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United States v. Winchester 12 12-Gauge Shotgun

United States District Court, D. Montana, Billings Division

May 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
WINCHESTER 12 12-GAUGE SHOTGUN, $14, 731.00 in U.S. Currency Defendants.

          FINDINGS OF FACT, CONCLUSIONS OF LAW, DEFAULT JUDGMENT AND ORDER OF FORFEITURE

          SUSAN P. WATTERS United States District Judge

         This matter is brought before this Court by Plaintiff, United States, by and through its attorney, Victoria L. Francis, Assistant U.S. Attorney for the District of Montana. The United States has filed a Motion for Entry of Default Judgment and Order of Forfeiture pursuant to Fed.R.Civ.P. 55(b)(2). Upon considering the pleadings filed herein, the Court makes the following Findings of Fact and Conclusions of Law:

         FINDINGS OF FACT

         1. On November 28, 2016, Plaintiff, United States of America, filed in this cause its Verified Complaint for Forfeiture In Rem against the defendant property, consisting of the following: Winchester Model 12, 12 gauge shotgun, Serial Number: 612907 and $14, 731.00 in U.S. Currency, for violations of 21 U.S.C. §§ 841 et seq. and 881(a)(6) and (11), and 18 U.S.C. § § 922(g)(3) and 924(d). (Doc. l, ¶1).

         2. On January 4, 2017, an FBI Task Force Officer executed the Warrant of Arrest In Rem that was issued by this Court, and arrested the defendant property. (Doc. 6).

         3. Examination of the court files and records in this case shows that pursuant to Supplemental Rule G(4)(b)(i) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, the United States provided "direct notice" of this action to known potential claimants, Robert Lund and Miriam Lund on December 2, 2016, by mailing them a copy of the Verified Complaint for Forfeiture In Rem and Notice of Complaint for Forfeiture by first-class mail and certified mail to the address they provided in the administrative claims process. (See Notice of Complaint for Forfeiture, Doc. 3; Declaration in Support of U.S. Motion for Entry of Defaults, Doc. 10, ¶¶ 4-5, Exh. 1; Supplemental Rule G(4)(b)(iii)(E)). The certified mail receipts for both Robert Lund and Miriam Lund were executed by Miriam Lund, the first class mailings to Robert and Miriam Lund were not returned to the U.S. Attorney's Office. (Doc. 10, ¶¶6-7, Exh.3, 4).

         4. Robert Lund and Miriam Lund failed to file a verified claim as instructed in the Notice of Complaint for Forfeiture at page 2, paragraphs 3-4. (Doc. 3). They have also failed to file an answer or a motion under Fed.R.Civ.P. 12 within 21 days after the filing of a claim as required by Supplemental Rule G(5)(b) and as instructed in the Notice of Complaint for Forfeiture at page 3, paragraph 5. (Doc. 3).

         5. Service by publication of the forfeiture action pursuant to Supplemental Rule G(4)(a)(iv)(C) was also provided to potential claimants, both known and unknown, by publishing on the government's asset forfeiture web site the Notice of Forfeiture Action for 30 consecutive days, beginning on November 30, 2016, and ending on December 29, 2016. (See Declaration of Publication, Doc. 7). No claim was filed with the Court within 60 days of the first day of publication by any known or unknown potential claimant, as required by Supplemental Rule G(5)(a)(ii)(B).

         6. After the United States moved for entry of defaults supported by Declarations (Doc. 9, 7, 10), the Clerk of District Court entered the defaults of known potential claimants, Robert and Miriam Lund, and unknown potential claimants on April 7, 2017, for failure to timely file a verified claim and/or answer or otherwise defend as required by the Supplemental Rules. (Doc. 11).

         Based on the foregoing findings of fact, the Court makes the following conclusions of law.

         CONCLUSIONS OF LAW

         1. The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1345 and 1355(a), (b)(1)(A) and (B), and (d).

         2. Venue is proper in this District pursuant to 28 U.S.C. §§1355 and 1395 because acts or omissions giving rise to the conspiracy to distribute methamphetamine occurred in this District and the defendant property is located in this District.

         3. Civil forfeitures are governed by the Supplemental Rules for Certain Admiralty or Maritime Claims and Asset Forfeiture Actions of the Federal Rules of Civil Procedure. United States v. 2659 ...


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