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United States v. Two Firearms and Ammunition

United States District Court, D. Montana, Butte Division

October 1, 2018

UNITED STATES OF AMERICA,, Plaintiff,
v.
TWO FIREARMS AND AMMUNITION,, Defendant.

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

          SAM E. HADDON 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 Finding of Fact and Conclusions of Law.

         FINDING OF FACT

         1. On July 12, 2018, the United States instituted a judicial forfeiture action by filing in this cause a Verified Complaint in Rem against the defendant firearms, consisting of the following property involved in a violation of 18 U.S.C. § 922(g)(1), and subject to forfeiture pursuant to 18 U.S.C. § 924(d):

• Taurus, model PT140 Millennium G2, CAL: 40 semi-automatic pistol, Serial No.SHY8O774;
• Mossberg, model 64OK, CAL: 22, W.M.R. bolt-action rifle, Serial No. none;
• 615 mixed rounds of .22 WMR, .270 WIN, and .40 S&W caliber ammunition.

         2. On July 18, 2018, the ATF Special Agent Philip Swain, executed the Warrant of Arrest in Rem (Doc 4) that was issued by this Court on July 17, 2018, and arrested the defendant firearms. (Declaration of Arrest, Doc. 5).

         3. On July 17, 2018, the United States provided notice of this forfeiture action by sending via first-class U.S. mail and certified mail, copies of the Verified Complaint for Forfeiture In Rem (Doc. 1) and the Notice of Verified Complaint for Forfeiture In Rem (Doc. 2) to Nathaniel Hewey at the address provided in his administrative claim. (See mailings attached to Doc. 8, as Ex. 1, and USPS Return Receipt, signed by Nathaniel Hewey, on August 1, 2018, attached as Ex. 2). See also Supplemental Rule G(4)(b)(iii)(E).

         4. Additionally, on July 17, 2018, the United States provided notice of this forfeiture action by sending via first-class U.S. mail, copies of the Verified Complaint for Forfeiture In Rem (Doc. 1) and the Notice of Verified Complaint for Forfeiture In Rem (Doc. 2) to Kristoffer Carnes at the address provided by law enforcement, at the location where the potential claimant is incarcerated. (See mailing attached to Doc. 8, as Ex. 3). See also Supplemental Rule G(4)(b)(iii)(C).

         5. Notice of this forfeiture action was also provided to any and all unknown potential claimants by publishing on the government's asset forfeiture website the Notice of Forfeiture Action for 30 consecutive days, beginning on July 21, 2018, and ending on August 19, 2018. The "Notice of Forfeiture Action" provides in pertinent part as follows:

Any person claiming a legal interest in the Defendant Property must file a verified Claim with the court within 60 days from the first day of publication (July 21, 2018) of this Notice on this official government internet web site and an Answer to the complaint or motion under Rule 12 of the Federal Rules of Civil Procedure within 21 days thereafter. . . .

(Dec. of Publication, Doc. 6, Att. 1).

         6. Upon considering the United States' Motion for Entry of Default of Known Potential Claimants (Doc. 7), the Clerk of District Court entered the default of Nathaniel Hewey and Kristoffer Carnes, on August 30, 2018, for failure to timely file with the court, a verified claim and/or ...


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