United States of America v. Two Firearms

Filing 18

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECREE OF FORFEITURE. IT IS HEREBY ORDERED, ADJUDGED AND DECREED: The Glock GMBH Pistol, CAL:40 SN:HES727 is forfeited to the United States and shall be disposed of in accordance with the law. The ATF is dire cted, pursuant to the terms of the settlement agreement, to return the COLT King Cobra Revolver CAL:357 SN:3712CK to claimant Douglas Mascari. Any other claims to the defendant property by persons are barred by default. Signed by Judge Brian Morris on 10/10/2018. (NOS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
UNITED STATES OF AMERICA,

CV 17-43-BU-BMM

Plaintiff,

FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND
DECREE OF FORFEITURE

vs.
TWO FIREARMS,
Defendant.

This matter having come before the Court on the United States’ Unopposed
Motion for Entry of Judgment and Order of Forfeiture, and the Court having
reviewed the Motion and the Settlement Agreement filed with the Court, hereby
makes the following Findings of Fact, Conclusions of Law, and Decree:
FINDINGS OF FACT
1. On July 7, 2017, the United States filed a Verified Complaint for
Forfeiture In Rem against the above-captioned defendant property. (Doc. 1).
2. Pursuant to Supplemental Rule G(4)(b)(v), the United States provided
Adirect notice@ of this civil asset forfeiture action to known potential claimants on
August 4, 2017, by mailing the Notice of Complaint for Forfeiture (Doc. 2) and
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Verified Complaint In Rem (Doc. 1) to Douglas Mascari and William Reaves, via
first class U.S. mail and certified mail, return receipt requested, to the address
provided in their administrative claims. (See Doc. 2).
3. On September 8, 2017, Douglas Mascari and William Reaves, through
their counsel, filed a verified claim (Doc. 7), and on September 28, 2017, an
Answer was filed. (See Doc. 8).
4. Notice of this forfeiture action was also provided to unknown potential
claimants by publishing on the government’s asset forfeiture website the Notice of
Forfeiture Action for 30 consecutive days, beginning on July 25, 2017, and ending
on August 23, 2017. 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 25, 2017) 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. 6-1).
5. Unknown potential claimants failed to file a claim within 60 days from
the first day of publication, and an answer or motion within 21 days thereafter as
required by Supplemental Rules G(5)(a)(ii)(B) and G(5)(b) and Fed. R. Civ. P. 12.
After a motion for entry of default (Doc. 14), supported by Declaration (Doc. 15),
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the Clerk of Court entered the default of unknown potential claimants on August
21, 2018. (Doc. 16).
6. Plaintiff and claimants, Douglas Mascari and William Reaves, through
their Counsel, Jami Rebsom, entered into a Settlement Agreement filed with the
Court on August 10, 2018. (Doc. 13) Pursuant to the Settlement Agreement, the
parties agree to the entry of a judgment on the Verified Complaint for Forfeiture In
Rem in favor of the United States for the Glock GMBH Pistol, CAL:40
SN:HES727. The parties agree that all right, title and interest in the Glock
GMBH Pistol, CAL:40 SN:HES727 shall vest in the United States.
7. The parties further agree that the United States shall return to Claimant,
Douglas Mascari, the COLT King Cobra Revolver CAL:357 SN:3712CK upon
execution of the Acknowledgment of Notice. It was also further agreed, by and
between the parties, that each party will bear its own costs, fees, expenses and
attorney fees. Douglas Mascari did execute the Acknowledgement of Notice. (Doc.
13, Att. 1).
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.

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The United States filed a Verified Complaint for Forfeiture In Rem to forfeit the
defendant property. Under the Settlement Agreement filed with the Court, the
Glock GMBH Pistol, CAL:40 SN:HES727, shall be forfeited to the United States,
and , the COLT King Cobra Revolver CAL:357 SN:3712CK, shall be returned to
claimant, Douglas Mascari.
2. Pursuant to 28 U.S.C. §§ 1355(b)(1)(A) and 1395(b) or (c), venue is
proper in this district because this is a civil proceeding to forfeit United States
Funds found in this district and the acts or omissions complained of occurred in
this district.
3. In accordance with 18 U.S.C. Section 981(a)(1)(A) and Section 1956,
incorporating 21 U.S.C. Section 841, the Glock GMBH Pistol, CAL:40
SN:HES727 is subject to forfeiture. Civil forfeitures are governed by the
Supplemental Rules for Certain Admiralty and Maritime Claims and Asset
Forfeiture.
4. Based on the facts set forth in the Verified Complaint In Rem and the
Settlement Agreement filed with this Court, the Glock GMBH Pistol, CAL:40
SN:HES727 was knowingly utilized by a person who is subject to a court order that
was issued after a hearing of which such person received actual notice, and at which
such person had an opportunity to participate; and which order restrains such person

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from harassing, stalking, or threatening an intimate partner of such person, and by its
terms explicitly prohibits the use, attempted use, or threatened use of physical force
against such intimate partner, to possess in or affecting commerce, any firearm or
ammunition. Under 18 U.S.C. § 924(d)(1), any firearm and ammunition involved
or used in any knowing violation of 18 U.S.C.§ 922(g) shall be subject to seizure and
forfeiture. Thus, the defendant property is liable for forfeiture to the United States
for its use in accordance with 18 U.S.C. Section 924 (d)(1).
5. The COLT King Cobra Revolver CAL:357 SN:3712CK shall be returned
to claimant, Douglas Mascari, under the terms of the Settlement Agreement. (Doc
13).
6. Notice of this action was properly provided in accordance with
Supplemental Rule G(4). No other persons, other than Douglas Mascari and
William Reaves, have filed a claim, and claimants Douglas Mascari and William
Reaves have settled this matter. Default is proper to any other potential unknown
claimants under Fed. R. Civ. P. 55(b)(2).
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS
HEREBY ORDERED, ADJUDGED AND DECREED as follows:
1. The Glock GMBH Pistol, CAL:40 SN:HES727 is forfeited to the United
States and shall be disposed of in accordance with the law.

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2. The ATF is directed, pursuant to the terms of the settlement agreement, to
return the COLT King Cobra Revolver CAL:357 SN:3712CK to claimant, Douglas
Mascari.
3. Any other claims to the defendant property by persons are barred by
default.
DATED this 10th day of October, 2018.

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