United States v. Grace, 3:04-cr-05460

3:04-cr-05460 | W.D. Wash. | Apr 15, 2011

JUDGE RONALD B. LEIGHTON

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) ) ) ) ) ) ) ) NO. CR04-5460RBL v. Final Order of Forfeiture TOBIAS GRACE, Defendant. THIS MATER comes before the Court on motion of the United States for entry of a Final Order of Forfeiture with respect to the following assets: a. $34,500.00 representing proceeds from the sale of a 2003 Hummer H2, VIN 5GRGN23U23H110403; d. $6,858.00 representing the cash balance and proceeds from the sale of securities frozen in Southwest Securities Retirement Account No. XXXXX4565; e. $1,014,043.00 representing the cash balance and proceeds from the sale of securities frozen in Southwest Securities Account No. XXXX9723; f. $118,271.00 representing the cash balance and proceeds from the sale of securities frozen in Southwest Securities Retirement Account No. XXXXX1039; $214,091.00 in United States currency seized from 6518 NE 47 th Street, g. Vancouver, Washington; h. $91,119.28 representing the cash balance and proceeds from the surrender of Northwestern Mutual Life Insurance Policy No. XXXX8510; and i. $452,179.48 representing the cash balance and proceeds from the sale of securities frozen in CyberTrade Account No. XXXX8049; j. $30,000.00 in United States currency seized from Tobias Grace on or about February 14, 2005; k. $21,990.44 frozen in First Independent Bank Account No. XXXXX9997; l. $31,348.55 frozen in Compass Bank Account No. XXXX5725; m. $90,000.00 held in the Trust Account of Attorney Barry Flegenheimer; p. $10,931.20 in Primerica IRA account No. XXXXX8464 (Toby Grace), at

Primerica Shareholders Services, PO Box 9662, Providence, RI 02940- 9662; and q. $22,578.00 in Brown & Company, IRA account No. XXXX3350 (Toby Grace) at Brown Co., One Beacon Street, Boston MA 02108-3102. On January 29, 2009, this Court entered a Preliminary Order of Forfeiture against

Tobias Grace forfeiting $34,500.00 representing proceeds from the sale of a 2003 Hummer H2, VIN 5GRGN23U23H110403; $ 868.00, posted with the United States Marshals Service as bond for payment of storage charges incurred with respect to a 2002 Ford Excursion, VIN 1FMSU43F52EA67103 1 ; the residence and real property located at 6518 NE 47th Street, in Vancouver, Washington; $6,112.17 representing the cash balance and proceeds from the sale of securities frozen in Southwest Securities Retirement Account No. XXXXX4565; $1,253,709.92 representing the cash balance and proceeds from the sale of securities frozen in Southwest Securities Account No. XXXX9723; $157,488.73 representing the cash balance and proceeds from the sale of securities frozen in Southwest Securities Retirement Account No. XXXXX1039; $214,091.00 in United States currency seized from 6518 NE 47 th Street, Vancouver, Washington; $91,119.28 representing the cash balance and proceeds from the surrender of Northwestern Mutual Life Insurance Policy No. XXXX8510; $452,179.48 representing the cash balance and proceeds from the sale of securities frozen in CyberTrade Account No. XXXXX8049; $30,000.00 in United States currency seized from Tobias Grace on or about February 14, 2005; $21,990.00 frozen in First Independent Bank Account No. XXXXX9997;

1 This amount was erroneously listed in the Preliminary Order of Forfeiture. This money was the total cost for the storage of the 2002 Ford Excursion while it was in USMS custody. When the vehicle was returned to the defendant, he was required to reimburse the USMS for storage costs. Therefore the money was not subject to forfeiture and the United States is not seeking a Final Forfeiture Order with respect to this asset. $31,348.55 frozen in Compass Bank Account No. XXXX5725; $90,000.00 held in the Trust Account of Attorney Barry Flegenheimer; $278.83 in Pay Pal Account of Smart Software, (Toby Grace), tobyg@teleport.com; $14,258.63 in Pay Pal Account of Seattle Software, (Toby Grace), Tobyj6@comcast.net; $10,931.20 in Primerica IRA account No. XXXXX8464 (Toby Grace), at Primerica Shareholders Services, PO Box 9662, Providence, RI 02940-9662; and $22,578.00 in Brown & Company, IRA account No. XXXX3350 (Toby Grace) at BrownCo, One Beacon Street, Boston MA 02108-3102.

On July 15, 2009, this Court entered an Amended Preliminary Order of Forfeiture against Tobias Grace forfeiting his interest in $6,858.00 representing the cash balance and proceeds from the sale of securities frozen in Southwest Securities Retirement Account No. XXXXX4565 $1,014,43.00 representing the cash balance and proceeds from the sale of securities frozen in Southwest Securities Account No. XXXX9723; and $118,271.00 representing the cash balance and proceeds from the sale of securities frozen in Southwest Securities Retirement Account No. XXXXX1039. 2 - 3

The above-referenced assets were subject to forfeiture pursuant to Title 18, United States Code, Section 981(a)(1)(C), Title 28, United States Code, Section 2461(c), and Title 18, United States Code, Section 982, based on Tobias Grace’s guilty plea to Conspiracy to Traffic in Counterfeit Labels and Computer Program Documentation, in violation of Title 18, United States Code, Section 371, and Trafficking in Counterfeit Labels and Computer Program, in violation of Title 18, United States Code, Section 2318; and Conspiracy to Engage in Money Laundering, in violation of Title 18, United States Code, Section 1956(h), and Money Laundering, in violation of Title 18, United States Code, Sections 1956(a)(1)(A) and 1957, and his agreement to forfeit the property.

Pursuant to Title 21, United States Code, Section 853(n), the United States published notice on an official government forfeiture website, currently 2 Due to the fluctuation in value of the accounts, the original Preliminary Order incorrectly stated the amounts for these assets. 3 The money in the two Pay Pal accounts was never seized and the accounts are now closed. Therefore, these assets were

removed from the Preliminary Order of Forfeiture. www.forfeiture.gov for thirty (30) days beginning March 12, 2009. In the publication the United States published notice of the Preliminary Order of Forfeiture and the intent of the United States to dispose of the property in accordance with law. This notice further stated that any person other than the defendant having or claiming an interest in the property was required to file a petition with the Court within thirty (30) days of the final publication of the notice or personal receipt of the notice, whichever was earlier, setting forth the nature of the petitioner’s right, title, and interest in property.

On July 17, 2009, the United States sent notice via certified mail to First Independent Bank of the intent to forfeit the real property listed in the Notice of Publication in the criminal case filed against Tobias Grace. The return receipt indicates delivery to First Independent Bank on July 20, 2009.

On July 29, 2009, First Independent Bank filed a Verified Petition Asserting a Claim to Real Property located at 6518 NE 47th Street, Vancouver, Washington (Docket No. 200).

On October 28, 2010, the United States and First Independent Bank filed a Stipulated Expedited Settlement Agreement in which the United States and First Independent Bank agreed to compromise and settle Petitioner’s claim with respect to the real property located at 6518 NE 47th Street, Vancouver, Washington (Docket No. 229).

On October 29, 2009, the Court entered an Order Approving the Stipulated Settlement Agreement (Docket No. 230). On January 13, 2011, the United States filed a Motion for Entry of First Final Order of Forfeiture for the real property located at 6518 NE 47th Street, Vancouver, Washington. (Docket No. 232). On January 21, 2011, this Court granted the United States’s motion. (Docket No. 233).

All persons and entities believed to have an interest in the assets subject to forfeiture were given proper notice of the intended forfeiture. No other petitioners or claimants have come forth to assert an interest in the forfeited property and the time for doing so has expired. IT IS ORDERED, ADJUDGED, and DECREED that the following property is hereby fully and finally condemned and forfeited to the United States in its entirety: a. $34,500.00 representing proceeds from the sale of a 2003 Hummer H2, VIN

5GRGN23U23H110403;

d. $6,858.00 representing the cash balance and proceeds from the sale of securities frozen in Southwest Securities Retirement Account No. XXXXX4565; e. $1,014,043.00 representing the cash balance and proceeds from the sale of securities frozen in Southwest Securities Account No. XXXX9723; f. $118,271.00 representing the cash balance and proceeds from the sale of securities frozen in Southwest Securities Retirement Account No. XXXXX1039; $214,091.00 in United States currency seized from 6518 NE 47 th Street, g. Vancouver, Washington; h. $91,119.28 representing the cash balance and proceeds from the surrender of Northwestern Mutual Life Insurance Policy No. XXXX8510; i. $452,179.48 representing the cash balance and proceeds from the sale of securities frozen in CyberTrade Account No. XXXX8049; j. $30,000.00 in United States currency seized from Tobias Grace on or about February 14, 2005; k. $21,990.44 frozen in First Independent Bank Account No. XXXXX9997; l. $31,348.55 frozen in Compass Bank Account No. XXXX5725; m. $90,000.00 held in the Trust Account of Attorney Barry Flegenheimer; p. $10,931.20 in Primerica IRA account No. XXXXX8464 (Toby Grace), at

Primerica Shareholders Services, PO Box 9662, Providence, RI 02940- 9662; and q. $22,578.00 in Brown & Company, IRA account No. XXXX3350 (Toby Grace) at Brown Co., One Beacon Street, Boston MA 02108-3102. // // // // // // //

The United States Marshals Service is authorized to dispose of the above-listed property in accordance with the law. DATED this 15 th day of April, 2011. A

BENJAMIN H. SETTLE

United States District Judge for RONALD B. LEIGHTON

UNITED STATES DISTRICT JUDGE

Presented by: s/ Richard E. Cohen

RICHARD E. COHEN

Assistant United States Attorney United States Attorney’s Office 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 Telephone: (206) 553-2242 Fax: (206) 553-6934 Email: Richard.E.Cohen@usdoj.gov