U.S. v. R GUNS MODEL 44

Full title: United States of America v. R GUNS Model 44, 7.62 × 54 caliber rifle…

Court: United States District Court, D. New Hampshire

Date published: Jul 22, 2009

Civil No. 08-cv-394-JM (D.N.H. Jul. 22, 2009)

Opinion

Civil No. 08-cv-394-JM.

July 22, 2009

ORDER

JAMES MUIRHEAD, Magistrate Judge

The United States moves for partial judgement, i.e., for judgment dismissing the claim of Cirino Gonzalez. Cirino Gonzales, by counsel, objects.

Background Facts

This is an in rem asset forfeiture action against several weapons involved in crimes for which Cirino Gonzalez and others have been convicted. Cirino Gonzalez filed a claim to three of the weapons and he has filed a timely answer. Cirino's brother, Romeo Lee Gonzalez, filed a claim for the same three weapons.

In Cirino Gonzalez' answer, he admits that he gave the three weapons to his brother Romeo in June 2007 and that Romeo claimed an interest in the property. In his trial testimony, Cirino testified that he gave the guns to his brother and they were his brother's property. The weapons were at the residence shared by Cirino and his brother when Cirino was arrested.

Discussion

As the government succinctly and correctly argued, Cirino Gonzalez has no standing to challenge the forfeiture until and unless he demonstrates an ownership or possessory interest in the guns. See, United States v. 116 Emerson Street, 942 F.2d 74, 78 (1^st Cir. 1991).

Whether one has the requisite ownership interest in property in an in rem action is determined under state law. The weapons were seized in Texas where Cirino was arrested. Texas law applies. An inter vivo gift is completed under Texas law when the donor delivers the property to the donee with the intent to transfer ownership. See, e.g. Woodworth v. Cortez, 660 S.W. 2d 561, 563-64 (Tex Civ. App. 1983); see also, United States v. $9,041,598.68 in United States Currency, 976 F. Supp. 633, 639 S.D. Tex. 1997). In his answer and at his trial, Gonzalez has admitted that he gifted the weapons to his brother with the intent to transfer ownership. Paragraphs 9 through 11 of Gonzalez' answer clearly acknowledge that he gave the weapons at issue to his brother. "A party's assertion of fact in a pleading is a judicial admission by which he is bound." Schott Motorcycle Supply, Inc. v. American Honda Motor Company, Inc., 976 F.2d 58, 61 (1^st Cir. 1992). His admission is consistent with his father's and brother's filing. He is bound by the admission. He therefore has no standing.

Judgement is ordered for the United States against Cirino Gonzalez.

SO ORDERED.