United States of America v. One Taurus Raging Bull Revolver

Filing 16

FINDINGS OF FACT AND CONCLUSIONS OF LAW, DEFAULT JUDGMENT and ORDER of FORFEITURE. Signed by Judge Dana L. Christensen on 8/13/2013. (CDH, )

United States of America v. One Taurus Raging Bull Revolver

Doc. 16

FILED
AUG 13 2013
Clerk, U.S District Court
District Of Montana
Missoula

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
UNITED STATES OF AMERICA,
CV 13-85-M-DLC
Plaintiff,
FINDINGS OF FACT,
CONCLUSIONS OF LAW,
DEFAULT JUDGMENT AND
ORDER OF FORFEITURE

vs.
ONE TAURUS RAGING BULL
REVOLVER,
Defendant.

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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Dockets.Justia.com

FINDINGS OF FACT
1. On or about January 8, 2008, Paul Joseph Richter was convicted of
felony assault with a weapon in the Montana Fifth Judicial District Court,
Beaverhead County under Docket No. DC-06-3143. He was sentenced to the
Department of Corrections for a period of five years with three years suspended.
(Dkt. #1, para. 4). The court noted that Richter had "previously entered a plea of
guilty to Assault with a Weapon, a Felony." [Dkt. #1 at para. 4 (citing Judgment in
DC-06-3143 at p. 1)]. In the judgment the court directed that "[t]he Defendant
shall not possess or control any firearms or deadly weapons." Id. (citing Judgment
in DC-06-3143 at p. 5, para. 20).
2. On October 22, 2012, a Montana Department of Corrections parole
officer conducted a probation search of Richter's residence in Florence, Montana.
(Dkt. # 1, para. 7). During the search the following weapons were seized from a
locked bedroom: the defendant firearm, one Taurus, Model "Raging Bull," .454caliber revolver, serial number RC634865, a dagger, two pairs of nun chucks, a
"billy" club, a sawed-off billiard cue, a machete, and an arrow tipped with a
broadhead. Possession of the defendant firearm and weapons by Richter violated
the terms of his probation. (Dkt. #1, paras. 5 & 7).

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3. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) took
possession of the defendant firearm and now has custody of it. (Dkt. # 1, para. 7).
Analysis by an A TF expert revealed that the defendant firearm had moved in
interstate or foreign commerce. (Id. at para. 13).
4. An administrative claim to the defendant firearm dated January 24, 2013,
was submitted by Paul Richter and his girlfriend, Kimberly Kirschten, a/k/a
Kimberly Jones. In the administrative claim Kirschten stated that Richter had
given the defendant firearm to her, so it belongs to her. (Dkt. #15, Ex. A at p. 1).
She also stated that she placed the firearm in Richter's house after he had been
arrested believing it was acceptable since Richter was incarcerated. (Id.).
5. Upon reviewing the history of the firearm, Kirschten's assertion that the
defendant firearm belongs to her and that she placed it in Richter's home after
Richter was incarcerated lacks credibility. In 2002, prior to Richter's felony
conviction, Richter reported to the Missoula County Sheriffs Office that the
defendant firearm had been stolen. The firearm was recovered by the sheriffs
office approximately 10 years later in July 2012 after Richter saw the stolen
firearm on display at Federal Firearms Licensee Traders Brothers Inc. in Lolo,
Montana. On August 14, 2012, the sheriffs office released the firearm to
Richter's father, after Richter, who was then a convicted felon, set up the
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appointment for his father to retrieve the stolen firearm. Within a few hours after
his father retrieved the firearm from the sheriffs office, Richter appeared at his
father's residence and took the firearm. (Dkt. # 1, paras. 8-11 ). Approximately
two months later in October 2012, the firearm was seized from Richter's residence
during a search that was conducted by probation. (Dkt. # 1, para. 7).
6. On May 9, 2013, a Warrant of Arrest in Rem was issued by the Clerk of
District Court. (Dkt. #3). The defendant firearm was arrested, and the return of
the Warrant of Arrest was executed by Deputy U.S. Marshal Chris Strommen on
May 13, 2013. (Dkt. #7).
7. Examination of the court files and records in this case shows that Paul J.
Richter and Kimberly Kirschten, were each sent a copy of the Verified Complaint
in Rem and Notice of Complaint for Forfeiture on May 9, 2013, by first-class mail

and certified mail, which provided them with "direct notice" of this forfeiture
action. (Dkt. #6).
8. The first-class and certified mailings were sent to Richter at his place of
incarceration, the Missoula Assessment and Sanction Center, 2340 Mullan Road,
Missoula, MT 59808. (Dkt. #10, Ex. 1). The certified mailing to Richter was
received and signed by Kristi Sangrey on May 13, 2013. (Dkt. #10, Ex. 2). The

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first-class mailing to Richter was not returned by the U.S. Postal Service;
therefore, it is presumed that it was delivered. (Dkt. # 10, para. 5).
9. The first-class and certified mailings were sent to Kirschten at last
addresses provided by Kirschten to the A TF, which were contained in her
administrative claim: 483 Tie Chute Lane, Florence, MT 59833 and 5795 Ellison
Lane, Florence, MT 59833. (Dkt. #15, Ex. A at pp. 1 & 5). The two certified
mailings to Kirschten were received and signed by James T. McFarland on May
23, 2013. (Dkt. #10, Ex. 4). The two first-class mailing sent to Kirschten were
not returned by the U.S. Postal Service; therefore, it is presumed they were
delivered. (Dkt. #10, para. 6 & Ex. 3).
10. Notice was also provided to any unknown potential claimants by
publishing notice of this forfeiture action on the government's asset forfeiture web
site for 30 consecutive days, beginning on May 4, 2013, and ending on June 2,
2013. (Dkt. #8). Under Supplemental Rule G(5)(a)(ii)(B) any unknown person
seeking to make a claim must file a claim "no later than 60 days after the first day
of publication on an official internet government forfeiture site." A claim would
therefore have been due in this case on or before July 3, 2013.
11. After the United States filed two separate motions for entry of default,
the Clerk of District Court entered defaults against Paul J. Richter and Kimberly
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Kirschten on June 18, 2013 (Dkt. # 11 ), and against any other unknown persons on
July 9, 2013 (Dkt. #14). The United States mailed copies of the default motion and
declaration to Richter and Kirschten on June 14, 2013. (See Dkt. #9 and #10,
certificates of service).
12. As of this date no claims, answers, or motions have been filed in this
forfeiture action by any person or entity.
13. 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 firearm 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).
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 Forfeiture in Rem to forfeit the
defendant firearm under 18 U.S.C. § 924(d)(l).
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2. Based on the facts set forth in the Verified Complaint in Rem, the
defendant firearm was involved in violations of 18 U.S.C.
§ 922(g)( 1), which prohibits the possession of a firearm 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 Drive, 283 F.3d 1146, 1149 n.2
(9th Cir. 2002).
5. In accordance with 18 U.S.C. § 924(d)(l), the defendant firearm is subject
to forfeiture as property involved in violations of 18 U.S.C.
§ 922(g)(l ).
6. Notice of this action was sent by "means reasonably calculated to reach
the potential claimant." Supplemental Rule G(4)(b)(iii)(A). Specifically, notice to
known potential claimants was sent via first-class and certified U.S. mail to the last
addresses that the claimant provided to the ATF in her administrative claim
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pursuant to Rule G(4)(b )(iii)(E), and to the place incarcerating the claimant from
whom the property was seized pursuant to Rule G(4)(b )(iii)(C). The 2006
Advisory Committee Notes to Supplemental Rule G(4)(b) note that "[i]tems (D)
and (E) of subparagraph (iii) authorize the government to rely on an address given
by a person who is not incarcerated. The address may have been given to the
agency ... that seized the property. The government is not obliged to take
independent investigation to verify the address." Furthermore, notice by
publication was 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 against the defendant firearm and against any claims to the
defendant firearm.
8. The United States is further entitled to an order of forfeiture of the
defendant firearm.
Based upon the foregoing findings of fact and conclusions of law,
IT IS ORDERED, ADJUDGED AND DECREED as follows:
1. The United States is granted a default judgment against the defendant
firearm, one Taurus, Model "Raging Bull," .454-caliber revolver, serial number
RC634865.

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2. The defendant firearm is hereby forfeited to the United States and shall be
disposed of in accordance with law.
DATED this

13~day of August,

Dana L. Christensen
Chief United States District Judge

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