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

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PAUL K. CHARLTON United States Attorney District of Arizona ANDREA ANGULO GUTIÉRREZ Special Assistant U.S. Attorney 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Arizona State Bar No. 020477 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-0677-PHX-FJM Plaintiff, v. Michael Dewayne Smith, MOTION FOR A PRELIMINARY ORDER OF FORFEITURE

11 12 Defendant. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The United States of America, by its undersigned counsel, respectfully submits its Motion for a Preliminary Order of Forfeiture in the above-entitled case for the reasons set forth below. A proposed order is submitted with this motion. 1. On June 30, 2004, a federal grand jury sitting in the District of Arizona, returned a five count Indictment against the defendant, Michael Dewayne Smith. The defendant was charged with violations of 18 U.S.C. § 924(a)(1)(A), False Statement in Connection with the Acquisition of a Firearm. 2. The Indictment also sought forfeiture, pursuant to 18 U.S.C. § 924(d), and 28 U.S.C. § 2461, of all firearms and ammunition involved in the commission of the offense. 3. On October 16, 2006, the defendant, Michael Dewayne Smith entered into a plea agreement with the United States in which he agreed to plead guilty to Count 1 of the Indictment charging violation of Title 18, United States Code, Section 924(a)(1)(A), False Statement in Connection with the Acquisition of a Firearm, a Class D felony offense. The defendant also admitted to the forfeiture allegations contained in the Indictment, and agreed to forfeit to the United States, the following property:

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One Jennings T380 .380 caliber pistol, Serial Number 1433247 4. Based upon the evidence set forth in the plea agreement, the United States has established the requisite nexus between the property and the offense of which the defendant has been found guilty, and that the defendant has an interest in this property. Accordingly, that property is subject to forfeiture to the United States pursuant to 18 U.S.C. § 924. 5. Rule 32.2 (b)(1), (b)(2), and (b)(3), Federal Rules of Criminal Procedure, provide that: (1) As soon as practicable after entering a guilty verdict or accepting a plea of guilty or nolo contendere on any count in an indictment or information with regard to which criminal forfeiture is sought, the court shall determine what property is subject to forfeiture under the applicable statute. If forfeiture of specific property is sought, the court shall determine whether the government has established the requisite nexus between the property and the offense. If the government seeks a personal money judgment against the defendant, the court shall determine the amount of money that the defendant will be ordered to pay. The court's determination may be based on evidence already in the record, including any written plea agreement or, if the forfeiture is contested, on evidence or information presented by the parties at a hearing after the verdict or finding of guilt. (2) If the court finds that property is subject to forfeiture, it shall promptly enter a preliminary order of forfeiture setting forth the amount of any money judgment or directing the forfeiture of specific property without regard to any third party's interest in all or part of it. Determining whether a third party has such an interest shall be deferred until any third party files a claim in an ancillary proceeding under Rule 32.2(c). (3) The entry of a preliminary order of forfeiture authorizes the Attorney General (or a designee) to seize the specific property subject to forfeiture; to conduct any discovery the court considers proper in identifying, locating, or disposing of the property; and to commence proceedings that comply with any statutes governing third-party rights. At sentencing - or at any time before sentencing if the defendant consents - the order of forfeiture becomes final as to the defendant and shall be made part of the sentence and included in the judgment. The court may include in the order of forfeiture conditions reasonably necessary to preserve the property's value pending any appeal. 6. Upon the issuance of a Preliminary Order of Forfeiture the United States Marshals Service/Department of Treasury will publish at least once for three successive weeks in a newspaper of general circulation, notice of this Order, notice of the U.S. Marshal's Service intent to dispose of the property in such manner as the Attorney General/Department of Treasury may direct and notice that any person, other than the defendant, having or claiming a legal interest in the property must file a petition with the Court and serve a copy on LISA ROBERTS, Assistant United States Attorney within thirty (30) days of the final publication 2

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of notice or of receipt of actual notice, whichever is earlier. This notice shall state that the petition shall be for a hearing to adjudicate the validity of the petitioner's alleged interest in the 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 forfeited property and any additional facts supporting the petitioner's claim and the relief sought. The United States may also, to the extent practicable, provide direct written notice to any person known to have alleged an interest in the property that is the subject of the Preliminary Order of Forfeiture, as a substitute for published notice as to those persons so notified. 7. In accordance with the provisions of 28 U.S.C. § 2461 and Rule 32.2(b)(3) of the Federal Rules of Criminal Procedure, the United States requests that it be permitted to undertake whatever discovery is necessary to identify, locate, or dispose of property subject to forfeiture, or substitute assets for such property. WHEREFORE, the United States respectfully requests that this Court enter a Preliminary Order of Forfeiture forfeiting to the United States the property described in the Indictment and order the United States Marshals Service/Department of Treasury to seize and maintain custody of the forfeited property and dispose of it in accordance with the law. The defendant consented to the entry of a Preliminary Order of Forfeiture in the plea agreement, thus there is no objection to the entry of such an Order.

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Respectfully submitted this 1st day of November, 2006. PAUL K. CHARLTON United States Attorney s/Andrea Angulo Gutiérrez

5 6 7 Certificate of Service 8 9 10 s/Andrea Angulo Gutiérrez 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 I hereby certify that on November 1, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Candace Kent. ANDREA ANGULO GUTIÉRREZ Special Assistant United States Attorney

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