Third Party Claimant Sandra Will's Opposition to Government's Motion to Dismiss First Amended Petition
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Third Party Claimant Sandra Will, through attorney Hanni M. Fakhoury, files an opposition to the government's motion to dismiss her first amended petition in United States v. Will-Darnall. The hearing date is March 25, 2026, at 10:00 a.m. in Courtroom 8. The table of contents lists three arguments: the amended petition is timely, her interests in Bellwood were superior to those of Ms. Will-Darnall, and she has standing to raise a constitutional challenge to the forfeiture. The brief argues that forfeiting the home is disproportionate to the gravity of the offense under the Eighth Amendment, in part because of other government remedies to collect money. It asks the court to amend the forfeiture order to remove the Belwood home. The signature block shows s/ Hanni M. Fakhoury.
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“Third Party Claimant Sandra Will's Opposition to Government's Motion to Dismiss First Amended Petition.”
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Case 5:24-cr-00292-PCP Document 122 Filed 01/16/26 Page 1 of 17
1 MOEEL LAH FAKHOURY LLP
Hanni M. Fakhoury (State Bar No. 252629)
2 2006 Kala Bagai Way, Suite 16
Berkeley, CA 94704
3 Telephone: (510) 500-9994
Email: hanni@mlf-llp.com
4
5 Attorneys for Third Party Claimaint Sandra Will
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7
IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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11 UNITED STATES OF AMERICA, Case No.: 5:24-CR-00292-PCP
12 Plaintiff, THIRD PARTY CLAIMANT SANDRA
WILL’S OPPOSITION TO
13 v. GOVERNMENT’S MOTION TO
DISMISS FIRST AMENDED PETITION
14 CASSIE WILL-DARNALL,
Court: Courtroom 8, 4th Floor
15 Defendant.
Hearing Date: March 25, 2026
16 Hearing Time: 10:00 a.m.
17 SANDRA WILL,
18 Third Party Claimant.
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THIRD PARTY CLAIMANT SANDRA WILL’S OPPOSITION TO GOVERNMENT’S MOTION TO DISMISS FIRST AMENDED PETITION
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1 TABLE OF CONTENTS
2 TABLE OF CONTENTS ........................................................................................................................ i
3 TABLE OF AUTHORITIES .................................................................................................................. ii
4 INTRODUCTION .................................................................................................................................. 1
5 ARGUMENT ......................................................................................................................................... 2
6 A. The amended petition is timely. ........................................................................................ 5
7 B. Ms. Will’s interests in Bellwood were superior to those of Ms. Will-Darnall. ................ 8
8 C. Ms. Will has standing to raise a constitutional challenge to the forfeiture. .................... 10
9 CONCLUSION .................................................................................................................................... 13
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THIRD PARTY CLAIMANT SANDRA WILL’S OPPOSITION TO GOVERNMENT’S MOTION TO DISMISS FIRST AMENDED PETITION
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1 TABLE OF AUTHORITIES
2 Cases
3 Fort Bend Cnty., Texas v. Davis, 587 U.S. 541 (2019) .......................................................................... 6
4 Gates Rubber Co. v. Ulman, 214 Cal. App. 3d 356 (1989).................................................................... 9
5 Hamer v. Neighborhood Hous. Servs. of Chicago, 583 U.S. 17 (2017)............................................. 5, 6
6 Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011) ............................................................ 6
7 Hudson v. United States, 522 U.S. 93 (1997) ....................................................................................... 10
8 Lloyds Bank California v. Wells Fargo Bank, 187 Cal. App. 3d 1038 (1986)....................................... 9
9 Majewsky v. Empire Constr. Co., 2 Cal. 3d 478 (1970) ......................................................................... 8
10 Mayle v. Felix, 545 U.S. 644 (2005) ...................................................................................................... 7
11 United States v. $100,348.00 in U.S. Currency, 354 F.3d 1110 (9th Cir. 2004) .................................. 10
12 United States v. 101 Houseco, LLC, 22 F.4th 843 (9th Cir. 2022)......................................................... 5
13 United States v. Alvarez, 710 F.3d 565 (5th Cir. 2013).......................................................................... 6
14 United States v. Bajakajian, 524 U.S. 321 (1998)................................................................................ 10
15 United States v. Caspersen, 275 F. Supp. 3d 502 (S.D.N.Y. 2017) ....................................................... 3
16 United States v. Coffman, 612 Fed. Appx. 278 (6th Cir. 2015) ........................................................... 11
17 United States v. Crew, 704 F. App’x 30 (2d Cir. 2017) ......................................................................... 8
18 United States v. Espada, 128 F. Supp. 3d 555 (E.D.N.Y. 2015) .................................................... 10, 12
19 United States v. Estevez, 845 F.2d 1409 (7th Cir. 1988) ........................................................................ 6
20 United States v. Grossman, 501 F.3d 846 (7th Cir. 2007) ..................................................................... 8
21 United States v. Klemme, 894 F. Supp. 2d 1113 (E.D. Wis. 2012) ........................................................ 7
22 United States v. Lamid, 663 F. App’x 319 (5th Cir. 2016) .................................................................... 6
23 United States v. Marion, 562 F.3d 1330 (11th Cir. 2009) ...................................................................... 8
24 United States v. Nejad, 933 F.3d 1162 (9th Cir. 2019) .......................................................................... 4
25 United States v. Newman, 659 F.3d 1235 (9th Cir. 2011) .................................................................... 12
26 United States v. One 1980 Rolls Royce, VIN No. SRL39955, 905 F.2d 89 (5th Cir. 1990) ................... 3
27 United States v. Osborn, 357 F. App’x 109 (9th Cir. 2009)................................................................... 6
28 United States v. Pole No. 3172, Hopkinton, 852 F.2d 636 (1st Cir. 1988) ............................................ 3
THIRD PARTY CLAIMANT SANDRA WILL’S OPPOSITION TO GOVERNMENT’S MOTION TO DISMISS FIRST AMENDED PETITION
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1 United States v. Porchay, 533 F.3d 704 (8th Cir. 2008) ...................................................................... 11
2 United States v. Real Property Located at 5208 Los Franciscos Way, Los Angeles, CA, 385 F.3d
3 1187 (9th Cir. 2004) ................................................................................................................... 2
4 United States v. Soreide, 461 F.3d 1351 (11th Cir. 2006)...................................................................... 7
5 United States v. Tarraf, 725 F. Supp. 2d 625 (E.D. Mich. 2010)......................................................... 11
6 United States v. Timley, 507 F.3d 1125 (8th Cir. 2007) ......................................................................... 9
7 United States v. Totaro, 345 F.3d 989 (8th Cir. 2003) ......................................................................... 11
8 United States v. Watts, 786 F.3d 152 (2d Cir. 2015) .............................................................................. 9
9 Willis Mgmt. (Vermont), Ltd. v. United States, 652 F.3d 236 (2d Cir. 2011) ........................................ 7
10 Constitutional Provisions
11 U.S. CONST. AMEND. VIII ......................................................................................................... 10, 11, 12
12 Statutes
13 18 U.S.C. § 981 ...................................................................................................................................... 2
14 21 U.S.C. § 853 ............................................................................................................................. passim
15 28 U.S.C. § 2461 .................................................................................................................................... 2
16 Federal Rules
17 Federal Rule of Civil Procedure 6 .......................................................................................................... 6
18 Federal Rule of Civil Procedure 12 ........................................................................................................ 7
19 Federal Rule of Civil Procedure 15 ........................................................................................................ 7
20 Federal Rule of Civil Procedure 56 ........................................................................................................ 7
21 Federal Rule of Criminal Procedure 32.2 ....................................................................................... 1, 6, 7
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1 INTRODUCTION
2 Third Party Claimant Sandra Will petitioned the Court on June 6, 2025 to conduct an ancillary
3 proceeding under 21 U.S.C. § 853(n) and Federal Rule of Criminal Procedure 32.2(c) after the
4 government gave her notice that it intended to forfeit two homes—306 Los Gatos Almaden Way and
5 111 Belwood Gateway—in Los Gatos as a result of criminal conduct by her daughter, defendant
6 Cassie Will-Darnall. Dkt. 65. Most pressing to Ms. Will was the property at 306 Los Gatos Almaden
7 Way, the home she has owned since 1991 and lived in since 1995. She also, however, contested the
8 government’s efforts to forfeit a second property located at 111 Belwood Gateway. The government
9 ultimately abandoned its request to forfeit 306 Los Gatos Almaden, but continued to seek forfeiture
10 of 111 Belwood Gateway. Following a full briefing by the parties, and a motion hearing, this Court
11 granted the government’s motion to dismiss but granted Ms. Will leave to file an amended petition
12 within 21 days of the Court order. Dkt. 103.
13 As authorized by the Court, Ms. Will filed an amended petition on November 11, 2025. Dkt.
14 104, Third Party Claimant Sandra Will’s Amended Petition For Ancillary Proceeding (“Amend.
15 Pet.”). She reasserted her argument concerning 306 Los Gatos Almaden and refined her argument
16 concerning 111 Belwood Gateway. The government opposes Ms. Will’s ancillary petition, again
17 limiting its discussion to 111 Belwood Gateway. It argues that Ms. Will’s petition is untimely and her
18 arguments against forfeiture of the home at 111 Belwood Gateway meritless. Dkt. 115, United States’
19 Notice of Motion and Motion to Dismiss First Amended Petition (“Gov. Mot.”). As set forth in detail
20 below, the government is wrong.
21 Ms. Will’s amended petition is timely because it was filed within the deadline established by
22 the Court, after implicitly finding good cause to permit her to file an amended petition. It is also
23 timely because under Federal Rule of Civil Procedure 15(c)(1)(B), it relates back to her timely
24 original petition. Because Ms. Will has demonstrated that the home was held in a resulting trust, her
25 interest in the home was superior to that of Ms. Will-Darnall’s under 21 U.S.C. § 853(n)(6)(A).
26 This Court should deny the government’s motions and amend the preliminary order of
27 forfeiture to remove the Belwood property.
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THIRD PARTY CLAIMANT SANDRA WILL’S OPPOSITION TO GOVERNMENT’S MOTION TO DISMISS FIRST AMENDED PETITION
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1 ARGUMENT
2 Lurking throughout these proceedings has been the validity of the government’s theory of
3 forfeitability. As set forth in Ms. Will’s Amended Petition, neither house was “derived from proceeds
4 traceable” to the bank fraud charged in Count 1, 28 U.S.C. § 2461(c), or was property “obtained
5 directly, or indirectly, as the result of the commission of the offense.” 18 U.S.C. § 981(a)(2)(A). Both
6 houses were purchased long before the COVID-19 pandemic and PPP fraud committed by Ms. Will-
7 Darnall, and were purchased without any money obtained through the PPP loans. Amend. Pet. at 9.
8 The only Ninth Circuit case cited by the government in support of its theory of forfeiture, United
9 States v. Real Property Located at 5208 Los Franciscos Way, Los Angeles, CA, 385 F.3d 1187 (9th
10 Cir. 2004), involved property purchased after the fraud, with fraudulent proceeds and after the
11 purchaser was on notice that they were being investigated for fraud. 385 F.3d at 1189; see Dkt. 77 at
12 16, n. 12. That is certainly not the case here.
13 The Northern District of California cases cited by the government in its motion to dismiss that
14 involved the forfeiture of real property all involved properties acquired directly from the use of
15 tainted funds, not the novel situation here—unsupported by a single Ninth Circuit case—where
16 property acquired well before criminal activity becomes forfeitable when tainted funds are used to
17 make improvements, pay off loans and otherwise increase the equity of the property. See, e.g. United
18 States v. Susan Xiao-Ping Su, 4:11-CR-00288-JST, Dkt. 224 at 1 (defendant used illegally obtained
19 “funds to purchase real estate” that was then forfeited without objection); United States v. Esther
20 Sanchez, 5:15-CR-00475-BLF, Dkt. 160 at 2 (defendant made false statements to a bank “in
21 connection with the purchase of her co-defendant’s home” that “influence[d] the bank to fund” a
22 mortgage on the property that was later foreclosed on by the bank); United States v. Pavel Lazarenko,
23 3:00-CR-00284-CRB, Dkt. 1625 at 2 (forfeited property purchased “with laundered money” and “the
24 purchase is the financial transaction underlying defendant Lazarenko’s conviction on Count Seven of
25 the Second Superseding Indictment for money laundering”); United States v. Jonathan Chang, 5:16-
26 CR-00047-EJD, Dkt. 232 at 2 (fraudulently obtained “funds were invested and used to purchase real
27 property, including rental properties;” 3 of 5 properties purchased entirely with tainted funds, 2
28 remaining properties purchased with some untainted funds, but forfeiture limited to tainted funds);
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1 see Gov. Mot. at 6. 1
2 Ms. Will acknowledged in her amended petition that courts outside the Ninth Circuit had
3 adopted the government’s theory that “real property acquired with fraud proceeds (including through
4 an all-cash purchase or mortgage payments)” are forfeitable. Gov. Mot. at 4; see Amend. Pet. at 9, n.
5 4. But that theory comes with an important caveat: in these cases, the government’s interest in the
6 property was limited to the amount of tainted funds.
7 For example, in United States v. Caspersen, 275 F. Supp. 3d 502 (S.D.N.Y. 2017), a case cited
8 by the government, the district court ordered forfeiture of an apartment that was purchased with a
9 downpayment sourced from untainted funds while the mortgage payments were made by tainted
10 funds. Caspersen, 275 F. Supp. 3d at 504; see Gov. Mot. at 4. The district court explained “the
11 Government acquired an interest in the Apartment to the extent of the sum Mr. Caspersen used to pay
12 off the Apartment’s mortgage” through tainted funds. Caspersen, 275 F. Supp. 3d at 504 (emphasis
13 added). The district court elaborate “the use of crime proceeds to pay off a HELOC secured by real
14 property results in the Government’s acquisition of an interest in the real property to the extent of the
15 payment.” Id. (emphasis added). As noted in Ms. Will’s amended petition, other Circuits have
16 reached similar results. See United States v. Pole No. 3172, Hopkinton, 852 F.2d 636, 639 (1st Cir.
17 1988) (“We do not believe, however, that forfeitability spreads like a disease from one infected
18 mortgage payment to the entire interest in the property acquired prior to the payment. After all, only
19 the actual proceeds of [criminal activity] are forfeitable.”) United States v. One 1980 Rolls Royce,
20 VIN No. SRL39955, 905 F.2d 89, 90 (5th Cir. 1990) (agreeing with claimant “that the legitimate
21 portions of…properties are not subject to forfeiture.”); Amend. Pet. at 9, n. 4. So it is clearly wrong
22 for the government to complain that it “is contrary to the law and precedent” for Ms. Will to assert
23 “the government is not entitled to forfeit any excess equity beyond the proceeds traced into the
24 property” under principles of forfeiture. Gov. Mot. at 4.
25
26 1
The final case cited by the government involved a stipulation between the parties allowing the
27 government to forfeit one property to satisfy a money forfeiture judgment, with the government’s
agreement not to forfeit a second property. See United States v. Allen Fong, 3:14-CR-00527-VC, Dkt.
28 571. It is unclear from the record in that case whether the properties were derived from the criminal
activity, or if the government was using the property as a substitute asset.
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1 What the government has done is conflate what it can forfeit with how it can collect. The
2 government ultimately wants the Bellwood house as “substitute property” to cover the balance of the
3 forfeiture money judgment issued against Mr. Will-Darnall, which exceeds the $746,372.98 of
4 tainted proceeds traced to the home. Gov. Mot. to Dismiss at 5.
5 As a starting point, that does not mean the government is able to forfeit the full value of the
6 home, which is exactly what it proposed to do when it first applied to forfeit the properties. See Dkt.
7 43, Application for Preliminary Order of Forfeiture at 17 (seeking “forfeiture of the Subject Property”
8 and “a $1,406,594.56 money judgment”). The Ninth Circuit has noted that “the government may not
9 enforce a personal money judgment through the same means it would use to enforce an ordinary in
10 personam civil judgment. Instead, once the government identifies untainted property that it believes
11 may be used to satisfy a personal money judgment, it must return to the district court and establish
12 that the requirements of § 853(p) have been met.” United States v. Nejad, 933 F.3d 1162, 1166 (9th
13 Cir. 2019). After all the briefing submitted to the Court and two motion hearings, the government
14 finally admits as much, explaining “Once the Court enters a final order of forfeiture including the
15 money judgment of $1,406,594.56, the government will apply to the Court for the forfeiture of
16 substitute assets—namely, any equity in excess of $746,372.98, but not to exceed $1,406,594.56 (that
17 is, $2,152,967.54 in total), resulting from the sale of the Belwood Property—to satisfy the money
18 judgment.” Gov. Mot. at 4-5 (emphasis added). In turn, for the first time, the government seeks only
19 “Up to $746,372.98 in equity resulting from the sale of the Belwood Property.” Id. at 12.
20 All this background demonstrates that the government’s critique about Ms. Will’s “morphed”
21 claims apply equally to its actions. Gov. Mot. at 7. After Ms. Will filed her original petition, it
22 abandoned its efforts to forfeit the Los Gatos Almaden house. Now, it has stated for the first time it
23 was limiting its forfeiture of the Bellwood home to just the amount of tainted funds traced to the
24 home. Even if Ms. Will ultimately does not prevail, her challenges to the government’s forfeiture
25 have spared her primary residence, and limited the amount of money the government seeks to forfeit
26 from the Bellwood home.
27 But again, as Ms. Will has repeatedly acknowledged, a “third party wishing to challenge a
28 district court’s criminal forfeiture order” in an ancillary proceeding cannot “include a claim that the
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1 property was not forfeitable in the first place.” United States v. 101 Houseco, LLC, 22 F.4th 843, 849
2 (9th Cir. 2022). Instead, to prevail at an ancillary proceeding, a petitioner must show by a
3 preponderance of the evidence that she either (1) has a “legal right, title, or interest in the property”
4 that was “vested in the petitioner rather than the defendant or was superior to any right, title, or
5 interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture of
6 the property,” or (2) is “a bona fide purchaser for value of the right, title, or interest in the property
7 and was at the time of purchase reasonably without cause to believe that the property was subject to
8 forfeiture.” 21 U.S.C. § 853(n)(6)(A), (B). If that standard is met, the district court should “amend the
9 order of forfeiture” to accommodate those interests. 21 U.S.C. § 853(n)(6).
10 In her original and amended petitions, Ms. Will raised a claim under 21 U.S.C. § 853(n)(6)(A)
11 as to both the Almaden and Bellwood homes, asserting that her interests in the properties were
12 superior to Ms. Will-Darnall’s interests at the time of the fraud in May 2020. Ms. Will thus asked the
13 Court to amend the forfeiture order to remove the properties. Amend. Pet. at 11-13. She also
14 explained why forfeiting the homes would constitute an unconstitutionally excessive fine. Amend.
15 Pet. at 13-16.
16 The government, now only seeking forfeiture of the Bellwood home, asserts that Ms. Will’s
17 amended petition should be dismissed as untimely and that her claim to the home is invalid. As set
18 forth below, the government’s arguments should be rejected.
19 A. The amended petition is timely.
20 Despite the fact Ms. Will filed her amended petition within the deadline set by the Court, the
21 government nonetheless asserts the petition is untimely. Gov. Mot. at 6. It is wrong.
22 As an initial matter, the 30 day deadline in 21 U.S.C. § 853(n)(2) is clearly a claims processing
23 rule, not a jurisdictional barrier. A “jurisdictional defect is not subject to waiver or forfeiture…may
24 be raised at any time in the court of first instance and on direct appeal…and courts are obliged to
25 notice jurisdictional issues and raise them on their own initiative.” Hamer v. Neighborhood Hous.
26 Servs. of Chicago, 583 U.S. 17, 20 (2017) (citations omitted). In contrast, “claim-processing rules are
27 less stern. If properly invoked, mandatory claim-processing rules must be enforced, but they may be
28 waived or forfeited.” Id. (quotations and citations omitted).
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1 “Filing deadlines…are quintessential claim-processing rules.” Henderson ex rel. Henderson v.
2 Shinseki, 562 U.S. 428, 435 (2011). That is, it is a rule that “seek[s] to promote the orderly progress
3 of litigation by requiring that the parties take certain procedural steps at certain specified times.’”
4 Fort Bend Cnty., Texas v. Davis, 587 U.S. 541, 548–49 (2019) (quotations and citations omitted). The
5 Supreme Court has “reserved whether mandatory claim-processing rules may be subject to equitable
6 exceptions.” Hamer, 583 U.S. at 20 n. 3. But when it comes to § 853(n)(2) specifically, the Ninth
7 Circuit has assumed “the district court could waive the time bar for excusable neglect.” United States
8 v. Osborn, 357 F. App’x 109, 109–10 (9th Cir. 2009). So have other Circuits. See United States v.
9 Alvarez, 710 F.3d 565, 568 (5th Cir. 2013) (dismissing ancillary petition and noting petitioner “did
10 not move for an extension under Federal Rule of Civil Procedure Rule 6(b)(1), which allows the court
11 to, ‘for good cause,’ extend the deadline after its expiration on motion of the party ‘if the party failed
12 to act because of excusable neglect.’”); United States v. Estevez, 845 F.2d 1409, 1412 (7th Cir. 1988)
13 (finding “excusable neglect” to permit petitioner to challenge forfeiture after expiration of 30 day
14 deadline in § 853(n)); United States v. Lamid, 663 F. App’x 319, 325 (5th Cir. 2016) (citing Estevez
15 as holding “the judgment of forfeiture was vacated and the claimant given another opportunity to file
16 a petition because, in that case, the claimant’s failure to timely file was due to “excusable neglect.”).
17 The fact that the 30 day deadline in § 853(n)(2) is a non-jurisdictional, claims-processing rule
18 means that the deadline can be extended for good cause. Here, this Court found good cause to permit
19 Ms. Will to file an amended ancillary petition. It noted the theory pressed here—that Ms. Will
20 “acquired a property interest in the Bellwood property through her provision of funds to Ms. Will-
21 Darnall over several years”—was “not set forth in Ms. Will’s existing petition and the parties have
22 not briefed its legal validity.” Dkt. 103 at 2. Because it was “possible for Ms. Will to state a viable
23 theory in an amended petition,” it granted her leave to file an amended petition. Id. Thus, the claim is
24 properly before the Court.
25 Moreover, ancillary petitions are similar to civil lawsuits, and Federal Rule of Criminal
26 Procedure 32.2 has adopted some of the procedures that apply in civil cases under the Federal Rules
27 of Civil Procedure. See, e.g., Willis Mgmt. (Vermont), Ltd. v. United States, 652 F.3d 236, 241–42 (2d
28 Cir. 2011) (a motion to dismiss under Fed. R. Crim. P. 32.2(c)(1)(A) “should be treated like a motion
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1 to dismiss a civil complaint under Federal Rule of Civil Procedure 12(b).”) (quotations and citations
2 omitted); Fed. R. Crim. P. 32.2(c)(1)(B) (noting “party may move for summary judgment under
3 Federal Rule of Civil Procedure 56).
4 Federal Rule of Civil Procedure 15(c)(1)(B) states an amendment to a pleading “relates back to
5 the date of the original pleading when…the amendments asserts a claim…that arose out of the
6 conduct, transaction, or occurrence set out…in the original pleading.” In a habeas corpus proceeding,
7 for example, a new claim raised in an amended pleading filed after the statute of limitations has
8 expired “relates back” to the original and timely filed claim when they are “tied to a common core of
9 operative facts.” Mayle v. Felix, 545 U.S. 644, 664 (2005) (citing former Fed. R. Civ. P. 15(c)(2),
10 now located at Fed. R. Civ. P. 15(c)(1)(B)).
11 Here, Ms. Will’s amended petition “relates back” to the timely filed original petition because it
12 is based on the same “common core of operative facts.” Ms. Will attached the same exhibits attached
13 to her original petition to her amended petition, and her declaration is largely unchanged. She is not
14 relying on a new set of facts, or a new legal theory under § 853(n)(6). Thus, the amended petition is
15 timely.
16 None of the cases cited by the government are relevant here. It cites United States v. Klemme,
17 894 F. Supp. 2d 1113 (E.D. Wis. 2012) for the proposition that a “claimant could not file [a]
18 supplemental pleading after the 30-day deadline expired adding new grounds for recovery.” Gov.
19 Mot. at 7. But the district court there noted the claimant had submitted a letter that was not signed
20 under penalty of perjury and so the “letter cannot serve as an amended petition curing deficiencies in
21 the original.” Klemme, 894 F. Supp. 2d at 1117. Here, as authorized by the Court, Ms. Will submitted
22 an amended petition signed under penalty of perjury.
23 United States v. Soreide, 461 F.3d 1351 (11th Cir. 2006) is cited by the government because the
24 court refused to consider “belated” claims. Gov. Mot. at 7. But the Eleventh Circuit reached that
25 result because the petitioner never asserted in her timely petitions that her interests in the property
26 were superior to the defendant’s interests, instead relying solely on her being a bona fide purchaser.
27 461 F.3d at 1355. She raised the superior interest argument only in response to the government’s
28 motion to dismiss, and then on appeal when the government’s motion was granted. Id. Here,
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1 however, Ms. Will has relied on the same legal ground under § 853(n)(6) in both her original and
2 amended petition—that she had superior interests to Ms. Will-Darnall. She did not wait to raise the
3 claim in her opposition to the government’s motion to dismiss, or raise it for the first time in an
4 amended petition.
5 Even more irrelevant are the government’s citation to cases where the third party did not file
6 any petition at all within the 30 day window. See United States v. Marion, 562 F.3d 1330, 1334 (11th
7 Cir. 2009) (petition untimely when petitioner waited until “three and a half months after receiving her
8 notices”); United States v. Grossman, 501 F.3d 846, 849 (7th Cir. 2007) (petitioner “admits that its
9 petition was not filed within thirty days after its agent received notice”); United States v. Crew, 704
10 F. App’x 30, 32 (2d Cir. 2017) (petitioner “failed to file a petition asserting a legal interest in the
11 property within 30 days.”); United States v. Lebnitz Tran, 21-CR-269-WHO (N.D. Cal.), Dkt. 80 at 1
12 (“On December 10, 2022, a year before the pending petition was filed, I entered a Final Order of
13 Forfeiture that forfeited the Tesla to the government.”); see Gov. Mot. at 7-8. That obviously is not
14 the case here, as Ms. Will timely filed her original petition, and the government has never claimed
15 otherwise.
16 Thus, Ms. Will’s amended petition is timely and this Court can consider her arguments against
17 forfeiture of the Belwood Gateway house.
18 B. Ms. Will’s interests in Bellwood were superior to those of Ms. Will-Darnall.
19 Ms. Will’s amended petition asserted she had a superior interest in the Belwood home under §
20 853(n)(6)(A) because Ms. Will supplied the money Ms. Will-Darnall needed to both buy out Ms.
21 Darnall’s interest in the home in 2017, and then pay off Ms. Will-Darnall’s mortgage in 2018, which
22 created a resulting trust in favor of Ms. Will on the property. Amend. Pet. at 12-13.
23 The government disputes this, arguing first that “the fact that Will’s money was allegedly used
24 to purchase some portion of the Belwood Property is insufficient to establish the existence of a
25 resulting trust.” Gov. Mot. at 10. But that is legally incorrect, at least when the transfer of money
26 from one to the other “is founded on a relationship between the two, on the fact that as between them,
27 consciously and intentionally, one has advanced the consideration wherewith to make a purchase in
28 the name of the other.” Majewsky v. Empire Constr. Co., 2 Cal. 3d 478, 485 (1970). Here, Ms. Will
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1 provided significant funds to Ms. Will-Darnall to obtain the home, first in the divorce proceeding in
2 2017, then to extinguish the mortgage on the property in 2018.
3 Despite the fact Ms. Will provided money to her daughter to obtain the Belwood house, it was
4 clear this was not a gift. The government disputes Ms. Will’s claim that her daughter “paid rent,”
5 which it believes is “contradicted by documents attached to her amended claim in which the word
6 ‘mortgage’ repeatedly appears, unlike the word ‘rent.’” Gov. Mot. at 10. But just because the check
7 indicated “mortgage” instead of “rent” is unimportant. Regardless of the term, the fact remains that
8 Ms. Will-Darnall paid Ms. Will monthly to live in the home. That the payment would be used by Ms.
9 Will to pay down the mortgage does not change that fact. And more importantly, it evidences a clear
10 intent by the parties that this was not a gift between a parent and child, meaning that Ms. Will has
11 satisfied her burden of rebutting the presumption that “transactions between parent and child” are
12 “presumed to be in the nature of gifts, advancements or bounties.” Lloyds Bank California v. Wells
13 Fargo Bank, 187 Cal. App. 3d 1038, 1042 (1986).
14 Finally, timing is crucial. “Because forfeitable property vests in the government immediately
15 upon the commission of a criminal act, a third party may prevail under § 853(n)(6)(A) only by
16 establishing that he ‘had a legal interest in the forfeited property before the underlying crime was
17 committed’—that is, ‘before the government’s interest vested.’” United States v. Watts, 786 F.3d 152,
18 166 (2d Cir. 2015) (quoting United States v. Timley, 507 F.3d 1125, 1130 (8th Cir. 2007)). At the
19 time of the fraud, Ms. Will had an interest in the Bellwood home, secured by a deed of trust, though
20 undocumented by legal deed of title. But “recordation is not essential to legal recognition of a
21 property interest.” Gates Rubber Co. v. Ulman, 214 Cal. App. 3d 356, 365 (1989) (citations and
22 quotations omitted). Because this Court looks to the state of affairs at the time of the fraud, the fact
23 that Ms. Will-Darnall “poured fraud proceeds into the Belwood property to ‘payoff’ Will’s loan” is
24 thus beside the point. Gov. Mot. at 11. But even if that was considered, the record is clear that before
25 the fraud, Ms. Will provided significant amounts of money—at least $1 million and perhaps more—
26 to Ms. Will-Darnall, and creating a resulting trust in favor of Ms. Will was a way to ensure all these
27 loans and advances of money over the years were not deemed a “gift.”
28 Ms. Will has carried her burden under 21 U.S.C. § 853(n)(6)(A) and so the forfeiture order
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1 must be amended to remove the Belwood home.
2 C. Ms. Will has standing to raise a constitutional challenge to the forfeiture.
3 Ms. Will’s petition also asserted that forfeiting the properties would amount to an
4 unconstitutional fine in violation of the Eighth Amendment’s prohibition on “excessive fines.” U.S.
5 CONST. AMEND. VIII; see Amend. Pet. at 13-16. The government, incorporates by reference its earlier
6 arguments against this constitutional argument. Gov. Mot. at 12. To the extent the government claims
7 Ms. Will has no standing as a third party claimant to assert an Eighth Amendment claim, it is clearly
8 wrong.
9 Forfeitures are “fines” under the Eighth Amendment when they “constitute punishment for an
10 offense.” United States v. Bajakajian, 524 U.S. 321, 328 (1998). A “punitive forfeiture violates the
11 Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.” Id. at
12 334. Both “owners” and “claimants who assert possessory interests in the forfeited property” have
13 standing to challenge a forfeiture order under the Eighth Amendment even if they are not a criminal
14 defendant. United States v. $100,348.00 in U.S. Currency, 354 F.3d 1110, 1119 (9th Cir. 2004). A
15 claimant may even raise an Eighth Amendment challenge in a civil forfeiture proceeding “as a party
16 ‘punished’ by the forfeiture,” notwithstanding the nonexistence of a criminal case. Id. at 1121; see
17 also Hudson v. United States, 522 U.S. 93, 103 (1997) (“The Eighth Amendment protects against
18 excessive civil fines, including forfeitures.”). Because Ms. Will is both an “owner” and a “claimant”
19 of the properties, she has standing to challenge the constitutionality of the forfeitures under the
20 Eighth Amendment.
21 The cases cited by the government in its earlier pleadings for the proposition that Ms. Will
22 cannot assert a constitutional challenge to the forfeiture of the Bellwood property do not withstand
23 scrutiny upon closer inspection, as none of them deal with the Eighth Amendment claim raised by
24 Ms. Will here. See Dkt. 77 at 19 (citing cases).
25 For example, in United States v. Espada, 128 F. Supp. 3d 555 (E.D.N.Y. 2015), the claimant
26 asserted the constitutional rights of her husband, arguing that a preliminary order of forfeiture was
27 entered in violation of his Sixth Amendment rights. 128 F. Supp. 3d at 557. The district court rejected
28 that argument, noting the wife could not “vicariously assert constitutional claims” on her husband’s
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1 behalf. Id. But it clarified the wife “could raise constitutional challenges on her own behalf.” Id. at
2 557 n. 1 (emphasis in original). And it quoted an Eighth Circuit case noting that if a court forfeited an
3 “entire estate despite a valid claim of partial ownership by a third party,” the result “would also
4 punish the third party, against whom no jury has returned a verdict of guilt, and may therefore raise
5 constitutional questions.” Id. (quoting United States v. Totaro, 345 F.3d 989, 997 (8th Cir. 2003)
6 (quotations omitted)).
7 Similarly, in United States v. Tarraf, 725 F. Supp. 2d 625 (E.D. Mich. 2010) the district court
8 rejected the efforts of third party claimants to “assert the Defendant’s Eighth Amendment rights,”
9 noting “had [the defendant] wished to assert an Eighth Amendment Excessive Fines defense, he
10 should have argued as much during his criminal proceeding.” Tarraf, 725 F. Supp. 2d at 635
11 (emphasis added).
12 In United States v. Porchay, 533 F.3d 704 (8th Cir. 2008) the Eighth Circuit found a third party
13 could not raise a Fourth Amendment challenge to how the government seized property it later
14 forfeited, noting that “a third party to the forfeiture has no standing to challenge the legality of the
15 seizure under the Fourth Amendment.” Porchay, 533 F.3d at 710 (emphasis added).
16 In United States v. Coffman, 612 Fed. Appx. 278 (6th Cir. 2015), the third party claimant raised
17 an Eighth Amendment challenge to the final order of forfeiture, issued after an ancillary proceeding,
18 seemingly for the first time on appeal. There, the claimant had been charged criminally with her
19 husband; the husband was convicted but the claimant acquitted by jury. She then filed an ancillary
20 petition to contest the forfeiture of certain property on her own behalf, as well as on behalf of certain
21 entities with legal rights in the forfeited properties. The district court issued a final order of forfeiture.
22 Coffman, 612 Fed. Appx. at 281-82. On appeal, she asserted the forfeiture proceeding violated her
23 right against double jeopardy, given her acquittal on the criminal charges, and separately constituted
24 an excessive punishment. The Sixth Circuit rejected the argument by noting the claimants could not
25 “now, after having intervened in the proceedings, claim that the order of forfeiture operates as a fine,
26 even if they eventually lose what they believe are their assets.” Coffman, 612 Fed. Appx. at 289. The
27 briefs submitted by the parties do not indicate that any challenge under the Eighth Amendment was
28 raised by the claimants before the district court, and the appellate arguments focused on whether the
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1 Eighth Amendment was violated given the fact the claimant was acquitted. See 2014 WL 1512661
2 (Appellant’s Opening Brief); 2014 WL 3556188 (Government’s Answering Brief); 2014 WL
3 3795363 (Appellant’s Reply Brief).
4 Here, Ms. Will is asserting her rights under the Eighth Amendment to be free from excessive
5 fines; she is not vicariously asserting the rights of Ms. Will-Darnall. See Espada, 128 F. Supp. 3d at
6 557 n. 1. Thus, this Court can consider her Eighth Amendment claim. As explained in Ms. Will’s
7 amended petition, forfeiting the Bellwood home would be an unconstitutionally excessive fine given
8 the fact she has not been charged with a crime or accused of any wrongdoing. Amend. Pet. at 14.
9 Because the government has other remedies to recoup the money taken by Ms. Will-Darnall,
10 including restitution which can be enforced through liens and wage garnishment, forfeiting the
11 Bellwood home is disproportionate and unconstitutional. See Amend. Pet. at 15-16.
12 The government responded previously that “courts routinely hold that imposition of restitution
13 and forfeiture together in a single judgment does not constitute an excessive fine because requiring a
14 defendant to disgorge no more than twice the proceeds of her crimes cannot be disproportionate to
15 the harm inflicted on the defendant’s victims.” Dkt. 77 at 19. It cited a Ninth Circuit case, United
16 States v. Newman, 659 F.3d 1235 (9th Cir. 2011) which it asserts found “forcing defendant to pay
17 both forfeiture and restitution ‘at worst’ forces him to disgorge twice the value of the proceeds of his
18 crime, which ‘is in no way disproportionate to the harm inflicted on government and society.’” Dkt.
19 77 at 19 (quoting Newman, 659 F.3d at 1241). But as Ms. Will explained in her amended petition,
20 Newman noted the “constitutional limits” to forfeiture—including “the constitutional limit defined by
21 the Excessive Fines Clause of the Eighth Amendment”—were “not at issue here” as “neither
22 Defendant asserts that the district court’s forfeiture orders implicate constitutional considerations.”
23 Newman, 659 F.3d at 1241, n. 4; see also Amend. Pet. at 16. In other words, the Ninth Circuit’s
24 decision in Newman does not foreclose the constitutional challenge raised by Ms. Will in her petition.
25 Thus, Ms. Will can assert her Eighth Amendment rights to challenge to the forfeiture. Because
26 forfeiting the Bellwood home is disproportionate to the gravity of the offense, in part because of the
27 availability of other government remedies to collect money illegally obtained by Ms. Will-Darnall,
28 forfeiture of the Belwood home would be unconstitutional.
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1 CONCLUSION
2 Ms. Will respectfully requests this Court to amend the forfeiture order to remove 111 Belwood
3 Gateway.
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Dated: January 16, 2026 Respectfully submitted,
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MOEEL LAH FAKHOURY LLP
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8 s/ Hanni M. Fakhoury
Hanni M. Fakhoury
9 Attorneys for Third Party Claimant Sandra Will
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