrate on trying to settle the cases. 
	5.  Under these circumstances, judicial economy would not be served by forcing this civil forfeiture case to go to trial at this point.  Both sides would be hamstrung by the potential criminal charges and would not be able to mount a thorough prosecution or defense.
	WHEREFORE, for the above reasons, the reasons set out in the accompanying Memorandum of Points and Authorities, and any reasons that arise at a hearing on this matter, this case should be stayed for a period of one year, or until the criminal investigation and/or any related criminal charges are concluded, whichever occurs first.  
			                                  	Respectfully submitted,

                                     			________________________
                                       			BRENDA GRANTLAND, ESQ.
						265 Miller Avenue
						Mill Valley, CA 94941
						(415) 380-9108

Certificate of Service
       I hereby certify that a copy of the foregoing was served, by fax and by first class mail, upon _________________, this _______ day of _________.
							                                          
							Brenda Grantland, Esq.

BRENDA GRANTLAND 
California Bar #165899
265 Miller Avenue
Mill Valley CA 94941
415-380-9108

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA     :
                              				:	No.  
           		Plaintiff,         	:	
                              				:	
       v.                     			:	
                              				:	MEMORANDUM OF POINTS
REAL PROPERTY located at 1234	:	AND AUTHORITIES IN 
Elm Street, Anytown, Pennsylvania;	:	SUPPORT OF
2345 Main Street, Boise Idaho;	:	CLAIMANTS’ MOTION 
4567 Beeline Highway, Fresno		:	TO STAY PROCEEDINGS FOR A
California; $____ in U.S. Currency, 	:	PERIOD OF ONE YEAR OR
et al.; and 1000 Shares of Stock	:	UNTIL RESOLUTION OF THE
						:	RELATED CRIMINAL 
		Defendants.          		:	INVESTIGATION, WHICHEVER
                                                              :	OCCURS FIRST; POINTS AND
						:	AUTHORITIES; AND PROPOSED
JOHN DOE, BARBARA DOE,	:	ORDER
DOE ASSOCIATES LLC;		:
						:
		Claimants.			:
                                                              : 

STATEMENT OF FACTS
	According to the Joint Status Report filed ____________, these consolidated civil forfeiture cases were based on allegations that the properties were acquired with proceeds of an alleged large-scale securities fraud scheme, and that the properties were involved in one or more alleged transactions constituting money laundering.  Although all of these allegations also constitute grounds for criminal charges, claimants have not yet been charged with the offenses.  
	The government has made it clear that there is an ongoing criminal investigation that could well result in criminal charges for these alleged offenses.  In _____, this Court granted the government’s motion for a stay on the ground that civil discovery in this civil forfeiture case would adversely affect the ability of the government to conduct the related criminal investigation.  The government submitted its reasons justifying the stay in an ex parte declaration pursuant to18 U.S.C. §  981(g)(5). 
	Claimant’s prior counsel objected to the government’s request for a stay, and the case entered the discovery phase.  In answer to claimants’ interrogatories, the government objected on the grounds that discovery would jeopardize the pending investigation.  The government did turn over some documents.  The government noticed depositions of claimants, but those depositions were postponed when prior counsel withdrew as counsel for claimants.
	This case is currently scheduled for trial imminently, and the Court has suggested that only a brief continuance of the trial would be permitted.  Undersigned counsel has discussed this case with AUSA _________, and has informed him that, because of the pending criminal investigation, Claimants would invoke the Fifth Amendment at any depositions and refuse to answer questions that could cause them to incriminate themselves in the pending criminal investigation.  Claimants’ new counsel also informed the government that she would object to claimants being forced to trial in the civil forfeiture case with the criminal investigation pending, because in order for the Claimants to take the stand to defend their property, they would have to waive their Fifth Amendment privilege in relation to the potential criminal case.   The Supreme Court has held that one cannot be forced to waive a Fifth Amendment privilege in order to preserve other constitutional rights.
	AUSA _________ stated that he does not oppose this request for a stay, given the Fifth Amendment arguments claimants raise.
ARGUMENT
	The Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) created a new provision, codified at 18 U.S.C. § 981(g), which allowed either the government or the claimant to move for a stay of civil forfeiture proceedings pending the outcome of a related criminal investigation or related criminal proceedings.  Section 981(g)(2) provides:
Upon the motion of a claimant, the court shall stay the civil forfeiture proceeding with respect to that claimant if the court determines that-- (A) The claimant is the subject of a related criminal investigation or case; (B) The claimant has standing to assert a claim in the civil forfeiture proceeding; and (C) Continuation of the forfeiture proceeding will burden the right of the claimant against self-incrimination in a related investigation or case.

	Prior to CAFRA, § 981(g) provided for a stay only upon the government’s motion, and only when related criminal proceedings were actually pending.^1  However, case law provided that claimants should be entitled to a stay of civil forfeiture proceedings, upon request, if the possibility of criminal charges arising from the same allegations creates a well-founded fear that the prosecution might use civil discovery to flesh out a criminal case against the defendants.  See United States v. A Certain Parcel of Land, Moultonboro, 781 F.Supp. 830 (D.N.H. 1992).

^1  	The filing of an indictment or information alleging a violation of law, Federal, State or local, which is also related to a forfeiture proceeding under this section shall, upon motion of the United States and for good cause shown, stay the forfeiture proceeding.
 
 18 U.S.C. §  981(g), repealed by CAFRA on August 23, 2000.

“The broad scope of civil discovery may present to both the prosecution, and at times the criminal defendant, an irresistible temptation to use that discovery to one's advantage in the criminal case, such as when the civil party, who asserts fifth amendment rights, is compelled to refuse to answer questions individually, revealing his weak points to the criminal prosecutor. . . . This point-by-point review of the civil case may lead to a “link in the chain of evidence that unconstitutionally contributes to the defendant's conviction.” Afro-Lecon, [Inc. v. United States,] 820 F.2d [1198,] 1203 [(Fed. Cir. 1987)] (quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)).
A Rule 26(c) protective order no matter how broad its reach, may be overturned or modified and does not guarantee that evidence obtained through civil discovery will not “somehow find its way into the government's hands for use in a subsequent criminal prosecution.” Andover Data Services v. Statistical Tabulating Corp., 876 F.2d 1080, 1083 (2nd Cir. 1989). While a stay . . . may cause some inconvenience and delay to the government, protection of claimant's rights against self-incrimination is the more important consideration.  Brock v. Tolkow, 109 F.R.d. 116, 121 (E.D.N.Y. 1985) (citation omitted). Moreover the Government can always move to vacate the stay if a change in circumstances makes this appropriate. Id. Granting this stay creates no serious harm to the public interest.

Id. at 834-35.
	WHEREFORE, for the above reasons, and any reasons that arise at a hearing on this matter, this case should be stayed for a period of one year, or until the criminal investigation and/or any related criminal charges are concluded, whichever occurs first.  
			                                  	Respectfully submitted,

                                     				________________________
                                       				BRENDA GRANTLAND, ESQ.
							265 Miller Avenue
							Mill Valley, CA 94941
							(415) 380-9108