United States Of America v. One Smith & Wesson 66 Revolver et al
Filing
29
ORDER denying 22 Motion for Summary Judgment. Signed by Judge William T. Moore, Jr on 3/31/15. (bcw)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
UNITED STATES OF AMERICA,
)
:U. u
Plaintiff,
V
CASE NO. CV413-043
.
ONE SMITH & WESSON 66 REVOLVER;
ONE ANT-CALIFORNIA BACK-UP
PISTOL; ONE BRNO ZBROJOVKA 581
RIFLE; and ONE MOSSBERG 600AT
SHOTGUN,
Defendants,
JOSEPH ALEXANDER KOVACS,
Claimant.
ORDER
Before the Court is the Government's Motion for Summary
Judgment. (Doc. 22.) Joseph Alexander Kovacs has filed a claim
to the property (Doc. 5) and a response in opposition to the
Government's motion (Doc. 26; Doc. 28). For the following
reasons, the Government's motion is DENIED.
According to the Government's verified complaint, Customs
and Border Protection ("CPB") agents determined that Claimant
Joseph Alexander Kovacs' overstayed his six-month visitor's visa.
(Doc. 1 ¶ 7.) At the time, Claimant was living aboard his
vessel, the Sea Breeze, at Lee Shore Marina in Savannah,
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It appears that Claimant is a natural-born Canadian citizen.
(Doc. 22 at 2.)
Georgia. (Id. ¶j 4, 7.) Upon determining Claimant's illegal
status, CBP agents searched his vessel, recovering and seizing
the four firearms ("Defendant Property") at issue in this case.
(Id. ¶ 9.) According to Claimant, he was never prosecuted, much
less adjudicated, of being in the United States illegally. (Doc.
26.)
Following a joint investigation, the Bureau of Alcohol,
Tobacco,
Firearms and Explosives administratively seized
Defendant Property.
(Doc. 1 ¶ 13.) After the Government
electronically published notice of the seizure, Claimant filed a
claim for Defendant Property. (Id. ¶j 13-14.) As a result, the
Government filed a Verified Complaint for Forfeiture in Rem
against Defendant Property. (Doc. 1.) Claimant once again filed
notice of his claim (Doc. 5) and answered the Government's
verified complaint (Doc. 9; Doc. 10). The Government has now
moved for summary judgment (Doc. 22), which is opposed by
Claimant (Doc. 26; Doc. 28)
Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions of file,
together with the affidavits, if any, show there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990). All
reasonable inferences must be drawn in favor of the non-moving
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party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,
(1986). In a civil forfeiture action, the Government bears the
burden of establishing that the property is subject to
forfeiture. 18 U.S.C. § 983(c) (1); United States v. $688,670.42
Seized from Regions Bank Account No. XXXXXX5028, 449 F. App'x
871, 874 (11th cir. 2011). The Government contends that
Defendant Property is subject to forfeiture under 18 U.S.C.
§ 924(d) (1) because, at the time it was seized by the CBP,
Defendant Property was unlawfully possessed by an individual
unauthorized to be in the United States, a violation of 18
u.s.c.
§ 922(g) (5).
Section 922(g) makes it unlawful for any person, who being
an alien is illegally or unlawfully in the United States, to
ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition. 18 U.S.C.
§ 922(g) (5) (A). Section 924(d) (1) allows for the seizure and
forfeiture of
"[amy firearm or ammunition involved in or used
in any knowing violation of subsection . . . (g) . . . of
section 922." 18 U.S.C. § 924(d) (1). However, the same section
provides that
upon acquittal of the owner or possessor, or dismissal
of the charges against him other than upon motion of
the Government prior to trial . . . , the seized or
relinquished firearms or ammunition shall be returned
forthwith to the owner or possessor or to a person
delegated by the owner or possessor unless the return
of the firearms or ammunition would place the owner or
possessor or his delegate in violation of law.
Id.
Given the language of § 924 (d) (1), the Court is unable to
grant the Government's Motion for Summary Judgment. First, the
record is silent as to any prosecution or conviction of Claimant
under § 922(g). For his part, Claimant suggests that the
Government declined to prosecute him for allegedly overstaying
his six-month visa. (Doc. 26 at 3.) The Government's verified
complaint and motion are silent as to the disposition of any
charges brought against Claimant in relation to his immigration
status at the time CBP agents seized Defendant Property.
Therefore, it is entirely possible that § 924(d) (1) requires the
Government to relinquish Defendant Property to Claimant. Given
this lack of information, the Court is unable to determine, as a
matter of law, that Defendant Property is subject to forfeiture
under § 924(d) (1).
Second, the Government's verified complaint and Motion for
Summary Judgment are similarly silent as to whether returning
Defendant Property to Claimant would place him in violation of
law. See 18 U.S.C. § 924(d) (1). Once again, the record contains
no evidence concerning Claimant's current immigration status.
Based on Claimant's response, it appears that he still resides
aboard his vessel, which remains docked at the Lee Shore Marina.
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(See Doc. 26 at 8 (listing address
as
SV Sea Breeze and Lee
Shore Marina).) Based on this absence, the Court is unable to
determine from the record before it whether returning Defendant
Property to Claimant would place him in violation of law. Due to
the presence of these material issues of fact regarding whether
Defendant Property is subject to forfeiture, the Government's
Motion for Summary Judgment must be DENIED.
SO ORDERED this
$1.
34
day of March 2015.
'
WILLIAM T. MOORE,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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