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United States of America v. Luciano Porcayo

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 13, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
LUCIANO PORCAYO,
DEFENDANT.

The opinion of the court was delivered by: Edward J. Garcia, Judge United States District Court

APPLICATION AND ORDER FOR DESTRUCTION OF SEIZED EVIDENCE

Application Comes now Assistant United States Attorney Samantha S. Spangler, the prosecutor who reviewed the search warrant in the above-captioned case, to apply for an order authorizing Internal Revenue Service Criminal Investigations Special Agent JASON LAMB to arrange within his agency for the destruction of a Ruger Model P89 semi-automatic, 9 mm handgun, Serial Number 307-18971, that was seized on or about July 11, 2008, during the execution of a Federal Search Warrant at 1831 North Beale Road, Marysville, California. This application is based upon the declaration of Samantha S. Spangler.

DATED: September 13, 2010

BENJAMIN B. WAGNER United States Attorney By: /s/ Samantha S. Spangler Samantha S. Spangler Assistant U.S. Attorney Declaration of Samantha S. Spangler I, Samantha S. Spangler, Assistant United States Attorney, declare as follows:

1. I am the prosecutor who approved as to form the search warrant for 1831 North Beale Road, Marysville, California, which was executed on or about July 11, 2008.

2. Special Agent Jason Lamb, IRS-CI, has informed me that a Ruger semi-automatic 9 mm handgun, Model P89, Serial number 307-18971, was seized from that location, the business formerly owned by Luciano Porcayo.

3. Mr. Porcayo claimed that the handgun belonged to his friend who was currently in Mexico, whom he refused to name.

4. The handgun was taken into custody for safe-keeping and a search was conducted of its purchase history, through the eTrace system utilized by the Bureau of Alcohol, Tobacco, and Firearms. The record search revealed that the original purchaser of the handgun was T.R. McDonald, who purchased it from a firearms dealer. Special Agent Lamb phoned Mr. McDonald on or about September 8, 2011, in an attempt to determine his existing interest in the handgun.

5. Mr. McDonald confirmed that he had purchased the handgun in question from a firearms dealer in Phoenix, Arizona, on January 26, 1994, during a time frame when Mr. McDonald purchased several handguns, all of which he sold by the late 1990s. Mr. McDonald could not recall whether he sold this particular handgun through a dealership or a private party. Mr. McDonald informed Special Agent Lamb that he has no ownership interest in the firearm currently.

6. On September 23, 2008, IRS-CI's then-forfeiture agent, Special Agent Charles Phillips, who held the position now held by Special Agent Lamb, wrote a letter to Lindsay Weston, attorney for Mr. Porcayo. The letter requested that Ms. Weston have her client contact the friend who owned the handgun who was in Mexico and have that person contact Special Agent Phillips with proof of ownership and proof that the person is not restricted from possessing a firearm. No call was ever received by Special Agent Phillips or by Special Agent Lamb, his successor, either from Ms. Weston, Mr. Porcayo, or Mr. Porcayo's friend who was in Mexico.

7. Because the handgun cannot be possessed by Mr. Porcayo, who has now been convicted of a felony, and therefore it constitutes contraband as to him, and because no person has come forward to claim rightful ownership of the handgun, I am seeking an order from the Court authorizing SA Lamb to follow his agency procedures and arrange for the destruction of the handgun.

8. The government does not intend to file any charges related to the handgun.

I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief, and I sign this declaration on the 13th of September, 2011, at Sacramento, California.

/s/ Samantha S. Spangler

Samantha S. Spangler Assistant U.S. Attorney

ORDER The government's request is HEREBY GRANTED.

Special Agent Jason Lamb is authorized to follow his agency procedures and arrange for the destruction of the Ruger handgun, Model P89, Serial number 307-18971, that was seized from 1831 North Beale Road, Marysville, on or about July 11, 2008.

Edward J. Garcia

20110913

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