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.					  	)    
						  	)    
GABRIEL RODRIGUEZ AGUIRRE  		)    
ELENO AGUIRRE, DOLORAS CONTRERAS	)    
and TONY BENCOMO,				)    
				  			)    
	Defendants.				  	)    
                                                                                    )

DEFENDANTS’ REPLY TO THE GOVERNMENT’S OPPOSITION
TO THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT

	Defendants, through undersigned counsel, reply to the Government’s Opposition to Defendants Motion for Partial Summary Judgment as follows:
	The government’s Opposition makes many of the same mistakes and faulty arguments that the government raised in its Motion for Summary Judgment.  Since defendants have already countered those arguments in their Opposition to the government’s Motion for Summary Judgment, we will merely refer the court to the relevant sections of our Opposition, filed April 5, rather than rehash the arguments.
	For the convenience of the court, we will treat the government’s contentions and arguments in the order they arise in their Opposition.
	On pages 1 and 2 of its Opposition, the government quibbles about the formatting of Defendant’s Motion for Partial Summary Judgment.  First, it errs in citing Local Rule 7.5(a) as  the stating the requirements for the contents of a summary judgment motion.  Local Rule 7.5(a) governs typical motions.  The local rule for summary judgment motions is Local Rule 56.1.  Secondly, nothing in either of these rules makes such a formalistic distinction as to allow the court to disregard a motion merely because the statement of material fact has a separate caption, nor whether the “supporting brief” or “written memorandum containing a concise statement of the reasons in support of the motion” must be labeled such, rather than being labeled “argument.”  Nothing in the local rules specifies whether the documents in the “motions packet” must be stapled together or separately. This argument frivolously elevates form over content.  In fact, it is the government that has filed a defective Summary Judgment motion, in that a number of their purported “undisputed material facts” are paragraphs containing merely argument and unsupported allegations, as defendants pointed out in their Reply to Government’s Statement of Undisputed Material Facts, filed with and stapled to, Defendants’ Opposition to the Government’s Motion for Summary Judgment (April 5, 2002).
	On page 2 of the government’s Opposition, paragraph 1 under Statement of Facts states: “The United States reiterates that many of the items claimed were not seized.” This is not the proper way to oppose a statement of undisputed material fact.  Local Rule 56.1(b) states:
A memorandum in opposition to the motion must contain a concise statement of the material facts as to which the party contends a genuine issue does exist.  Each fact in dispute must be numbered, must refer with particularity to those

portions of the record upon which the opposing party relies, and must state the number of the Movant’s fact that is disputed.  All material facts set forth in the statement of the Movant will be deemed admitted unless specifically controverted.

(Emphasis added.)   This failure to refer with particularity to those portions of the record on which the opposing parties relies is repeated throughout the government’s responses to defendants’ list of undisputed material facts.  
	In paragraph 2, the government disagrees with all of the defendants’ allegations, but points to only one place in the record – the attached DEA form 48a, which only places into dispute one item (the leather jackets).  The government has not submitted any return receipts showing that mail they purportedly sent to the defendants’ family members was actually received.  Prior to trial, the defendants will need discovery of all documents showing whether the registered mail was picked up or returned to sender as to all of the notices the government contends it sent to claimants’ families.  
	In paragraph 4, the government tries to negate the admission in the complaint that defendants’ horse breeding and racing business, among other legitimate sources of income, generated substantial income, by arguing that all of the income was offset by further capital expenditures to enhance the value of the business.  Since the government seized everything the defendants and their families owned including their horse breeding and racing business and all of its assets, this contention that there were no profits does not negate the admission that there was substantial legitimate income.  Furthermore, once again, the government is arguing rather than properly opposing contentions of fact.
	Again in paragraph 5, the government makes the same mistakes noted above.  Instead of pointing to specific places in the complaint where the government contends individual items seized as contents are described with particularity, or where a nexus is established between the item and probable cause to believe it is traceable to proceeds, or that it was used to facilitate – the government merely reiterates its unsupportable contention that the defendants acquired all of their property with drug proceeds.  That contention is completely disproven by the government’s own admissions that the defendants had legitimate income as well. 
	In its Argument, on pages 4-5, the government repeatedly ignores the fact that they are responding to a motion for partial summary judgment and not a trial on the merits.  Defendants do not have to prove standing or ownership in this motion, and there is no burden of proof imposed upon them.  Only if the court finds facts not to be in dispute may it rule as a matter of law based upon those facts.
	On the second paragraph of page 5, the government takes issue with Gabriel Aguirre’s statement that none of the property on “our” list was seized from inside improvements.  The point Gabriel Aguirre was making there was that the items were either found outside on real estate, or inside mobile homes which were not permanently affixed to the real estate, and therefore had not become “improvements.”  When he used the term “our list” he was referring to the portions of the Defendants’ List of Property Seized... which pertained to him only, or to him as co-owner with his daughter Doloras Contreras.  Because Gabriel Aguirre prepared his own declaration, while the other defendants each prepared their own separate list, it did not occur to him or counsel that this could be misconstrued as relating to the items seized from the other defendants.  We now clarify that “our list” in that context refers only to items owned or co-owned by Gabriel Aguirre.
	On page 5, the government complains that Eleno Aguirre does not state how he acquired his interest in the properties seized.  That is irrelevant to this motion.  To the extent he stated that this property was seized from his family, he is not implying that the property was not owned by him.  Although owned primarily by him personally, these items were also used by his wife and minor children, and they were seized from the family home.  Since defendants were not moving for summary judgment on the issue of ownership, it was not necessary for him to establish that he personally owned all of this property in this motion, although he will do so at trial.
	On page 6, the fact that Virginia Aguirre was personally served with the forfeiture complaint against the real estate is irrelevant.  This motion for return of property is for property not forfeited in that case.  The proceedings in those cases simply have no relevance here, except to the extent the court must construe the complaints in those cases to see if any of these items were forfeited in those cases.
	The government’s claim that DEA form 48a establishes that Danny Aguirre was returned some leather jackets may be enough to put that fact in issue for trial.  Counsel is still trying to reach Danny Aguirre to determine his reaction to this document, but his reply is not necessary to the determination of this summary judgment motion because the facts are now at issue on that point. 
	In the second paragraph on page 7 the government argues that “bare unsupported assertions are not sufficient to create a cognizable claim to property or a genuine issue of material fact.”  As support for that inaccurate interpretation of the law, the government cites United States v. 16328 South 43^rd E. Ave., 275 F.3d 1281 (10^th Cir. 2002). The government does not point to a particular page in that opinion, but presumably refers to a discussion of the innocent owner defense on page 1285, where the court states:
Because the innocent owner defense is an affirmative defense, it is not incumbent upon the government to prove that the owner had knowledge of the illegal activity. Rather, “it is the claimant's responsibility to prove the absence of actual knowledge.” United States v. Four Million, Two Hundred Fifty-Five Thousand, Six Hundred & Twenty-five Dollars & Thirty-Nine Cents, 762 F.2d 895, 907 (11th Cir. 1985). Moreover, we are not constrained to accept denials supported by a mere scintilla of evidence. Such bare denials - for example, where the defendant's alleged ignorance amounts to willful blindness, or where the owner's claims of ignorance are “inconsistent with the uncontested facts” - are insufficient to create a genuine triable issue. United States v. One Parcel of Prop., Located at 755 Forrest Rd., 985 F.2d 70, 72-73 (2d Cir. 1993); see also United States v. Parcel of Land & Residence at 5 Bell Rock Rd., 896 F.2d 605, 611 (1st Cir. 1990) (a “merely colorable” affidavit is insufficient as a matter of law to avoid summary judgment).

Here, the record establishes that no issue of material fact exists as to whether Ms. Scott knew of drug activity occurring on her property. Her testimony shows that she had found marijuana growing in a toilet on her property, that she had found seeds that she believed were marijuana, that she was aware her son smoked  marijuana, that she had been told that he grew marijuana in other places, and that she had been told by her son's estranged wife that he was growing marijuana on the property. Admittedly, Ms. Scott killed the marijuana plant in the toilet, associated the seeds with smoking rather than growing marijuana, stated that she did not believe that her son knew how to grow marijuana, “never saw [marijuana],” and inspected the property after being told that her son was growing marijuana. However, she admitted that her search was limited, stating that “physically I was not able to go out and basically search everything. Ms. Scott never sought help searching the property despite being told that her son was growing marijuana. These facts establish that Ms. Scott was at best willfully blind to her son's activities. Thus, even indulging all inferences in Ms. Scott's favor, there is no issue of triable fact as to whether Ms. Scott knew of the illegal activity on her property. The district court was correct in determining that, as a matter of law, Ms. Scott could not establish that she did not know of her son's illegal activities.”
United States v. 16328 South 43^rd E. Ave., 275 F.3d 1281, 1285 (10^th Cir. 2002) (emphasis added.)  The ruling in 16328 South 43^rd E. Ave. is inapposite to this case.  Defendants have not admitted any facts which would contradict the allegations in their declarations.  Contrary to the government’s manufactured rule (which we assume they would have apply to claimants only and not to the government) a declaration under oath puts facts at issue without any further supporting documentation.
	The government’s statute of limitations arguments on pages 7-8 are refuted by defendants’ arguments in Defendants’ Motion for Partial Summary Judgment, pp. 6-8, and in Defendants’ Opposition to the Government’s Motion for Summary Judgment, pp. 6-8 – which we hereby incorporate by reference.  The government’s claim that the judgment entered in Civil. No. 93-102 forfeited some of the vehicles defendants claim – was refuted by the declaration of Gabriel Aguirre, Exhibit 9 in Volume III of Defendants’ Summary Judgment Exhibits, that he had carefully compared his list of items which were seized and not forfeited, against the complaints and judgments in each of the judicial forfeiture cases, and determined that none of these items we are seeking now were forfeited in any of those actions.
	In part 3 of the government’s argument, on page 8, it misstates the holding of United States v. Madden, 95 F.3d 38 (10^th Cir. 1998).  The government claims it held on page 40 that 
a district court should construe a Rule 41(e) motion as a independent civil action only when there are no criminal proceedings pending against the defendant, and defendant files the motion for return of property seized in prior non-judicial forfeiture proceedings or as part of some other non-judicial proceeding or occurrence.

Opp. p. 8.  What the Tenth Circuit actually held was that “the remedy provided under Fed.R.Crim.P. 41(e) may be available even if there is no criminal action currently pending against the party seeking the return of property.”  The court then proceeds to discuss how “a number of our sister circuits have held that if there are no criminal proceedings pending against the defendant, and the defendant files a Fed.R.Crim.P. 41(e) motion for return of property seized in a prior nonjudicial forfeiture proceeding or as part of some other nonjudicial proceeding or occurrence, the district court should construe the motion as an independent civil action based on equitable principles.”  The distinction the Madden court was making between Madden’s situation and the cases from the sister circuits was that Madden’s real estate was specifically named and forfeited in a civil forfeiture proceeding.  Thereafter, during the double jeopardy litigation following United States v. $405,089.23, 33 F.3d 1210 (9^th Cir. 1994) and United States v. 9844 S. Titan Court, 75 F.3d 1470 (10^th Cir. 1996), Madden filed a Rule 41(e) motion to try to get back, on double jeopardy grounds, the same real estate which had been specifically named and forfeited in the separate civil forfeiture case.  All Madden held was that Rule 41(e) could not be used to undo a judicial forfeiture – the claimant would have to file a civil Rule 60(b) motion in the civil forfeiture case.  It has no applicability here because defendants have always claimed that if any of these items were specifically named and legitimately forfeited in any of the judicial forfeiture cases, we are not seeking their return.  By the same token, the defendants would not have an adequate remedy at law to seek return of items not named in these civil forfeiture complaints, by resort to a Rule 60(b) motion in the civil forfeiture complaint – because the courts in rem jurisdiction in such cases is limited to items specifically named in the complaint.

Coincidentally, the (temporarily) successful plaintiffs in the Titan Court case were represented by undersigned counsel.

	On pages 9 through 14, the government argues the civil forfeiture complaints stated the facts with an adequate degree of particularity.  We agree that the forfeiture complaints offer a tremendous amount of detail, and adequately identify and state grounds for forfeiting the real estate.  What we are arguing is much narrower than the government contends, and rather than restate it, we will merely refer the court to pages 8-13 of Defendant’s Motion for Partial Summary Judgment.
	Contrary to the government’s argument on page 10, defendants are not attempting to challenge the sufficiency of the complaints or to reopen the judgments in those cases.  The government – certainly not fairly or squarely, but certainly – got default judgments in these civil forfeiture cases by depriving defendants of all assets that could be used to retain counsel, and their court appointed attorneys refused to defend their forfeitures.  The government got whatever property they adequately named in the forfeiture complaints without a contest.  However, their judgments are limited by the contents of their complaints.  Whether any of the items defendants seek returned were named and forfeited is a matter of interpretation which the court will address as a matter of law.
	The point defendants were making about the strict particularity requirements for in rem  forfeiture complaints, imposed by Supplemental Rules C and E, is that if the complaint does not specifically describe property then it has not brought the property within the in rem jurisdiction of the court, therefore the court lacks jurisdiction to forfeit it. The Rule E argument, which we believe to be an issue of first impression, is whether the failure to even allege a nexus between all of the contents of the residences and businesses located on the 51 parcels of real estate and any offense is similarly a jurisdictional defect.  Here, unlike the case of United States v. One Parcel of Real Property Described as Lot 41 Berryhill Farm Estates, 128 F.3d 1386 (10^th Cir. 1997), it cannot be said with a straight face that all of the property owned by all of these defendants was proceeds of crime.  The government admitted in their complaint that defendants and their spouses were also employed in legitimate jobs, and that they also owned businesses which generated legitimate income.  The items at issue here, and which defendants seek returned, are for the most part ordinary personal property – clothes, furniture, dishes, vehicles, farm equipment, etc.  As we will show at trial, some of this property was owned by them long before any allegations of illegal activity, or was inherited.
	Although it is true, as the government states on page 13, that the government is not required to trace each specific piece of property to a specific drug transaction, forfeiture of estate (the automatic forfeiture of all of a felons worldly possessions) was abolished by the U.S. Constitution.  Even when the government’s burden of proof was a mere probable cause, they had to show a nexus for forfeiture of each item – which they neglected to do as to the contents seized with the real estate.  Only in cases where the only possible source of income is from drug trafficking can this nexus arise by implication.
	The government’s abandonment argument on page 15 is refuted in Defendants’ Motion for Partial Summary Judgment, pp. 13 - 15, and Defendants’ Opposition to the Governments’ Motion for Summary Judgment, pp. 3 - 5.  The government’s own search warrants allege that the property to be seized belongs to the Aguirre organization, and even name Gabriel and Eleno Aguirre specifically.  These affidavits also admit that these defendants are in the habit of putting their property in the names of straw owners. Under those circumstances, clearly the government knew or had reason to believe that Gabriel and Eleno Aguirre had an ownership interest in this property sufficient to require notice to them – in addition to if not instead of the straw owners.
CONCLUSION
	Wherefore, for the foregoing reasons, the Government’s Motion for Summary Judgment should be denied and the Defendants’ Motion for Partial Summary Judgment should be granted – except for the few issues in which facts are in dispute, as outlined above.  These factual issues should be set for trial after the parties are allowed to engage in discovery under the civil rules.
							Respectfully submitted,

							BRENDA GRANTLAND

CERTIFICATE OF SERVICE
	I hereby certify that the foregoing Reply was served upon AUSA Steve Kotz, P.O. Box 607, Albuquerque, NM 87193, by first class mail, on this _______ day of _________, 2002.					
							                                         
							BRENDA GRANTLAND