Opinion
No. 00-40024-03-SAC
February 12, 2004
MEMORANDUM AND ORDER
The case comes before the court on the defendant Timothy Jay Cline's pro se motion to vacate the forfeiture agreement filed June 26, 2003. (Dk. 1855).
In that pleading, the defendant alleges the government breached the forfeiture agreement by not turning over possession of a Stevens 12 gauge shotgun and other property to the defendant's father at the time of the defendant's sentencing. The defendant further alleges that the government remains in breach of this agreement. Based upon this breach, the defendant asks the court to order the government to return all property seized in this case.
The defendant filed his motion while this case was pending before the Tenth Circuit on direct appeal. After the Tenth Circuit's mandate was filed with the district court, the government was directed to file a response. The court has received and reviewed the government's response and is ready to rule on the defendant's motion.
Citing the forfeiture agreement filed of record (Dk. 1485), the government acknowledges its obligation to release a Stevens 12 gauge shotgun to the defendant's father and to return two Loners Motorcycle Club patches to the defendant. The government remarks that these are the only items which the forfeiture agreement required the government to release. The government attaches a letter dated June 27, 2003, and sent to Cline's counsel that provided a name and telephone number for the defendant's father to contact and arrange for the shotgun's return. The government represents that the shotgun was released to the defendant's father on September 10, 2003, and attaches a receipt verifying this transaction. As for the patches, the June 27th letter also explained that the prosecutor believed the patches had been turned over to defense counsel at the time of sentencing and that the defendant should identify by DEA exhibit number those other patches which he believes also should be returned. The government represents that neither the defense counsel nor the defendant has indicated there are other patches in dispute.
Based on the government's representations and documents establishing it has returned the subject property and the lack of any filings from the defendant disputing the government's proof, the court finds that the government has complied with the forfeiture agreement insofar as it has returned the shotgun and patches. Any delay in the government's return of the shotgun was due to confusion over the timing and the manner for making those arrangements. The written forfeiture agreement is silent on when or how the shotgun was to be returned. Thus, the defendant does not cite or offer any evidence of record to show that the government's delay in returning shotgun constitutes a breach of the forfeiture agreement.
IT IS THEREFORE ORDERED that the defendant Timothy Cline's motion to vacate forfeiture agreement (Dk. 1855) is denied.