United States District Court, D. Nevada
ORDER: (1) GRANTING RECEIVER'S MOTION FOR ORDER AUTHORIZING SALE OF PERSONAL PROPERTY BY PRIVATE SALE; (2) GRANTING RECEIVER'S MOTION TO AMEND ORDER GRANTING GOVERNMENT'S MOTION TO APPOINT RECEIVER; AND (3) GRANTING IN PART AND DENYING AS MOOT IN PART RECEIVER'S MOTION FOR ORDER APPROVING/AUTHORIZING PAYMENT OF RECEIVER'S FEES AND EXPENSES FOR THE PERIOD DECEMBER 14, 2011 THROUGH MARCH 31, 2013 AND FOR ORDER APPROVING RECEIVER'S FIRST INTERIM STATUS REPORT
DAVID ALAN EZRA, Senior Distict Judge.
On May 16, 2014, the Court heard argument on three motions filed by Receiver Robb Evans & Associates ("Receiver"), including: (1) a Motion for Order Authorizing Sale of Personal Property by Private Sale (Dkt. # 2815); (2) a Motion to Amend Order Granting Government's Motion to Appoint Receiver (Dkt. # 2816); and (3) a Motion for Order Approving/Authorizing Payment of Receiver's Fees and Expenses for the Period December 14, 2011 through March 31, 2013 and for Order Approving Receiver's First Interim Status Report (Dkt. # 2840). Shlomo Sherman, Esq., appeared at the hearing on behalf of Receiver; Lisa Rasmussen, Esq., appeared at the hearing on behalf of Defendant Robert David Kahre ("Defendant" or "Kahre"). Upon careful consideration of the Motions and the supporting and opposing memoranda, the Court GRANTS the Motion for Order Authorizing Sale of Personal Property by Private Sale; GRANTS the Motion to Amend Order Granting Government's Motion to Appoint Receiver; and GRANTS IN PART AND DENIES AS MOOT IN PART the Motion for Order Approving/Authorizing Payment of Receiver's Fees and Expenses for the Period December 14, 2011 through March 31, 2013 and for Order Approving Receiver's First Interim Status Report.
On November 20, 2007, the United States filed a Third Superseding Indictment ("TSI") against Defendant, various family members, and other associates of his business. ("TSI, " Dkt. # 1671.) The TSI charged Defendant with Conspiracy to Defraud, in violation of 18 U.S.C. § 371 (Count 1); Willful Failure to Collect and Pay Over Tax, in violation of 26 U.S.C. § 7202 (Counts 2-50); Attempts to Interfere With the Administration of the Internal Revenue Law, in violation of 26 U.S.C. § 7212(a) (Counts 51, 56); Attempts to Evade or Defeat Tax, in violation of 26 U.S.C. § 7201 (Counts 52-55); and Wire Fraud, in violation of 18 U.S.C. § 1343 (Count 59). (Id.)
On August 14, 2009, following a 48-day trial, the jury returned a verdict finding Defendant guilty on Counts 1, 2-50, 51, 52-55, 56 and 59 of the TSI. (Dkt. ## 2520, 2558.) On November 17, 2009, Defendant was sentenced to a term of imprisonment of 190 months and ordered to pay restitution in the amount of $16, 060, 104.72 to the Internal Revenue Service and a special assessment in the amount of $5, 700.00. (Dkt. # 2606.) A Judgment to that effect was entered on December 3, 2009. (Dkt. # 2615.) Defendant subsequently filed a Notice of Appeal of his conviction and sentence on November 19, 2009. (Dkt. # 2602.)
On February 23, 2011, the Government filed a Motion to Appoint Receiver. (Dkt. # 2779.) Defendant Kahre opposed the Motion, arguing that a receiver violated the Double Jeopardy Clause, any appointment would be prohibited given the pending appeal, and the appointment would consume funds that would otherwise go to Defendant's creditors. (Dkt. # 2786.) On December 14, 2011, the Court rejected Defendant's arguments, granted the Government's Motion, and appointed Robb Evans & Associates ("Receiver") as Receiver given that Robb Evans had substantial experience acting as a receiver in cases involving claims by the United States and assets located in multiple jurisdictions. ("Order, " Dkt. # 2809 at 13.)
The Court charged Receiver to "conduct an investigation for the purpose of identifying and locating all Assets and Documents of, or in possession, custody, or under the control of, the Receivership Defendant, wherever situation, " and that "[u]pon identification of all Assets and Documents, the Receiver shall file a request with the Court to have said Assets and Documents apply toward the Restitution Judgment entered against the Receivership Defendant." (Id. at 16.) Upon receipt of Receiver's request, the Court would then determine whether the assets are under the control of Defendant and then whether the assets should apply to the Restitution Judgment. (Id. at 17.) Thereafter, the Court would issue an order directing and authorizing Receiver to
a. Take exclusive custody, control and possession of all said Assets and Documents, wherever situated. The Receiver shall have full power to divert mail and to sue for, collect, receive, take in possession, hold, and manage all Assets and Documents of the Receivership Defendant and other persons or entities whose interests are now held by or under the direction, possession, custody, or control of the Receivership Defendant. The Receiver may employ the assistance of law enforcement officers as the Receiver deems necessary to implement the provisions of this Order. The Receiver may take all steps necessary to secure existing business premises of the Receivership Defendant. Such steps may include, but are not limited to, securing the locations by changing the locks and disconnecting any computer modems or other means of access to the computer or other records maintained at the locations;
b. Conserve, hold, and manage all receivership Assets, and perform all acts necessary or advisable to preserve the value of those Assets, in order to prevent any irreparable loss, damage, or injury to consumers or to creditors of the Receivership Defendant, including, but not limited to, obtaining an accounting of the Assets and preventing transfer, withdrawal, or misapplication of Assets, and including the authority to liquidate all Assets and close out any open securities or commodity futures positions of the Receivership Defendant....
(Id. at 17-18.)
The Court's Order also specified how Receiver would be compensated for his duties:
The Receiver and all personnel hired by the Receiver as herein authorized, including counsel to the Receiver and accountants, are entitled to reasonable compensation for the performance of duties pursuant to this Order and for the cost of actual out-of-pocket expenses incurred by them, from the Assets now held by or in the possession, custody, or control of, or which may be received by, the Receivership Defendants.
The Receiver shall file with the Court and serve on the parties periodic requests for the payment of such reasonable compensation, with the first such request filed no more than sixty (60) days after the date of this Order. The Receiver shall not increase the hourly rates used as ...