STIPULATION FOR FINAL ORDER OF FORFEITURE AND ORDER THEREON
JOHN A. MENDEZ, District Judge.
IT IS HEREBY STIPULATED, by and between the United States of America and petitioner Daniel McCassie (hereinafter "petitioner"), to compromise and settle their interest in the Model XM15-E2S Bushmaster .223 caliber rifle, serial no. BFI480211, and to consent to the entry of a Final Order of Forfeiture pursuant to Fed. R. Crim. P. 32.2, 21 U.S.C. § 853(a), 18 U.S.C. § 924(d)(1), and 28 U.S.C. § 2461(c).
1. On or about December 11, 2018, this Court entered a Preliminary Order of Forfeiture pursuant to the provisions of 21 U.S.C. § 853(a), 18 U.S.C. § 924(d)(1), 28 U.S.C. § 2461(c), and Fed. R. Crim. P. 32.2(b)(1) based upon the plea agreement entered into between the United States and defendant Vidal Gonzalez forfeiting to the United States the following property:
a. a .45 caliber Sig Sauer 1911 pistol, serial no. 54A024260 with magazine and ammunition,
b. a Sportarms 9 mm pistol, serial no. 377463 with magazines and ammunition,
c. a Colt Combat Commander pistol, serial no. 70SC87049 and empty magazine,
d. a Model XM15-E2S Bushmaster .223 caliber rifle, serial no. BFI480211 and one box of ammunition, and
e. a personal forfeiture money judgment in the amount of $90,000.00, plus any accrued interest on that amount since date of seizure.
The money judgment shall be satisfied from the $111,019.00 in U.S. Currency seized from defendant Vidal Gonzalez and included in the Bill of Particulars for Forfeiture of Property filed on January 24, 2018.
2. Beginning on January 19, 2019, 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 April 2, 2019.
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. Main Street Pawn, Inc.: A notice letter was sent via certified mail to Main Street Pawn, Inc. at 80 East Main Street, Fernley, NV 89408 on January 18, 2019. According to USPS.com tracking, the notice letter was delivered on January 25, 2019.
b. Daniel Santoyo: A notice letter was sent via certified mail to Daniel Santoyo at 1143 Jones St., Apt. D, Reno, NV 89503-5408 on January 18, 2019. The PS Form 3811 (certified mail "green card" showing delivery of mail) was signed on January 22, 2019.
c. Salome Gonzalez: A notice letter was sent via certified mail to Salome Gonzalez at 3610 Martin Luther King Jr. Blvd., Sacramento, CA 95817-3639 on January 18, 2019. The PS Form 3811 (certified mail "green card" showing delivery of mail) was signed by Salome Gonzalez on January 30, 2019.
d. Sergio Gonzalez: A notice letter was sent via certified mail to Sergio Gonzalez at 3544 Martin Luther King Jr. Blvd., Sacramento, CA 95817-3638 on January 18, 2019. The envelope was returned on March 20, 2019, as "unclaimed, unable to forward" after leaving a notice on January 23, 2019.
e. Meagan Gonzalez: A notice letter was sent via certified mail to Meagan Gonzalez at 3544 Martin Luther King Jr. Blvd., Sacramento, CA 95817-3638 on January 18, 2019. The envelope was returned on March 20, 2019, as "unclaimed, unable to forward" after leaving a notice on January 23, 2019.
4. On January 30, 2019, Daniel McCassie of Main Street Pawn filed a timely petition alleging an interest in the Model XM15-E2S Bushmaster .223 caliber rifle, serial no. BFI480211. Mr. McCassie alleges that the Model XM15-E2S Bushmaster .223 caliber rifle was reported stolen after a burglary of Main Street Pawn on September 7, 2014.
5. No other parties have filed petitions in this matter regarding the assets listed above, and the time in which any person or entity may file a petition has expired.
6. The parties hereby stipulate that Daniel McCassie of Main Street Pawn has an interest in the Model XM15-E2S Bushmaster .223 caliber rifle, serial no. BFI480211. Daniel McCassie has a legal right, title, or interest in the Model XM15-E2S Bushmaster .223 caliber rifle, 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 Vidal Gonzalez at the time of the commission of the acts which give rise to the forfeiture of the Model XM15-E2S Bushmaster .223 caliber rifle. 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 Vidal Gonzalez has in the firearms and money judgment.
7. Petitioner understands and agrees that the Model XM15-E2S Bushmaster .223 caliber rifle held by the Federal Bureau of Investigation ("FBI") will not be released to petitioner until any 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 Model XM15-E2S Bushmaster .223 caliber rifle, the U.S. Attorney obtains new information indicating that the petitioner is not an "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 money judgment and transfer of the Model XM15-E2S Bushmaster .223 caliber rifle. 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 Model XM15-E2S Bushmaster .223 caliber rifle, he waives any right to litigate further his ownership interest in the Model XM15-E2S Bushmaster .223 caliber rifle 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 Model XM15-E2S Bushmaster .223 caliber rifle 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.
Dated: 4/23/19 McGREGOR W. SCOTT
United States Attorney
By: /s/Richard J. Bender
RICHARD J. BENDER
Assistant U.S. Attorney
Dated: 4/26/19 /s/Daniel McCassie
DANIEL MCCASSIE
Petitioner
(Original signature retained by attorney)
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 Vidal Gonzalez, Daniel Santoyo, Salome Gonzalez, Sergio Gonzalez, and Meagan Gonzalez in the following property is hereby extinguished and forfeited to the United States pursuant to 21 U.S.C. § 853(a), 18 U.S.C. § 924(d)(1), 28 U.S.C. § 2461(c), and Fed. R. Crim. P. 32.2(b)(1):
a. a .45 caliber Sig Sauer 1911 pistol, serial no. 54A024260 with magazine and ammunition,
b. a Sportarms 9 mm pistol, serial no. 377463 with magazines and ammunition,
c. a Colt Combat Commander pistol, serial no. 70SC87049 and empty magazine,
d. a Model XM15-E2S Bushmaster .223 caliber rifle, serial no. BFI480211 and one box of ammunition, and
e. a personal forfeiture money judgment in the amount of $90,000.00, plus any accrued interest on that amount since date of seizure.
The money judgment shall be satisfied from the $111,019.00 in U.S. Currency seized from defendant Vidal Gonzalez and included in the Bill of Particulars for Forfeiture of Property filed on January 24, 2018.
2. Within sixty (60) days from entry of this Final Order of Forfeiture forfeiting the above-listed property, the U.S. Marshals Service shall return $21,019.00 of the $111,019.00 in U.S. Currency, plus any accrued interest on that amount, to defendant Vidal Gonzalez through Janett Thompson.
3. The Model XM15-E2S Bushmaster .223 caliber rifle, serial no. BFI480211 shall be transferred to petitioner Daniel McCassie by the FBI once any 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.
