United States of America v. Two Sturm Ruger Model M77 Rifles et al

Filing 10

MINUTES (IN CHAMBERS): ORDER by Judge David O. Carter: granting 8 Motion for Default Judgment. For the reasons explained above, the Court GRANTS the Governments Motion for Default Judgment against Hector Cervantes-Torres, Norma Perez, and all other potential claimants to the Defendant firearms. MD JS-6. (twdb)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES – GENERAL
Case No. SACV 14-0370-DOC (ANx)

Date: August 27, 2014

Title: UNITED STATES V. TWO STURM-RUGER MODEL M77 RIFLES, AND ONE
SAVAGE MODEL 111 RIFLE

PRESENT:

THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera
Courtroom Clerk

Not Present
Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF:

ATTORNEYS PRESENT FOR DEFENDANT:

None Present

None Present

PROCEEDINGS (IN CHAMBERS): ORDER GRANTING MOTION FOR
DEFAULT JUDGMENT [8]
Before the Court is Plaintiff United States of America’s Motion for Default
Judgment Against the Interests of Hector Cervantes, Norma Perez, and All Other
Potential Claimants (“Motion”) (Dkt. 8). The Court finds this matter appropriate for
decision without oral argument. Fed. R. Civ. P. 78; Local Rule 7-15. For the reasons
explained below, the Court GRANTS the Motion.
I. BACKGROUND
A. Factual Background
In October 2012, a California Fish and Game officer observed Hector Cervantes
carrying a Sturm-Ruger rifle in Casper’s Regional Park in San Juan Capistrano, where
hunting is prohibited. Mr. Cervantes admitted that he and his friend were hunting,
although they believed that they were in Cleveland National Forest, where it was legal to
hunt. The officer cited both men for violation of California Fish and Game Section 2016
(hunter trespass) and a ranger issued written warnings to them for firearm possession and
hunting in a county park. Id. ¶¶ 27-32.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 14-0370-DOC (ANx)

Date: August 27, 2014
Page 2

In October 2013, in a separate incident, U.S. Immigration and Customs
Enforcement (“ICE”) agents conducted a search of Mr. Cervantes’s and Norma Perez’s
residence with Ms. Perez’s consent. During the search, they found the three Defendant
firearms along with two other firearms, ammunition, and casings. Compl. ¶ 24. Mr.
Cervantes and Ms. Perez initially claimed that two of the firearms belonged to Mr.
Cervantes and three belonged to Ms. Perez. Id. ¶ 18. Later, they claimed that all of the
firearms belonged to Ms. Perez. Id. ¶ 22. None of the firearms were registered either to
Mr. Cervantes or Ms. Perez. Id. ¶ 25. All five firearms were taken by an Orange County
Sheriff’s Department deputy for safekeeping. Id. ¶ 26.
On February 19, 2014, a jury found Mr. Cervantes guilty of 18 U.S.C. §
922(g)(5)(A) (unlawfully present alien, knowingly possessed firearm in and affecting
interstate and foreign commerce) and 18 U.S.C. § 1326(a) (illegal re-entry of previously
removed alien) based on the October 2013 incident and additional information about Mr.
Cervantes’s immigration history, which included an order of removal and prior removal
from the United States. See id. ¶ 10, 35. Mr. Cervantes had several previous convictions
as well, including convictions for inflicting corporal injury on a spouse/cohabitant in May
1996 and December 1997. Id. ¶ 34.
Plaintiff alleges based on these facts that the Defendant firearms were involved in
violations of 18 U.S.C. § 922(g)(5) (unlawful for any alien illegally or unlawfully in the
United States to ship or transport in interstate or foreign commerce, or to possess in or
affecting commerce, any firearm or ammunition; or to receive any firearms or
ammunition which has been shipped or transported in interstate or foreign commerce)
and § 922(g)(9) (unlawful for any person, convicted in any court of a misdemeanor
domestic violence crime, to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or to receive any firearms
or ammunition which has been shipped or transported in interstate or foreign commerce).
Plaintiffs allege that defendants are subject to forfeiture pursuant to 18 U.S.C. § 924(d),
which subject to seizure and forfeiture any firearm “involved in or used in any knowing
violation of [inter alia, § 922(g)].” Id. ¶ 36.
B. Procedural History
After the Government filed the Complaint, it executed process upon the Defendant
firearms. Decl. of Steven R. Welk (“Welk Decl.”) Ex. A. Notice of Civil Forfeiture was
posted on an official government site, www.forfeiture.gov, for at least thirty consecutive
days. Id. Ex. B.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 14-0370-DOC (ANx)

Date: August 27, 2014
Page 3

On March 17, 2014, the Government sent notice and a copy of the complaint by
certified mail to Mr. Cervantes at his last known address and at his attorney’s address.
Id. Ex. C, D. On March 25, 2014, the Government sent notice and a copy of the
complaint to Mr. Cervantes at the Santa Ana Jail. Id. Ex. E. All three mailings were
received and accepted, as indicated by the signed certified mail return receipts. Id.
On March 17, 2014, the Government sent notice and a copy of the complaint to
Ms. Perez’s last known address. Ms. Perez signed the certified mail receipt. Id. Ex. F.
On June 26, 2014, the Clerk of the Court entered default against the interests of
Mr. Cervantes, Ms. Perez, and all other potential claimants. Id. Ex. G. On July 22, 2014,
the Government filed this Motion. On the day after, the Government served Mr.
Cervantes and Ms. Perez with the Motion by U.S. mail at their last known addresses. Id.
¶ 9. As of the date of this order, no claimant has appeared.
II. LEGAL STANDARD
The decision to grant or deny a motion for default judgment is within the district
court’s discretion. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). After the clerk
enters a default against the defendant, the factual allegations of the complaint, except
those relating to damages, is taken as true. Fed. R. Civ. P. 8(b)(6); TeleVideo Sys., Inc. v.
Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (citing Geddes v. United Fin. Grp., 559
F.2d 557, 560 (9th Cir. 1977)). The district court considers seven factors when deciding
whether to grant the motion: “(1) the possibility of prejudice to the plaintiff, (2) the
merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of
money at stake in the action, (5) the possibility of a dispute concerning material facts, (6)
whether the default was due to excusable neglect, and (7) the strong policy underlying the
Federal Rules of Civil Procedure favoring decisions on the merits.” Eitel, 782 F.2d at
1471-72.
III.

ANALYSIS

Here, the Complaint alleges that Mr. Cervantes was previously convicted of two
crimes of domestic violence. The Complaint does not specify whether the domestic
violence convictions were felonies or misdemeanors. Since 18 U.S.C. § 922(g)(9) only
applies to misdemeanor convictions for domestic violence, the Court is unable to
determine whether the Defendant firearms are subject to forfeiture under § 924(d)
through § 922(g)(9).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 14-0370-DOC (ANx)

Date: August 27, 2014
Page 4

However, the Complaint also alleges Mr. Cervantes was convicted of possessing a
firearm affecting interstate or foreign commerce while unlawfully present in the United
States. Thus, the Defendant firearms are subject to forfeiture under § 924(d) through §
922(g)(5).
Given that the potential claimants have not responded despite being given notice
of the complaint, the entry of default against them, and this Motion, the Court finds that it
is unlikely that entry of default judgment will prejudice potential claimants or that their
defaults were due to excusable neglect. See id.
Therefore, the Court finds that it is proper to enter default judgment against all
potential claimants to the Defendant firearms.
IV.DISPOSITION
For the reasons explained above, the Court GRANTS the Government’s Motion
for Default Judgment against Hector Cervantes-Torres, Norma Perez, and all other
potential claimants to the Defendant firearms.
The Clerk shall serve this minute order on the parties.
MINUTES FORM 11
CIVIL-GEN

Initials of Deputy Clerk: jcb