United States of America v. Ruger-57 Handgun, Magazine, and 5.7 Caliber Ammunition

Filing 9

ORDER OF DEFAULT JUDGMENT: Government's 6 Motion for Default Judgment of Forfeiture is GRANTED, and Judgment of Forfeiture is ENTERED in favor of the United States against all persons and entities with respect to th e Defendant Firearm identified in the Government's Complaint. Any right, title, and interest of all persons to the Defendant Firearm is hereby forfeited to the United States, and no other right, title, or interest shall exist therein. The US Marshal is directed to dispose of the Defendant Firearm as provided by law. Signed by Chief Judge Martin Reidinger on 2/5/2024. (maf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL NO. 1:23-cv-00182-MR-WCM

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
ONE RUGER-57 HANDGUN,
)
MAGAZINE, AND 5.7 CALIBER
)
AMMUNITION seized from Terry
)
Williams on or about February 21,
)
2023, in Jackson County, North
)
Carolina,
)
)
Defendant.
)
________________________________ )

ORDER OF DEFAULT
JUDGMENT

THIS MATTER is before the Court on the Government’s Motion for
Default Judgment of Forfeiture.

[Doc. 6].

Pursuant to Fed. R. Civ. P. 55(b)(2), the Government requests that the
Court enter a Default Judgment of Forfeiture as to the Ruger-57 handgun,
magazine, and 5.7 caliber ammunition (collectively, “the Defendant Firearm”)
identified in the Government’s Verified Complaint.

FACTUAL BACKGROUND
As the defaulted party is deemed to have admitted all well-pleaded
allegations of fact in the Complaint, 1 the following is a recitation of the
relevant, admitted facts.
Terry Williams is a convicted felon with an extensive criminal history
that includes previous charges for being a felon in possession of a
firearm, burglary, armed robbery, aggravated assault, as well as other
violent offenses.

[Doc. 1 at ¶ 10].

On December 30, 2022, an officer

with the Cherokee Indian Police Department (“CIPD”) was dispatched to
a location on Paint Town Road in Cherokee, North Carolina due to a
complaint made by an individual who alleged that Mr. Williams assaulted
her.

[Id. at ¶ 11].

The individual also alleged that Mr. Williams had

brandished a firearm at her the evening before the assault.

[Id.].

On February 21, 2023, CIPD Detectives were notified that Mr.
Williams was staying at Harrah’s Cherokee Casino hotel in room 1130
and would be evicted by casino security.

1

[Id. at ¶ 12].

Because Mr.

Where, as here, an entry of default occurs, the defaulted party is deemed to have
admitted all well-pleaded allegations of fact in the complaint. See Ryan v. Homecomings
Fin. Network, 253 F.3d 778, 780 (4th Cir. 2011); see also Fed. R. Civ. P. 8(b)(6) (“An
allegation—other than one relating to the amount of damages—is admitted if a responsive
pleading is required and the allegation is not denied”). Thus, the factual allegations in
the Government’s Verified Complaint [Doc. 1] are deemed admitted as true.
2

Williams was a convicted felon with a history of violent offenses, casino
security requested assistance from law enforcement for the eviction.
[Id. at ¶ 13].

That evening, casino security, assisted by CIPD officers,

knocked on the door of room 1130, which was registered to Mr. Williams.
[Id. at ¶ 14].
After several knocks on the door, two small children—one five years
old and the other two years old—came to the door.

[Id. at ¶ 15].

When

the children answered the door, CIPD officers could smell a strong odor
of marijuana emitting from the room.

[Id.].

Casino security asked the children if their parents were inside the
room, and the children stated no.

[Id. at ¶ 16].

Due to the exigent

circumstances of the children being left unattended and the fact that there
was probable cause to believe that there was marijuana in the room,
CIPD officers entered the room.

[Id.].

When CIPD officers entered the room, they saw $663.00 in U.S.
Currency in small denominations in plain view on the top of a table next
to the window.

[Id. at ¶ 17].

They also saw in plain view numerous

large gallon sized bags of a green leafy material consistent in the
appearance, texture, and odor of marijuana.

[Id.].

Because of the two

young children, CIPD officers contacted Cherokee Indian Family Safety
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Services.

[Id. at ¶ 18].

At that time, a female identified as Kaylin

Gardner came to the room, who was the mother of the two children.
[Id.].
After receiving Miranda warnings, Ms. Gardner spoke to CIPD
officers and she stated that the room was rented out to her fiancé, Mr.
Williams.

[Id. at ¶ 19].

Ms. Gardner explained that she and Mr.

Williams had their camper parked across the street and the generator
went out, so they decided to rent a room at the Harrah’s Cherokee Casino
hotel.

[Id.].
CIPD officers asked Ms. Gardner where Mr. Williams was, and she

indicated he was gambling at the casino.

[Id. at ¶ 20].

Ms. Gardner

also informed CIPD officers that she purchased a firearm for Mr.
Williams, and it was currently being kept at their camper across the street
from the casino.

[Id. at ¶ 21].

Ms. Gardner stated that she knew that

Mr. Williams was a convicted felon and was prohibited from possessing
firearms.

[Id.].

After speaking with Ms. Gardner, CIPD officers, along with the
Bureau of Indian Affairs, obtained and executed search warrants for both
room 1130 at the hotel and for the camper that was parked across the
street near 730 Paint Town Road.

[Id. at ¶ 22].
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As the search warrants

were being prepared, CIPD officers located Mr. Williams on the gaming
floor.

[Id. at ¶ 23].
During the execution of the search warrant of room 1130, CIPD

officers located and seized numerous items, including approximately 43
grams of methamphetamine, over four pounds of packaged marijuana,
approximately 72 oxycodone pills, digital scales, a marijuana grinder, a
suspected ledger, and a laptop computer.

[Id. at ¶ 24].

During the execution of the search warrant of the camper, CIPD
officers located and seized, among other things, the Defendant Firearm,
three additional firearms and ammunition that are not part of this action,
approximately 26.3 grams of marijuana in a glass jar in the same area
where the Defendant Firearm was located, approximately 3.2 grams of
marijuana near a nightstand, and two sets of digital scales.

[Id. at ¶ 25].

CIPD officers arrested both Mr. Williams and Ms. Gardner.
¶ 26].

[Id. at

Ms. Gardner was arrested on child abuse charges, and Mr.

Williams was arrested on charges of possession of a firearm by a
convicted felon, trafficking in methamphetamine, possession with intent
to distribute marijuana, and possession with intent to sell oxycodone pills.
[Id.].

5

On February 21, 2023, CIPD officers conducted a post-Miranda
interview of Ms. Gardner.

[Id. at ¶ 27].

Ms. Gardner told CIPD officers

that she and Mr. Williams had moved to Cherokee, North Carolina in
August 2022, and were living in the camper the majority of the time.
[Id.].

Investigators asked Ms. Gardner about the firearms recovered

during the course of the investigation, and she was not able to indicate
what type of firearms she had.

[Id.].

When asked about the purchase

of the firearms, Ms. Gardner provided inconsistent information.

[Id.].

At one point, she said that she bought one firearm in Atlanta, Georgia in
the beginning of 2022, and another in North Carolina in September or
October 2022.

[Id.].

At another point in the interview, Ms. Gardner

stated that she purchased all four of the firearms, one of which was
purchased from a licensed dealer and the others from an individual in
their neighborhood in Atlanta, Georgia in the beginning of 2022.

[Id.].

Investigators asked Ms. Gardner if Mr. Williams’ fingerprints would
be on the guns, and Ms. Gardner said “possibly,” and stated that Mr.
Williams had touched and possessed the firearms.

[Id. at ¶ 28].

Ms.

Gardner also admitted to being a marijuana user and stated that she
smokes one to five “blunts” per day.

6

[Id. at ¶ 29].

On February 21, 2023, CIPD officers also conducted a postMiranda interview of Mr. Williams.

[Id. at ¶ 30].

Mr. Williams admitted

that he used drugs and smoked approximately one ounce of marijuana a
day.

[Id.].

When asked about the methamphetamine that was in the

hotel room, Mr. Williams stated that he intended to sell the
methamphetamine in order to provide for his family.
Williams also admitted to selling marijuana.

[Id.].

[Id. at ¶ 31].

Mr.

When asked about

the firearms in the camper, Mr. Williams admitted that he knew the
firearms were there and indicated that he purchased all of the firearms.
[Id. at ¶ 32].

Mr. Williams stated that he bought the Defendant Firearm

from a friend in Atlanta, Georgia.

[Id. at ¶ 33].

PROCEDURAL BACKGROUND
The Drug Enforcement Administration (“DEA”) timely initiated an
administrative forfeiture action against the Defendant Firearm, as well as the
three other firearms and ammunition seized in connection with the incident.
[Id. at ¶ 35.

On April 6, 2023, Ms. Gardner filed a petition for remission or

mitigation with DEA as to the Defendant Firearm, asserting that the
Defendant Firearm is her property.

[Id. at ¶ 36]. On April 21, 2023, an

individual named Lavelle Lomax filed a claim with DEA as to the Defendant

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Firearm. On the claim form, Mr. Lomax contends that the Defendant Firearm
was stolen from him.

[Id. at ¶ 37].

On July 20, 2023, the Government filed a Verified Complaint for
Forfeiture In Rem, alleging that the Defendant Firearm seized from Mr.
Williams on or about February 21, 2023, is subject to civil forfeiture under 21
U.S.C. § 881(a)(11) and 18 U.S.C. § 924(d)(1).

[Doc. 1].

On July 21,

2023, the Clerk issued a Warrant of Arrest In Rem for the Defendant Firearm.
[Doc. 2].
After the Government filed its Complaint and in accordance with Rule
G(4)(b) of the Supplemental Rules for Admiralty or Maritime Claims and
Asset Forfeiture Actions, the Government provided direct notice of this action
to known potential claimants.

Specifically, on July 26, 2023, the

Government mailed notice and a copy of the Complaint to Mr. Williams, Ms.
Gardner, and Mr. Lomax.

[Doc. 3]. On August 22, 2023, the Government

mailed a second notice and copy of the Complaint to Mr. Williams.

Id.

Additionally, in accordance with Supplemental Rule G(4)(a), the Government
provided notice by publication as to all persons with potential claims to the
Defendant Firearm by publishing notice via www.forfeiture.gov for 30
consecutive days, beginning on July 27, 2023.

8

[Id.].

The Government has taken reasonable steps to provide notice to
known potential claimants, and the Government has otherwise complied with
the notice requirements set forth in Supplemental Rule G(4). During the
pendency of this action, no individual or entity has made a timely claim to the
Defendant Firearm.

On January 9, 2024, the Government filed a motion for

entry of Clerk’s default.
default.

[Doc. 4].

On January 11, 2024, the Clerk entered

[Doc. 5].
DISCUSSION

Pursuant to the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”),
the Government has the initial burden of establishing by a preponderance of
the evidence that the defendant property is subject to forfeiture.
18 U.S.C. § 983(c)(1). A complaint must “state sufficiently detailed facts to
support a reasonable belief that the government will be able to meet its
burden of proof at trial.” Fed. R. Civ. P. Supp. R. G(2)(f). The Government
may obtain forfeiture of a firearm used or intended to be used to facilitate the
transportation, sale, receipt, possession, or concealment of controlled
substances and/or proceeds traceable to such controlled substances.
21 U.S.C. § 881(a)(11).

See

Additionally, the Government may obtain forfeiture

of a firearm that was knowingly possessed by a convicted felon and/or was

9

knowingly possessed by an unlawful user of a controlled substance.

See

18 U.S.C. § 924(d)(1); 18 U.S.C. § 922(g)(1) and (g)(3).
Based upon the allegations of the Government’s Verified Complaint—
which are deemed admitted as true—the Court finds that the Government
has satisfied its burden of showing that the Defendant Firearm is subject to
forfeiture under 21 U.S.C. § 881(a)(11) and 18 U.S.C. § 924(d)(1).
Additionally, the Court finds that the Government has taken reasonable steps
to provide notice to known potential claimants, and the Government has
otherwise complied with the notice requirements set forth in Supplemental
Rule G(4). No individual or entity has timely filed a claim to the Defendant
Firearm.

After careful review, the Court finds that the Government has

established that default judgment is appropriate.

JUDGMENT
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that
the Government’s Motion for Default Judgment of Forfeiture [Doc. 6] is
hereby GRANTED, and Judgment of Forfeiture is ENTERED in favor of the
United States against all persons and entities with respect to the Defendant
Firearm identified in the Government’s Complaint.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that any
right, title, and interest of all persons to the Defendant Firearm is hereby
forfeited to the United States, and no other right, title, or interest shall exist
therein.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the
United States Marshal is hereby directed to dispose of the Defendant
Firearm as provided by law.
IT IS SO ORDERED.
Signed: February 5, 2024

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