STIPULATION FOR FINAL ORDER OF FORFEITURE AND ORDER THEREON
KIMBERLY J. MUELLER, District Judge.
IT IS HEREBY STIPULATED, by and between the United States of America and petitioner Stanley W. Getsla (hereinafter "petitioner"), to compromise and settle their interest in the Aero Precision AR-15 lower receiver with serial number US33350, and to consent to the entry of a Final Order of Forfeiture pursuant to Fed. R. Crim. P. 32.2(c), 18 U.S.C. § 924(d)(1), and 28 U.S.C. § 2461(c).
1. On December 7, 2016, this Court entered a Preliminary Order of Forfeiture pursuant to the provisions of 18 U.S.C. § 924(d)(1) and 28 U.S.C. § 2461(c) based upon the plea agreement entered into between the United States and defendant Justin A. Montgomery forfeiting to the United States the following property:
a. a Colt .38 special revolver with serial number 26028R;
b. an H&R .22 caliber revolver with an obliterated serial number; and
c. an Aero Precision AR-15 lower receiver with serial number US33350.
2. Beginning on December 15, 2016, for at least 30 consecutive days, the United States published notice of the Court's Order of Forfeiture on the official internet government forfeiture site www.forfeiture.gov. Said published notice advised all third parties of their right to petition the Court within sixty (60) days from the first day of publication of the notice for a hearing to adjudicate the validity of their alleged legal interest in the forfeited property. The Declaration of Publication was filed on February 21, 2017.
3. The United States sent direct written notice by certified mail to the following individuals known to have an alleged interest in the above-described property:
a. Robert Malito: A notice letter was sent via certified mail to Robert Malito at 1114 Lewis Avenue, La Junta, CO 81050 on December 30, 2016. The envelope was returned on January 11, 2017, as "not deliverable as addressed, unable to forward". A notice letter was sent via certified mail to Robert Malito at 1618 Richards Court, Fairfield, CA 94533 on January 24, 2017. The PS Form 3811 (certified mail "green card" showing delivery of mail) was signed for on January 26, 2017.
b. Stanley Walter Getsla: A notice letter was sent via certified mail to Stanley Walter Getsla at 1010 Tiburon Way, Plumas Lake, CA 95961 on January 24, 2017. The PS Form 3811 (certified mail "green card" showing delivery of mail) was signed for by SW Getsla on January 25, 2017.
4. On February 17, 2017, Stanley W. Getsla filed a timely petition alleging an interest in the Aero Precision AR-15 lower receiver with serial number US33350. Mr. Getsla alleges that the Aero Precision AR-15 lower receiver was reported stolen after a burglary of his residence on June 15, 2011.
5. No other parties have filed petitions in this matter regarding the firearms listed above, and the time in which any person or entity may file a petition has expired.
6. The parties hereby stipulate that Stanley W. Getsla has an interest in the Aero Precision AR-15 lower receiver with serial number US33350. Stanley W. Getsla has a legal right, title, or interest in the Aero Precision AR-15 lower receiver, and such right, title, or interest requires the Court to amend the Preliminary Order of Forfeiture pursuant to Fed. R. Crim. P. 32.2(c)(2) to account for his interest, because such interest was vested in him rather than defendant Justin A. Montgomery at the time of the commission of the acts which give rise to the forfeiture of the Aero Precision AR-15 lower receiver. See 28 U.S.C. § 2461(c) (incorporating 21 U.S.C. § 853(n)). The parties further stipulate, however, that the Preliminary Order of Forfeiture remains valid to the extent it orders the forfeiture of any interest defendant Justin A. Montgomery has in the firearms.
7. Petitioner understands and agrees that the Aero Precision AR-15 lower receiver held by the Federal Bureau of Investigation ("FBI") will not be released to petitioner until the Appeal in this case has been resolved, any necessary documents have been executed by petitioner and filed with the California Department of Justice Bureau of Firearms, and any necessary transfer fees have been paid.
8. Petitioner understands and agrees that the United States reserves the right to void the stipulation if, before the transfer of the Aero Precision AR-15 lower receiver, the U.S. Attorney obtains new information indicating that the petitioner is not "innocent owner" pursuant to the applicable forfeiture statute. A discretionary termination of forfeiture shall not be a basis for any award of fees.
9. All parties to this stipulation hereby release the United States and its servants, agents, and employees and all other public entities, their servants, agents, and employees, from any and all liability arising out of or in any way connected with the forfeiture of the firearms and transfer of the Aero Precision AR-15 lower receiver. This is a full and final release applying to all unknown and unanticipated injuries, and/or damages arising out of said forfeiture and transfer, as well as to those now known or disclosed. The parties to this agreement agree to waive the provisions of California Civil Code § 1542, which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
10. Petitioner understands and agrees that by entering into this stipulation of his interest in the Aero Precision AR-15 lower receiver, he waives any right to litigate further his ownership interest in the Aero Precision AR-15 lower receiver and to petition for remission or mitigation of the forfeiture. Thereafter, if this Stipulation for Final Order of Forfeiture is approved by the Court, then unless specifically directed by an order of the Court, petitioner shall be excused and relieved from further participation in this action.
11. Each party agrees to bear his or her own costs and attorneys' fees.
12. Transfer of the Aero Precision AR-15 lower receiver to the petitioner pursuant to this Stipulation is contingent upon a forfeiture of the property to the United States, the United States' prevailing against any additional third parties alleging claims in an ancillary proceeding, and the Court's entry of this Final Order of Forfeiture.
13. The terms of this Stipulation shall be subject to approval by the United States District Court. Violation of any term or condition herein shall be construed as a violation of an order of the Court.
14. The court shall maintain jurisdiction over this matter to enforce the terms of this stipulation.
ORDER
1. The Court having received, read, and considered the foregoing Stipulation of the parties, and good cause appearing therefrom, the Stipulated Settlement is hereby ADOPTED and APPROVED, and the Court hereby enters a Final Order of Forfeiture on the terms set forth in the parties' Stipulated Settlement. All right, title, and interest of Justin A. Montgomery and Robert Malito in the following property is hereby extinguished and forfeited to the United States pursuant to 18 U.S.C. § 924(d)(1) and 28 U.S.C. § 2461(c):
a. a Colt .38 special revolver with serial number 26028R;
b. an H&R .22 caliber revolver with an obliterated serial number; and
c. an Aero Precision AR-15 lower receiver with serial number US33350.
2. The Aero Precision AR-15 lower receiver with serial number US33350 shall be transferred to petitioner Stanley W. Getsla by the FBI once the Appeal in this case has been resolved, any necessary documents have been executed by petitioner and filed with the California Department of Justice Bureau of Firearms, and any necessary transfer fees have been paid.
SO ORDERED.
