Opposition to Allison Baver Entertanment, LLC’s Motion for Stay of Proceedings — United States v. Baver (Dkt. 229, D. Utah)

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The government's Opposition to Allison Baver Entertanment, LLC's Motion for Stay of Proceedings in United States of America v. Allison Marie Baver, Case No. 2:21-cr-00520-JNP, in the U.S. District Court for the District of Utah, filed October 2, 2024. The United States opposes the third-party petitioner's motion to stay, calling it a continuation of the defendant's attempts to delay the proceedings. Its background states that sentencing was originally scheduled for October 30, 2023 and that the defendant requested delays of sentencing four times. The government asks the Court to decide its pending motion to dismiss under 21 U.S.C. § 853(n)(6) and to deny the stay.

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Case 2:21-cr-00520-JNP Document 229 Filed 10/02/24 PageID.3662 Page 1 of 4




    TRINA A. HIGGINS, United States Attorney (7349)
    TRAVIS K. ELDER, Assistant United States Attorney (11987)
    Attorneys for the United States of America
    111 South Main Street, Suite 1800 | Salt Lake City, Utah 84111
    (801) 524-5682 | travis.elder@usdoj.gov

                                UNITED STATES DISTRICT COURT
                                       DISTRICT OF UTAH

     UNITED STATES OF AMERICA,
                                                    OPPOSITION TO ALLISON BAVER
                   Plaintiff,                       ENTERTANMENT, LLC’S MOTION
                                                      FOR STAY OF PROCEEDINGS
            v.
                                                         Case No. 2:21-cr-00520-JNP
     ALLISON MARIE BAVER,
                                                              Judge Jill N. Parrish
                   Defendant.


     ALLISON BAVER ENTERTAINMENT,

     LLC

                          Third-Party Petitioner.


           The United States of America opposes Allison Baver Entertainment, LLC’s 1

    (ABE) Motion for Stay of Proceedings (ECF 223) to further delay proceedings in this

    matter. ABE’s request is merely a continuation of the defendant’s unjustified attempts to

    delay these proceedings.



1
    The United States will refer to the petitioner using the name of the entity in the ABE’s
    petition, Allison Baver Entertainment, LLC, and not the name in the motion, Allison
    Baver Enterprises, Inc.
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 Case 2:21-cr-00520-JNP Document 229 Filed 10/02/24 PageID.3663 Page 2 of 4




                                     BACKGROUND

       Sentencing was originally scheduled for October 30, 2023. (ECF 173). The

defendant requested delays of the sentencing four times. (ECF 185, 201, 203, 211). The

United States requested one continuance of five days. (ECF 204).

       On September 16, 2024, Defendant Baver requested a delay of the sentencing for a

fifth time to allow the United States time to respond to the defendant’s latest request related

to alleged misconduct. (ECF 220). In response, the United States indicated that it had

“responded and no additional information will be provided.” (ECF 221). On September 19,

2024, this Court summarily denied the motion in a docket text order. (ECF 222).

       Related to the ancillary proceeding, on July 26, 2024, the court entered its amended

preliminary forfeiture order. (ECF 201). This order forfeited funds seized from various

accounts and funds seized related to an investment. Id. On August 14, 2024, ABE filed it

petition. (ECF 217). Less than two weeks later on August 26, 2024, the United States filed

a motion to dismiss the petition because ABE has not and cannot sufficiently plead facts

showing entitlement to relief under the only two avenues for relief available to third-party

petitioners. (ECF 219). On September 4, 2024, the United States agreed to extend ABE’s

time to respond to the motion to dismiss until September 23, 2024.

       On September 23, 2024, ABE filed a Motion for Stay of Proceedings in this ancillary

forfeiture proceeding. (ECF 223). In support of its motion, ABE argues that a stay should

be granted because dismissal of ABE’s petition is premature because “the issue of whether


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 Case 2:21-cr-00520-JNP Document 229 Filed 10/02/24 PageID.3664 Page 3 of 4




[Defendant Baver’s] conviction has been tainted by prosecutorial misconduct remains

unresolved” and to conserve judicial resources.

                                       ARGUMENT

       The court denied the motion for continuance of the sentencing on alleged

misconduct and should deny the motion here. Whether some alleged misconduct has

impacted the defendant’s conviction in any way is irrelevant to the ancillary proceeding

and the court should proceed with adjudicating ABE’s petition. The ancillary proceeding

provides a limited cause of action to third parties to contest forfeiture of property in the

criminal case. The sole issue in the ancillary proceeding is whether the third party has a

legal interest in property ordered forfeit in the forfeiture order. These issues are separate

from the criminal case, which is why the consideration of third-party petitions are

considered in an ancillary proceeding, which is essentially a separate civil lawsuit related

only to the forfeiture order. See, e.g., United States v. Bradley, 882 F.3d 390, 393 (2nd

Cir. 2018) (ancillary proceeding under § 853(n) is civil in nature, resembling a quiet title

proceeding in which the petitioners are plaintiffs).

       ABE has failed to demonstrate that any meaningful issue remains pending in the

criminal case that has a likelihood of success in overcoming the conviction. Undoubtedly,

the defendant will appeal after sentence is opposed. However, ancillary proceedings

typically proceed despite appeals by the defendant and even if the forfeiture is stayed as

to the defendant. This is because, under Rule 32.2(d), if a court grants a defendant a stay


                                                  3

 Case 2:21-cr-00520-JNP Document 229 Filed 10/02/24 PageID.3665 Page 4 of 4




of the forfeiture pending appeal to a defendant, such “a stay does not delay the ancillary

proceeding or the determination of a third party’s rights or interests.” See also United

States v. Hassan, 411 F. Supp. 3d 1302, 1310 (M.D. Fla. 2019) (under Rule 32.2(d),

district court can adjudicate a third party’s petition in the ancillary proceeding

notwithstanding defendant’s appeal and even if the defendant has obtained a stay of the

forfeiture).

       While courts have on occasion stayed an ancillary proceeding to conserve judicial

resources, that rationale does not apply here. The United States has filed a motion to

dismiss based on a straightforward issue: ABE simply cannot plead any facts that will

show it can qualify for relief under 21 U.S.C. § 853(n)(6). From the government’s

perspective, a decision in ABE’s favor is unlikely. The government has already invested

time and resources into the motion to dismiss and it requests that the court decide the

motion.

       Accordingly, the Court should deny ABE’s motion to further delay the

proceedings in this case.


                                                  TRINA A. HIGGINS
                                                  United States Attorney


                                                  /s/ Travis K. Elder
                                                  Travis K. Elder
                                                  Assistant U.S. Attorney




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