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In Re Taurus 9mm Handgun

April 3, 2012

IN RE TAURUS 9MM HANDGUN, SERIAL
NUMBER THH36496, AND JENNINGS.22 CALIBER HANDGUN, SERIAL
NUMBER 442486.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

APPLICATION AND ORDER TO DESTROY FIREARMS

The government hereby applies for an order pursuant to the All Writs Act, 28 U.S.C. § 1651, to destroy two firearms, a Taurus 9mm Handgun, Serial Number THH36496, and a Jennings .22 Caliber Handgun, Serial Number 442486, that were seized as evidence by the Drug Enforcement Administration during the investigation and prosecution of DIANA HERNANDEZ TERAN, FERNANDO ESPANA RUBIO, and JUSTO MATA BUSTOS in case number 1:08-cr-00297 LJO, and which cannot legally be returned to them, because they are now convicted felons.

FACTS

On August 7, 2008, in the Eastern District of California, DIANA HERNANDEZ TERAN, FERNANDO ESPANA RUBIO, and JUSTO MATA BUSTOS kidnaped AY in order to rob his jewelry store.

While planning the robbery, BUSTOS asked TERAN to charm AY in order to set up the robbery. TERAN agreed. TERAN approached AY at his jewelry store. TERAN and AY exchanged phone numbers and agreed to meet at a later date. The next week TERAN and AY had telephone conversations, and TERAN told BUSTOS, "He's hooked."

On the day of the planned robbery, AY took TERAN to a motel in Manteca. TERAN stepped out of the motel room and called a telephone number. BUSTOS and RUBIO then walked into the motel room through the open door, pointed handguns at AY, and told AY to sit down and shut up.

AY told TERAN, BUSTOS and RUBIO to take whatever they wanted. BUSTOS took AY's watch, bracelet and chain, and said they wanted to rob AY's jewelry store. TERAN walked to AY's BMW parked at the motel, got into the driver's seat, and waited for BUSTOS and RUBIO to bring AY to the car. RUBIO, BUSTOS, and AY came out of the motel room and got into AY's BMW.

After leaving the motel, TERAN came to a stop at an intersection and AY jumped out of the BMW. Fortunately, a Manteca Police Officer was at the intersection in his patrol car, saw AY jump out of the BMW, and chased the BMW.

TERAN led pursuing Manteca Police Officers on a high speed chase through residential areas and collided with an occupied vehicle. During the chase, RUBIO and BUSTOS tossed the handguns from the BMW that they had used during the kidnaping of AY, to wit: the Taurus 9mm Handgun, Serial Number THH36496, and the Jennings .22 Caliber Handgun, Serial Number 442486. TERAN eventually turned down a dead end street, and TERAN, RUBIO and BUSTOS were arrested by Manteca

Police Officers.

Both firearms were seized by the Manteca Police Department and turned over to the Drug Enforcement Administration as evidence. Lawful ownership of the firearms cannot be determined, because there are no records pertaining to either of the firearms in the Automated Firearms System.

In July of 2009, DIANA HERNANDEZ TERAN, FERNANDO ESPANA RUBIO, and JUSTO MATA BUSTOS pled guilty to Kidnaping, in violation of 18 U.S.C. § 1201(a)(1). FERNANDO ESPANA RUBIO and JUSTO MATA BUSTOS also pled guilty to Brandishing a Firearm During a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A). DIANA HERNANDEZ TERAN was subsequently sentenced to 121 months imprisonment on October 2, 2009, and FERNANDO ESPANA RUBIO and JUSTO MATA BUSTOS were sentenced to 171 months imprisonment on October 8, 2009.

LAW

The government is prohibited by law from returning firearms to an owner who has been convicted of a felony. See 18 U.S.C. §§ 922(g). The federal courts have held that under 18 U.S.C. § 922(g) a convicted felon who is prohibited from possessing firearms has no right to their return, and may not designate another person to receive them because that would be a prohibited exercise of constructive possession. United States v. Felici, 208 F.3d 667, 669-70 (8th Cir. 2000); United States v. ...


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