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In re Moore

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

September 19, 2017

IN RE TRICIA MOORE, Petitioner,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER DENYING MOTION FOR RETURN OF PROPERTY

          THOMAS L. LUDINGTON, United States District Judge

         Defendant Talmadge Barnes was sentenced on June 1, 2017. United States v. Barnes, Case No. 16-cr-20387. Prior to sentencing, a stipulated preliminary order of forfeiture was entered. Id., ECF No. 59. That order worked to forfeit Barnes's interest in a number of firearms seized during the investigation. The preliminary order of forfeiture further explained that, if any third party had an interest in the property to be seized, they “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 [set] for a hearing before the Court alone, without a jury and in accordance with 21 U.S.C. § 853(n), to adjudicate the validity of the petitioner's alleged interest in any identified Subject Property.” Id. at 5.

         An evidentiary hearing on Moore's request for return of property was held on September 13, 2017. For the following reasons, Moore's motion will be denied.

         I.

         On May 25, 2016, Defendant Talmadge Derrell Barnes was indicted on one count of being a felon in possession of ammunition. Case No. 16-cr-20387, ECF No. 1. The indictment included a forfeiture allegation. On June 22, 2016, a superseding indictment was issued which contained the original allegations and added a count charging Barnes with being a felon in possession of a firearm. ECF No. 16. A second superseding indictment was issued on September 14, 2016, which added two additional counts: possession of crack cocaine and possession of marijuana. ECF No. 29. On October 24, 2016, Barnes filed a motion to suppress evidence. ECF No. 36. In the motion, Barnes argued that his car was unconstitutionally searched and that evidence found as a result of that search should be suppressed. At the suppression hearing, the Government and Barnes hotly contested whether Barnes was the owner of the vehicle or whether a female friend of Barnes owned the vehicle. Ultimately, the motion to suppress was denied.

         Barnes pleaded guilty. ECF No. 48. On June 1, 2017, the day of his sentencing hearing, a stipulated preliminary order of forfeiture was entered. ECF No. 59. That order gave notice that one .9mm firearm and some .9mm ammunition which was seized by the Government during the course of the investigation would be forfeited unless Barnes or a third party made a colorable claim of legal interest. On June 27, 2017, Tricia Moore filed a motion for return of a handgun (a Smith and Wesson .9mm semi-automatic pistol) and some .9mm ammunition. Moore attached documentation which indicated that she purchased the pistol and ammunition on May 6, 2016.

         At the hearing, the Government explained that the firearm and ammunition in question were found in the vehicle featured in the events giving rise to the motion to suppress. Specifically, after arresting Barnes, law enforcement found a black backpack in the cargo area of the minivan. Inside, officers found the firearm, the ammunition, a purchase permit for the gun, and mail addressed the Barnes.[1]

         After Barnes was arrested, Moore was interviewed by police regarding the firearm. She told the interviewer that the van and firearm was hers. But she admitted that she forgot the firearm was in the van and further stated that she could not remember whether it was loaded. At the September 13, 2017, hearing, the Government further established that Moore did not register the firearm after purchasing it, despite state law requirements to do so within ten days.[2] During her hearing testimony, Moore explained that she was experiencing cognitive and memory challenges around the time the firearm was purchased. For that reason, she placed the firearm and ammunition in the minivan, but later forgot where she placed them. Moore further represented that she was unaware of her responsibility to register the firearm and thus did not do so within the required timeline.

         II.

         This is an ancillary forfeiture proceeding and thus is governed by 21 U.S.C. § 853(n) and Federal Rule of Criminal Procedure 32.2(c)(1). For purposes of the proceeding, the facts set forth in the motion for return of property are assumed to be true. Rule 32.2(c)(1)(A). Section 853(n) provides the following guidance regarding the hearing:

At the hearing, the petitioner may testify and present evidence and witnesses on his [or her] own behalf, and cross-examine witnesses who appear at the hearing. The United States may present evidence and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses who appear at the hearing. In addition to testimony and evidence presented at the hearing, the court shall consider the relevant portions of the record of the criminal case which resulted in the order of forfeiture.

§ 853(n)(5).

         The petitioner bears the burden of establishing by a preponderance of the evidence that the petitioner

has a legal right, title, or interest in the property, and such right, title, or interest renders the order of forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of ...

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