United Statesv.Lo

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIAJun 12, 2018
No. 1:16-CR-00058-LJO-SKO (E.D. Cal. Jun. 12, 2018)

No. 1:16-CR-00058-LJO-SKO

06-12-2018

UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL CHU LO, and SUZY VANG LO, Defendants.

McGREGOR W. SCOTT United States Attorney MEGAN A. S. RICHARDS JEFFREY A. SPIVAK Assistant United States Attorneys 2500 Tulare Street, Suite 4401 Fresno, CA 93721 Telephone: (559) 497-4000 Facsimile: (559) 497-4099 Attorneys for Plaintiff United States of America


McGREGOR W. SCOTT
United States Attorney
MEGAN A. S. RICHARDS
JEFFREY A. SPIVAK
Assistant United States Attorneys
2500 Tulare Street, Suite 4401
Fresno, CA 93721
Telephone: (559) 497-4000
Facsimile: (559) 497-4099 Attorneys for Plaintiff
United States of America UNITED STATES'S REQUEST FOR AN ORDER AUTHORIZING DISCOVERY IN THE ANCILLARY PROCEEDING; ORDER THEREON [FED. R. CRIM. P. 32.2(c)(1)(B)]

I. INTRODUCTION

Pursuant to Fed. R. Crim. P. 32.2(c)(1)(B), the United States requests the Court to allow it to conduct discovery to explore the basis for the claim filed by petitioner Maypia Xiong ("Petitioner") regarding her interest in property forfeited from defendants Michael Chu Lo and Suzy Vang Lo. Petitioner alleges an interest in the approximately $26,040.00 seized from Wells Fargo Bank account number 0023501665, and approximately $35,717.18 seized from Chase Bank account number 959981234, held in the name of Maypia Xiong dba LV Market (the "Subject Funds") that were seized pursuant to a Federal seizure warrant in Winton, California on October 8, 2014, as part of this criminal investigation. /// ///

II. BACKGROUND

1. On April 21, 2016, Michael Lo and Suzy Vang were indicted in a fifteen-count indictment for conspiracy to commit wire fraud, wire fraud, unauthorized use and possession of benefits, and structuring. (ECF No. 1.)

2. On March 20, 2018, Michael Lo and Suzy Vang each pleaded guilty to Count One of the Indictment and admitted the forfeiture allegation. (ECF Nos. 30 and 34). Defendant Suzy Vang Lo was sentenced on June 11, 2018. Id. Defendant Michael Chu Lo is set to be sentenced on June 25, 2018.

3. On April 18, 2018, the Court entered a Preliminary Order of Forfeiture for the Subject Funds, pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c), which authorizes the forfeiture of proceeds traceable to a violation of 18 U.S.C.§ 1349.

4. Following the Court's entry of a preliminary order of forfeiture, the United States provided notice to all known and unknown potential claimants, pursuant to 21 U.S.C. § 853(n), 18 U.S.C. § 1963(1) and Local Rule 171. The deadline to file a petition was May 30, 2018.

5. On May 17, 2018, Petitioner filed a petition for ancillary hearing and remission/mitigation contesting the forfeiture of the Subject Funds. (ECF No. 43.) Petitioner alleges an innocent ownership interest in the Subject Funds and alleges herself a victim of the defendants' actions.

III. ANALYSIS

6. Federal Rule of Criminal Procedure 32.2(c) governs third party asset forfeiture proceedings in criminal cases. Rule 32.2(c)(1) provides that if a third party files a petition asserting an interest in property to be forfeited in a criminal case, the district court must conduct an ancillary hearing. Fed.R.Crim.P. 32.2(c)(1). Rule 32.2(c)(1)(B) provides that prior to the ancillary hearing the Court may permit the parties to conduct discovery in accordance with the Federal Rules of Civil Procedure if the court determines that discovery is "necessary or desirable to resolve factual issues." Fed.R.Crim.P. 32.2(c)(2)(B).

7. The United States believes that discovery is necessary and desirable to evaluate Petitioner's ownership in the Subject Funds because if Petitioner can provide information showing that the money was not derived from the criminal activity charged in the Indictment, an ancillary hearing may not be necessary.

8. The United States requests and proposes the following discovery, motion and hearing schedule:

Event

Proposed Date/Deadline

Discovery Cut off

September 28, 2018

Last Day to File Dispositive Motions

October 26, 2018

Ancillary Hearing

Week of December 17, 2018


IV. CONCLUSION

For the foregoing reasons, the United States requests the Court: (1) enter an order authorizing the parties to conduct discovery pursuant to Fed. R. Crim. P. 32.2(c)(1)(B); and (2) to adopt the above litigation schedule or set a discovery schedule that the Court deems appropriate. The Ancillary Hearing presently scheduled for August 7, 2018, shall be rescheduled to allow the parties to engage in meaningful discovery. Dated: June 12, 2018

McGREGOR W. SCOTT


United States Attorney

By: /s/ Megan A. S. Richards


MEGAN A. S. RICHARDS


JEFFREY A. SPIVAK


Assistant U.S. Attorneys

ORDER

IT IS SO ORDERED.

Dated: June 12 , 2018

/s/ Lawrence J. O'Neill


UNITED STATES CHIEF DISTRICT JUDGE

CERTIFICATE OF SERVICE BY MAIL

The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Eastern District of California and is a person of such age and discretion to be competent to serve papers.

That on June 12, 2018, she served a copy of the

UNITED STATES' REQUEST FOR AN ORDER AUTHORIZING DISCOVERY IN THE

ANCILLARY PROCEEDING; ORDER THEREON

by placing said copy in a postpaid envelope addressed via first class mail to the persons hereinafter named, at the places and addresses stated below, which are the last known addresses, and by depositing said envelope and contents in the United States Mail at Fresno, California. Addressee(s): Via U.S. Mail
Maypia Xiong
1321 Tide Drive
Merced, CA 95348


[Pro Se]

/s/ Elisa M. Rodriguez


ELISA M. RODRIGUEZ


FSA Contractor Paralegal


(Original signature retained by attorney)