United States of America v. Winchester Model 12,12 Gauge Shotgun and $14,731.00 in U.S. Currency

Filing 13

FINDINGS OF FACT, CONCLUSIONS OF LAW, DEFAULT JUDGMENT AND ORDER OF FORFEITURE 12 Motion for Judgment of Forfeiture Signed by Judge Susan P. Watters on 5/9/2017. (AMC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
UNITED STATES OF AMERICA,
CV 16-165-BLG-SPW-TJC
Plaintiff,
vs.

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

WINCHESTER 12 12-GAUGE
SHOTGUN, $14,731.00 in U.S.
Currency
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 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:

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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 88l(a)(6) and (11), and 18 U.S.C. § § 922(g)(3) and 924(d).
(Doc. 1, ~ 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 firstclass 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;
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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).

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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)(l)(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 Roundhill Drive, 283 F.3d 1146, 1149
n. 2 (9th Cir. 2002).

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4. The Verified Complaint for Forfeiture 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 as required by Supplemental Rule G(2)(f), 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.
5. The totality of circumstances as set forth in the Verified Complaint for
Forfeiture In Rem, and as summarized in paragraph 24 of the Verified Complaint,
demonstrates that the defendant currency was furnished or intended to be furnished
by any person in exchange for a controlled substance, or is proceeds traceable to
such an exchange, and also constitutes moneys used or intended to be used to
facilitate a violation of 21 U.S.C. § 841 et seq., all in violation of 21 U.S.C.
§ 881(a)(6). In addition, the defendant 12 gauge shotgun was located near the
stored methamphetamine and defendant currency in Lund's residence providing
evidence that the firearm was used or intended to be used to facilitate the
transportation, sale, receipt, possession, or concealment of methamphetamine and
other controlled substances and any proceeds traceable to such property, in
violation of 21 U.S.C. § 881(a)(l 1). Further, Lund's admission to agents of longterm use of crank and methamphetamine further supports forfeiture of the
defendant firearm under 18 U.S.C. § 922(g)(3) as the firearm was possessed by an
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unlawful user of or addict to any controlled substance, and therefore subject to
forfeiture under 18 U.S.C. § 924(d)(l).
6. Notice of this action was properly provided to known potential
claimants, Robert Lund and Miriam Lund, by mailing the Verified Complaint for
Forfeiture In Rem and the Notice of Complaint for Forfeiture to their address set
forth in their administrative claim in accordance with Supplemental Rule G(4)(b).
Notice by publication was also properly provided to known and unknown potential
claimants in accordance with Supplemental Rule (G)(4)(a)(iv)(C).
7. In accordance with Fed. R. Civ. P. 55(a) and Supplemental Rules A(2)
and G(5), the Clerk of District Court properly entered the defaults of Robert Lund
and Miriam Lund and unknown potential claimants. (Doc. 11 ).
8. Pursuant to Fed. R. Civ. P. 55(b)(2), the United States is entitled to a
judgment of default and order of forfeiture against the defendant property and any
claims to the defendant property.
IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:
1. The United States is granted a default judgment against the defendant
property: Winchester Model 12, 12 gauge shotgun, Serial Number: 612907; and
$14,731.00 in U.S. Currency.

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2. The defendant property consisting of the Winchester Model 12, 12 gauge
shotgun, Serial Number: 612907 and $14,731.00 in U.S. Currency, is hereby
forfeited to the United States and shall be disposed of in accordance with the law.
DATED this

f~ ofMay, 2017.

~F'-J~
SlJSANi.WATTERS
United States District Judge

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