United States of America v. Smith & Wesson Revolver

Filing 10

ORDER OF DEFAULT JUDGMENT that the Govt's 7 Motion for Default Judgment of Forfeiture is hereby GRANTED, and Judgment of Forfeiture is ENTERED in favor of the United States against all persons and entities with respect to the Deft Firearm identified in Govt's Complaint; FURTHER ORDERED that any right, title, and interest of all persons to the Deft Firearm is hereby forfeited to the United States, and no other right, title, or interest shall exist therein; and FURTHER ORDERED that the U.S. Marshal is hereby directed to dispose of the Deft Firearm as provided by law. Signed by Chief Judge Martin Reidinger on 2/5/2024. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:23-cv-00212-MR-WCM

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
ONE SMITH & WESSON REVOLVER )
AND .22 CALIBER AMMUNITION
)
seized from Chandra McCool on or )
about February 26, 2023, in
)
McDowell 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. 7].
Pursuant to Fed. R. Civ. P. 55(b)(2), the Government requests that
the Court enter a Default Judgment of Forfeiture as to the Smith & Wesson
revolver and .22 caliber ammunition (collectively, “the Defendant Firearm”)
identified in the Government’s Verified Complaint [Doc. 1].

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.
On November 8, 2017, this Court sentenced Chandra McCool to
41 months in prison for conspiracy to distribute and possess with intent
to distribute methamphetamine. See United States v. Dills, et al., No.
1:17-cr-00033-MR-WCM (W.D.N.C.), Doc. 99. [Doc. 1 at ¶ 10].
On August 16, 2021, this Court sentenced Chandra McCool to 10
months in prison for a violation of her conditions of supervised release,
specifically, attempted possession of a firearm by a felon. See United
States v. Dills, et al., No. 1:17-cr-00033-MR-WCM (W.D.N.C.), Doc.
126. [Doc. 1 at ¶ 11].
On February 26, 2023, United States Probation Officer Adams
traveled to Chandra McCool’s residence in connection with her federal

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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.

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post-release supervision.

[Id. at ¶ 12].

The residence was a small

storage shed located in Old Fort, North Carolina. [Id.].
During a walkthrough of Chandra McCool’s residence, Officer
Adams located a black pelican style case with two unlocked padlocks.
[Id. at ¶ 13]. When Officer Adams asked Chandra McCool about the
identity of the owner of the case and its contents, she initially
responded that it was not hers and she did not know what was inside.
[Id.].
When Officer Adams asked Chanda McCool if there were guns
inside the case, she advised she was not sure but there could be. [Id.
at ¶ 14]. Officer Adams secured the case in his government-issued
vehicle. [Id. at ¶ 15].
Officer Adams returned to residence and Chandra McCool
telephoned her mother, Kimberly McCool.

[Id. at ¶ 16].

Kimberly

McCool is also a convicted felon, and her criminal history includes drugrelated offenses. [Id. at ¶ 17]. When Officer Adams spoke to Kimberly
McCool, she advised that the case belonged to her and that it contained
legal papers. [Id. at ¶ 18]. Officer Adams asked Kimberly McCool if he
could look inside the case, and she consented to the search.

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[Id.].

Officer Adams opened the case and located the Defendant Firearm.
[Id. at ¶ 19].
As Officer Adams waited for the arrival of additional officers,
Kimberly McCool and her boyfriend, Gary McTindal, arrived at the
residence.

[Id. at ¶ 20].

Mr. McTindal has a criminal history that

includes, among other things, charges of assault with a deadly weapon,
cyberstalking, possession of stolen property, and larceny. [Id. at ¶ 21].
Kimberly McCool advised that she had previously brought the
case containing the Defendant Firearm to the shed where her daughter
was living. [Id. at ¶ 22]. Kimberly McCool stated that she had several
different cases and claimed that she did not realize that the firearm was
in that specific case. [Id.].
Officers completed a search of the residence, during which they
located, among other things, two sets of electronic scales, a ziplock
baggie containing numerous pills, a syringe, glass pipe, and a small
amount of marijuana. [Id. at ¶ 23]. Kimberly McCool advised that the
pills were Clonazepam, a schedule IV-controlled substance for which
she had no prescription. [Id. at ¶ 24].
PROCEDURAL BACKGROUND

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The Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”)
timely initiated an administrative forfeiture action against the Defendant
Firearm. [Id. at ¶ 25]. On May 15, 2023, ATF received a claim and a
petition for remission or mitigation from Mr. McTindal, asserting that the
Defendant Firearm is his property. [Id. at ¶ 26].
On August 10, 2023, the Government filed a Verified Complaint for
Forfeiture In Rem, alleging that the Defendant Firearm seized from
Chandra McCool on or about February 26, 2023, is subject to civil forfeiture
under 18 U.S.C. § 924(d)(1) and 21 U.S.C. § 881(a)(11). [Doc. 1]. On
August 11, 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 August 22, 2023, the
Government mailed notice and a copy of the Complaint to Chandra
McCool, Kimberly McCool, and Gary McTindal. [Doc. 4]. Additionally, in
accordance with Supplemental Rule G(4)(a), the Government provided
notice by publication as to all persons with potential claims to the

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Defendant Firearm by publishing notice via www.forfeiture.gov for 30
consecutive days, beginning on August 22, 2023. [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. [Doc. 5]. On January 11, 2024, the
Clerk entered default. [Doc. 6].
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 that was knowingly possessed by a
convicted felon and/or was 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). Additionally, the Government may obtain forfeiture of a firearm
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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. See 21 U.S.C. § 881(a)(11).
Based upon the allegations of the Government’s Verified Complaint—
which allegations 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 18 U.S.C. § 924(d)(1) and 21 U.S.C. §
881(a)(11). 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. 7] 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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