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United States v. Mendoza

December 2, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LUIS FARIAS MENDOZA, AND DON BELL, III, THIRD PARTY CLAIMANT. DEFENDANT,



The opinion of the court was delivered by: Franklin D. Burgess United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This action came on for an evidentiary hearing before the Court sitting without a jury, in an ancillary proceeding in the above-captioned criminal case, pursuant to Title 21, United States Code, Section 853(n), regarding the forfeiture of the real property located at 2727 Aberdeen Avenue, Hoquiam, Washington. Assistant United States Attorneys Richard E. Cohen and Matthew H. Thomas appeared on behalf of the United States. Steven G. McNeill appeared on behalf of petitioner Don Bell, III. Having heard the testimony, examined the evidence submitted by the parties, and heard the arguments of their counsel, and this cause having been submitted for decision, the Court, being fully advised, makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. On December 28, 2007, Defendant Luis Farias Mendoza pleaded guilty to one count of Distribution of Methamphetamine. As part of his plea agreement Defendant Farias Mendoza agreed to forfeit to the United States all of his right, title and interest in all property that was used or intended to be used to commit or to facilitate the commission of the offense of distribution of methamphetamine and all property constituting or derived from the proceeds of such offenses, including specifically the real property located at 2727 Aberdeen Avenue, Hoquiam, Washington, and all cash seized from the Defendant.

2. This Court entered a Preliminary Order of Forfeiture at the time of Defendant Farias Mendoza's sentencing on March 28, 2008, forfeiting the real property located at 2727 Aberdeen Avenue, Hoquiam, Washington to the United States. The Court found that the real property was forfeitable, because it constituted the proceeds or was derived from the proceeds the Defendant obtained from the distribution of methamphetamine.

3. The United States published notice of the Preliminary Order of Forfeiture and served notice of Preliminary Order of Forfeiture and the right to file a petition to contest the forfeiture, on the titled owner of the property, Don Bell III, and on Karen J. Powers, prior owner of record on the property.

4. The service on Karen J. Powers was sent certified mail, return receipt requested, on May 9, 2008, to her post office box in Seattle, Washington.

5. The certified letter was signed for on May 28, 2008, and the receipt was returned to the United States Attorney. Ms. Powers received the notice, based on the testimony of Don Bell that he spoke with her about the notice she had received.

6. Karen J. Powers did not file a petition in this action with the Court, or otherwise appear in this action.

7. Don Bell, III filed a petition on June 12, 2008, through his attorney, Steven G. McNeill.

8. Karen J. Powers transferred title to the real property at 2727 Aberdeen Avenue, Hoquiam, Washington, to Don Bell via a Statutory Warranty Deed dated July 28, 1999, and recorded said Deed in Grays Harbor County on August 2, 1999.

9. Per a written one-page contract, on March 7, 2006, Bell sold the property, per the face of the contract, to Francisco Estrada-Cuevas for $15,000 down and twenty four monthly payments of $1,582.96, payments to begin April 5, 2006. Francisco Estrada-Cuevas did not speak English. The contract provided for the signatures of the owner, buyer and translator. Luis Farias Mendoza also signed the contract. The contract was signed at the office of an insurance agent and the signatures were witnessed and notarized by Debbie M. Martin. The $15,000 down payment was made in cash at the time the contract was signed.

10. Dr. Bell, a local chiropractor, was originally approached by a patient, Luis Farias, about purchasing a property from him. Bell originally offered to show Farias Mendoza his residence, but ultimately Luis Farias Mendoza saw the residence and stated that he was not interested in purchasing it.

11. Bell then told Farias-Mendoza about the small residence he owned that was located at 2727 ...


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