United States of America v. Six Firearms and Ammunition

Filing 18

DEFAULT JUDGMENT in favor of United States of America against Six Firearms and Ammunition. Signed by Judge Dana L. Christensen on 5/4/2018. (NOS)

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

MAY 0 4 2018
Clerk, U.S District Court
District Of Montana
Missoula

UNITED STATES OF AMERICA,
CV 18-33-M-DLC
Plaintiff,
ORDER

vs.
SIX FIREARMS AND
AMMUNITION,
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) (Doc. 17). Upon
considering the pleadings filed herein, the Court makes the following Findings of
Fact and Conclusions of Law.

FINDINGS OF FACT
1. On February 15, 2018, the United States instituted a judicial forfeiture
action by filing in this cause a Verified Complaint in Rem against the defendant
firearms, consisting of the following property involved in a violation of 18 U.S.C.
§ 922(g)(8), and subject to forfeiture pursuant to 18 U.S.C. § 924(d)(l):

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• Rugar P85 Pistol, CAL:9, Serial No. 300-27518;
• Marlin Firearms Co. 70 Rifle, CAL:22, Serial No. 16388744;
• Remington 870 Express Magnum Shotgun, CAL:20, Serial No.
B842275U;
• Winchester 70 Rifle, CAL:7, Serial No. G2205890;
• CBC 817 Rifle, CAL:17, Serial No. HHD041363;
• Winchester 70 XTR Featherweight Rifle, CAL:280, Serial No.
G 1748613; and
•

16 rounds unknown assorted ammunition.

2. On February 26, 2018, the ATF Special Agent Kyle Solon, executed the
Warrant of Arrest in Rem (Doc 4) that was issued by this Court on February 22,
2018, and arrested the defendant firearms. (Doc. 5.)
3. On February 22, the United States provided "direct notice" of this civil
asset forfeiture action to Gloria Nixon and Justin Ivins on February 22, 2018, by
mailing the Notice of Complaint for Forfeiture and Verified Complaint In Rem
(Doc. 2) via first class U.S. mail and Certified mail to the address provided in
Gloria Nixon's administrative claim, (See Docs 10-1; 10-2), and the address
provided by law enforcement for Justin Ivins, at the location from where some of
the defendant firearms were seized .. (See Docs. 10-3; 10-4).

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4. On March 8, 2018, the United States provided "direct notice" of this civil
asset forfeiture action to known potential claimants, Tammy Ivins, and Shawna
Jones, by mailing the Notice of Complaint for Forfeiture and Verified Complaint
In Rem (Doc. 2) via first class U.S. mail and Certified mail to the address Tammy
Ivins provided directly to the U.S. Attorney's Office, (See Docs. 10-5; 10-6) and
the address of Shawna Jones provided by law enforcement. (See Docs. 10-7; 108).
5. Notice of this forfeiture action was also provided to any and all unknown
potential claimants by publishing on the government's asset forfeiture website the
Notice of Forfeiture Action for 30 consecutive days, beginning on February 17,
2018, and ending on March 18, 2018. 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 (February 17, 2018) 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. 8, Att. 1).
6. Upon considering the United States' Motion for Entry of Default of
Known Potential Claimants (Doc. 9), the Clerk of Court entered the default of

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Gloria Nixon, Justin Ivins, Tammy Ivins, and Shawna Jones, on April 16, 2018, for
failure to timely file with the court, a verified claim and/or to answer or otherwise
defend as required by the Supplemental Rules. (Doc. 11 ).
7. Upon considering the United States' Motion for Entry of Default of
Unknown Potential Claimants (Doc. 12), the Clerk of Court entered the default of
Unknown Potential Claimants, on April 23, 2018, for failure to timely file a
verified claim and/or to answer or otherwise defend as required by the
Supplemental Rules. (Doc. 14 ).
8. The factual allegations set forth in paragraphs 4 through 15 of the
Verified Complaint, are verified by ATF Special Agent, Kyle Solon. (Doc. 1 at 9.)
Based upon the foregoing findings of fact, the Court makes the following
conclusions of law.

CONCLUSIONS OF LAW
9. The Court has jurisdiction of this action 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 consisting of firearms, pursuant to 18 U.S.C.
§ 924( d)(l ).

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10. Venue is proper in this District pursuant to 28 U.S.C. §§ 1355 and 1395,
because the acts or omissions giving rise to the forfeiture occurred in and around
Molt, Montana, and the defendant property is located in this district.
11. 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).
12. 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 firearms described in the verified complaint.
13. Under 18 U.S.C. § 924(d), any firearm or ammunition involved or used
in any violation of 18 U.S.C. § 922(g)(8), shall be subject to seizure and forfeiture.
14. Notice of this action was properly provided to known potential
claimants, Gloria Nixon, Justin Ivins, Tammy Ivins, and Shawn Jones, by
providing "direct notice" by mailing the Verified Complaint In Rem and Notice of
Complaint for Forfeiture, in accordance with Supplemental Rule G(4)(b )(v).

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15. In accordance with Fed. R. Civ. P. 55(a) and Supplemental Rules A(2)
and G( 5), the Clerk of Court properly entered the

de~ault

of Gloria Nixon, Justin

Ivins, Tammy Ivins, and Shawn Jones. (Doc. 11 ).
16. Notice by publication was also provided to any and all unknown
potential claimants in accordance with Supplemental Rule (G)(4)(a)(iv)(C).
17. In accordance with Fed. R. Civ. P. 55(a) and Supplemental Rules A(2)
and G( 5), the Clerk of Court properly entered the default of unknown claimants.
(Doc. 14).
18. The United States is entitled to default judgment against the defendant
firearms and ammunition and against any claims to the defendant property under
Fed. R. Civ. P. 55(b)(2). The United States is further entitled to an order of
forfeiture of the defendant firearms.
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:
1. The United States is granted a default judgment against the defendant
firearms and ammunition, which are more particularly described as follows:
• RugarP85 Pistol, CAL:9, Serial No. 300-27518;
• Marlin Firearms Co. 70 Rifle, CAL:22, Serial No. 16388744;

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• Remington 870 Express Magnum Shotgun, CAL:20, Serial No.
B842275U;
• Winchester 70 Rifle, CAL:?, Serial No. G2205890;
• CBC 817 Rifle, CAL:l 7, Serial No. HHD041363;
• Winchester 70 XTR Featherweight Rifle, CAL:280, Serial No.
G 1748613; and
•

16 rounds unknown assorted ammunition.

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

4~ day of May, 2018.

Dana L. Christensen, Chief Judge
United States District Court

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