United States District Court, W.D. Washington, Tacoma
February 3, 2014
UNITED STATES OF AMERICA, Plaintiff,
JAMES DONALD MOBLEY, Defendant.
MATTHEW H. THOMAS, Assistant United States Attorney, United States Attorney's Office, Tacoma, Washington.
[PROPOSED] PRELIMINARY ORDER OF FORFEITURE
RONALD B. LEIGHTON, District Judge.
Pursuant to Rule 32.2 of the Federal Rules of Criminal Procedure, based on the guilty plea of JAMES DONALD MOBLEY to Possession of Child Pornography, as charged in Count 2 of the Indictment, in violation of Title 18, United States Code, Sections 2552(a)(4)(B) and (b)(2), and based on the Plea Agreement filed in this matter between JAMES DONALD MOBLEY and the United States, in which the defendant agreed to the forfeiture of the assets listed below, it is hereby:
ORDERED, ADJUDGED, and DECREED that, pursuant to Title 18, United States Code, Section 2253(a), JAMES DONALD MOBLEY's interest in the following property is hereby forfeited to the United States of America:
a. One (1) USB thumb drive;
b. One (1) Compaq laptop computer;
c. One (1) Simple Tech external hard drive; and
d. Any and all images of child pornography, in whatever form and however stored.
The Court finds that the property listed in paragraphs (a) through (c) above is subject to forfeiture as property, real or personal, that was used or intended to be used, to commit or promote the commission of the charged offenses. The property listed in paragraph (d) above is subject to forfeiture because it constitutes the visual depictions themselves as described in Title 18, United States Code, Section 2252, or is a book, magazine, periodical, film, videotape, or other matter which contains any such visual depiction, which was produced, transported, mailed, shipped, or received in violation of Title 18, United States Code, Chapter 110. The depictions and images listed in paragraph (d), as well as the media upon which they are contained, shall be destroyed or retained for official (investigative) use by the Attorney General pursuant to Title 21, United States Code, Sections 853(i) and 881(e).
IT IS FURTHER ORDERED that the United States Marshals Services, and/or its agents and representatives, shall seize the properties (a) and (c), and maintain the said properties in its custody and control until further order of this Court. The United States Department of Homeland Security, Immigration and Customs Enforcement shall seize and destroy the depictions and images listed in (d) above unless they have previously been destroyed by the seizing agency or retained for official, investigative use.
IT IS FURTHER ORDERED that pursuant to Title 21, United States Code, Section 853(n), the United States shall publish notice of the Preliminary Order of Forfeiture and of the intent of the United States to dispose of the property in accordance with law. The notice shall be posted on an official government website for at least thirty (30) days. The notice shall state that any person, other than the defendant, having or claiming a legal interest in the above-described property must file a petition with the Court within sixty (60) days of the first day of publication of notice (which is thirty (30) days from the last day of publication) on an official internet government forfeiture website, currently www.forfeiture.gov, or within thirty-five (35) days of receipt of actual notice, whichever is earlier.
The notice shall advise such interested persons that:
1. The petition shall be for a hearing to adjudicate the validity of the petitioner's alleged interest in such property;
2. the petition shall be signed by the petitioner under penalty of perjury; and
3. the petition shall set forth the nature and extent of the petitioner's right, title or interest in the forfeited property.
The petition shall also set forth any additional facts supporting the petitioner's claim and the relief sought.
The United States shall also, to the extent possible, provide direct written notice as a substitute for the published notice to any person known to have alleged an interest in the properties described in (a) through (c) above, that are the subject of this Preliminary Order of Forfeiture. Upon adjudication of any third-party claims, this court will enter a Final Order of Forfeiture pursuant to Title 21, United States Code, Section 853(n), in which all such claims are addressed.
IT IS FURTHER ORDERED that pursuant to Rule 32.2(b)(4), Federal Rules of Criminal Procedure, this Preliminary Order of Forfeiture shall become final as to the defendant at the time of sentencing and shall be made part of the sentence and included in the judgment. If no third party files a timely claim, this Order shall become the Final Order of Forfeiture as provided by Rule 32.2(c)(2), Federal Rules of Criminal Procedure.
IT IS FURTHER ORDERED that after the disposition of any motion filed under Rule 32.2(c), Federal Rules of Criminal Procedure and before a hearing on any third party petition, discovery may be conducted in accordance with the Federal Rules of Civil Procedure upon a showing that such discovery is necessary or desirable to resolve factual issues.
IT IS FURTHER ORDERED that the United States shall have clear title to the properties listed in (a) through (c) above following the Court's disposition of all third party interests, or, if none, following the expiration of the period provided in Title 21, United States Code, Section 853(n)(2) for the filing of third party petitions.
IT IS FURTHER ORDERED that the Court shall retain jurisdiction to enforce this Order, and to amend it as necessary, pursuant to Rule 32.2(e), Federal Rules of Criminal Procedure.