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United States v. Jones' Personal Property

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

August 16, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JONES' PERSONAL PROPERTY, SPECIFICALLY DESCRIBED AS A DEL-TON, INC. DTI-15 RIFLE, CALIBER 556, SERIAL NUMBER DTI-S081048; A TAURUS PT111 MILLENNIUM G2 PISTOL, CALIBER 9, SERIAL NUMBER TIW84772; A SMITH & WESSON M&P 40 SHIELD PISTOL, CALIBER 40, SERIAL NUMBER HKU6685; SIXTY 60 ROUNDS OF TULA CARTRIDGE WORKS - RUSSIA AMMUNITION, CALIBER 223; THIRTY 30 ROUNDS PMC AMMUNITION, CALIBER 223; THIRTEEN 13 ROUNDS WINCHESTER-WESTERN AMMUNITION, CALIBER 40; TWENTY-FOUR 24 ROUNDS WINCHESTER-WESTERN AMMUNITION, CALIBER 9, Defendants.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         This matter is before the court on the government's motion for summary judgment. (DE 9). Claimant has not responded to the motion and the time to do so has elapsed. In this posture, the issues presented are ripe for ruling. For the reasons that follow, the motion is granted.

         STATEMENT OF THE CASE

         The government brought suit in rem against the defendant property November 23, 2016, pursuant to 18 U.S.C. § 924(d)(1), to enforce 18 U.S.C. § 922(g)(1). The government alleges that the defendant property was “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 . . .” (DE 1 ¶ 6).

         On March 3, 2017, claimant, proceeding pro se, filed a document lodged on the docket as “claim[, ]” (DE 5), which document responds to the declaration of United States Bureau of Alcohol, Tobacco, Firearms, and Explosives Task Force Officer Larry Bear (“Bear”), attached as exhibit A to the government's complaint and incorporated therein. (DE 1-1). On March 16, 2017, claimant filed another document, lodged on the docket as “answer” which document includes an identical response to Bear's declaration and, in addition, includes a document titled “Official Claim in addition to answers submitted to Declaration of Officer Larry Bear[, ]” (DE 6), which the court construes as a claim and answer made pursuant to Rule G(5)(f) the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions.

         Pursuant to Federal Rule of Civil Procedure 36 and this court's case management order, the government served upon claimant requests for admission April 20, 2017. (DE 12-1). Filings accompanying the government's motion for summary judgment indicate that claimant made no response to the requests for admission, and the deadline to do so expired May 20, 2017. Fed.R.Civ.P. 36(a)(3). The government moved for summary judgment June 28, 2017. (DE 9). Notice issued by the clerk pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), informed claimant that deadline to respond to the government motion would elapse July 24, 2017. (DE 13). Claimant has made no response to the motion.

         In support of its motion for summary judgment, the government relies upon the declaration of Bear, claimant's response to same, and the government's unanswered requests for admissions.

         STATEMENT OF THE UNDISPUTED FACTS

         The undisputed facts viewed in the light most favorable to the non-movant may be summarized as follows. At times relevant to this action, claimant was engaged and later married to Tieray Jones (“Jones”). (DE 12-1 ¶ 1). Claimant allowed Jones to stay overnight at her residence, and permitted Jones to store his property there. (Id. ¶¶ 3, 5). At all relevant times, claimant was aware that Jones was a convicted felon. (DE 12-1 ¶¶ 8-10).

         Prior to April 18, 2016, Jones enjoyed unlimited access to the defendant property. (DE 12-1 ¶ 13). Jones fired defendant Taurus PT111 Millennium G2 Pistol, Caliber 9, Serial Number TIW84772 (“Taurus”) in February 2016, and, on approximately February 14, 2016, Jones accompanied claimant to a shooting range for the purpose of firing defendant Del-Ton, Inc. DTI-15 Rifle, Caliber 556, Serial Number DTI-S081048 (“DTI rifle”) but was not permitted to fire the DTI rifle by shooting range personnel. (DE 5 ¶ 17).

         On April 18, 2016, Jones was arrested on the basis of an outstanding warrant pertaining to an alleged homicide occurring in San Diego, California. (DE 5 ¶¶ 6, 11). Following arrest, Jones was incarcerated at the county jail in San Diego, California. (DE 1-1 ¶ 7).

         While Jones was incarcerated, claimant and Jones engaged in telephonic conversations, which conversations were recorded. (DE 5 ¶ 7). One call, recorded June 3, 2016, led to the following exchange:

[Jones:] About the weapons in the house.
[Claimant:] What about them? What about them? Want me to take them ...

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