Exhibit OO, U.S. Department of Justice — Case 5:24-cr-00292-PCP, Document 45-3

Summary

This is Exhibit OO to Document 45-3, filed 04/09/25: a March 4, 2025 letter from the United States Attorney's Office, Civil Division, Northern District of California, to Mr. Setlich, counsel in Will v. United States. The letter sets out the rules for serving the United States and says the government has 60 days after service to respond. It says the office intends to move to dismiss for failure to state a claim and lack of jurisdiction. It says a third party may claim an interest in forfeited property only through an ancillary proceeding in the criminal case, and that a lis pendens was placed because the government traced fraud proceeds into the property. It asks for voluntary dismissal.

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“Exhibit OO, U.S. Department of Justice — Case 5:24-cr-00292-PCP, Document 45-3.” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-cand-430212-45-3-ffb0f17346/, SHA-256 0b5b16fe80a846cc1bb09e49fae9a34356037f14249f73c57a8103e6e412d58e.

Full text

Case 5:24-cr-00292-PCP Document 45-3 Filed 04/09/25 Page 1 of 4

EXHIBIT OO
Case 5:24-cr-00292-PCP Document 45-3 Filed 04/09/25 Page 2 of 4

U.S. Department of Justice

United States Attorney/Civil Division
Northern District of California

9th Floor, Federal Building Phone: (415) 436-7200
450 Golden Gate Ave., Box 36055
San Francisco, CA 94102-3495

March 4, 2025
VIA ELECTRONIC AND U.S. MAIL

John R. Setlich
Law Offices of John R. Setlich
15342 El Prado Road Suite 91710
Chino, CA 91710
jrsetlich@setlichlegal.com

Re: Will v. United States, No. 24-cv-09030-PCP (N.D. Cal.)

Dear Mr. Setlich:

Dave Countryman forwarded your correspondence dated February 26, 2025 to me for
response.

First, as noted in my email to you of February 28, 2025, service on the United States is
governed by Federal Rule of Civil Procedure 4(i). Rule 4(i) requires the following:

(i) Service Upon the United States, and Its Agencies, Corporations, Officers, or
Employees.

(1) United States. To serve the United States, a party must:

(A)(i) deliver a copy of the summons and of the complaint to the United States
Attorney for the district where the action is brought or to an Assistant
United States Attorney or clerical employee whom the United States
Attorney designates in a writing filed with the court clerk or

(ii) send a copy of each by registered or certified mail to the civil-process
clerk at the United States Attorney’s Office;

(B) send a copy of each by registered or certified mail to the Attorney General
of the United States at Washington, D.C.; and

(C) if the action challenges an order of a nonparty agency or officer of the
United States, send a copy of each by registered or certified mail to the
agency or officer.
Case 5:24-cr-00292-PCP Document 45-3 Filed 04/09/25 Page 3 of 4
John R. Setlich
March 5, 2025
Page | 2

(2) Agency; Corporations; Officer or Employee sued in an Official Capacity. To
serve a United States agency or corporation, or a United States officer or
employee sued only in an official capacity, a party must serve the United States
and also send a copy of the summons and of the complaint by registered or
certified mail to the agency, corporation, officer, or employee.

(3) Officer or Employee sued individually. To serve a United States officer or
employee sued in an individual capacity for an act or omission occurring in
connection with duties performed on the United States’ behalf (whether or not the
officer or employee is also sued in an official capacity), a party must serve the
United States and also serve the officer or employee under Rule 4(e), (f), or (g).

(4) Extending Time. The court must allow a party a reasonable time to cure its
failure to:

(A) serve a person required to be served under Rule 4(i)(2), if the party has
served either the United States attorney or the Attorney General of the
United States; or

(B) serve the United States under Rule 4(i)(3), if the party has served the United
States officer or employee.

Under Federal Rule of Civil Procedure 12(a)(2), the United States has 60 days after
service on the United States Attorney to file an answer or other response to a complaint. The
time for the federal government defendant’s response to the complaint will not begin to run until
after this office is properly served with the summons and complaint.

Second, if you do serve the civil lawsuit that you have filed, it is subject to dismissal for
failure to state a claim and for lack of jurisdiction, and our office intends to file a motion to
dismiss on those grounds. A third party asserting a legal interest in property that is subject to
forfeiture may petition the court for a hearing to adjudicate the validity of that third party’s
interest, but such a petition may only be asserted as an ancillary proceeding in the underlying
criminal action. See 21 U.S.C. § 853(n)(2). The criminal forfeiture statute expressly bars a third
party from commencing “an action at law or equity against the United States concerning the
validity of his alleged interest in the property subsequent to the filing of an indictment or
information alleging that the property is subject to forfeiture under this section.” 21 U.S.C.
§ 853(k)(2). Petitioning the court for an ancillary proceeding pursuant to 21 U.S.C. § 853(n) is
the exclusive means for a third party to claim an interest in forfeited property. See, e.g., Libretti
v. United States, 516 U.S. 29, 44 (1995); United States v. 101 Houseco, LLC, 22 F.4th 843, 849
(9th Cir. 2022). Any collateral proceeding that challenges the seizure of property through
criminal forfeiture, including an action asserting that the defendant holds no interest or title in the
property, must be dismissed without leave to amend. See Dennis v. United States, No. 21-cv-
02213, 2022 WL 4484022, at *2 (E.D. Cal. Sept. 27, 2022).
Case 5:24-cr-00292-PCP Document 45-3 Filed 04/09/25 Page 4 of 4
John R. Setlich
March 5, 2025
Page | 3

In addition, the asserted statutory basis for Plaintiff’s second claim—Civil Code
§ 3345—does not support a free-standing cause of action for “elder abuse” but rather merely
provides for increased monetary remedies for underlying statutory causes of action for unfair or
deceptive acts or practices in certain circumstances. See, e.g., Hood v. Hartford Life & Acc. Ins.
Co., 567 F. Supp. 2d 1221, 1229 (E.D. Cal. 2008). And even if it were an independently
actionable substantive cause of action, you have identified no waiver of sovereign immunity that
would permit such a claim to be asserted against the federal government. See A.C.L. Computers
& Software, Inc. v. United States, No. 16-cv-01485-SK, 2017 WL 6060267, at *4 (N.D. Cal.
Mar. 13, 2017), aff’d, 727 F. App’x 376 (9th Cir. 2018) (California unfair competition law does
not contain a waiver of sovereign immunity). Accordingly, any such claim is subject to
dismissal with prejudice for lack of subject matter jurisdiction. See Davis v. United States Small
Bus. Admin., No. 20-cv-1280, 2021 WL 681134, at *5 (C.D. Cal. Jan. 27, 2021).

A lis pendens was placed on the subject property because the government traced into the
property proceeds of the fraud scheme to which Cassie Will-Darnall has pleaded guilty. See
United States v. Cassie Will-Darnall, No. 24-cr-00292, Dkt. No. 35. In advance of her
sentencing, the government will file an application for a preliminary order of forfeiture
concerning the subject property. I understand that you believe that the subject property is not
connected to Cassie Will-Darnall’s criminal activities. As noted above, to the extent Ms. Will
seeks to assert a legal interest in this property, she may do so at the appropriate time in an
ancillary proceeding pursuant to 21 U.S.C. § 853(n). She may not, however, maintain a separate
lawsuit to challenge the lis pendens or forfeiture. We request that you voluntarily dismiss the
pending lawsuit to avoid unnecessary and fruitless civil litigation.

Very truly yours,

PATRICK D. ROBBINS
Acting United States Attorney

PAMELA T. JOHANN
Assistant United States Attorney
Chief, Civil Division

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