U.S. v. OWLE

Citation Codes

Equivalent Citations

citation codes

Docket Number

2:09cr27.

Motions

Motion for preliminary relief : Granted

Acts

Food And Drugs — Drug Abuse Prevention And Control — Control And Enforcement — Offenses And Penalties — Criminal Forfeitures

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Smart Summary

Factual and Procedural Background

This opinion addresses a motion for a preliminary order of forfeiture following the defendant's guilty plea to Count Two of the Bill of Indictment. The government sought forfeiture pursuant to 21 U.S.C. § 853 based on the defendant’s criminal violation. The matter was referred to the Magistrate Judge for determination under applicable federal rules and local standing orders.

Legal Issues Presented

Whether the government has established the requisite nexus between the defendant’s criminal violation and the property subject to forfeiture under 21 U.S.C. § 853.
Whether the defendant has stipulated to the forfeiture and waived further notice.
Whether the preliminary order of forfeiture should be granted and the procedures for notice and disposition of the forfeited property should be authorized.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court’s analysis is grounded on the defendant’s guilty plea to Count Two and the government’s motion demonstrating that the property in question is subject to forfeiture under 21 U.S.C. § 853. The defendant stipulated to forfeiture and agreed that the nexus between the property and the criminal offense existed, waiving additional notice. The court found that the government met its burden to establish the required connection between the defendant’s violation and the property. Consequently, the court ordered forfeiture of the specified property, authorized seizure and disposition procedures, and outlined the process for third-party claims consistent with statutory and procedural requirements.

Holding and Implications

GRANTED: The government’s Motion for Preliminary Order of Forfeiture (#69) was granted.

The defendant is ordered to forfeit to the United States the specified property, including a Hi-Point JCP .40 caliber pistol and ammunition, pursuant to 21 U.S.C. § 853. The Attorney General is authorized to seize and dispose of the property following statutory procedures. Notice requirements and opportunities for third-party claims are established. The order will become final at sentencing and will be incorporated into the judgment. The court retains jurisdiction to enforce and amend the order as necessary. No new precedent was established; the decision directly affects the parties by effectuating the forfeiture consistent with the defendant’s plea and statutory mandates.

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UNITED STATES OF AMERICA, v. KENNETH RANDALL OWLE.

ORDER

DENNIS HOWELL, Magistrate Judge

THIS MATTER is before the court on the government's Motion for Preliminary Order of Forfeiture (#69), specifically referred to the undersigned by the district court in accordance with 28, United States Code, Section 636(b), Rule 32.2, Federal Rules of Criminal Procedure, Rule 32.4, Local Criminal Rules, and theStanding Order of Referral, 1:11mc1 (W.D.N.C. 2011). For the reasons provided in the motion, the government's Motion for Preliminary Order of Forfeiture (#69) is GRANTED as follows:

The government is respectfully reminded that a proposed Order must be submitted via CyberClerk with such motion.

As a result of the guilty plea of the defendant to Count Two of the Bill of Indictment, for which the United States sought forfeiture pursuant to 21 U.S.C. § 853, the defendant shall forfeit to the United States all property constituting or derived from any proceeds the defendant obtained, directly or indirectly, as a result of such violation; and/or all property used or intended to be used in any manner or part to commit or facilitate the commission of the violation.

The Court has determined, based on the Bill of Indictment and the guilty plea of the defendant, that the below-described property is subject to forfeiture pursuant to 21 U.S.C. § 853, that defendant has stipulated to such forfeiture and agreed that the required nexus exists (Plea Agreement, at ¶¶ 29-30), and that the government has in fact established the requisite nexus between such property and such violations and that the defendant had an interest in the property. The court has also determined that defendant has agreed to entry of this Order, id., at ¶ 31, and waived any additional notice concerning this forfeiture. Id., at ¶ 32.

It is therefore ORDERED:

1. The following property is hereby forfeited to the United States for disposition according to law, subject to the provisions of 21 U.S.C. § 853(n):

— Hi-Point, JCP, .40 caliber pistol, serial number 727418;

— 8 rounds of 7.62x39 caliber ammunition.

2. The Attorney General (or a designee) is authorized to seize the forfeited property subject to forfeiture; to conduct any discovery proper in identifying, locating, or disposing of the property; and to commence proceedings that comply with any statutes governing third party rights. Fed.R.Crim.P. 32.2(b)(3).

3. Pursuant to 21 U.S.C. § 853(n)(1) and Standing Order of the Court 3:05MC302-C (September 8, 2005), the United States shall post on an official government internet site (www.forfeiture.gov), for at least 30 consecutive days, notice of this order and of its intent to dispose of the property in such a manner as the United States may direct. The United States may also, to the extent practicable, provide direct written notice to any person known to have alleged an interest in property that is the subject of this order of forfeiture, as a substitute for published notice as to those persons so notified.

4. Any person, other than the defendant, having or claiming a legal interest in any of the above-listed forfeited property may, within thirty days of the final publication of notice or of receipt of actual notice, whichever is earlier, petition the Court for a hearing without a jury to adjudicate the validity of the petitioner's alleged interest in the property, and for an amendment of the order of forfeiture pursuant to 21 U.S.C. § 853(n). The petition shall be signed by the petitioner under penalty of perjury and shall set forth the nature and extent of the petitioner's right, title or interest in each of the forfeited properties; the time and circumstances of the petitioner's acquisition of the right, title, or interest in the property; and any additional facts supporting the petitioner's claim and the relief sought. 21 U.S.C. § 853(n)(2) and (3).

5. After the disposition of any motion filed under Fed.R. Crim P. 32.2(c)(1)(A) and before a hearing on the petition, discovery may be conducted in accordance with the Federal Rules of Civil Procedure upon a showing that such discovery is necessary or desirable to resolve factual issues.

6. This Preliminary Order of Forfeiture shall become final as to the defendant at the time of sentencing and shall be made part of the sentence and included in the judgement. If no third party files a timely claim, this Order shall become the Final Order of Forfeiture, as provided by Fed.R.Crim.P. 32.2(c)(2).

7. Upon adjudication of third-party interests, if any, this court will enter a Final Order of Forfeiture pursuant to 21 U.S.C. § 853(n) and Fed.R.Crim.P. 32(c)(2).

8. The court shall retain jurisdiction to enforce this Order and to amend it as necessary, pursuant to Fed.R.Crim.P. 32.2(e).

Signed: February 1, 2011