Opinion
21-cr-20205
02-15-2022
United States of America, Plaintiff, v. Richard Money Smith, Defendant.
DAWN N. ISON United States Attorney DANIEL S. DENA Federal Community Defender
DAWN N. ISON United States Attorney
DANIEL S. DENA Federal Community Defender
STIPULATED PRELIMINARY ORDER OF FORFEITURE
ROBERT H. CLELAND UNITED STATES DISTRICT COURT JUDGE
Plaintiff, by and through its undersigned attorneys, together with Defendant Richard Money Smith (“Defendant”), by and through his attorney, Daniel S. Dena, Esq., submit this Stipulated Preliminary Order of Forfeiture for immediate entry, and stipulate and agree to the following.
Based upon Defendant's guilty plea to Count One of the Indictment, a violation of 18 U.S.C. § 922 (g)(1), this Stipulation, and other information in the record, and pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c) requiring the forfeiture of firearms and ammunition involved in a violation of 18 U.S.C. § 922(g), IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
1. Defendant shall forfeit to the United States all right, title and interest he may possess in all firearms and ammunition involved in or used in the commission of his offense including, but not limited to, the following (hereinafter referred to as the “Subject Property”), as property involved in his violation of 18 U.S.C. § 922(g)(1) ]:
a. DPMS Panther Arms Model A15 Rifle CAL:223 semiautomatic rifle, SN:DNWC049728;
b. 50 Rounds Remington Ammunition CAL:223;
c. 47 Rounds Remington Ammunition CAL:223;
d. 23 Rounds Remington Ammunition CAL:223;“Subject Property”).
2. The Subject Property IS HEREBY FORFEITED to the United States under 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c) for disposition according to law, and any right, title and interest of Defendant, and any right, title, and interest that his heirs, successors or assigns have, or may have, in the Subject Property is HEREBY AND FOREVER EXTINGUISHED.
3. The Subject Property was involved in Defendant's violation of 18 U.S.C. § 922(g)(1) and is therefore subject to forfeiture under 18 U.S.C. § 924(d) together with 28 U.S.C. § 2461(c), and the requisite nexus exists between the Subject Property and the offense of conviction.
4. In entering into this Stipulated Preliminary Order of Forfeiture, Defendant waives his right to have a jury determine the forfeitability of his interest in the Subject Property as provided by Fed. R. Crim. P. 32.2(b)(5). Defendant knowingly, voluntarily, and intelligently waives any challenge to the above-described forfeiture based upon the Excessive Fines Clause of the Eighth Amendment to the United States Constitution.
5. Pursuant to Fed.R.Crim.P. 32.2(b)(4)(A), this Stipulated Preliminary Order of Forfeiture shall become final and effective as to Defendant at the time it is entered by the Court but remains preliminary as to third parties until the ancillary proceedings, if any, are concluded under Rule 32.2(c).
6. The forfeiture of the Subject Property shall be made part of Defendant's sentence and included in his Judgment.
7. Pursuant to 21 U.S.C. § 853(n), Fed. R. Crim. P. Rule 32.2, and other applicable rules, the United States shall publish notice of this Stipulated Preliminary Order of Forfeiture and of its intent to dispose of the Subject Property on www.forfeiture.gov for at least thirty consecutive days. The United States may also, to the extent practicable, provide direct written notice to any person or entity known to have an alleged interest in the Subject Property. The aforementioned notice shall direct that any person, other than Defendant, asserting a legal interest in the Subject Property must file a petition with the Court within thirty (30) days of the final date of publication of notice or within thirty (30) days of receipt of actual notice, whichever is earlier. The petition shall be for a hearing before the Court alone, without a jury and in accordance with 21 U.S.C. § 853(n), to adjudicate the validity of the petitioner's alleged interest in the Subject Property. Any petition filed by a third party asserting an interest in the Subject Property must be signed by the petitioner under penalty of perjury and must set forth the nature and extent of the petitioner's alleged right, title or interest in the Subject Property, the time and circumstances of the petitioner's acquisition of the right, title, or interest in the Subject Property, any additional facts supporting the petitioner's claim, and the relief sought.
8. After the disposition of any motion filed under Fed. R. Crim. P. 32.2(c)(1)(A) and before a hearing on any ancillary petition, the United States may conduct discovery in accordance with the Federal Rules of Civil Procedure upon a showing that such discovery is necessary or desirable to resolve factual issues in the ancillary proceeding.
9. If no third party files a timely petition before the expiration of the period provided in 21 U.S.C. § 853(n)(2), then this Stipulated Preliminary Order of Forfeiture shall become the Final Order of Forfeiture and the United States shall have clear title to the Subject Property as provided in 21 U.S.C. § 853(n)(7) and Fed. R. Crim. P. 32.2(c)(2); further, the United States shall be authorized to dispose of the Subject Property as prescribed by law.
10. If a third party files a petition for ancillary hearing for the Subject Property, the Court shall enter an Amended and/or Final Order of Forfeiture that addresses the disposition of the third party petition as provided under Fed. R. Crim. P. 32.2(c)(2).
11. The Court shall retain jurisdiction to enforce this Order, and to amend it as necessary, pursuant to Fed. R. Crim. P. 32.2.
IT IS SO ORDERED.