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United States v. West

United States District Court, E.D. Michigan, Southern Division

July 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TYRONE WEST, Defendant.

          DANIEL L. LEMISCH Acting United States Attorney SHANKAR RAMAMURTHY Assistant United States Attorney RICHARD O'NEILL Attorney for Defendant

          STIPULATED PRELIMINARY ORDER OF FORFEITURE

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

         Pursuant to Fed. R. Crim. P. 32.2 and 18 U.S.C. § 924(d), and based on the guilty plea by Defendant Anthony Burton to violating 18 U.S.C. § 922(g), the United States of America together with Defendant Tyrone West, individually and by and through his attorney, Richard O'Neill, ESQ., hereby submit this Stipulated Preliminary Order of Forfeiture to the Court and stipulate and agree to the following:

         1. The United States obtained an Indictment on or about December 6, 2016, which charges Defendant with Count One, Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). (Dkt. #11). The Indictment contains a Forfeiture Allegation which provides that pursuant to 18 U.S.C. § 924(d) together with 28 U.S.C. § 2461(c), any firearm and ammunition involved in or used in the knowing commission of the offense is subject to forfeiture.

         2. The property involved in or used in the knowing commission of Count One includes one (1) Smith & Wesson, .40 caliber pistol, serial number DPD 0208 (Subject Property).

         3. On or about July 18, 2017, Defendant pleaded guilty to Count One of the Indictment. In the Rule 11 Plea Agreement, Defendant agreed to forfeit the Subject Property to the United States pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c) as property involved in or used in the knowing commission of Count One.

         4. In the Rule 11, Defendant also agreed to the entry of one or more orders of forfeiture of his interest in the Subject Property, at or any time before, his sentencing in this case.

         5. In entering into this Stipulation with respect to forfeiture, Defendant specifically acknowledges that the Subject Property was connected to his violation of Count One of the Indictment and is therefore subject to forfeiture to the United States pursuant to 18 U.S.C. § 924(d) together with 28 U.S.C. § 2461(c).

         6. In entering into this Stipulation with respect to forfeiture, Defendant expressly waives the requirements of Federal Rules of Criminal Procedure 32.2 and 43(a) regarding notice of forfeiture in the charging instrument, pronouncement of forfeiture at sentencing and incorporation of forfeiture in the judgment and agrees to immediate entry of this Stipulated Preliminary Order of Forfeiture. Defendant agrees that this Order shall become final as to Defendant at entry. Defendant also expressly waives his right, if any, to have a jury determine the forfeitability of his interest in the Subject Property.

         7. In entering into this Stipulation with respect to forfeiture, Defendant acknowledges that he understands that forfeiture of the Subject Property is part of the sentence that may be imposed on him in this case and waives his right to challenge any failure by the Court to advise him of this at the time that his guilty plea is accepted pursuant to Federal Rule of Criminal Procedure 11(b)(1)(J).

         8. In entering into this Stipulation with respect to forfeiture, Defendant knowingly, voluntarily, and intelligently waives any challenge to forfeiture of the Subject Property based upon the Excessive Fines Clause of the Eighth Amendment to the United States Constitution.

         IT IS HEREBY ORDERED AND ADJUDGED THAT:

         1. Based on the Indictment, Defendant's conviction, the Rule 11 Plea Agreement, this Stipulation, and other information in the record, and 18 U.S.C. § 924(d), the Subject Property IS FORFEITED to the United States for disposition according to law, and any right, title or interest of Defendant, and any right, title or interest that his heirs, successors or assigns have, or may have, in any of the Subject Property is FOREVER EXTINGUISHED.

         2. Upon entry of this Stipulated Preliminary Order of Forfeiture and pursuant to 21 U.S.C. § 853(n), Rule 32.2 of the Federal Rules of Criminal Procedure, and other applicable rules, the United States shall publish notice of this Stipulated Preliminary Order of Forfeiture and of its intent to dispose of the Subject Property on www.forfeiture.gov, for at least thirty consecutive days. The United States may also, to the extent practicable, provide direct written notice to any person or entity known to have an alleged interest in any of the Subject Property. The aforementioned notice shall direct that any person, other than Defendant, asserting a legal interest in any of the Subject Property must file a petition with the Court within thirty (30) days of the final date of publication of notice or within thirty (30) days of receipt of actual notice, whichever is earlier. The petition shall be for a hearing before the Court alone, without a jury and in accordance with 21 U.S.C. ยง 853(n), to adjudicate the validity of the petitioner's alleged interest in any identified Subject Property. Any petition filed by a third party asserting an interest in any of the Subject Property must be signed by the petitioner under penalty of perjury and must set ...


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