Ares Armor Complaint For Equitable Relief or Damages and Attorneys Fees

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Scott A. McMillan, SBN 212506
Michelle D. Volk, SBN 217151
Sean E. Smith, SBN 288973
The McMillan Law Firm, APC
4670 Nebo Dr., Suite 200
La Mesa, CA 91941-5230
Tel. 619-464-1500 x 14
Fax. 206-600-5095
Attorneys for Petitioner,
Lycurgan, Inc.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
IN RE THE SEARCH OF:
Ares Armor, 206/208 N. Freeman St.,
Oceanside; Ares Armor, 416 National
City Blvd.; Ares Armor Warehouse,
180 Roymar St. D; and 2420 Industry,
Oceanside, CA.
CASE NO. 14-CV-1424 JLS (BGS)
Date: July 31, 2014
Time: 1:30 p.m.
LYCURGAN, INC. d/b/a ARES
ARMOR,
Petitioner,
vs.
BUREAU OF ALCOHOL,
TOBACCO, FIREARMS AND
EXPLOSIVES,
Respondent.
PETITIONER LYCURGAN, INC.S
REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF REPLY RE MOTION TO
UNSEAL SEARCH WARRANT
DOCUMENTS
Case 3:14-cv-01424-JLS-BGS Document 10 Filed 07/18/14 Page 1 of 36
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Petitioner LYCURGAN, INC. respectfully requests that this Court take judicial
notice of the following document(s) pursuant to Federal Rules of Evidence, Rule 201:
1. COMPLAINT FOR EQUITABLE RELIEF, or in the alternative FOR
DAMAGES, and FOR ATTORNEYS FEES ACCORDING 28 U.S.C.
2465(b)(1)(A); DEMAND FOR JURY TRIAL., Case No.: 14CV1679JAH JLB,
United States District Court, Southern District of California, dated and filed on July
16, 2014. A true and correct copy of the Complaint is attached hereto as Exhibit 1.
Relevance:
Respondent Bureau of Alcohol, Tobacco, Firearms and Explosives (Respondent)
argues that the instant motion is moot because Respondent is no longer pursuing
forfeiture at this time. [Oppn at 4:1-20.] Now, Lycurgan Inc. has brought its own
complaint for the return of the property.
Respectfully submitted:
THE McMILLAN LAW FIRM, APC
/s/ Scott A. McMillan
DATED: July 17, 2014 ___________________
Scott A. McMillan
Attorney for Petitioner
Lycurgan, Inc.
2 PETITIONERS REQUEST FOR JUDICIAL NOTICE 14-CV-1424 JLS (BGS)
Case 3:14-cv-01424-JLS-BGS Document 10 Filed 07/18/14 Page 2 of 36
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Scott A. McMillan, SBN 212506
Michelle D. Volk, SBN 217151
Sean E. Smith, SBN 288973
The McMillan LawFirm, APC
4670 Nebo Dr., Suite 200
La Mesa, CA91941-5230
Tel. 619-464-1500 x 14
Fax. 206-600-5095
Attorneys for Petitioner,
Lycurgan, Inc.
UNITED STATES DISTRICTCOURT
SOUTHERN DISTRICTOF CALIFORNIA
LYCURGAN, INC., a California
corporation, d/b/a Ares Armor,
Plaintiff,
vs.
TODD JONES, in his official
capacity as Director of the
Bureau of Alcohol, Tobacco, and
Firearms Enforcement.
Defendant.
Case No.:
COMPLAINT FOR EQUITABLE RELIEF,
or in the alternative FOR DAMAGES, and
FOR ATTORNEYS FEES ACCORDING
28 U.S.C. 2465(b)(1)(A); DEMAND FOR
JURY TRIAL.
Plaintiff LYCURGAN, INC., a California corporation, d/b/a Ares Armor
alleges:
JURISDICTION
1. This Court has jurisdiction under Title 28, United States Code, Section
1331 because this matter is a civil action arising under the Constitution, laws, or
treaties of the United States.
VENUE
2. Venue is proper in the Southern District of California pursuant to Title
28, United States Code, Section 1391(e)(1)(B), because a substantial part of the
events or omissions giving rise to the claim occurred in this district.
'14CV1679 JLB JAH
Case 3:14-cv-01679-JAH-JLB Document 1 Filed 07/16/14 Page 1 of 6 Case 3:14-cv-01424-JLS-BGS Document 10 Filed 07/18/14 Page 3 of 36
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PARTIES
3. Plaintiff LYCURGAN, INC., a California corporation, is a corporation
which does business in San Diego County, California, under the fictitious business
name of Ares Armor.
4. Defendant TODD JONES, is the current Director of the Bureau of
Alcohol, Tobacco, Firearms and Explosives (BATFE), a subdivision of the
Department of Justice, and this suit is brought against him in his official capacity.
5. Plaintiff Lycurgan is informed and believes that the subject seized
property is presently held within the jurisdiction of this Court.
FIRSTCLAIMFOR RELIEF
RETURN OF PROPERTY PURSUANT TO 18 USC 983
6. On March 15, 2014 heavily armed personnel of the BATFE entered the
premises located at 180 Roymar Street, Oceanside, California. Those personnel
conducted a search. During the course of the search the persons took
approximately 5,804 unfinished polymer parts otherwise known as unfinished
polymer lower receivers.
7. Plaintiff is the owner of the 5,804 unfinished polymer parts.
8. Such 5,804 unfinished polymer parts are not contraband or other
property that the person from whom the property was seized may not legally
possess as such terms are used within the meaning of 18 U.S.C. 983(a)(1)(F).
Nor are such 5,804 unfinished polymer parts "contraband" or "other property that
is illegal to possess" as such terms are used within the meaning of 18 U.S.C.
983(d).
9. On March 27, 2014, the BATFE purported to give notice of seizure and
administrative forfeiture proceedings of 5,804 unfinished polymer parts otherwise
known as "unfinished polymer lower receivers." (Notice) The BATFE referred
to the proceeding as ATF Case Number: 784090-13-0011-01, Asset ID:
14-ATF-009592. Without admitting the truth of any facts asserted in said notice,
Complaint 2
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most of which are specifically contested, a copy of said Notice is attached hereto
as Exhibit A.
10. The unfinished polymer parts are neither firearms, firearms receivers, or
firearms frames as such words are defined in the Gun Control Act of 1968 or prior
interpretative determination of the BATFE under the Act, e.g., 18 USC
921(a)(3).
11. On April 5, 2014, Plaintiff submitted a Verified Claim, attached hereto
as Exhibit B. Said Verified Claim was placed in the United States Mail, with
postage paid for Express Mail delivery, return receipt requested. Atrue and
correct copy of the postal tracking transcript reflecting delivery to the Forfeiture
Counsel, Asset Forfeiture and Seized Property Division, Bureau of Alcohol,
Tobacco, Firearms and Explosives, 99 New York Avenue, NE, Mail Stop 3N600,
Washington, DC 20226, on April 9, 2014, is attached hereto as Exhibit C.
12. On July 3, 2014, the BATFE executed a statement that it would not be
instituting Civil Forfeiture Proceedings. Acopy of that statement is attached
hereto as Exhibit D.
13. On July 9, 2014, Plaintiff through its attorney of record made written
request for the release of the subject unfinished polymer parts to Assistant United
States Attorney assigned to a related action currently pending in this court entitled
Lycurgan, Inc., d/b/a Ares Armor, Petitioner v. Bureau of Alcohol, Tobacco,
Firearms and Explosives, Respondent (In the Matter of the Search of: Ares Armor,
206/208 N Freeman St, Oceanside; Ares Armor, 416 National City Blvd; Ares
Armor Warehouse, 180 Roymar St D; and 2420 Industry, Oceanside, CA), So.
Dist. Cal. Case No. 14-cv-1424-JLS.
14. On July 10, 2014, the United States Attorneys office stated in an
opposition filed within a related action currently pending in this court opposing
the disclosure of the affidavit which accompanied the request for the search
warrant issued to effect the March 15, 2014 raid on Plaintiffs facilities, e.g.,
Complaint 3
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Lycurgan, Inc., d/b/a Ares Armor, Petitioner v. Bureau of Alcohol, Tobacco,
Firearms and Explosives, Respondent (In the Matter of the Search of: Ares Armor,
206/208 N Freeman St, Oceanside; Ares Armor, 416 National City Blvd; Ares
Armor Warehouse, 180 Roymar St D; and 2420 Industry, Oceanside, CA), So.
Dist. Cal. Case No. 14-cv-1424-JLS, that:
[i]n this case, there is an ongoing criminal investigation that is still
in the early stage of its proceedings. Gov. Exh. 4. To date, an
indictment has not been sought or obtained . . .
[Case 14-cv-1424-JLS; Docket 8, page 9 (emphasis added.)]
15. Defendants time to initiate forfeiture proceedings have lapsed pursuant
to 18 U.S.C. 983(a)(3)(A), which provides:
Not later than 90 days after a claim has been filed, the Government
shall file a complaint for forfeiture in the manner set forth in the
Supplemental Rules for Certain Admiralty and Maritime Claims or
return the property pending the filing of a complaint . . ..
16. Based on information and belief and in reliance on the statements made
by a United States Government representative on July 10, 2014 as set forth in 14,
above, the Government has not obtained a criminal indictment containing an
allegation that the property is subject to forfeiture; and . . . take the steps necessary
to preserve its right to maintain custody of the property as provided in the
applicable criminal forfeiture statute. . . according to the requirements of 18
U.S.C. 983(a)(3)(B), and within the 90 days of the filing of Plaintiffs claim.
/ / /
/ / /
/ / /
Complaint 4
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17. Wherefore, Plaintiff is entitled to a release of the subject property, or in
the alternative, for the monetary value of such unreturned items computed at the
value of $99 each. Plaintiff is entitled to an award of attorneys fees according to
28 U.S.C. 2465(b)(1)(A), plus costs and interest.
PRAYER
Plaintiff Lycurgan Inc. prays:
A. That the Court command Defendant to release the subject items
referenced in ATF Case Number: 784090-13-0011-01, Asset ID: 14-ATF-009592,
forthwith and without delay.
B. That the Court award attorneys fees, costs, and interests according to
28 U.S.C. 2465(b)(1)(A).
C. That the Court award such other relief that is meet and proper.
Respectfully submitted,
Dated: July 16, 2014
___________________________
Scott A. McMillan
Attorneys for Lycurgan, Inc.
Plaintiff
Complaint 5
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DEMAND FOR JURYTRIAL
Plaintiff Lycurgan, Inc., demands a jury trial on all matters so determinable.
Respectfully submitted,
Dated: July 16, 2014
___________________________
Scott A. McMillan
Attorneys for Lycurgan, Inc.
Plaintiff
Complaint 6
EXHIBIT A
Case 3:14-cv-01679-JAH-JLB Document 1-2 Filed 07/16/14 Page 1 of 4 Case 3:14-cv-01424-JLS-BGS Document 10 Filed 07/18/14 Page 9 of 36
U.S. DEPARTMENT OF J USTICE
BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES
Dimitrios Karras
208 I Freeman St
Oceanside, CA 92054-2819
Asset ID:
Case Number:
Property:
Asset Value:
Seizure Date:
Seizure Place:
14-A TF-009592
784090-13-0011-0 I
5.804 Unknown Manufacturer AR
Type Receiver/Frame
CAL:Unknown SN:None
$290.200.00
03/ 15/2014
Oceanside. CA
Judicial District: Southern District of California
:'-IOTICE MAILING DATE: March 27,2014
NOTI CE OF SEIZURE ANl) ADMINISTRATIVE FORFEITURE PROCEEDING
The above-described property was seized by the Bureau of Alcohol. Tobacco. Firearn1s and Explosives (ATF) for forfeiture pursuant to
Title 18, United States Code (U.S.C.), Section 3051(c), 19 U.S.C., Sections 1602-1618, 28 C.F.R., Part 8, 18 U.S.C., Section 983
and/or 21 U.S.C., Section 881, because the property was used or acquired in violation of 18 USC Section 921 et seq. (Gun Control Act).
The seizure date and place. as well as other pertinent information regarding the property, are listed above. Pursuant to Title 18. U.S.C.,
Sections 983 and 305 1, and Title 19, U.S.C., Sections 1602-1618, the ATF has commenced an administrative forfeiture proceeding against
this property. You may contest the seizure and forfeiture of the property in Federal court, and/or you may petition A TF for return of the
property or your interest in the property (remission or mitigation). PLEASE REVIEW THE FOLLOWING PROCEDURES VERY
CAREFULLY.
TO CONTEST THE FORFEITURE
You may contest the forfeiture of the seized property in court by fi ling a claim with ATF Forfeiture Counsel by May 1, 2014. A Seized
Asset Claim Form is enclosed for your convenience for use in filing a claim. You may submit your claim in a diiTerent fonn but the claim
must identify the specific property being claimed; state the claimant's interest in such property; and be made under oath, subject to penalty
of perjury. A frivolous claim may subject the claimant to a civil fine in an amount equal to ten percent ( 10%) of the value ofthc forfeited
property. but in no event wi ll the fine be less than $250. or greater than $5,000. Upon the fi li ng of a claim. a claimant may request release
of the seized property during the pendency of the forfeiture proceeding due to hardship, as provided at Title 18, U.S.C .. Section 983(t).
Requests must be sent to ATF Forfeiture Counsel. The foll owing property is not eligible for hardship release: contraband. currency. or
other monetary instruments or electronic funds unless the property constitutes the assets of a legitimate business which has been seized;
property to be used as evidence of violation of the law; property by reason of des ign or other characteristic, particularly suited for usc in
illegal activities: and property likely to be used to commit additional criminal acts if returned to the claimant. If you wish to contest the
forfeiture of the property, you must comply with the procedures set forth herein. Your fail ure to do so will result in the termination of your
interest in the asset, and may preclude your contesting the forfeiture of the asset in any j udicial proceeding, either civi l or criminal, even if
such a proceeding has already been commenced or is commenced in the future.
TO REQUEST REMISSION OR MITIGATION OF FORFEITURE
ln addition to, or in lieu of filing a claim, you may fi le a petition requesting the remission (pardon) or mitigation of the forfeiture with A TF
Forfeiture Counsel within thi rty (30) days of your receipt of this notice. A petition forn1 is also enclosed for your convenience. The petition
must include proof of your interest in the property and state the facts and circumstances in clear and concise terms which you believe justifY
remission or mitigation. This petition must be by the claimant under oath, under penalty of perjury. The regulations governing the petition
process are set forth in Title 28, Code of Federal Regulations (C.F.R.), Part 9.
WHERE TO FILE CORRESPONDENCE
All submissions must be filed with Forfeiture Counsel, Asset Forfeiture and Seized Property Division, Bureau of Alcohol, Tobacco,
Firearms and Explosives, 99 ew York Avenue, NE, Mail Stop 3N600, Washington, DC 20226. 1f you have any questions regarding
this matter, you may contact Asset .Forfeiture Seized Property Division at (202) 648-7890. The Asset 10 and Case Number referenced
above should be used with all submissions. Failure to include the Asset ID and Case Number may cause a delay in processing your
submission(s). A CLAIM, PETITION, OR OTHER CORRESPONDENCE SHALL BE DEEMED FILED WITH FORFEITURE
COUNSEL, ASSET FORFEITURE AND SEIZED PROPERTY DIVISION, WHEN RECEI VED BY ATF AT THE ADDRESS
NOTED ABOVE. SUBMISSIONS BY FACSIMILE OR OTHER ELECTRONIC MEANS WILL NOT BE ACCEPTED.
FOR GOVERNMENT AGENCY USE ONLY
DATE CLAIM RECEIVED: - - --- -
CLAIM FILED T I MELY? Y 0 N 0
SEIZED ASSET CLAIM FORM
Name: _______ _________________________ __
Address: _______________________ ___________ __ __
Telephone No. (
Agency Case No. : _______________________________ _
Asset ID No.: ___________________________________ _
Date & Place of Seizure: _________________________ _
PART I
List the items in which you claim an interest. Include sufficient information to identify each
item, such as make, model, and serial numbers, tail numbers, photographs, and so forth.
Additional space is provided on the back of the form. You may attach additional sheets of
paper if more space is needed.
! . __________________________________________________________________________ __
2. ________________________________________________________________________ __
3. __________________________________________________________________________ __
4 . ______________________________________________________________________________ _
5. __________________________________________________________________________ __
6. _____________________________________________________________________________ __
PART II
State your interest in each item of property listed above. Please provide any documents that
support your claim of interest in these items. Supporting documentation includes titles,
registrations, bills of sale, receipts, etc. Additional space is provided on the back of the form.
You may attach additional sheets of paper if more space is needed.
REMISSION OR MITIGATION OF
FORFEITURE PETITION FORM
Name: _ _ _ _ ___ __________ __ __
Address: ___________ ___ ____ ___
Agency Case No. : ____ ___________ _
Asset ID No.: _ ___ ______ _____ _ _
Date & Place of Seizure: _ _ ____ _____ _
PART I
FOR GOVERNMENT AGENCY USE ONLY
DATE PETITION RECEIVED: ------
PETITION FILED TIMELY? Y 0 N 0
SSN or TIN: _______ ____ __
Telephone No. (
List the items in which you cl aim an interest. Include sufficient information to identify each
item, such as make, model, and serial numbers, tail numbers, photographs, and so forth.
Additional space is provided on the back of the form. You may attach additional sheets of
paper if more space is needed.
1. ______ _ _ _____ ______ ______ ___ _ _ _______ _
2 . _______________________________________________________________________ _
3 . _________ _ __________ ________ __________ __
4 . ____ _ __________ _ ____ ___ _______ ___ ___ ____ __
5. _ ___ _ ___ ______ ______ _ _____ ___ ______ ___
6. _ ______________________________________________________________________ _
PART II
Describe your interest in each item of property as owner, lienholder, or otherwise, for which
you seek remission or mitigation of forfeiture . Please provide any documents that support
your petition for each item. Supporting documentation includes original or certified bills of
sale, title, registration, receipts, etc. Additional space is provided on the back of the form.
You may attach additional sheets of paper if more space is needed.
EXHIBIT B
EXHIBIT C
EXHIBIT D

Ares Armor Complaint For Equitable Relief or Damages and Attorneys Fees

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