Free Motion for Forfeiture of Property - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States of America CR-04-0677-PHX-FJM Plaintiff, v. Michael Dewayne Smith, Defendant. IT IS HEREBY ORDERED THAT: As the result of the guilty plea to the Indictment charging defendant with violation of Title 18, United States Code, Section 924(a)(1)(A), for which the Government sought forfeiture in the forfeiture allegation pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461, defendant shall forfeit to the United States, the following property: One Jennings T380 .380 caliber pistol, serial number 1433247 Defendant agrees the above listed firearm was involved in or used in violation of Title 18, United States Code, Section 924(a)(1)(A). The defendant further agrees that the aforementioned firearm is subject to seizure and forfeiture by the United States. The Court has determined, based on defendant's plea agreement, that the property described above is subject to forfeiture pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461, and that the government has established the requisite nexus between such property and such offenses, and that the defendant has an interest in such property. PRELIMINARY ORDER OF FORFEITURE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Case 2:04-cr-00677-FJM

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Upon the entry of this Order, the United States is authorized to seize the property listed above and to conduct any discovery proper in identifying, locating or disposing of the property subject to forfeiture, in accordance with Fed. R. Crim. P. 32.2(b)(3). Upon entry of this Order, the United States/Attorney General (or a designee); is authorized to commence any applicable proceeding to comply with statutes governing third party rights, including giving notice of this Order. The United States shall publish notice of the Order and its intent to dispose of the property in such a manner as the United States/Attorney General (or a designee), may direct. The United States may also, to the extent practicable, provide written notice to any person known to have an alleged interest in the Subject Property. Any person, other than the above named defendant, asserting a legal interest in the Subject Property may, within thirty days of the final publication of notice or receipt of notice, whichever is earlier, petition the court for a hearing without a jury to adjudicate the validity of his alleged interest in the Subject Property, and for an amendment of the order of forfeiture, pursuant to 21 U.S.C. § 853(n) or 28 U.S.C. § 2461(c). Pursuant to Fed. R. Crim. P. 32.2(b)(3), and pursuant to defendants consent, as contained in the plea agreement, this Preliminary Order of Forfeiture shall become final as to the defendant prior to defendant's sentencing and will be included in the judgment. 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). Any petition filed by a third party asserting an interest in the Subject Property 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 the Subject Property, the time and circumstances of the petitioner's acquisition of the right, title or interest in the Subject Property, any additional facts supporting the petitioner's claim and the relief sought. 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 2

Case 2:04-cr-00677-FJM

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Civil Procedure upon a showing that such discovery is necessary or desirable to resolve factual issues. The United States shall have clear title to the Subject Property following the Court's disposition of all third-party interests, or, if none, following the expiration of the period provided in 21 U.S.C. § 853(n)(2), for the filing of third party petitions. The Court shall retain jurisdiction to enforce this Order, and to amend it as necessary, pursuant to Fed. R. Crim. P. 32.2(e). The Clerk of the Court shall forward a copy of this order to Assistant U.S. Attorney LISA ROBERTS, U.S. Attorney's Office, Two Renaissance Square, 40 North Central Avenue, Suite 1200, Phoenix, Arizona 85004-4408, SO ORDERED: Dated:

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Case 2:04-cr-00677-FJM

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Filed 11/01/2006

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