Stipulation for Entry of Order of Forfeiture as to Michael Kern and Michael K. Kern and Patti Ann Kern, as Trustees of the Kern Family Trust dated September 26, 2006, and Order
RICHARD F. BOULWARE, II, District Judge.
The United States of America, Michael Kern, and Michael K. Kern and Patti Ann Kern, as Trustees of the Kern Family Trust dated September 26, 2006 (Trust), agree as follows:
1. The government filed a One-Count Criminal Information against Patti Kern for violations of 18 U.S.C. §§ 1341 and 1349. Information, ECF No. 8.
2. Patti Kern pled guilty to Count One of a One-Count Criminal Information charging her with conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1341 and 1349 and agreed to the forfeiture of property set forth in the Plea Agreement and the Forfeiture Allegation of the Criminal Information. Criminal Information, ECF No. 8; Change of Plea, ECF No. 14; Plea14 Agreement, ECF No. 10.
3. Patti Kern agreed to the substitution and forfeiture of property as set forth in the Plea Agreement pursuant to Fed. R. Crim. P. 32.2(e) and 21 U.S.C. § 853(p).
4. Michael Kern and the Trust knowingly and voluntarily agree to the abandonment, the civil administrative forfeiture, the civil judicial forfeiture, or the criminal forfeiture of the following property:
1. $106,150;
2. $20,400.32;
3. $34,364;
4. $40,010;
5. $50,126.59;
6. $4,998;
7. $10,908;
8. $15,278;
9. $6,975;
10. $4,644.;
11. $3,101;
12. $1,824;
13. $13,146
14. $1,785;
15. $14,439;
16. $9,887;
17. $8,253;
18. $138;
19. $12,464.03; and
20. $18,950
(all of which constitutes property).
5. Michael Kern and the Trust know and understand that the following property will be applied toward the payment of Patti Kern's $800,000 money judgment:
a. $106,150;
b. $20,400.32;
c. $34,364;
d. $40,010;
e. $50,126.59; and
f. $4,998
6. Michael Kern and the Trust knowingly and voluntarily agree to the substitution and forfeiture of the following property:
i. a 2015 Ford F250 truck held in the name of Patti Kern, VIN 1FT7W2BT5FED16800;
ii. a 2004 Sundowner LQ Horse Trailer held in the name of Patti Kern, VIN 13SLE322141LA4098; and
iii. In addition to the dollar amounts in ¶ 5 and ¶ i and ii above, that Patti Kern agrees to apply to the in personam criminal forfeiture money judgment of $800,000, Michael Kern and the Trust agree that Patti Kern pays an additional $400,000 toward the in personam criminal forfeiture money judgment of $800,000 within 60 days of sentencing (the "Due Date"). Michael Kern and the Trust agree Patti Kern's payment of the additional $400,000 towards the in personam criminal forfeiture money judgment of $800,000 shall be a bank cashier's check, payable to the order of the United States Postal Inspection Service. Michael Kern and the Trust agree Patti Kern shall send the bank cashier's check by priority mail to the US Postal Inspection Service, Attention Clayton E. Gerber, PO Box 7404, Washington, DC 20044-7404, with the criminal docket number noted on the face of it. Michael Kern and the Trust agree Patti Kern will contact Timothy Finley or Daniel Zytnick with the mail tracking information. Michael Kern and the Trust agree if Patti Kern fails to make the $400,000 payment on or before the Due Date, Michael Kern, the Trust, and Patti Kern consent to the forfeiture of the real property located at 1861 Bogey Way, Henderson, Nevada 89074, more particularly described as: Lot Thirteen (13) in Block Three (3) of HEATHERSTONE, as shown by map thereof on file in Book 53 of Plats, Page 40, in the Office of the County Recorder of Clark County, Nevada together with all improvements and appurtenances thereon, APN: 178-17-812-049.
(all of which is included as property)
7. Michael Kern and the Trust knowingly and voluntarily agree to abandon or to forfeit the property to the United States.
8. Michael Kern and the Trust knowingly and voluntarily agree to relinquish all possessory rights, ownership rights, and all rights, titles, and interests in the property.
9. Michael Kern and the Trust knowingly and voluntarily agree to waive their rights to any abandonment proceedings, any civil administrative forfeiture proceedings, any civil judicial forfeiture proceedings, or any criminal forfeiture proceedings (all of which constitutes proceedings) of the property.
10. Michael Kern and the Trust knowingly and voluntarily agree to waive service of process of any and all documents filed in this action or any proceedings concerning the property.
11. Michael Kern and the Trust knowingly and voluntarily agree to waive any further notice to them, their agents, or their attorneys regarding the forfeiture and disposition of the property.
12. Michael Kern and the Trust knowingly and voluntarily agree not to file any claim, answer, petition, or other documents in any proceedings concerning the property.
13. Michael Kern and the Trust knowingly and voluntarily agree to withdraw any claims, answers, counterclaims, petitions, or other documents he filed in any proceedings concerning the property.
14. Michael Kern and the Trust knowingly and voluntarily agree to waive the statute of limitations, the CAFRA requirements, Fed. R. Crim. P. 7, 11, and 32.2, the constitutional requirements, and the constitutional due process requirements of any abandonment proceedings or any forfeiture proceedings concerning the property.
15. Michael Kern and the Trust knowingly and voluntarily agree to waive their right to a hearing on the forfeiture of the property.
16. Michael Kern and the Trust knowingly and voluntarily agree to waive (a) all constitutional, legal, and equitable defenses to, (b) any constitutional or statutory double jeopardy defense or claim concerning, and (c) any claim or defense under the Eighth Amendment to the United States Constitution, including, but not limited to, any claim or defense of excessive fines or cruel and unusual punishments in any proceedings concerning the property.
17. Michael Kern and the Trust knowingly and voluntarily agree to the entry of an Order of Forfeiture of the property to the United States.
18. Michael Kern and the Trust understand that the forfeiture of the property shall not be treated as satisfaction of any assessment, restitution, fine, cost of imprisonment or any other penalty that may be imposed in addition to forfeiture.
19. Michael Kern and the Trust knowingly and voluntarily agree to the conditions set forth in this Stipulation for Entry of Order of Forfeiture as to Michael Kern and Michael K. Kern and Patti Ann Kern, as Trustees of the Kern Family Trust dated September 26, 2006, and Order (Stipulation).
20. Michael Kern and the Trust knowingly and voluntarily agree to hold harmless the United States, the United States Department of Justice, the United States Attorney's Office for the District of Nevada, the United States Postal Inspection Service, their agencies, their agents, and their employees from any claim made by them or any third party arising from the facts and circumstances of this case.
21. Michael Kern and the Trust knowingly and voluntarily release and forever discharge the United States, the United States Department of Justice, the United States Attorney's Office for the District of Nevada, the United States Postal Inspector's Service, their agencies, their agents, and their employees from any and all claims, rights, or causes of action of any kind that Michael Kern and the Trust now have or may hereafter have on account of, or in any way growing out of, the seizures and the forfeitures of the property in the abandonment, the civil administrative forfeitures, the civil judicial forfeitures, and the criminal forfeitures.
22. Each party acknowledges and warrants that its execution of the Stipulation is free and is voluntary.
23. The Stipulation contains the entire agreement between the parties.
24. Except as expressly stated in the Stipulation, no party, officer, agent, employee, representative, or attorney has made any statement or representation to any other party, person, or entity regarding any fact relied upon in entering into the Stipulation, and no party, officer, agent, employee, representative, or attorney relies on such statement or representation in executing the Stipulation.
25. The persons signing the Stipulation warrant and represent that they have full authority to execute the Stipulation and to bind the persons and/or entities, on whose behalf they are signing, to the terms of the Stipulation.
26. This Stipulation shall be construed and interpreted according to federal forfeiture law and federal common law. The jurisdiction and the venue for any dispute related to, and/or arising from, this Stipulation is the unofficial Southern Division of the United States District Court for the District of Nevada, located in Las Vegas, Nevada.
27. Each party shall bear their or its own attorneys' fees, expenses, interest, and costs.
28. This Stipulation shall not be construed more strictly against one party than against the other merely by virtue of the fact that it may have been prepared primarily by counsel for one of the parties; it being recognized that both parties have contributed substantially and materially to the preparation of this Stipulation.
IT IS HEREBY CERTIFIED, pursuant to 28 U.S.C. § 2465(a)(2), that there was reasonable cause for the seizure and forfeiture of the property.
IT IS SO ORDERED.
