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United States v. Real Property Located at 6107 Hogg Road

United States District Court, D. Idaho

March 14, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
Real Property Located at 6107 Hogg Road, Marsing, Owyhee County, Idaho, being parcel number 009700010030, including any and all fixtures, improvements and appurtenances thereon; U.S. Currency including the sums of $16, 084 and $102, 000, more or less; Gold and Silver and coins including Two 2 Silver Dollar coins 1889 and 1922, Five 5 $10 Gaming Pieces, Seven 7 $10 Gaming pieces/coins, Fifteen 15 Engelhard 1-Troy-Ounce of Silver, Eight 8 10-Ounce Silver Bars, One 1100-Ounce Gold/Silver Bar, One 1 Five-Ounce Silver Bar, One 1 Gold Colored Ring, One 1 Gold Colored Ring with Skull Carving, One 1 Austrian Philharmonics One-Ounce Gold Coin, Twenty-One 21 American Gold Eagle Liberty 1-Ounce Gold Coins, Twenty-six 26 Canadian Gold Maple Leaf One-Ounce Gold Coins, Ten 10 $10 gaming pieces from Las Vegas Casinos; One $20 Bill, and One (1) Gold Colored Ring with a Clear Stone; Three (3) $100 bills; Three (3) One-Ounce Canadian Maple Leaf Gold Coins; a 2002 Harley Davidson Motorcycle, Idaho License MSM731; a 1952 Willys Jeep, Idaho License 1A2D138; and a 2002 Subaru Outback, VIN: 4S3BE896327203958, Defendants.

          MEMORANDUM DECISION AND ORDER RE: DKTS. 132, 140, 141, 143, AND 152

          Honorable Candy W. Dale United States Magistrate Judge.

         INTRODUCTION

         This is a civil asset forfeiture action under 18 U.S.C. § § 981(a)(1)(A) and (C), and 21 U.S.C. § 881(a)(6). The United States of America brings the action in rem against real property located at 6107 Hogg Road in Marsing, Idaho, and other various property items. Claimant Enrico Ponzo resided at the Hogg Road residence until February 7, 2011, when he was arrested for unlawful flight to avoid prosecution. Ponzo claims interests in certain property items remaining in this action.[1]

         Pending before the Court are five motions: (1) United States' Motion to Dismiss (Dkt. 132); (2) Ponzo's Motion to Suppress and Return Property and for Evidentiary Hearing (Dkt. 140); (3) Ponzo's Motion to Suppress Evidence Seized Pursuant to Alleged Consent Search on March 28, 2011 (Dkt. 141); (4) Ponzo's Motion for Return of Property (Dkt. 143); and (5) Ponzo's Motion to Grant Unopposed Motions to Suppress and Return Property (Dkt. 152).

         Pursuant to 28 U.S.C. § 636(c), the parties consented to the exercise of jurisdiction over this matter by the undersigned United States Magistrate Judge. (Dkt. 20.) In the interest of avoiding delay, and because the Court conclusively finds the decisional process would not be significantly aided by oral argument, the pending motions will be decided on the record and without oral argument. Dist. Idaho L. R. 7.1(d).

         FACTUAL BACKGROUND

         Enrico Michael Ponzo was indicted by a federal grand jury in the District of Massachusetts in April of 1997. He was charged with conspiracy to commit murder, interference with commerce by threats or violence, violent crimes in aid of racketeering, RICO violations, and firearms violations. Many of the charges stemmed from Ponzo's involvement in the New England La Cosa Nostra in the late 1980's. On February 7, 2011, Ponzo, under the alias name of Jeffery John Shaw, was arrested near his residence at 6107 Hogg Road, in Marsing, Idaho, and charged with unlawful flight to avoid prosecution. Finger print comparisons and his oral admissions during his appearance in federal court in Boise on February 9, 2011, confirmed his identity as Enrico Michael Ponzo, and he was extradited to Boston.

         On January 31, 2013, a federal grand jury sitting in the District of Massachusetts returned a Superseding Indictment charging Ponzo with 18 federal offenses, including Conspiracy to Distribute and to Possess with Intent to Distribute Marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1). The Indictment contained a drug forfeiture allegation, pursuant to 21 U.S.C. § 853, which provided for the forfeiture upon conviction of Ponzo of all proceeds he obtained as a result of the drug offenses, and all property which facilitated his drug trafficking offense. The drug forfeiture allegation identified specific items as forfeitable and also alleged that the United States would seek a money judgment of $1, 500, 000.00 derived from the distribution of marijuana between October of 1994 and March of 1999.

         On November 20, 2013, after a 26-day trial, a jury found Ponzo guilty of conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 846 and 841(a)(1), in addition to racketeering conspiracy, conspiracy to commit murder in aid of racketeering, using or carrying a firearm during a crime of violence, conspiracy to launder money, and money laundering. The jury further found that the United States established the requisite nexus between Ponzo's counts of conviction and the defendant “Hogg Road” real property, and the jury returned special verdicts of forfeiture as to the currency and gold coins which are also named in this forfeiture action.

         Ponzo was sentenced on or about April 28, 2014, to approximately 28 years for the above listed convictions. The United States District Court in Boston entered a Preliminary Order of Forfeiture on May 1, 2014, ordering the forfeiture of specific assets including the real property at Hogg Road and the currency, gold, and personal property which were also defendant properties in this Idaho civil case.[2] (Dkt. 142-1.) The Boston court also entered a Preliminary Order of Forfeiture against Ponzo in the criminal case in the form of a personal money judgment in the amount of $2, 250, 000.00 (MA Dkt. No. 2016). Each Preliminary Order was final as to Ponzo pursuant to Rule 32.2(b)(4)(A), Federal Rules of Criminal Procedure. A “Final Order of Forfeiture (Specific Assets)” was entered by the United States District Court for the District of Massachusetts (Boston) on July 14, 2015. (Dkt. 132-1.)

         PROCEDURAL HISTORY

         On June 29, 2011, the United States filed the instant in rem forfeiture action in the District of Idaho, naming the following as defendant property items:

1. 6107 Hogg Road
2. Twenty-six $50 bills
3. One-hundred-twenty-two $100 bills
4. Eight $100 bills
5. One $40 bill
6. One $20 bill
7. Seventeen $100 bills
8. One $10 bill
9. Four $1 bills
10. One $20 bill
11. Thirty-four $50 bills
12. One-thousand three $100 bills
13. Three $100 bills
14. Two silver coins (1889 and 1922)
15. Fifteen Engelhard 1 trop ounce of silver
16. Eight 10 troy ounces silver bars
17. One 100-ounce gold/silver bar
18. One 5-ounce silver bar
19. Five $10 gaming pieces
20. Seven $10 gaming pieces
21. One gold colored ring
22. One gold colored ring with skull
23. Ten gaming pieces from Las Vegas Casinos
24. One Australian Gold Philharmonics 1-ounce gold coin
25. Twenty-one American Gold Eagle Liberty 1-ounce gold coins
26. Twenty-six Canadian Gold Maple Leaf 1 once ...

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