Opinion
Case No. 09-CR-2982 JC.
December 9, 2010
Counsel for Plaintiff: Louis E. Valencia, AUSA, Albuquerque, NM.
Counsel for Defendant: Robert Jason Bowles, Esq., William C. Marchiondo, Esq., Albuquerque, NM.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendant James Reese's Motion to Return Property (Doc. 69), filed October 25, 2010 ("Motion"). Having reviewed the parties' submissions and being otherwise fully informed, the Court will DENY the Motion.
I. BACKGROUND
In October 2009, Defendant was indicted on three charges relating to his possession of approximately 33 firearms in violation of a 2005 court order issued by the State of Hawaii. Redacted Indictment (Doc. 15), filed October 8, 2009. The charges were dismissed on January 15, 2010 pursuant to this Court's finding that the Hawaii Order — which purported to prohibit Defendant from possessing, controlling, or transferring ownership of any firearm, ammunition, firearm permit or license" for a term of 50 years — was unconstitutional as applied to Defendant. Memo. Op. and Order (Doc. 58), entered January 15, 2010. The United States appealed from the Court's Order dismissing the case. Notice of Appeal (Doc. 60), filed February 11, 2010.
On November 17, 2009, before the Court's order of dismissal, the United States filed a forfeiture action relating to all 33 firearms referenced in this matter, plus two additional firearms found in a safe at Defendant's place of business, including a double-barrel 12-gauge shotgun with no markings that was sawed off to a barrel length of 15.5 inches. Complaint (Doc. 1), Case No. 10-CV-1095, filed November 17, 2009.
Thereafter, on March 2, 2010, the United States filed a separate forfeiture action directed at the sawed-off shotgun seized from the gun safe at Defendant's place of business. Complaint (Doc. 1), Case No. 10-CV-189.
On May 7, 2010, Defendant's attorney filed motions in both forfeiture actions seeking the return of the sawed off shotgun to and on behalf of Defendant's father, Oliver Reese. Claimant Oliver Reese's Motion to Return Defendant Property to Claimant and to Dismiss This Action (Doc. 22), Case No. 09-1095. See also Motion (Doc. 9), Case No. 10-CV-189. The United States opposes both motions. United States' Response to Claimant Oliver Reese's Motion to Return Defendant Property to Claimant and to Dismiss This Action (Doc. 29), Case No. 09-CV-1095, filed May 20, 2010. See also (Doc. 11), Case No. 10-CV-189, filed May 20, 2010. Magistrate Judge Gregory B. Wormuth of this Court presides over Case No. 09-CV-1095 and has not yet ruled on Claimant's Motion for Return of Property in that action. The Honorable James A. Parker of this Court denied Claimant's Motion for Return of Property in Case No. 10-CV-189 on the grounds that the Government was in the process of amending its Complaint in that action. Order (Doc. 16), Case No. 10-CV-189, filed June 7, 2010.
II. LEGAL STANDARD
III. DISCUSSION
41United States v. Coperman458 F.3d 10701071 United States v. Akers 215 F.3d 10891106Akers Id.
IV. CONCLUSION
Given the existence of two pending civil forfeiture actions regarding the firearms at issue, Defendant James Reese's Motion to Return Property (Doc. 69), filed October 25, 2010, is DENIED.