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United States v. Zamora

United States District Court, S.D. Florida

June 28, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DANIEL MARTINEZ ZAMORA, Defendant.

          ORDER

          JOHN J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE

         THIS MATTER came before the Court on the Motion for Return of Property (DE# 218, 5/18/18) filed by non-party Marlene Aleman Martinez (hereinafter “petitioner”).[1]This matter was referred to the undersigned by the Honorable Joan A. Lenard, United States District Judge for the Southern District of Florida pursuant to 28 U.S.C. § 636(b). See Endorsed Order (DE# 219, 5/18/18).

         BACKGROUND

         Daniel Martinez Zamora (hereinafter “defendant”) was charged by indictment in the Southern District of Florida with conspiracy to sell and distribute a pre-retail medical product in violation of Title 18, United States Code, Section 670(a)(6) (Count 1), intent to defraud, sell or distribute an expired or stolen pre-retail medical product in violation of Title 18, United States Code, Section 670(a)(5) (Count 2) and two counts of Possessing, Transporting and Trafficking Stolen Pre-Retail Medical Products in violation of Title 18, United States Code, Section 670(a)(3) (Counts 3 and 4). See Indictment (DE# 2, 4/9/14). The Indictment included a criminal forfeiture allegation for “all property, real and personal, which constitutes or is derived from proceeds traceable to a violation of the afore-stated offenses.” Id.

         On June 23, 2014, the defendant pled guilty to Counts 1 and 4 of the Indictment pursuant to a written plea agreement. See Plea Agreement (DE# 88, 6/24/14). In the Plea Agreement, the defendant:

agree[d] to forfeit to the United States voluntarily and immediately all of his right, title and interest in all funds that, pursuant to Title 18, United States Code, Section 981(a)(1)(C), constitute or [were] derived from proceeds the defendant obtained, directly or indirectly as a result of the unlawful activity as set forth in Count One, or is property traceable to such property. The defendant specifically agree[d] to forfeiture of the following three vehicles: 1) 2010 Cadillac, VlN: 1GYUCJEFXAR179778; 2) 2009 Mercedes, VlN: W1785K71176917143767; 3) 2005 Maserati, VlN: ZAM CE39A350014702.

Id. at ¶ 4 (emphasis added). These vehicles were seized in April and September of 2014. See Motion for Entry of Written Forfeiture Order (DE# 212 at 1, 1/26/18).

         On September 22, 2014, the defendant was sentenced to a term of 48 months imprisonment as to Counts 1 and 4, concurrently, followed by three years of supervised release, a $200.00 assessment and $2, 347, 061.22 in restitution. See Judgment in a Criminal Case (DE# 152, 9/24/18).

         On January 26, 2018, the government filed its Motion for Entry of Written Forfeiture Order (DE# 212, 1/26/18) seeking a written order of forfeiture as to the three vehicles identified in the defendant's Plea Agreement (DE# 88, 6/24/14). On March 15, 2018, the Court entered an Order of Forfeiture (DE# 213, 3/15/18). The Court's Order of Forfeiture (DE# 213) required the government to “notify any third party who may have an interest in the property ordered forfeited, in accordance with the notice provisions of Fed. R. Crim. P. 32.2(b)(6).” Id.

         On May 18, 2018, the petitioner filed the instant Motion for Return of Property (DE# 218, 5/18/18) (hereinafter “Motion”). The petitioner states that she is the defendant's wife. Id. The petitioner seeks the appointment of counsel and the return of the three vehicles. Id. The government filed its response on June 12, 2018. See United States Response in Opposition to Third-Party Petitioner's Claim to Three Forfeited Vehicles (DE# 223, 6/12/18) (hereinafter “Response”). No. reply was filed.

         ANALYSIS

         1. Request for the Appointment of Counsel

         At the outset, the petitioner seeks the appointment of counsel to represent her in recovering the three vehicles. The government argues that the petitioner is not entitled to court-appointed counsel under the circumstances of this case:

Pursuant to Title 18, United States Code, Section 983(b), in an in rem civil forfeiture proceeding, presuming that the claimant would otherwise have standing to contest forfeiture, counsel can be appointed if: the claimant is a defendant in a related criminal case (18 U.S.C. ยง 983(b)(1)(A)) or if the action involves real property ...

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