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In Re Taurus 9mm Handgun

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


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. Howell, 425 F.3d 971, 975-77 (11th Cir. 2005); United States v. Harvey, 78 Fed. Appx. 13, 14-15, 2003 WL 21949151 (9th Cir. 2003).

The All Writs Act, 28 U.S.C. § 1651, authorizes federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." As the Supreme Court has explained, "the All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute." Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 43 (1985). The All Writs Act can be used by the government to obtain court authorization to destroy firearms seized in the course of a criminal investigation. See e.g., United States v. Smith, 142 Fed. Appx. 100, 2005 WL 1799364 (3rd Cir. 2005) (Affirming district court's order granting government's motion under the All Writs Act to destroy firearms and ammunition, and holding that Smith, a convicted felon, could neither possess firearms nor direct that they be transferred to his wife.)

CONCLUSION

Due to the felony convictions of DIANA HERNANDEZ TERAN, FERNANDO ESPANA RUBIO, and JUSTO MATA BUSTOS, they are now prohibited by law from owning, possessing or transferring firearms under 18 U.S.C. § 922(g). Since the subject firearms are no longer needed as evidence and ownership of the firearms in a person other than DIANA HERNANDEZ TERAN, FERNANDO ESPANA RUBIO, and JUSTO MATA BUSTOS cannot be determined, the government requests a Court Order authorizing the Drug Enforcement Administration to destroy the Taurus 9mm Handgun, Serial Number THH36496, and Jennings .22 Caliber Handgun, Serial Number 442486, pursuant to the All Writs Act.

Respectfully submitted, BENJAMIN B. WAGNER United States Attorney Date: April 2, 2012 By:/s/ Dawrence W. Rice, Jr. DAWRENCE W. RICE, JR. Assistant U.S. Attorney

ORDER Pursuant to the All Writs Act, the Taurus 9mm Handgun, Serial Number THH36496, and Jennings .22 Caliber Handgun, Serial Number 442486, seized during the course of the investigation and prosecution of DIANA HERNANDEZ TERAN, FERNANDO ESPANA RUBIO, and JUSTO MATA BUSTOS in 1:08-cr-00297 LJO, are to be destroyed by the Drug Enforcement Administration.

IT IS SO ORDERED.

20120403

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