United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING RESPONDENT UNITED STATES OF
AMERICA'S MOTION TO DISMISS WITHOUT PREJUDICE
L. Ludington United States District Judge.
March 18, 2019, an information was filed against Robert
Reznick alleging violations of wire fraud from 2009-2016 and
filing a false federal income tax return. ECF No. 1 in
19-20148. Robert Reznick pled guilty on March 26, 2019 and
was sentenced on July 18, 2019. ECF No. 26 in 19-20148. As
part of his sentence, Robert Reznick was required to forfeit
eight firearms that he claimed ownership of. ECF No. 29 at
PageID.217-218 in 19-20148; ECF No. 7-1 at PageID.56-57.
August 15, 2019, Petitioner, Adam Reznick, Robert
Reznick's son, filed a statement of interest in five of
the eight firearms subject to forfeiture. ECF No. 1 in
19-51178. Adam Reznick claimed “I am an innocent owner
of the subject property and received the aforementioned
property as a gift from my father, Robert Reznick.” ECF
No. 1 at PageID.2 in 19-51178. Respondent was directed to
respond to Petitioner's statement of interest and on
September 27, 2019 responded by filing a motion to dismiss.
ECF No. 4 in 19-51178. On November 12, 2019, Petitioner
responded to the motion to dismiss and Respondent replied on
November 19, 2019. ECF Nos. 6, 7. For the following reasons,
Respondent's motion to dismiss will be granted.
has moved for dismissal of Petitioner's claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) and Federal Rule of
Criminal Procedure 32.2(c)(1)(A). A pleading fails to state a
claim under Rule 12(b)(6) if it does not contain allegations
that support recovery under any recognizable legal theory.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
considering a Rule 12(b)(6) motion, the Court construes the
pleading in the non-movant's favor and accepts the
allegations of facts therein as true. See Lambert v.
Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The pleader
need not provide “detailed factual allegations”
to survive dismissal, but the “obligation to provide
the ‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). In essence, the pleading
“must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face” and “the tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Iqbal, 556
U.S. at 678-79 (quotations and citation omitted). The Sixth
Circuit has held that “a conclusory legal
interest” in forfeited property is insufficient to be
successful against a motion to dismiss. United States v.
Fabian, 764 F.3d 636, 638 (6th Cir. 2014); United
States v. Akhtar, 2018 WL 5883930 at *2 (6th Cir. Sept.
U.S.C. § 853(n)(2) states: “Any person, other than
the defendant, asserting a legal interest in property which
has been ordered forfeited to the United States pursuant to
this section may . . . petition the court for a hearing to
adjudicate the validity of his alleged interest in the
property.” Federal Rule of Criminal Procedure
32.2(c)(1) explains “if a third party filed a petition
asserting an interest in the property to be forfeited, the
court must conduct an ancillary proceeding.” It further
provides that “the court may, on motion, dismiss the
petition for lack of standing, for failure to state a claim,
or for any other lawful reason. For purposes of the motion,
the facts set forth in the petition are assumed to be
true.” Id. at 32.2(c)(1)(A). The Court may
also permit discovery if “necessary or desirable to
resolve factual issues.” Id. at 32.2(c)(1)(B).
eligible for forfeiture does not only include property owned
by Defendant at the time of his conviction or sentencing.
There is a claw-back provision where the United States may
forfeit any of Defendant's property back to the time the
crime itself was committed, unless two exceptions apply. 21
U.S.C. § 853(c). The Sixth Circuit held a third party
must fit in one of two categories to prevail over the United
States' interest in a forfeiture order: (1) “where
the petitioner has a legal right, title or interest in the
property that was vested in the petitioner . . . or was
superior to any right, title, or interest of the defendant
at the time of the commission of the acts which gave rise
to the forfeiture of the property” or (2)
“where the petitioner is a bona fide purchaser for
value of the right, title, or interest in the property and
was at the time of purchase reasonably without cause to
believe that the property was subject to forfeiture under
such section.” United States v. Monea Family Trust
I, 626 F.3d 271, 277 (6th Cir. 2010) (internal
quotations omitted) (emphasis added) (quoting 21 U.S.C.
party who believes she or he meets the requirements of an
innocent owner of property may file a petition with the Court
asserting their interest in the property.
The petition shall be signed by the petitioner under penalty
of perjury and shall set forth the nature and extent of the
petitioner's right, title, or interest in the property,
the time and circumstances of the petitioner's
acquisition of the right, title or interest in the property,
any additional facts supporting the petitioner's claim,
and the relief sought. 21 U.S.C. § 853(n)(2)-(3).
claims he owns five of the firearms seized on October 15,
2017: a Remington Arms Company, Inc. 1100 Shotgun, SN:
L868002V; a Companhia Braziliera De Cartuochos 715T Rifle,
SN: EMB3639704; a Ceska Zbrojovka Evo 3 S1 Pistol, SN:
B834062; a Springfield Armory Socom 16 Rifle, SN: 332702; and
a Smith & Wesson 38 Revolver, SN: K750972.
Petitioner's entire explanation of his interest in the
firearms consists of one sentence: “I am an innocent
owner of the subject property and received the aforementioned
property as a gift from my father, Robert Reznick.” ECF
No. 1 at PageID.2 in 19-51178.
mere statement that Petitioner “received the
aforementioned property as a gift from my father, Robert
Reznick” is a conclusory statement and Petitioner does
not provide any supporting statements or documentation for
why the statement is true. Petitioner does not explain when
he received the firearms, why his father gifted him the
firearms, or any other facts supporting his claim as is
required by 21 U.S.C. § 853(n)(2)-(3). Even taking
Petitioner's statement as true, it does not establish his
interest is superior to the government's interest.
Petitioner attempted to furnish additional facts in his
response to Respondent's motion to dismiss. However, the
additional facts cannot be considered in deciding a motion to
dismiss. A motion to dismiss must be decided based on
evidence in the initial complaint. See Ross v. PennyMac
Loan Servs. LLC, 761 Fed.Appx. 491, 494, 496 (6th Cir.
2019); I.L. by and through Taylor v. Tennessee Dep't
of Educ., 739 Fed.Appx. 319, 321 (6th Cir. 2018).
Petitioner failed to state a claim in his petition and his
petition will be dismissed without prejudice.
it is ORDERED that Respondent's Motion