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United States v. Two Sturm-Ruger Model M77 Rifles

United States District Court, C.D. California

August 27, 2014

UNITED STATES
v.
TWO STURM-RUGER MODEL M77 RIFLES, AND ONE SAVAGE MODEL 111 RIFLE

CIVIL MINUTES - GENERAL

DAVID O. CARTER, District Judge.

PROCEEDINGS (IN CHAMBERS): ORDER GRANTING MOTION FOR DEFAULT JUDGMENT [8]

Before the Court is Plaintiff United States of America's Motion for Default Judgment Against the Interests of Hector Cervantes, Norma Perez, and All Other Potential Claimants ("Motion") (Dkt. 8). The Court finds this matter appropriate for decision without oral argument. Fed.R.Civ.P. 78; Local Rule 7-15. For the reasons explained below, the Court GRANTS the Motion.

I. BACKGROUND

A. Factual Background

In October 2012, a California Fish and Game officer observed Hector Cervantes carrying a Sturm-Ruger rifle in Casper's Regional Park in San Juan Capistrano, where hunting is prohibited. Mr. Cervantes admitted that he and his friend were hunting, although they believed that they were in Cleveland National Forest, where it was legal to hunt. The officer cited both men for violation of California Fish and Game Section 2016 (hunter trespass) and a ranger issued written warnings to them for firearm possession and hunting in a county park. Id. ¶¶ 27-32.

In October 2013, in a separate incident, U.S. Immigration and Customs Enforcement ("ICE") agents conducted a search of Mr. Cervantes's and Norma Perez's residence with Ms. Perez's consent. During the search, they found the three Defendant firearms along with two other firearms, ammunition, and casings. Compl. ¶ 24. Mr. Cervantes and Ms. Perez initially claimed that two of the firearms belonged to Mr. Cervantes and three belonged to Ms. Perez. Id. ¶ 18. Later, they claimed that all of the firearms belonged to Ms. Perez. Id. ¶ 22. None of the firearms were registered either to Mr. Cervantes or Ms. Perez. Id. ¶ 25. All five firearms were taken by an Orange County Sheriffs Department deputy for safekeeping. Id. ¶ 26.

On February 19, 2014, a jury found Mr. Cervantes guilty of 18 U.S.C. § 922(g)(5)(A) (unlawfully present alien, knowingly possessed firearm in and affecting interstate and foreign commerce) and 18 U.S.C. § 1326(a) (illegal re-entry of previously removed alien) based on the October 2013 incident and additional information about Mr. Cervantes's immigration history, which included an order of removal and prior removal from the United States. See id. ¶ 10, 35. Mr. Cervantes had several previous convictions as well, including convictions for inflicting corporal injury on a spouse/cohabitant in May 1996 and December 1997. Id. ¶ 34.

Plaintiff alleges based on these facts that the Defendant firearms were involved in violations of 18 U.S.C. § 922(g)(5) (unlawful for any alien illegally or unlawfully in the United States to ship or transport in interstate or foreign commerce, or to possess in or affecting commerce, any firearm or ammunition; or to receive any firearms or ammunition which has been shipped or transported in interstate or foreign commerce) and § 922(g)(9) (unlawful for any person, convicted in any court of a misdemeanor domestic violence crime, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearms or ammunition which has been shipped or transported in interstate or foreign commerce). Plaintiffs allege that defendants are subject to forfeiture pursuant to 18 U.S.C. § 924(d), which subject to seizure and forfeiture any firearm "involved in or used in any knowing violation of [inter alia, § 922(g)]." Id. ¶ 36.

B. Procedural History

After the Government filed the Complaint, it executed process upon the Defendant firearms. Decl. of Steven R. Welk ("Welk Decl.") Ex. A. Notice of Civil Forfeiture was posted on an official government site, www.forfeiture.gov, for at least thirty consecutive days. Id. Ex. B.

On March 17, 2014, the Government sent notice and a copy of the complaint by certified mail to Mr. Cervantes at his last known address and at his attorney's address. Id. Ex. C, D. On March 25, 2014, the Government sent notice and a copy of the complaint to Mr. Cervantes at the Santa Ana Jail. Id. Ex. E. All three mailings were received and accepted, as indicated by the signed certified mail return receipts. Id.

On March 17, 2014, the Government sent notice and a copy of the complaint to Ms. Perez's last known address. Ms. Perez signed the certified mail receipt. Id. Ex. F.

On June 26, 2014, the Clerk of the Court entered default against the interests of Mr. Cervantes, Ms. Perez, and all other potential claimants. Id. Ex. G. On July 22, 2014, the Government filed this Motion. On the day after, the Government served Mr. Cervantes and Ms. Perez with the Motion by U.S. mail at their last ...


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