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TIM WARD
TULARE COUNTY DISTRICT ATTORNEY
TREVOR HOLLY, DEPUTY DISTRICT ATTORNEY
SBA#226564
221 S. MOONEY BLVD., ROOM 224
VISALIA, CA 93291
TELEPHONE: (559) 636-5494
FAX: (559)730-2658

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Attorneys For Real Party In Interest

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TULARE COUNTY SUPERIOR COURTS

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STATE OF CALIFORNIA, VISALIA DIVISION

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In Re SEARCH WARRANT #013487

CASE NO:

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YORAIBENZEEVI,

SUPPLEMENTAL POINTS AND
AUTHORITIES REGARDING
EVIDENTIARY HEARING FOR
MOTION TO RETURN PROPERTY

Moving Party,

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V.

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SUPERIOR COURT OF THE COUNTY OF
TULARE,

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Respondent,
TULARE COUNTY DISTRICT ATTORNEY,
Real Part in Interest.

Date: November 9*'’, 2018
Time: 2:00 pm
Dept: 13

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Respondent, the People of the State of California, by and through their
attorneys, TIM WARD, District Attorney, and TREVOR HOLLY, Deputy District Attorney,
submit this SUPPLEMENTAL POINTS AND AUTHORITIES REGARDING
VIDENTIARY HEARING FOR MOTION TO RETURN PROPERTY related to search
warrant #013487. This motion is based upon the pleadings, points and authorities, evidence,
and argument presented at the hearing of the matter.

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SUPPLEMENTAL POINTS AND AUTHORITIES

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PROCEDURAL HISTORY

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This matter was last heard on 10/05/18. The Court then allowed the People to present
supplemental briefing as to the proper procedure of the evidentiary hearing and the tracing of
funds, due by 10/19/18.

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SUPPLEMENTAL STATEMENT OF FACTS^

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Linda Wilburn stated in a recorded interview that she had resigned from the TRMC
Board on 08/23/17 effective 12:00 p.m. and that she had not requested to move the time of

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her resignation forward to the 24 and she had no reason to do so. After that last court date,
Mrs. Wilburn was interviewed by a private investigator who told her that he was working for

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Dr. Benzeevi’s legal team. He showed her a text to Bruce Greene from her phone dated 3:56

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08/23/17 that stated that she wished to move her resignation date firom 08/23/17 12:00 p.m. to

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08/24/17 8:00 a.m. Mrs. Wilburn granted BOI Investigators permission to retrieve the text

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from her phone and the texts were logged into evidence. Mrs. Wilburn stated that she does

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not remember sending the text. Investigation into this matter continues.

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ARGUMENT AND AUTHORITY

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I.

AN EVIDENTIARY HEARING UNDER THE RULES OF CRIMINAL
PROCEDURE MUST BE HELD

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Statutory law and case law clearly establish that stolen or embezzled property should

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be seized and returned to its rightful owner (PC § 1407, PC § 1408, and PC § 1409). “Clearly,

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the People have the right to detain any property which it is unlawful to possess..” {People v,

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Superior Court (McGraw) (1979) 100 Cal. App. 3d 154, 157). However, a subject who has

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' A full statement o f facts was submitted in our previous motion. Out o f respect for judicial economy,
we have omitted it here.

SUPPLEMENTAL POINTS AND AUTHORITIES

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had property seized does have a due process right to an evidentiary hearing. {Ensoniq Corp. v.

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Superior Court (1998) 65 Cal. App. 4* 1537, 1549).

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A hearing must be held at which relevant evidence on the issue can be presented.

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{People V, Superior Court (McGrow) (1979) 100 Cal. App. 3d 154,159) A hearing is a

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proceeding of relative formality with definite issues of fact or law to be tried, in which

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witnesses are heard and evidence is presented. (Black’s Law Dictionary, 6* Ed). “A hearing

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is generally understood to be a proceeding where evidence is taken to the end of determining

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an issue of fact and a decision made on the basis of that evidence. {People v. Ivenditti (1969)

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Cal. App. 2d 178, 180). Therefore, the People are requesting a full hearing, with the

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opportunity to call sufficient witnesses and present competent evidence that the funds at issue

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were unlawfully possessed by Dr. Benzeevi.

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The CA. Supreme Court has ruled that determinations of privilege regarding

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documents seized via search warrants are criminal special proceedings {People v. Superior

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Court (Laff) (2001) 107 Cal. Rptr. 2d 323,342, 343). This is because those proceedings deal

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with criminal warrants which are governed by Part 2, Title 12 of the Penal Code. Here, the

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search warrants were authorized under PC § 1524(a) and the motion to return property has

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been made under PC § 1536 and PC § 1540. Therefore, the proceeding is criminal in nature

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and should move forward under the rules of criminal procedure.

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II.

THE BURDEN OF PROOF AND E.C. § 637

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Regarding the presumption of ownership in Evidence Code section 637, the appellate
court in McGraw stated:

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“Such a presumption assumes the existence of the presumed fact “unless and
until evidence is introduced which would support a finding of its nonexistence, in
which case the trier of fact shall determine the existence or nonexistence of the

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presumed fact from the evidence and without regard to the presumption.” (Evid. Code,
§ 604.) Thus, the subject property is presumed to be owned by the real parties in
SUPPLEMENTAL POINTS AND AUTHORITIES

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interest until the state has presented evidence which would support a finding that real
parties did not in fact own the property. The People would be required to prove the

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property was stolen by a preponderance of the evidence, as in all determinations of

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ownership. All relevant evidence on the issue would be admissible.”

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{McGrow, supra, 100 Cal.App.3d at p. 159.)

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Evidence Code section 637 provides: “The things which a person possesses are
presumed to be owned by him.” Such a presumption, however, is rebuttable and may be
controverted. {Thorne v. McKinley Brothers (1936) 5 Cal.2d 704, 708.) This presumption “has

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been said to be the lowest species of evidence, which may be overcome by showing the
character of the possession.” {Bohn v. Gruver (1931) 111 Cal.App. 386, 392, italics added.)

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This presumption only applies to title. Once it has been established that the money was

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unlawfully obtained. Dr. Benzeevi is not entitled to any presumption of ownership.

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Therefore, he is not entitled to any presumption that the funds in his account are the proceeds

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of legitimate activity once is has been established that the account received unlawfully

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obtained funds.

III.

THE FUNGIBILITY OF MONEY DOES NOT PREVENT IT FROM BEING
TRACED.

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It is undisputed that two million four hundred thousand dollars derived from the Celtic

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transaction was deposited into Dr. Benzeevi’s personal account. This money was mixed with

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approximately two million five hundred thousand dollars of pre-existing money in the

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account. There is no dispute that from the time of the deposit until the time of the seizure, the

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balance on the account never dropped below the seized amount, $937,931.04.
Dr. Benzeevi has claimed that because of the fungibility of money it is impossible to
establish that the money seized it identical to the money stolen. Tracing the proceeds of
illegally obtained funds has a long history of jurors prudence in both federal and state law,

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due to the necessity of trancing funds for money laundering cases, drug proceeds, and the

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proceeds of other illegal transactions. It is well established that there is no need that identical

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money be tranced. {U.S. v. Real Prop. Located at 6415 N. Harrison Ave., Fresno (2011) E.D.
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Cal. June 28,20U, U.S. v. Check No. 25128 in Amount o f $58,654.11 (9“’ Cir. 1997) 122 F.
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3d 1263,1264). Commingling unlawful proceeds with legitimate proceeds cannot “clean”
money from derived from criminal activity. {U.S. v. Rutgard (9\h. Cir. 1996) 116 F. 3d 1270,
1292, U.S.

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Walsh (2d Cir. 2013) 712 F. 3d 119, 124).

In Banco Cafetero Panama the Court stated that: “The cash in the hands of the bank

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does not cease to be “traceable proceeds” just because it is commingled with the bank’s other

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cash” {UnitedStates v. Banco Cafetero Panama, (2"^' Cir. 1986) 797 F.2d 1154, 1161). Banco

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Cafetero established several ways that the proceeds of illegal activity may be traced, one of
which is the “lowest intermediate balance” rule as stated in the Restatement (Second) o f
Trusts § 202(1). The Restatement notes that when funds are wrongfully commingled, the
beneficiary is entitled to an equitable lien on both the funds remaining in the account, and any

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part subsequently withdrawn in excess of the funds remaining in the account {Restatement

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(Second) o f Trusts § 202 comment j (1959)).

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California Courts have also recognized that fungibility of money and have adopted

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federal guidelines for tracing unlawful funds. {People v. Mays (2007) 148 Cal. App. 4*'’ 13,

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32). Both Federal and State Courts have reasoned that requiring identical funds be traced

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would effectively allow a defendant to evade forfeiture and money laundering charges by
commingling funds, thus evading the intent of the law. {Mays, supra, 148 Cal. App. 4*'', 13,

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Rutgard (9th Cir. 1996) 116 F. 3d 1270, 1292, U.S. v. Walsh (2d Cir. 2013) 712 F. 3d 119,

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124). It is clear that the law of California mandates that unlawfully obtained property be

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seized and preserved for its lawful owners. (PC § 1524(a), PC § 1536, PC § 1407, PC § 1408,

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PC § 1409, People v, Superior Court (McGrow) (1979) 100 Cal. App. 3d 154). Therefore, the

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Court should apply the well established rules regarding tracing money seized pursuant to PC §

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1524(a).
Dr. Benzeevi cannot claim that the funds in his account, or subsequent deposits,
somehow “cleansed” the funds unlawfully taken in the Celtic transaction. Pursuant to Banco
Cafetero, after the stolen money was deposited into the account, it remained in the account

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(United States v. Banco Cafetero Panama, (2"^* Cir. 1986) 797 F.2d 1154, 1161). The only

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way the account could be “cleansed” is by drawing down the account and then depositing new

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funds. Here, the lowest recorded balance was $937,931.04, which is the amount that was
SUPPLEMENTAL POINTS AND AUTHORITIES

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seized. Therefore, all of the funds seized represent stolen funds and cannot be returned to the
one who stole them.

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CONCLUSION

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The Court should hold an evidentiary hearing as to the seized funds. The People have
a right to a full evidentiary hearing on the matter, with the opportunity to present witnesses
and evidence, and are confident that there is sufficient evidence to establish that the funds

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seized from Dr. Benzeevi’s bank account were unlawfully obtained by him and that they are
the proceeds of theft and fraud. Therefore, the People respectfully request the Court set a date,
or series of dates, providing sufficient time for the matter to be heard.

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Dated: October 19*, 2018

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Respectfully submitted,

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TIM WARD
DISTRICT ATTORNEY

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TREVOR HOLL^
DEPUTY DISTRICT ATTOI

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SUPPLEMENTAL POINTS AND AUTHORITIES