United States v. Klemme

894 F. Supp. 2d 1113, 2012 WL 4498898, 2012 U.S. Dist. LEXIS 141413
CourtDistrict Court, E.D. Wisconsin
DecidedOctober 1, 2012
DocketCase No. 11-CR-149
StatusPublished
Cited by1 cases

This text of 894 F. Supp. 2d 1113 (United States v. Klemme) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Klemme, 894 F. Supp. 2d 1113, 2012 WL 4498898, 2012 U.S. Dist. LEXIS 141413 (E.D. Wis. 2012).

Opinion

DECISION AND ORDER

LYNN ADELMAN, District Judge.

In this ancillary proceeding petitioner Anne Klemme (“petitioner”), the mother of defendant Brian Klemme (“defendant”), seeks possession of a shotgun forfeited in defendant’s criminal case. The government moves to dismiss her petition. I first [1114]*1114set forth the background of the case .before addressing the government’s motion.

I. BACKGROUND

A. The Underlying Case

On July 12, 2011, the government charged defendant with two counts of making false statements to a licensed firearms dealer (counts one and two), contrary to 18 U.S.C. § 922(a)(6), and possessing a firearm as an unlawful drug user (count three), contrary to 18 U.S.C. § 922(g)(3), and a felon (count four), contrary to 18 U.S.C. § 922(g)(1). The charges arose out of two separate incidents.

The first occurred on March 5, 2011, when City of Milwaukee police officers arrested defendant, seizing drugs, a pistol, and a silencer from his car. Officers also recovered paperwork regarding defendant’s acquisition of the firearms, which revealed that in filling out the required forms on April 1, 2010, he falsely denied being an unlawful drug user. These false statements formed the basis for counts one and two of the indictment, and the pistol defendant possessed the basis for count three. Defendant was charged in state court with drug offenses arising out of this arrest, pleading guilty to felony possession charges on June 13, 2011. As of that date, he was a convicted felon. (Plea Agreement [R. 10] at 3-6.)

The second incident occurred on June 24, 2011, when ATF agents traveled to defendant’s home in Sheboygan, Wisconsin to question him about the pistol and silencer he acquired in April 2010. During the questioning, defendant admitted that he had a shotgun in the basement of the home he shared with his father. Agents observed other long guns in a gun cabinet, but defendant stated those were his father’s. While in the basement, agents also observed a quantity of marijuana. Agents subsequently obtained a search warrant for the house, seizing eleven long guns, including the shotgun, as well as a number of drug-related items. The seizure of the shotgun formed the basis for count four of the indictment.1 (Id. at 6-7.)

On September 14, 2011, defendant pleaded guilty to counts one and three of the indictment. As part of his plea agreement, he agreed to the forfeiture of the properties listed in the forfeiture provision of the indictment, including the Browning model Maxus 12 gauge shotgun seized from his Sheboygan residence on June 24, 2011. (Id. at 12-13; Indictment [R. 4] at 5.) On December 23, 2011, I entered a preliminary order forfeiting defendant’s interest in the Browning shotgun and dismissing two other firearms listed in the indictment. On January 20, 2012, I sentenced defendant to 14 months in prison, and the government filed a notice of forfeiture of the shotgun on February 14, 2012. In that notice, the government advised that anyone claiming an interest in the shotgun had to file a petition, signed under penalty of perjury, setting forth the nature and extent of the petitioner’s right, title, or interest in the forfeited property, the time and circumstances of the petitioner’s acquisition of the right, title, and interest in the forfeited property, any additional facts supporting the petitioner’s claim, and the relief sought. (R. 28 at 1.)

B. The Ancillary Proceeding

On March 14, 2012, petitioner filed a letter “requesting entitlement” to the Browning shotgun.2 (R. 30 at 1.) In the [1115]*1115letter, she stated that defendant, her son, “turned ownership of the shotgun [over to her] along with the balance on the Gander Mountain charge account.” (Id.) She did not specify when defendant turned over the gun but stated that between October 2011 and February 2012 she made “a total of $522.98 worth of payments on this account to pay it in full.” (Id.) She further indicated that the shotgun was in the “possession of Joel Klemme” at an address in Sheboygan and “was to have been moved to another location as [defendant] was on parole,” but this “was not done by Joel as he was asked.” (Id.) U.S. Marshals “took possession of all guns and ammunition on the property,” but some were determined to be his (presumably Joel Klemme’s) property and were to “be returned to him.” (Id.) Petitioner concluded: “Our family has always been a deer hunting family. This was the sole purpose of this shotgun. I hope you will consider my request for this ownership.” (Id.)

On April 13, 2012, the government filed a letter pointing out deficiencies in petitioner’s submission, including that it was not signed under penalty of perjury and provided insufficient detail regarding the nature and extent of her interest in the property, as required by 21 U.S.C. § 853(n)(3). However, in view of her pro se status, the government advised that it would not object to her filing of a proper petition on or before April 25, 2012. The government indicated that if she failed to do so, it would move to strike her petition and seek entry of a final order of forfeiture. If she did file a legally sufficient petition on or before the April 25, the government indicated that it intended to seek discovery pursuant to Fed.R.Crim.P. 32.2(c)(1)(B). On April 24, 2012, petitioner re-filed the same letter but with an attached notarized declaration page. (R. 38.)3

On June 27, 2012, I ordered the government to provide an update on the status of petitioner’s claim. On July 6, 2012, the government moved to dismiss her petition. (R. 40.)

On July 11, 2012, petitioner filed a letter regarding “the dismissal” of her third party claim.4 (R. 43 at 1.) In the letter, she stated that defendant “turned the gun over to [her] on March 7, 2011.” (Id.) At that time, she stated, he needed funds for an attorney,5 which she provided, taking his shotgun “in payment for attorney’s fees” to try to “teach him a lesson.” (Id.) He was “to continue making payments on a gun we possessed” but did not follow through, and in the end she “also paid those bills.” (Id.)

As the letter contained new information regarding petitioner’s acquisition of the shotgun, I permitted the government to file a reply. The matter is now ready for decision.

II. DISCUSSION

A. Applicable Legal Standards

Pursuant to 21 U.S.C. § 853(n)(2), any person, other than the defendant, assert[1116]

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Cite This Page — Counsel Stack

Bluebook (online)
894 F. Supp. 2d 1113, 2012 WL 4498898, 2012 U.S. Dist. LEXIS 141413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-klemme-wied-2012.