United States v. Jimenez Arms, Model J.A. 380, .380 Cal Pistol et al

Filing 21

Findings of Fact, Conclusions of Law, DEFAULT JUDGMENT and Order of Forfeiture in favor of United States against Ammunition, Hipoint, Model C9, 9mm Pistol, Iberia Firearms, Model JCP40,.40 Cal Pistol, Jimenez Arms, Model J.A. 380,.380 Cal Pistol. Signed by Judge Sam E Haddon on 10/1/2013. (CAA, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA
BILLINGS DIVISION
UNITED ST ATES,
CV 13-12-BLG
Plaintiff,
FINDINGS OF FACT,
CONCLUSIONS OF LAW,
DEFAULT JUDGMENT AND
ORDER OF FORFEITURE AS TO
THREE FIREARMS AND
AMMUNITION

vs.
THREE FIREARMS CONSISTING
OF JIMENEZ ARMS, MODEL J.A.
380, .380 CAL PISTOL; HIPOINT,
MODEL C9, 9MM PISTOL; IBERIA
FIREARMS, MODEL JCP40, .40
CAL PISTOL; AND
AMMUNITION,
Defendants.

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 Default Judgment and Order of
Forfeiture as to the remaining Three Firearms and Ammunition pursuant to Fed. R.
Civ. P. 55(b)(2). (Dkt. #16). Upon considering the pleadings filed herein, the
Court makes the following Findings of Fact and Conclusions of Law.

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FINDINGS OF FACT
1. On January 25, 2013, the United States filed a Verified Complaint for
Forfeiture in Rem against the defendant ammunition and four firearms. (Dkt. #1).
2. On February 11, 2013, the United States provided "direct notice" of this
forfeiture action to Troy Cozzens, Trudy Mary Kay Cozzens Premo, Timothy J.
Davis, Jackie Carreno, and Josh Carreno. (Dkt. #5). Pursuant to the notice the
known, potential claimants were to file a verified claim on or before March 18,
2013, within 35 days from the date the notice and verified complaint were sent to
them. (Dkt. #5, paras. 3-4). An answer was to be filed within 21 days after filing
the verified claim. (fd. at para. 5).
3. Direct notice was provided by sending via first-class U.S. mail and
certified mail copies of the Notice of Civil Judicial Forfeiture and Verified
Complaint in Rem to Troy Cozzens, Trudy Mary Kay Cozzens Premo, and
Timothy J. Davis at their home address (Dkt. #5), which is the address from where
the defendant property was seized (Dkt. # 1, para. 6), and their last known address
and last address that was provided to the ATF. See Supplemental Rule
G(4)(b)(iii)(E). On February 13, 2013, Troy Cozzens signed for the certified
mailing addressed to him (Dkt. #13, Ex. A); he also signed for the certified
mailings addressed to his wife, Trudy Mary Kay Cozzens Premo, and to his step2

son, Timothy J. Davis (Dkt. #8, Ex. A). The first-class mailings sent to Trudy
Mary Kay Cozzens Premo and Timothy J. Davis were not returned by the U.S.
Postal Service to the sender; therefore, the United States presumes the mailings
were delivered. (Dkt. #8, para. 5).
4. Direct notice was provided by sending via first-class U.S. mail and
certified mail copies of the Notice of Civil Judicial Forfeiture and Verified
Complaint in Rem to Josh Carreno and Jackie Carreno. (Dkt. #5). The certified
mailings addressed to Josh Carreno and Jackie Carreno were unclaimed, and the
U.S. Postal Service returned the certified mailings addressed to the Carrenos to the
U.S. Attorney's Office on March 4, 2013. (Pkt. #8. Exs. D-E). However, the
mailings sent to Josh Carreno and Jackie Carreno via first-class U.S. mail were not
returned to the sender by the U.S. Postal Service. [)kt. #8. para. 6; id.. Exs. F-G).
5. Notice of this forfeiture action was also provided to unknown,
potential claimants by publishing on the government's asset forfeiture
web site the Notice of Forfeiture Action for 30 consecutive days,
beginning on March 8, 2013, and ending on April 6, 2013. The
"Notice of Forfeiture Action" provides in 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 (March 8, 2013) of this Notice on this official
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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....
6. On February 19, 2013, ATF Special Agent James A. Huskey executed the
Warrant of Arrest in Rem issued by this Court on February 8, 2013 (Dkt. #4 ), and
arrested the defendant firearms and ammunition. (Dkt. #6, Declaration of Service
of Warrant of Arrest in Rem).
7. Troy Cozzens, Wayne Premo, and the Bureau of Alcohol, Tobacco,
Firearms and Explosives entered into an Agreement for the release of one firearm,
the High Standard, Model Sentinel, .22 caliber revolver to Wayne Premo.

~ee

Dkt. #13-1). The terms of the Agreement include, but are not limited to, Premo's
acknowledgment that the firearm may not be released, delivered, returned or
transferred to Timothy Jacob Davis, or to any person residing with Timothy Jacob
Davis, or any other person who has been convicted of a Federal or State felony.
(Dkt. #13-1at1).
8. The United States filed motions for entry of defaults and the Clerk of
District Court entered defaults against Trudy Mary Kay Cozzens Premo, Jackie
Carreno, Josh Carreno, and Timothy J. Davis on March 22, 2013 (Dkt. #9), and
against Troy Cozzens and any unknown, potential claimants on September 23,
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2013 (Dkt. #16). The United States mailed copies of its motion for entry of default
and supporting declaration to Trudy Mary Kay Cozzens Premo, Jackie Carreno,
Josh Carreno, Timothy J. Davis, and Troy Cozzens. (jee Dkt. #7, #8, #13 and #14,
certificates of service).
9. As of this date no claims, answers, or motions have been filed in this
forfeiture action by any person or entity.
10. Upon motion of the United States (Dkt. # 17), the Court entered an Order
on September 27, 2013, dismissing the forfeiture claims against the High Standard,
Model Sentinel, .22 Cal. Revolver as fully compromised and settled on the merits;
approving the release of the revolver pursuant to the terms contained in the
Agreement on Return ofFireann filed under document no. 13-1; and dismissing
the High Standard, Model Sentinel, .22 Cal. Revolver as a defendant from this
forfeiture action. (Dkt. # 18).
11. The Verified Complaint in Rem sets forth detailed facts to support a
reasonable belief that the United States will be able to meet its burden of proof at
trial, to support probable cause, and to provide proof by a preponderance of the
evidence to seize and arrest the defendant property described in the verified
complaint. The facts contained in the verified complaint support the institution of
these forfeiture proceedings for a knowing and willful violation of 18 U.S.C. §
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922(g)(l).
Based upon the foregoing findings of fact, the Court makes the following
conclusions of law.
CONCLUSIONS OF LAW
1. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1345 and 1355. The

United States has filed a Verified Complaint for Forfeiturein Rem to forfeit the
defendant property under 18 U.S.C. § 924(d)(l).
2. Based on the facts set forth in the Verified Complaintin Rem, the
defendant property, consisting of the remaining three firearms and ammunition,
was involved in violations of 18 U.S.C. § 922(g)(l ), which prohibits the possession
of a firearm and ammunition by a person who has been convicted in any court of a
crime punishable by imprisonment for a term exceeding one year.
3. Pursuant to 28 U.S.C. §§ 1355(b)(l)(A) and 1395(b) or (c), venue is
proper in this district because this is a civil proceeding to forfeit property found in
this district.
4. 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 Roundhill Driv~ 283 F.3d 1146, 1149 n.2
(9'h Cir. 2002).
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5. In accordance with 18 U.S.C. § 924(d)(l), the ammunition and three
firearms, Jimenez Arms, Model J.A. 380, .380 Cal. Pistol, SN 143109, Hipoint,
Model C9, 9mm Pistol, SN P1439687 and Iberia Firearms, Model JCP40, .40 Cal
Pistol, SN X753940, are subject to forfeiture as property involved in violations of
18 U.S.C. 922(g)(l ).
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6. Notice of this action was properly provided in accordance with
Supplemental Rule G( 4)(b ). Notice by publication was further provided as set
forth in Supplemental Rule G(4)(a)(iv)(C).
7. Pursuant to Fed. R. Civ. P. 55(b)(2), the United States is entitled to a
judgment of default and forfeiture against the defendant ammunition and three of
the defendant firearms, Jimenez Arms, Model J.A. 380, .380 Cal. Pistol, SN
143109, Hipoint, Model C9, 9mm Pistol, SN Pl439687 and Iberia Firearms,
Model JCP40, .40 Cal Pistol, SN X753940, and against any claims to them.
Based upon the foregoing findings of fact and conclusions oflaw,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:
1. The United States is granted a default judgment against the defendant
ammunition and three defendant firearms, Jimenez Arms, Model J.A. 380, .380
Cal. Pistol, SN 143109, Hipoint, Model C9, 9mm Pistol, SN Pl439687 and Iberia
Firearms, Model JCP40, .40 Cal Pistol, SN X753940.
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2. The defendant ammunition and three defendant firearms, Jimenez Arms,
Model J.A. 380, .380 Cal. Pistol, SN 143109, Hipoint, Model C9, 9mm Pistol, SN
Pl439687 and Iberia Firearms, Model JCP40, .40 Cal Pistol, SN X753940, are
hereby forfeited to the United States and shall be disposed of in accordance with
law.

-G-r

DATED this /~day of October, 2013.

~ f~c!e-Y\

~.Haddon

United States District Judge

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