United States of America v. Smith & Wesson 9mm pistol, Serial Number PDL2755 et al

Filing 18

MEMORANDUM ADOPTING 9 REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. IT IS THEREFORE ORDERED that the Governments Motion for Default Judgment (Dkt. # 7 ) against the Defendant Property is GRANTED, and that all right, title, and interest in the Defendant Property is vested in the United States. The Defendant Property should be disposed of according to law. Signed by District Judge Amos L. Mazzant, III on 4/29/2019. (rpc, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.
SMITH & WESSON 9MM PISTOL, SERIAL
NUMBER PDL2755, et al.,
Defendants.

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Civil Action No.: 4:17-cv-00388

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
the matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
On April 2, 2019, the report of the Magistrate Judge (the “Report”) (Dkt. #9) was entered,
containing proposed findings of fact and recommendations that Plaintiff the United States of
America’s (“United States” or “Government”) Motion for Default Judgment (the “Motion”) (Dkt.
#7) against the Defendant Property, a Smith & Wesson 9mm pistol, serial number PDL2755, et
al., be granted. See id.
Having received the Report of the United States Magistrate Judge, and no objections
thereto having been timely filed, the Court is of the opinion that the findings and conclusions of
the Magistrate Judge are correct and adopts the Magistrate Judge’s report as the findings and
conclusions of the Court.

I.

BACKGROUND

On June 5, 2017, the United States filed its Verified Complaint for Forfeiture in Rem (Dkt.
1). In the Complaint, the United States asserts an action for forfeit property pursuant to 18 U.S.C.
§§ 922(g)(1) and 924(c), and 21 U.S.C. § 846. Specifically, the United States seeks forfeiture of
the following Defendant Property: (1) Smith & Wesson 9mm pistol, serial number PDL2755,
seized from Narbel Penaloza (“Penaloza”) on October 16, 2008; (2) Bryco Arms Jennings Model
T380 pistol, serial number 1328835, seized from Pablo Aviles (“Aviles”) on June 3, 2010; (3)
Hipoint 9mm pistol, serial number P1293053, seized from Moises Lopez (“Lopez”) on January
18, 2011; and (4) Taurus PT 92 AFS 9mm pistol, serial number TRF 23218, seized from Delfino
Garcia (“Garcia”) on January 19, 2011. See Dkt. #1 at 1–2.
II. DISCUSSION
The Court finds the Government complied with the mandatory notice procedures,
prescribed in the Supplemental Rule for Admiralty or Maritime Claims and Asset Forfeiture
Actions G(4)(a)(iv)(C), by posting the Notice of Civil Forfeiture at www.forfeiture.gov for at least
thirty consecutive days. The Notice required any claimant to the property to file a claim with the
Court within sixty days from the first date of the publication of the Notice, and serve and file an
answer to the complaint or a motion under Federal Rule of Civil Procedure 12 within twenty days
after the filing of the claim, as provided by Supplemental Rule of Certain Admiralty and Maritime
Claims and Asset Forfeiture Actions G(5).
In this case, the Government also served potential claimants by certified mail. See Dkt. #7
at 2. No claim or answer has been filed by any other person or entity, and the time for filing a claim
has passed. On October 11, 2018, the Clerk entered default in this matter, confirming that no
potential parties or claimants have answered or otherwise made a claim in this case. See Dkt. #8.

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Further, since the filing of the Motion for Default Judgment (Dkt. #7) on October 10, 2018, or the
Report (Dkt. #9) on April 2, 2019, no claimant has appeared or attempted to appear in this matter.
See Dkts. #10–17.
Upon consideration, the Motion for Default Judgment (Dkt. #7) is GRANTED.
II.

CONCLUSION

IT IS THEREFORE ORDERED that the Government’s Motion for Default Judgment
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(Dkt. #7) against the Defendant Property is GRANTED, and that all right, title, and interest in the
Defendant Property is vested in the United States. The Defendant Property should be disposed of
according to law.
IT IS SO ORDERED.
SIGNED this 29th day of April, 2019.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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