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United States v. Upshaw

United States District Court, D. Massachusetts

July 21, 2016

UNITED STATES OF AMERICA
v.
DARNELL UPSHAW, Defendant.

          PRELIMINARY ORDER OF FORFEITURE

          GEORGE A. O'TOOLE, Jr. United States District Judge

         WHEREAS, on December 17, 2015, a federal grand jury sitting in the District of Massachusetts returned a one-count Indictment charging defendant Darnell Upshaw (the "Defendant") with being a Felon in Possession of a Firearm and Ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count One);

         WHEREAS, the Indictment also contained a forfeiture allegation, pursuant to 18 U.S.C. § 924(d), and 28 U.S.C. § 2461(c), which provided notice that the United States would seek upon conviction of the Defendant of the offense alleged in Count One of the Indictment, of any firearm or ammunition involved in the commission of the offense, and such property specifically included, without limitation:

(a) Davis Industries Model P-380 caliber semi-automatic pistol, bearing serial number AP288474; and
(b) 4 rounds of .32 caliber ammunition

(collectively, the "Gun and Ammunition");

         WHEREAS, the Indictment further provided that, if any of the above-described forfeitable property, as a result of any act or omission by the Defendant, (a) cannot be located upon the exercise of due diligence; (b) has been transferred or sold to, or deposited with, a third party; (c) has been placed beyond the jurisdiction of the Court; (d) has been substantially diminished in value; or (e) has been commingled with other property which cannot be divided without difficulty, the United States is entitled to seek forfeiture of any other property of the Defendant, up to the value of such assets, pursuant to 28 U.S.C. § 2461(c), incorporating 21 U.S.C. § 853(p);

         WHEREAS, on May 10, 2016, at a hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure, the Defendant pled guilty to Count One of the Indictment, pursuant to a written plea agreement that he Signed on May 10, 2016;

         WHEREAS, in Section 8 of the plea agreement, the Defendant admitted that the Gun and Ammunition are subject to forfeiture because they constitute any firearm or ammunition involved in the commission of the offense charged in Count One of the Indictment;

         WHEREAS, in light of the Defendant's guilty plea and admissions in the plea agreement, the United States has established the requisite nexus between the Gun and Ammunition and the offenses to which the Defendant pled guilty, and accordingly, the Gun and Ammunition are subject to forfeiture to the United States pursuant to 18 U.S.C. § 924(d), and 28 U.S.C. § 2461(c); and

         WHEREAS, pursuant to 18 U.S.C. § 924(d), 28 U.S.C. § 2461(c), and Rule 32.2(b)(2) of the Federal Rules of Criminal Procedure, the United States is now entitled to a Preliminary Order of Forfeiture against the Gun and Ammunition.

         ACCORDINGLY, it is hereby ORDERED, ADJUDGED, AND DECREED that:

         1. The Court finds, pursuant to Rule 32.2(b)(1) of the Federal Rules of Criminal Procedure, that the United States has established the requisite nexus between the Gun and ...


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