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United States v. $166

United States District Court, Ninth Circuit

December 16, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
$166, 450.48 IN UNITED STATES CURRENCY, et al., in rem, Defendants.

S. AMANDA MARSHALL, United States Attorney, District of Oregon KATHERINE C. LORENZ, Assistant United States Attorney, Portland, OR. Attorneys for Plaintiff

DAVID H. ANGELI, NOAH H. ELLENBERG, BENJAMIN N. SOUEDE, Angeli Law Group LLC, Portland, OR. Attorneys for Claimant Michael Knezevich.

NORMAN SEPENUK Portland, OR. Attorney for Claimant VanHaverbeke

PAUL J. PASCHELKE, Portland, OR. Attorney for Claimant Barney

RONALD V. CHOTT, Beaverton, OR. Claimant, pro se

MAUREEN ANNE & MICHAEL JOHN KLOBERTANZ Portland, OR. Claimants, pro se

MOUNT HOOD MINISTRY c/o Scott D. Haanstad Hood River, OR. Claimant, pro se

OPINION AND ORDER

MALCOLM F. MARSH, District Judge.

Plaintiff, the United States of America, brings this civil forfeiture proceeding pursuant to 18 U.S.C. §§ 981(a) (1) (A), and 28 U.S.C. §§ 1345, 1355 & 1395. Currently before the court are motions for summary judgment by Claimants VanHaverbeke, Barney, Maureen & Michael Klobertanz (#29, #32, & #49); motion for oral argument by Claimant VanHaverbeke (#31); and the government's motion to extend stay of proceedings to all claimants (#38).

BACKGROUND

On April 2, 2013, the government filed the instant proceeding seeking the forfeiture of $166, 450.48 in United States currency seized from Chase Bank account number XXXXXX3320; $121, 000.00 in United States currency seized from Alder Gold Exchange; and $372, 000.00 worth of assorted precious metals also seized from Alder Gold Exchange. In its complaint, the government alleges that the defendant currency and assorted precious metals are forfeitable because they were involved in transactions or attempted transactions by Michael Knezevich, the owner and operator of Alder Gold Exchange, in violation of 18 U.S.C. § 1960 (unlawful money transmitting business).

To establish a violation of section 18 U.S.C. § 1960(a), the government must prove that a defendant knowingly conducts, controls, manages, supervises, directs, or owns an unlicensed money transmitting business. 18 U.S.C. § 1960(a) & (b)(1)(B); 31 U.S.C. 5330; see also U.S. v. 47 10-Ounce Gold Bars, 2005 WL 221259 (D.Or. Jan. 28, 2005). "[T]he term money transmitting' includes transferring funds on behalf of the public by any and all means including but not limited to transfer within this country or to locations abroad by wire, check, draft, facsimile, or courier." 18 U.S.C. § 1960 (2).

In support of its complaint, the government attached the declaration of Internal Revenue Service (IRS) Special Agent Scott McGeachy. Agent McGeachy attests that on October 29, 2012, agents from the IRS Criminal Investigation Unit and the Portland Police Bureau seized the defendant currency and precious metals from three safes located at Alder Gold Exchange, and a Chase Bank account in the name of Precious Metals & Gems, dba Alder Gold Exchange. According to Agent McGeachy, at the time of the seizure Knezevich was unable to differentiate the contents of the three safes as to whether various items belonged to him or to Alder Gold Exchange customers. McGeachy Dec. at ¶¶ 5 & 24. Knezevich allegedly told officers that the metals located in any of the safes "might reflect his personal precious metals, precious metals owned by ALDER GOLD EXCHANGE, or precious metals due to a client." Id. at ¶ 42.

In an attempt to support the government's contention that Knezevich was conducting an unlicensed money transmitting business, Agent McGeachy examined two Alder Gold Exchange bank accounts and discovered what he believes were checks and wire transfers to third parties on behalf of Alder Gold Exchange customers. Id. at ¶¶ 25-28, 31-37. According to McGeachy, two customers confirmed that they sold gold to Alder Gold Exchange and, in turn, Knezevich transferred funds on their behalf to third parties. Id. at if 29-30 & 38, see also ¶ 63. Knezevich also allegedly confirmed this type of transaction on behalf of a customer ...


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