United States v. Four Henry Firearms and Ammunition

Filing 13

FINDINGS OF FACT AND CONCLUSIONS OF LAW, DEFAULT JUDGMENT, AND ORDER OF FORFEITURE. Signed by Judge Brian Morris on 9/13/2016. (MMS, )

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

CV 16-36-GF-BMM

Plaintiff,

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

vs.
FOUR HENRY RIFLES 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 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.
FINDINGS OF FACT
1. On April 26, 2016, the United States instituted a judicial forfeiture action
by filing in this cause a Verified Complaint In Rem against four Henry Rifles and
ammunition, herein after referred to as “defendant property”, under 18 U.S.C. §
924(d) in violation of 18 U.S.C. § 922(g)(1) and (g)(3). The defendant property
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constitutes firearms which were “straw purchased” for Leonard Johnson, a
convicted felon prohibited from possessing firearms, for Johnson’s personal use and
benefit, by Janet Richards, in violation of 18 U.S.C. § 922(g)(1) and (g)(3).
2. On May 11, 2016, a Special Agent with the Bureau of Alcohol, Tobacco,
Firearms and Explosives executed the Warrant of Arrest In Rem that was issued by
this Court on April 29, 2016, and arrested the defendant property. (Doc. 6).
3. On April 29, 2016, the United States provided “direct notice” of this
forfeiture action by sending via certified mail and first-class U.S. mail copies of the
Notice of Civil Judicial Forfeiture and Verified Complaint In Rem (Docs. 1 and 3) to
Janet Richards at the address provided in her administrative claim, and Leonard
Johnson, at the address last known to law enforcement, as authorized by the
Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions, Rule G(4)(b)(iii)(B) and (E). (Dec. in Supp. of Default, Doc. 9, para. 3)
The certified mailing to Janet Richards was returned by the U.S. Postal Service as
delivered and signed for. The certified mailing to Leonard Johnson was returned by
the U.S. Postal Service as “unclaimed”. The first-class mailing to Janet Richards
was not returned by the United States Postal Service; therefore, it is presumed the
mail was delivered to the addressee. The first-class mailing to Leonard Johnson
was returned by the United States Post Office with a hand written note on it stating
“not at this address” and “return”. Searches conducted by state and federal law
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enforcement of various law enforcement websites, Google.com, and other
people-finder websites were conducted and all list Johnson’s address as that used in
this office’s notifications. There are no other addresses available to law
enforcement for the current address of Leonard Johnson. Leonard Johnson did not
file an administrative claim to the defendant property. However, service by
publication pursuant to Supplemental Rule G includes all persons who may make a
claim to the defendant property as discussed below. (Doc. 10).
4. Notice of this forfeiture action was also provided to known and unknown
potential claimants by publishing on the government’s asset forfeiture website the
Notice of Forfeiture Action for 30 consecutive days, beginning on May 4, 2016, and
ending on June 2, 2016. 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 (May 4, 2016) 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. 7, Att. 1).
5.

Upon considering the United States’ Motion for Entry of Defaults (Doc.

8), the Clerk of District Court entered the defaults of Janet Richards and Leonard
Johnson, and any unknown potential claimants, on August 18, 2016, for failure to
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timely file a verified claim and/or to answer or otherwise defend as required by the
Supplemental Rules. (Doc. 11).
6.

The factual allegations set forth in paragraphs 4 through 30, Doc. 1, are

verified by Christopher Fay, Special Agent with the Bureau of Alcohol, Tobacco,
Firearms and Explosives.
7.

(Doc. 1, p. 19)

The totality of the circumstances demonstrates that the firearms were

possessed unlawfully in violation of 18 U.S.C. Section 922(j). The circumstances
include, but are not limited to: the straw purchase of firearms by Janet Richards
with money provided by Leonard Johnson, a convicted felon prohibited from
possessing firearms, for Johnson’s personal use and benefit, under 18 U.S.C.
922(g)(1) and (g)(3).

The firearms were purchased after Richards answered with

false information on the ATF Form 4473 regarding who the transferee of the
firearms was in purchasing the firearms, in violation of 18 U.S.C. 922(a)(6).
Richards actively participated in providing and illegally transferring firearms to
Johnson knowing that he was prohibited. Some firearms in Johnson’s home were
loaded and Johnson had access and possession of all firearms, which he paid for.
The firearms in question were found under the bed in the master bedroom of
Johnson’s home at the time of seizure, and he admitted to possession of various
firearms and ammunition. Johnson further admitted to marijuana use in violation
of U.S.C. 922(g)(3). (Doc. 1, para. 30)
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Based upon the foregoing findings of fact, the Court makes the following
conclusions of law.
CONCLUSIONS OF LAW
8.

The Court has jurisdiction pursuant to 28 U.S.C. §§ 1345 and 1355.

The United States has filed a Verified Complaint for Forfeiture In Rem to forfeit
the defendant property”, under 18 U.S.C. § 924(d) in violation of 18 U.S.C. §
922(g)(1) and (g)(3). The defendant property was possessed unlawfully in
violation of 18 U.S.C. § 922(j) and constitutes firearms which were “straw
purchased” for Leonard Johnson, a convicted felon prohibited from possessing
firearms, for Johnson’s personal use and benefit, by Janet Richards, in violation of
18 U.S.C. § 922(g)(1) and (g)(3). Therefore, the defendant property is forfeitable
pursuant to 18 U.S.C. § 924(d)(1).
9. 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 the defendant
property found in this district and the acts or omissions complained of occurred in
this district.
10.

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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11.

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.

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. § 922(g)(1) and (g)(3).
12.

The totality of the circumstances as described in the Verified

Complaint demonstrates the defendant property constitutes firearms which were
“straw purchased” for Leonard Johnson, a convicted felon prohibited from
possessing firearms, for Johnson’s personal use and benefit, by Janet Richards, in
violation of 18 U.S.C. § 922(g)(1) and (g)(3).
13. Notice of this action was properly provided to known potential
claimants Janet Richards and Leonard Johnson, in accordance with Supplemental
Rule G(4)(b)(iii)(B) by sending notice to each addressee at the address provided in
Janet Richards’ administrative claim and Leonard Johnson’s last known residential
address, as authorized under Supplemental Rule G(4)(b)(iii)(E).
14. Notice by publication was also provided to known and unknown
potential claimants in accordance with Supplemental Rule (G)(4)(a)(iv)(C).
15. In accordance with Fed. R. Civ. P. 55(a) and Supplemental Rules A(2)
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and G(5), the Clerk of District Court properly entered the defaults of Janet
Richards, Leonard Johnson, and known and unknown potential claimants. (Doc.
11).
16. Pursuant to Fed. R. Civ. P. 55(b)(2), the United States is entitled to a
judgment of default against the defendant property, and any claims to the
defendant property. The United States is further entitled to an order of forfeiture
of 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 and against any person asserting a claim to, or interest in, the defendant
property.
2.

The defendant property, consisting of four Henry firearms and

ammunition, is hereby forfeited to the United States and shall be disposed of in
accordance with the law.
DATED this 13th day of September, 2016.

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