Ares Armor Complaint for Equitable Relief or Damages and Attorneys Fees

12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Scott A. McMillan, SBN 212506Michelle D. Volk, SBN 217151Sean E. Smith, SBN 288973The McMillan Law Firm, APC 4670 Nebo Dr., Suite 200La Mesa, CA 91941-5230Tel. 619-464-1500 x 14Fax. 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 NationalCity Blvd.; Ares Armor Warehouse,180 Roymar St. D; and 2420 Industry,Oceanside, CA.

CASE NO. 14-CV-1424 JLS (BGS)

Date: July 31, 2014Time: 1:30 p.m.

LYCURGAN, INC. d/b/a ARESARMOR,

Petitioner,vs.

BUREAU OF ALCOHOL,TOBACCO, FIREARMS ANDEXPLOSIVES,

Respondent.

PETITIONER LYCURGAN, INC.SREQUEST FOR JUDICIAL NOTICE INSUPPORT OF REPLY RE MOTION TOUNSEAL SEARCH WARRANTDOCUMENTS

Case 3:14-cv-01424-JLS-BGS Document 10 Filed 07/18/14 Page 1 of 36

12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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. McMillanAttorney for PetitionerLycurgan, Inc.

2PETITIONERS REQUEST FOR JUDICIAL NOTICE14-CV-1424 JLS (BGS)

Case 3:14-cv-01424-JLS-BGS Document 10 Filed 07/18/14 Page 2 of 36

12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Scott A. McMillan, SBN 212506Michelle D. Volk, SBN 217151Sean E. Smith, SBN 288973The McMillan Law Firm, APC4670 Nebo Dr., Suite 200La Mesa, CA 91941-5230Tel. 619-464-1500 x 14Fax. 206-600-5095

Attorneys for Petitioner,Lycurgan, Inc.

UNITED STATES DISTRICTCOURT

SOUTHERN DISTRICTOFCALIFORNIA

LYCURGAN, INC., a Californiacorporation, d/b/a Ares Armor,

Plaintiff,

vs.

TODD JONES, in his officialcapacity as Director of theBureau of Alcohol, Tobacco, andFirearms Enforcement.

Defendant.

Case No.:

COMPLAINT FOR EQUITABLE RELIEF,or in the alternative FOR DAMAGES, andFOR ATTORNEYS FEES ACCORDING28 U.S.C. 2465(b)(1)(A); DEMAND FORJURY TRIAL.

Plaintiff LYCURGAN, INC., a California corporation, d/b/a Ares Armor

alleges:

JURISDICTION1. 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.

VENUE2. 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 JLBJAH

Case 3:14-cv-01679-JAH-JLB Document 1 Filed 07/16/14 Page 1 of 6Case 3:14-cv-01424-JLS-BGS Document 10 Filed 07/18/14 Page 3 of 36

12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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.

FIRSTCLAIM FOR RELIEFRETURN 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


12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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. A true 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. A copy 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; AresArmor 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


12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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; AresArmor 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 pursuantto 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


12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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.

PRAYERPlaintiff 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,

The McMillan Law Firm, APC

Dated: July 16, 2014

/s/ Scott A. McMillan

___________________________

Scott A. McMillanAttorneys for Lycurgan, Inc.Plaintiff

Complaint 5


12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEMAND FOR JURYTRIAL

Plaintiff Lycurgan, Inc., demands a jury trial on all matters so determinable.

Respectfully submitted,

The McMillan Law Firm, APC

Dated: July 16, 2014

/s/ Scott A. McMillan___________________________

Scott A. McMillanAttorneys 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 4Case 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 EX PLOSIVES

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/ 15/20 14 Oceanside. CA

Judicial District: Southern District of California

:'-IOTICE MAILING DATE: March 27,2014

NOTICE 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 1602-16 18, the ATF has commenced an administrative fo rfeiture proceeding against this property. You may contest the seizure and forfeiture of the property in Federal court, and/or you may petition A TF fo r return of the property or your interest in the property (remission or mitigation). PLEASE REVIEW THE FOLLOWING PROCEDURES VERY CAREFULLY.

TO CONTEST T H E FORFEITURE

You may contest the forfeiture of the seized property in court by fi ling a claim with ATF Forfeitu re Counsel by May 1, 2014. A Seized Asset Claim Form is enclosed fo r 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 following property is not e ligible 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 vio lation of the law; property by reason of des ign or other characteristic, particularly su ited 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 fa il 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 M ITIGATION 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 thirty (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 N umber 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 C LAIM, PETITION, OR OTHER CORRESPONDENCE SHALL BE DEEMED FILED WITH FORFEITURE COUNSEL, ASSET FORFEITURE AND SEIZED PROPERTY DIVISION, WHEN RECEIVED BY ATF AT THE ADDRESS NOTED ABOVE. SUBM ISSIONS BY FACSIMILE OR OTH ER ELECTRON IC 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 c laim 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


Documents

Ares Armor Complaint for Equitable Relief or Damages and Attorneys Fees