Opinion
CR-13-00196-001-TUC-DCB (BPV)
10-14-2022
United States of America, Plaintiff, v. Brenden William Vermilyea, Defendant.
ORDER
Honorable David C. Bury, United Stales District Judge
A jury convicted Defendant Brenden Vermilyea of one count of possession of a firearm by a prohibited person and one count of possession of ammunition by a prohibited person in violation of 18 U.S.C. § 922(g)(1) based on his federal court martial conviction as the predicate crime punishable by imprisonment for a term exceeding one year. His direct appeal has concluded, without success. (Mandate (Doc. 133)).
On June 15, 2022, Defendant petitioned this Court for return of his property, approximately 22 guns, including 12 semiautomatic rifles capable of accepting large capacity ammunition magazines and other items, such as ammunition, seized by the Government during its investigation of the charged offense. He asserts the property is subject to release pursuant to Rule 41(g), Federal Rules of Criminal Procedure, which provides: “A person aggrieved by an unlawful search and seizure of property or by deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion.”
Petitioner asserts that the property is not being held as evidence, it was seized from the Defendant's home on or about February 7, 2013, and no forfeiture was filed. The Government has no cause to hold the property as evidence. He asserts that arrangements have been made for a non-prohibited possessor to take possession of the firearms that are subject to release pursuant to this motion.
The Government responds that the property was properly seized pursuant to a search warrant during the investigation, which was executed at the home in Tucson where Defendant was living with his wife. The Government asks the Court to deny the motion because although Petitioner claims to be the owner of the property listed in his motion, he has failed to submit the appropriate documentation establishing that ownership. The Government believes some of the guns are registered to other individuals, including his wife, mother-in-law, and father. Additionally, the Petitioner has not identified the “nonprohibited possessor.” The Government provides a list of deficiencies that need to be corrected before the Court should release thesis property.
The Petitioner makes no reply. While a reply may be an optional brief, LRCiv. 7.2(d), in this case it is required to address the deficiencies identified by the Government.
Accordingly,
IT IS ORDERED that within 14 days of the filing date of this Order, the Petitioner shall show cause why the Motion for Release of Property (Doc. 134) should not be denied. Failure to show good cause shall result in the denial of the Motion for Release of Property.