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United States v. Vinson Personal Property

United States District Court, E.D. North Carolina, Western Division

October 10, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
VINSON PERSONAL PROPERTY, SPECIFICALLY DESCRIBED AS: A BERETTA PISTOL, MODEL 21-A, .25 CALIBER, SEMI-AUTOMATIC, BLUE FINISH, 2.5 INCH BARREL, 4.75 INCHES OVERALL, SERIAL NUMBER BES28683V, AND ANY AND ALL ACCOMPANYING AMMUNITION; EIGHT (8) ROUNDS OF REMINGTON.25 CALIBER AMMUNITION; AND FOURTEEN (14) ROUNDS OF FIOCCHI.357 CALIBER AMMUNTION Defendant.

ORDER

JAMES C. FOX, Senior District Judge.

This matter is before the court on the Government's Motion for Default Judgment [DE-10]. For the reasons stated below, the motion is DENIED without prejudice.

I. PROCEDURAL HISTORY

The Government initiated this action by filing a Complaint for Forfeiture In Rem [DE-1] in this court on December 18, 2013, alleging that the Defendant property was "used in a knowing violation of 18 U.S.C. § 922(g) in that they were possessed in or affecting commerce by a person who has been convicted in court of a crime punishable by imprisonment for a term exceeding one year and are, therefore, subject to forfeiture to the United States of America pursuant to 18 U.S.C.

§ 924(d)(1)." Id. ¶ 5. Specifically, the Government alleges:

3. The defendant firearm and ammunition were seized on August 10, 2011, in Wayne County, Goldsboro, North Carolina from Leon Vinson, Jr 4. On August 9, 2011, the Goldsboro/Wayne County Drug Squad received information from a confidential and reliable source that was known to law enforcement that drug activity was being conducted at 721 Bain Street in Goldsboro, North Carolina an that drugs were being sold by a male named Leon Vinson. Information was also relayed to law enforcement that Vinson was in possession of a firearm. On August 10, 2011, a search warrant was executed on the address by the Goldsboro/Wayne County Drug Squad, Goldsboro Selective Enforcement Uni, and the Goldsboro Warrant Division. The defendant properties were seized from Leon Vinson, Jr. along with other items during the search of his residence on August 10, 2011. Vinson was arrested for possession of marijuana, possession of drug paraphernalia, and possession of a firearm by a convicted felon.

Id. ¶¶ 3-4.

In accordance with Rule G(3)(b)(i) of the Supplemental Rules for Certain Admiralty and Maritime Claims, the Clerk of Court issued a "Warrant of Arrest and Notice In Rem" [DE-4] on December 20, 2013. The Warrant of Arrest and Notice In Rem specifically is directed "To: THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES FOR THE EASTERN DISTRICT OF NORTH CAROLINA" and contains the following two-sentence instruction:

YOU ARE, THEREFORE, hereby commanded to arrest, attach, and retain the above-described property until the further order of this Court respecting the same; to give due notice to all persons claiming the same, knowing or having anything to say why the same should not be condemned and disposed of pursuant to the prayer of the Complaint, that they must file their claims to the property within thirty-five (35) days after the earlier of (a) the date this Warrant of Arrest and Notice In Rem is sent, as defined by Supplemental Rule G(4) (b) (iv) or (b) from completed publication of the notice of filing of the Complaint, if required, pursuant to Rule G(5) of the Supplemental Rules for Admiralty or Maritime and Asset Forfeiture Claims, and shall serve and file their answers within twenty-one (21) days after the filing of the claim, with the Office of the Clerk, United States District Court, Eastern District of North Carolina, 310 New Bern Avenue, P.O. Box 25670, Raleigh, North Carolina XXXXX-XXXX, with a copy thereof sent to Assistant U.S. Attorney, Stephen A. West, 310 New Bern Avenue, Federal Building, Suite 800, Raleigh, North Carolina XXXXX-XXXX. The claim must, at a minimum, identify the specific property claimed, identify the claimant and state the claimant's interest in the property, and be signed by the claimant under penalty of perjury, as provided by Supplemental Rule G(5).

Warrant of Arrest and Notice In Rem [DE-3] at 2-3.

On March 20, 2014, the Government filed a "Notification of Service" [DE-6] asserting that service was effected on the defendants and Leon Vinson. That same day, the Government also filed a Declaration of Publication [DE-7] stating that a notice of civil forfeiture was posted on an official government internet cite for at least 30 consecutive days.

Thereafter, the Government filed a Motion for Entry of Default [DE-9] and Motion for Default Judgment [DE-10]. The Clerk of Court allowed the Motion for Entry of Default and submitted the Motion for Default Judgment to the undersigned.

II. ANALYSIS

As explained below, the Government's Motion for Default Judgment [DE-10] is DENIED for failure to comply with Supplemental Rule G(4)(b)(i) and the ...


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