Civil asset forfeiture case: Brown supporters' guns

[Demosthenes]

U.S. District Court
District of New Hampshire (Concord)
CIVIL DOCKET FOR CASE #: 1:08-cv-00394-JM

USA v. R GUNS Model 44, 7.62 x 54 caliber rifle et al
Assigned to: Magistrate Judge James R. Muirhead
Cause: 28:1345 Complaint for Forfeiture
Date Filed: 09/22/2008
Jury Demand: Plaintiff
Nature of Suit: 690 Forfeit/Penalty: Other
Jurisdiction: U.S. Government Plaintiff
Plaintiff
USA represented by Seth R. Aframe
US Attorney's Office (NH)
53 Pleasant St, 4th Flr
Concord, NH 03301-0001
603 230-2532
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

V.

Defendant
R GUNS Model 44, 7.62 x 54 caliber rifle
Serial Number 11844, seized from Jason Gerhard
other
Jason Gerhard

Defendant
Winchester, Model 1300, 12 caliber shotgun
Serial Number L3580523, seized from Jason Gerhard

Defendant
Sturm Ruger, Model MINI 12, 223 caliber rifle
Serial Number 181-99128, seized from Jason Gerhard

Defendant
Sturm Ruger, Model 10/22, 22 caliber rifle
Serial Number 350-62131, seized from Jason Gerhard

Defendant
Walther, Model P22, 22 caliber pistol
Serial Number L010173, seized from Cirino Gonzales
other
Cirino Gonzales

Defendant
Beretta, Pietro S.P.A., Model CX4 Storm, 9 Caliber rifle
Serial Number CX04102, seized from Cirino Gonzales

Defendant
Servu Forearms, Model BFG50, 50 BMG caliber rifle
Serial Number 1253, seized from Cirino Gonzales

Defendant
Century Arms International, Model L1A1 Sporter, 308 caliber rifle
Serial Number 104090, seized from Daniel Riley
other
Daniel Riley

Defendant
Century Arms International, Model L1A1 308 caliber rifle
Serial Number AD6215176, seized from Daniel Riley

Defendant
Harrington and Richardson Model 088, 16 caliber shotgun
Serial Number 9300371, seized from Daniel Riley

Defendant
Norinco, Model MAK90, 762 caliber rifle
Serial Number 9300371, seized from Daniel Riley

Defendant
Norinco, Model MAK90, 762 caliber rifle
Serial Number 9475459, seized from Daniel Riley

Defendant
Arsenal Co. of Bulgaria, Model SLR95, 762 caliber rifle
Serial Number IM371098, seized from Daniel Riley

Defendant
Serbu Firearms, Model BFG50, 50 BMG caliber rifle
Serial Number 1292, seized from Daniel Riley

Claimant
Cirino Gonzalez represented by David H. Bownes
Bownes Law Office PC
486 Union Ave
Laconia , NH 03246
603-524-4330
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Claimant
Jason Gerhard represented by Stanley W. Norkunas
Norkunas Law Office
11 Kearney Sq
Lowell , MA 01852
978 454-7465
LEAD ATTORNEY
ATTORNEY TO BE NOTICED


Date Filed # Docket Text
09/22/2008 1 NEW CASE/FORFEITURE COMPLAINT with Jury Demand. (No fee paid, USA or IFP.) filed by USA. (Attachments: # 1 Civil Cover Sheet, # 2 Civil Cover Sheet List of Defendants-in-Rem, # 3 Summons and Warrant of Arrest in Rem)(Aframe, Seth) (Entered: 09/22/2008)
09/22/2008 NOTICE. This case has been designated for Electronic Case Filing. All further submissions shall be filed in compliance with the Administrative Procedures for Electronic Case Filing. Pro se litigants are not required to file electronically and may continue to file documents in paper format. Persons filing electronically are strongly encouraged to complete the interactive training modules available on the courts website. To access these modules, click HERE. (amm) (Entered: 09/23/2008)
09/22/2008 Case assigned to Magistrate Judge James R. Muirhead. The case designation is: 08-cv-394-JM. Please show this number with the judge designation on all future pleadings. (amm) (Entered: 09/23/2008)
09/23/2008 Summons and Warrant of Arrest in Rem issued as to Servu Forearms, Model BFG50, 50 BMG caliber rifle, Century Arms International, Model L1A1 Sporter, 308 caliber rifle, Century Arms International, Model L1A1 308 caliber rifle, Harrington and Richardson Model 088, 16 caliber shotgun, Norinco, Model MAK90, 762 caliber rifle(Serial Number 9300371, seized from Daniel Riley), Norinco, Model MAK90, 762 caliber rifle(Serial Number 9475459, seized from Daniel Riley), Arsenal Co. of Bulgaria, Model SLR95, 762 caliber rifle, Serbu Firearms, Model BFG50, 50 BMG caliber rifle, R GUNS Model 44, 7.62 x 54 caliber rifle, Winchester, Model 1300, 12 caliber shotgun, Sturm Ruger, Model MINI 12, 223 caliber rifle, Sturm Ruger, Model 10/22, 22 caliber rifle, Walther, Model P22, 22 caliber pistol, Beretta, Pietro S.P.A., Model CX4 Storm, 9 Caliber rifle. (amm) (Entered: 09/23/2008)
10/03/2008 2 MOTION to Appoint Counsel filed by Cirino Gonzalez. (kad) (Entered: 10/03/2008)
10/03/2008 ENDORSED ORDER granting 2 Motion to Appoint Counsel. Text of Order: Granted. Atty David Bownes is appointed under CJA for this ancillary proceeding. See US v. Giraldo, 45 f3d 509, 512 (1st Cir. 1995). So Ordered by Magistrate Judge James R. Muirhead. (sh) (Entered: 10/03/2008)
10/03/2008 3 CJA 20: Appointment of Attorney David H. Bownes for Cirino Gonzalez for civil asset forfeiture. NOTICE: COUNSEL SHALL PRINT AND SUBMIT COMPLETED VOUCHER FOR PAYMENT AT APPROPRIATE TIME. Signed by Clerk James R. Starr. Follow up on submission of CJA Voucher on 4/6/2009. (kad) (Entered: 10/03/2008)
10/30/2008 4 MOTION to Extend Time to an additional five (5) days in Which to File a Claim and an Answer to Complaint for Forfeiture filed by Cirino Gonzalez. Follow up on Objection on 11/17/2008. (Attachments: # 1 C. Gonzalez Written Claim)(Bownes, David) (Entered: 10/30/2008)
10/30/2008 10 CLAIM for One Walther P22/Serial No. L010173, One Beretta CX4 Storm/Serial No. CX04102 and One Serbu BFG50/Serial No. 1253 by Cirino Gonzalez. Answer due by 11/24/2008. (kad) (Entered: 11/14/2008)
10/31/2008 ENDORSED ORDER granting 4 Motion to Extend Time to an additional five (5) days in Which to File a Claim and an Answer to Complaint for Forfeiture. Text of Order: Granted. So Ordered by Magistrate Judge James R. Muirhead. (sh) (Entered: 10/31/2008)
10/31/2008 5 AFFIDAVIT of Service of Forfeiture Complaint served on Cirino Gonzales, filed by USA. Forfeiture Complaint served on 9/24/2008. Claim due on 10/24/2008. (Aframe, Seth) (Entered: 10/31/2008)
10/31/2008 6 AFFIDAVIT of Service of Forfeiture Complaint served on Jason Gerhard, filed by USA. Forfeiture Complaint served on 9/24/2008. Claim due on 10/24/2008. (Aframe, Seth) (Entered: 10/31/2008)
10/31/2008 7 AFFIDAVIT of Service of Forfeiture Complaint served on Sven Wiberg, Esq., counsel for Daniel Riley, filed by USA. Forfeiture Complaint served on 10/23/2008. Claim due on 11/24/2008. (Aframe, Seth) (Entered: 10/31/2008)
11/04/2008 8 MOTION to Appoint Counsel filed by Jason Gerhard. (kad) (Entered: 11/04/2008)
11/04/2008 ENDORSED ORDER granting 8 Motion to Appoint Counsel. Text of Order: Granted. Stanley Norkunas is appointed. So Ordered by Magistrate Judge James R. Muirhead. (sh) (Entered: 11/04/2008)
11/04/2008 9 CJA 20: Appointment of Attorney Stanley W. Norkunas for Jason Gerhard for civil asset forfeiture. NOTICE: COUNSEL SHALL PRINT AND SUBMIT COMPLETED VOUCHER FOR PAYMENT AT APPROPRIATE TIME. Signed by Clerk James R. Starr. Follow up on submission of CJA Voucher on 5/6/2009. (kad) (Entered: 11/04/2008)
11/14/2008 11 FILED IN ERROR. REPLACED BY DOCUMENT NO. 12. MOTION to Strike 10 Claim of Cirino Gonzales filed by USA. Follow up on Objection on 12/4/2008. (Attachments: # 1 Memorandum of Law)(Aframe, Seth) Modified on 11/17/2008 to add: "FILED IN ERROR. REPLACED BY DOCUMENT NO. 12." (kad). (Entered: 11/14/2008)
11/17/2008 12 MOTION to Strike 10 Claim Replaces Document Number 11 filed by USA. Follow up on Objection on 12/5/2008. (Attachments: # 1 Memorandum of Law)(Aframe, Seth) (Entered: 11/17/2008)
11/24/2008 13 ANSWER to 1 Complaint - New Case filed by Cirino Gonzalez. (Bownes, David) (Entered: 11/24/2008)
11/24/2008 14 OBJECTION to 12 MOTION to Strike 10 Claim Replaces Document Number 11 filed by Cirino Gonzalez. (Attachments: # 1 Exhibit Exhibit 1 Letter from Cirino dated 9/29/08, # 2 Exhibit Exhibit 2 - Excerpt from Day 10 Morning Session, # 3 Exhibit Exhibit 3 - Excerpt from Day 10 Afternoon Session, # 4 Exhibit Exhbit 4- Excerpt from Day 10 Afternoon Session, # 5 Exhibit Exhibit 5 - Excerpt from Day 10 Afternoon Session)(Bownes, David) (Entered: 11/24/2008)
12/01/2008 Oral Notice of Intent to Reply to Objection to 12 MOTION to Strike 10 Claim. Follow up on Reply on 12/12/2008. (dae) (Entered: 12/01/2008)
12/03/2008 15 FILED IN ERROR. REPLACED BY DOCUMENT NO. 16. REPLY to Objection to Motion re 12 MOTION to Strike 10 Claim Replaces Document Number 11 filed by USA. (Aframe, Seth) Modified on 12/3/2008 to add: "FILED IN ERROR. REPLACED BY DOCUMENT NO. 16."(kad). (Entered: 12/03/2008)
12/03/2008 16 REPLY to Objection to Motion re 12 MOTION to Strike 10 Claim Replaces Document Number 11 Replaces Document Number 15 filed by USA. (Aframe, Seth) (Entered: 12/03/2008)
12/05/2008 ORAL Notice of Intent to Surreply to Reply to 12 MOTION to Strike 10 Claim Replaces Document Number 11 Surreply Follow Up on 12/22/2008. (vln) (Entered: 12/05/2008)
12/19/2008 17 MOTION for Order of Forfeiture of assorted weapons Partial Final Order of Forfeiture - No Claimants - Request Immediate Presentment to Judicial Officer filed by USA. Follow up on Objection on 1/9/2009. (Attachments: # 1 Proposed Order)(Aframe, Seth) (Entered: 12/19/2008)
12/22/2008 18 MEMORANDUM re 14 Objection to Motion, to Strike filed by Cirino Gonzalez. (Attachments: # 1 Attachment)(Bownes, David) (Entered: 12/22/2008)
12/22/2008 19 MOTION to Extend Time to file a Verified Complaint filed by Cirino Gonzalez. Follow up on Objection on 1/12/2009. (Attachments: # 1 Attachment #1)(Bownes, David) (Entered: 12/22/2008)
12/22/2008 ENDORSED ORDER granting 17 Motion for Partial Final Order of Forfeiture. Text of Order: Granted. So Ordered by Magistrate Judge James R. Muirhead. (kad) (Entered: 12/23/2008)
12/22/2008 20 ORDER. Partial Final Order of Forfeiture. Signed by Magistrate Judge James R. Muirhead. (kad) (Entered: 12/23/2008)
12/23/2008 ENDORSED ORDER granting 19 Motion to Extend Time to file Verified Claim; denying 12 Motion to Strike. Text of Order: Denied. Gonzalez filed a timely claim but as a pro se prisoner who did not know he had to do so under the penalties of perjury. The government knows from his trial testimony (under oath) that Gonzalez claims ownership of these guns. If the government is to prevail it should do so on the merits not by technicalities foisted upon a prisoner who was pro se. Mr. Bownes is ordered to have Gonzalez' October 1st claim resigned under penalty of perjury. The time to file is extended for good cause. The Motion for extension (doc no. 19) is granted. So Ordered by Magistrate Judge James R. Muirhead. (kad) (Entered: 12/23/2008)

[Lambkin]

Gonzalez filed a timely claim but as a pro se prisoner who did not know he had to do so under the penalties of perjury. The government knows from his trial testimony (under oath) that Gonzalez claims ownership of these guns. If the government is to prevail it should do so on the merits not by technicalities foisted upon a prisoner who was pro se.

What was it Weston was saying about pro se defendants?

Also it is worthy to note that judges do not favor pro se litigants to say the least

[Nikki]

Are any of the documents related to the case available?

If Danny, Reno, and Jason are preparing their own paperwork, there should be some real gems. If, on the other hand, their counsel is doing the writing, the documents filed should be about as interesting as the Illinois Code Of Ethics.

[Demosthenes]

Are any of the documents related to the case available?

If Danny, Reno, and Jason are preparing their own paperwork, there should be some real gems. If, on the other hand, their counsel is doing the writing, the documents filed should be about as interesting as the Illinois Code Of Ethics.

Nothing from Danny or Jason. Reno is now claiming that the guns are his and should be returned, even though he stated under oath during the trial that he had given the guns away to his family prior to his arrest.

[Ragnar]

Let me get this right. A prisoner is claiming ownership of several guns? Is the prisoner in jail for a felony?

If so, by all means let him have the guns back. Then the court can charge him some extra time. Felons aren't allowed to have guns under federal law.

[ErsatzAnatchist]

Question for all the real lawyers on this forum. Assuming the .gov is successful, what exactly happens to this guns? Do they get destroyed or sold? If sold, what happens to the money?

[Scoop]

Surely, this part can't be true!

Pursuant to Rule G(3)(b)( i ) of the Supplemental Rules for Certain Admiralty and
Maritime Claims, a Verified Complaint for Forfeiture in Rem has been filed on September 22,
2008, in the U.S. District Court for the District of New Hampshire

[LPC]

Surely, this part can't be true!

Pursuant to Rule G(3)(b)( i ) of the Supplemental Rules for Certain Admiralty and
Maritime Claims, a Verified Complaint for Forfeiture in Rem has been filed on September 22,
2008, in the U.S. District Court for the District of New Hampshire

I don't know much about forfeiture or admiralty, but it could very well be true that forfeiture claims are handled under the rules of admiralty, because both forfeiture and admiralty are "in rem" proceedings.

And yes, it's going to fuel some tp paranoia to read about admiralty rules in what started out as a tax case.

Admiralty is "in rem" because the owners of a ship are usually in another country and outside of the legal processes necessary to make them personally liable in an "in personam" proceeding. So if you have a claim against the owners of a ship, and the ship is in port, you sue the ship itself. The court takes possession of the "res" (or "thing") itself, and adjudicates claims against the thing, allowing the ship to be sold to pay the claims if the owners don't show up to pay the claims in cash.

And it's quite possible that forfeiture is also "in rem." The government finds guns or other instrumentalities of crimes, or drugs or contraband, and instead of trying to figure out who the owners are and bringing civil actions against the owners, the government brings actions against the things themselves. That's why the guns are named as defendants. Anyone claiming an interest in the guns can come into court and make the claims, but otherwise the government gets to keep the guns.

(Trust and estate law, which is what I actually practice, is another form of "in rem" jurisdiction. The court has jurisdiction over the executor or trustee, and so controls the assets of the estate or trust. Creditors or beneficiaries receive notice and must come into court if they believe they have claims that are not being properly paid. Because the jurisdiction of the court is based on the res, and not personal jurisdiction, the beneficiaries and creditors only get notice and do not need the kind of service of process that would be needed for "in personam" jurisdiction. In the rare case that an executor or trustee wants to get something from a beneficiary, such as an estate asset wrongfully taken by the beneficiary, the beneficiary has to be served with service of process.)

[Dr. Caligari]

I don't know much about forfeiture or admiralty, but it could very well be true that forfeiture claims are handled under the rules of admiralty, because both forfeiture and admiralty are "in rem" proceedings.

As usual, Dan is right. All civil (in rem) forfeitures in federal court are adjudicated under the admiralty rules, even though the case has nothing to do with admiralty.

[Prof]

Surely, this part can't be true!

Pursuant to Rule G(3)(b)( i ) of the Supplemental Rules for Certain Admiralty and
Maritime Claims, a Verified Complaint for Forfeiture in Rem has been filed on September 22,
2008, in the U.S. District Court for the District of New Hampshire

I don't know much about forfeiture or admiralty, but it could very well be true that forfeiture claims are handled under the rules of admiralty, because both forfeiture and admiralty are "in rem" proceedings.

And yes, it's going to fuel some tp paranoia to read about admiralty rules in what started out as a tax case.

Admiralty is "in rem" because the owners of a ship are usually in another country and outside of the legal processes necessary to make them personally liable in an "in personam" proceeding. So if you have a claim against the owners of a ship, and the ship is in port, you sue the ship itself. The court takes possession of the "res" (or "thing") itself, and adjudicates claims against the thing, allowing the ship to be sold to pay the claims if the owners don't show up to pay the claims in cash.

And it's quite possible that forfeiture is also "in rem." The government finds guns or other instrumentalities of crimes, or drugs or contraband, and instead of trying to figure out who the owners are and bringing civil actions against the owners, the government brings actions against the things themselves. That's why the guns are named as defendants. Anyone claiming an interest in the guns can come into court and make the claims, but otherwise the government gets to keep the guns.

(Trust and estate law, which is what I actually practice, is another form of "in rem" jurisdiction. The court has jurisdiction over the executor or trustee, and so controls the assets of the estate or trust. Creditors or beneficiaries receive notice and must come into court if they believe they have claims that are not being properly paid. Because the jurisdiction of the court is based on the res, and not personal jurisdiction, the beneficiaries and creditors only get notice and do not need the kind of service of process that would be needed for "in personam" jurisdiction. In the rare case that an executor or trustee wants to get something from a beneficiary, such as an estate asset wrongfully taken by the beneficiary, the beneficiary has to be served with service of process.)

Forfeiture proceedings are in rem and may proceed without jurisdiction over the owner, as long as the court has jurisdiction over the property (the res). Rule G of the FRCP, which is included in the Admiralty and Maritime Claims portion of the FRCP, states specifically that the rule applies to all forfeiture actions in rem arising from a federal statute. As LPC points out, the practice derives from admiralty proceedings where the owner of the property in question was often an ocean away. Rule G applies to real property, by the way, which certainly has no admiralty context.

As to what happens to the guns, as far as I know, federal policy is to eventually destroy all forfeited/seized/evidentiary firearms unless there is some reason to make an exception (such as a legitimate use by the feds, levy by the IRS on a valuable collectible, perhaps?). As far as I know, the guns listed will be melted down, although all are perfectly legitimate civilian firearms and several are very ordinary .22 rifles and shotguns (I own a Ruger 10/22 and a similar shotguns and similar pistols).

State laws vary -- but many would resell the ordinary guns if in good shape and if not needed by law enforcement; others would destroy all forfeited firearms. In Texas, for example, obviously illegal weapons -- e.g., sawed off shotguns--, damaged or worn guns, Sat. Night Specials (dangerous and unreliable), are destroyed. Other guns would go to law enforcement, if appropriate (say issue type pistols such as the Glock 9mm large frame). Sporting arms like the Ruger 10/22 could be sold by the local agencies to the public, although I am unaware of any major city that would still conduct such a sale.

[Gregg]

If any states still sell forfeit firearms, I suspect it won't be long before they change their policy, but I'm thinking the change will be due to liability concerns as much as anything else.

In the instant case, I now there are gun nuts everywhere mourning the impending doom of the .50 caliber rifles. Apparently those are pretty special weapons, as collectors items as much as being the perfect thing when you absolutely, positively need someone dead.