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United States of America v. One Glock Model 21 .45 Caliber Pistol With Serial Number Aaz606us

December 23, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ONE GLOCK MODEL 21 .45 CALIBER PISTOL WITH SERIAL NUMBER AAZ606US AND ASSORTED LOTS OF AMMUNITION, DEFENDANTS.



The opinion of the court was delivered by: Murphy, District Judge:

MEMORANDUM AND ORDER

This case is a civil forfeiture action brought by Plaintiff United States of America against a firearm and certain ammunition possessed by Claimant Emmitt G. Cox, the owner and operator of of Centreville Pawn and Jewelry in Centreville, Illinois. According to the averments of an unsworn declaration made under penalty of perjury by Robert M. Nobisch, a senior special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives, that is attached to the complaint in this case, on July 24, 2010, agents of the Illinois State Police conducted a consent search of Cox's pawn shop. In the course of the search, two bags of marijuana were found, together with eleven firearms. A further consent search of Cox's residence disclosed an additional seven firearms. On October 29, 2010, pursuant to a warrant issued by United States Magistrate Judge Donald G. Wilkerson, Nobisch conducted a search of Cox's pawn shop that resulted in the seizure of the following: a Glock Model 21 .45 caliber pistol with serial number AAZ606US; 571 rounds of ammunition of unknown manufacturer; 162 rounds of ammunition of unknown manufacturer; 105 rounds of ammunition of unknown manufacturer; thirteen rounds of Winchester-Western .40 caliber ammunition; fifty rounds of unknown manufacturer 12-gauge ammunition; 111 rounds of Remington .44 caliber ammunition; seven rounds of Remington .45 caliber ammunition; fourteen rounds of Federal .38 caliber ammunition; three rounds of unknown manufacturer .357 caliber ammunition; and sixty-eight rounds of CCI .22 caliber ammunition. The government seeks to forfeit the aforementioned items pursuant to 18 U.S.C. § 924(d), which authorizes forfeiture of property used in a knowing violation of 18 U.S.C. § 922(g). Section 922 provides, in relevant part, that "[i]t shall be unlawful for any person . . . who is an unlawful user of or addicted to any controlled substance . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922(g)(3). Currently, this matter is before the Court on the government's motion for summary judgment (Doc. 18). Having considered the matter carefully, the Court rules as follows.

As an initial matter, the Court notes the familiar standard under which it must evaluate a motion for summary judgment. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, generally at any time until thirty days after the close of discovery in a case, "[a] party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought." Fed. R. Civ. P. 56(a). The rule provides further that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion." Id. Under Rule 56, "[a] party asserting that a fact cannot be . . . genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . or . . . showing that the materials cited do not establish the . . . presence of a genuine dispute[.]" Fed. R. Civ. P. 56(c)(1)(A)-(B). The rule provides also that "[t]he court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3). With respect to affidavits and declarations, the rule provides that "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). The non-moving party may not resist summary judgment simply by resting upon the allegations contained in the pleadings, and instead a genuine issue of material fact exists only if a fair-minded jury could return a verdict for the non-moving party on the evidence presented. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000); LINC Fin. Corp. v. Onwuteaka, 129 F.3d 917, 920 (7th Cir. 1997). In considering a summary judgment motion, a court must draw all reasonable inferences in the light most favorable to the non-moving party. See Miller v. Herman, 600 F.3d 726, 733 (7th Cir. 2010); Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996). On summary judgment a court may not make credibility determinations or weigh the evidence, because these are tasks for a factfinder. See Morfin v. City of E. Chicago, 349 F.3d 989, 999 (7th Cir. 2003). In evaluating a motion for summary judgment, "the court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 507 (7th Cir. 2010) (quoting Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994)). With this standard in mind, the Court turns to the government's summary judgment motion.

According to the record of this case, on June 24, 2011, the government served the following requests for admissions on Cox:

1. That on July 24, 2010, Claimant [Cox] was interviewed by officers of the Illinois State Police.

2. That on said date, the premises of Centreville Pawn and Jewelry, 4301 D Bond, Centreville, Illinois were searched by the Illinois State Police.

3. That on July 24, 2010, Centreville Pawn and Jewelry was owned and operated by Claimant.

4. That during the search of the premises, officers located two plastic bags containing marihuana.

5. That Claimant informed the officers that the two bags of marihuana were his.

6. That the foregoing assertion by Claimant was true.

7. That Claimant informed the officers that he has been a user of marihuana for the past thirty years.

8. That the foregoing assertion by Claimant was true.

9. That prior to their seizure on July 24, 2010, Claimant possessed each and every one of the following items seized from the premises of Centreville Pawn and Jewelry:

a. One Glock Model 21 .45 caliber pistol with serial number AAZ606US;

b. 571 rounds of ammunition of unknown manufacturer;

c. 162 rounds of ammunition of unknown ...


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