1 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT DAYTON

United States of America, 

Plaintiff,

v. Case No. 3:17-cr-174 

 Judge Thomas M. Rose 

Joel Montgomery, 

Defendant.

ENTRY AND ORDER GRANTING IN PART, DENYING IN PART AND 

FINDING MOOT IN PART DEFENDANT’S MOTION FOR RETURN OF 

PROPERTY (ECF 56). THE UNITED STATES IS ORDERED TO RETURN 

DIRECTLY TO MR. MONTGOMERY: (1) THE ITEMS LISTED IN 

EXHIBIT A; (2) CELLULAR PHONE SEIZED FROM HIM AT THE TIME 

OF HIS ARREST; (3) ATF 67, A BOOK LISTED ON GOVERNMENT 

EXHIBIT C; (4) 1B99, 1B97, 1B96, 1B94, 1B89, 1B88, 1B87, 1B84, 1B83, 1B82, 

1B81, 1B71, 1B61, 1B56, 1B40, 1B34, 1B33, ATF23, 1B30 AND 1B29 LISTED 

ON EXHIBIT F. BECAUSE THE UNITED STATES ALREADY HAS 

RETURNED TO MR. MONTGOMERY ITEMS IN GOVERNMENT 

EXHIBIT B, THE COURT FINDS THIS PORTION OF THE MOTION 

MOOT. THE UNITED STATES IS ORDERED TO RETURN TO A 

DESIGNATED FFL: (1) THE TRANSFERABLE FIREARMS LISTED IN 

GOVERNMENT EXHIBIT C; AND (2) 1B76, 1B85, 1B93, 1B100, 1B101, 

1B102, 1B104 (VARIOUS GUN AND SMOKELESS POWDERS) LISTED IN 

GOVERNMENT EXHIBIT F. THE COURT DENIES MR. 

MONTGOMERY’S MOTION TO RETURN ALL OTHER PROPERTY 

LISTED ON GOVERNMENT EXHIBITS D, E, AND F, INCLUDING: (1) 

ALL OF THE ITEMS LISTED ON EXHIBIT D; (2) ALL OF THE ITEMS 

LISTED ON EXHIBIT E; AND (3) ATF 73 (THE UNREGISTERED 

SILENCER), ATF 64 (BLASTING CAPS), AND 1B95, 1B86, 1B31, 1B32 

(MIXED TANNERITE AND EXPLODING TARGETS) ON 

GOVERNMENT EXHIBIT F. 

______________________________________________________________________________ 

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Defendant Joel Montgomery has filed a motion seeking the return of property that 

authorities lawfully seized from his residence pursuant to various federal and state search warrants 

during the late 2010s. Following Mr. Montgomery’s sentencing and the conclusion of the criminal 

case against him, the Court conducted a series of hearings on his motion. 

I BACKGROUND 

A. The Greene County Search Warrant 

During July 2015, the Greene County Sheriff’s Office (GCSO) executed a state search 

warrant at Mr. Montgomery’s home in Spring Valley, Ohio, searching for evidence concerning a 

state criminal damaging investigation. See PSR ¶ 19; see also R. 56.3, Exhibit B1, GCSO Property 

Inventory Form. During that search, the GSCO seized over 100 firearms from the residence. See 

PSR ¶ 19. As Mr. Montgomery acknowledged in filings with this Court, the GSCO returned these 

firearms to him sometime prior to October 2017. See R. 25, Defendant’s Motion to Revoke 

Detention Order (“Despite the government’s prior knowledge of these convictions, they 

nonetheless returned the seized firearms to Mr. Montgomery shortly after the search”). 

B. The Federal Search Warrants 

Between 2015 and 2017, the United States executed three search warrants relating to Mr. 

Montgomery or his residence. First, during July 2015, the Bureau of Alcohol, Tobacco, and 

Firearms (ATF) searched pursuant to a federal warrant the GCSO storage facility housing the 

firearms that the state had seized from Mr. Montgomery and later ultimately returned to him. See 

R. 56.2, Def. Ex. B, Search Warrant for Greene County Storage Facility, Case No. 3:15mj231. In 

executing this warrant, ATF located and seized a handful of suspected contraband, including, 

among other things: a homemade silencer; a Rapid Fire machinegun; two unmarked, privately 

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manufactured Maadi-Griffin rifles; and several firearm receivers. See id. 

Second, during October 2015, federal agents executed on the same day two federal search 

warrants at Mr. Montgomery’s home. See PSR ¶ 25; see R. 56.4, Def. Exhibit C, Inventory for 

October 2015 Search Warrants at Spring Valley Residence, Case Nos.3:15mj421 and 3:15mj449. 

Seeking evidence concerning firearms offenses and Mr. Montgomery’s possession of stolen 

government property, agents seized a variety of materials such as electronic media, blasting caps, 

and components of an Air Force missile warning system. See PSR ¶ 25; see R. 56.4, Def. Exhibit 

C, Inventory for October 2015 Search Warrants at Spring Valley Residence, Case Nos.3:15mj421 

and 3:15mj449. Over the next two years, agents reviewed the seized electronic media and 

continued their investigation of Mr. Montgomery. See PSR ¶¶ 26- 29. 

In October 2017, law enforcement received a tip that Mr. Montgomery was engaging in 

erratic behavior. See PSR ¶ 29. According to the tipster, Mr. Montgomery had advised that he (Mr. 

Montgomery) had to leave town or otherwise he would kill people. See id. Mr. Montgomery further 

had indicated that, when he died, he planned to take people with him. Based on this information, 

federal agents obtained another search warrant for the Spring Valley residence – this time seeking 

evidence concerning, among other things, unlawful possession of destructive devices and 

explosive materials. See R. 56.1, October 2017 Search Warrant and Inventory for Spring Valley 

Residence, Case No. 17mj490. Executed during October 2017, this warrant resulted in the seizure 

of additional materials from Mr. Montgomery’s home, including: Tannerite, ball bearings and 

other components of a suspected destructive device. See id. 

C. Montgomery’s Prosecution 

In October 2017, a federal grand jury returned a multicount indictment against Mr. 

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Montgomery, charging him with violations of 18 U.S.C. § 641 (possession of stolen government 

property) and 26 U.S.C. § 5861(d) (possession of an unregistered silencer).1 See R. 14, Indictment. 

After several continuances of his trial date, Mr. Montgomery ultimately pleaded guilty to these 

charges during December 2019. See R. 52, Minute Entry; R. 55, Plea Agreement. Three months 

later, in late February 2020, the Court sentenced Mr. Montgomery to 33-months of imprisonment 

for these offenses and ordered the forfeiture of the unregistered silencer that he possessed. See R. 

59. 

D. The Motion for Return of Property 

 Shortly before his sentencing hearing, Mr. Montgomery filed a motion seeking the blanket 

return of items seized pursuant to the state and federal search warrants described above. See R. 56, 

Motion for Return of Property. After conducting hearings on this motion during September and 

November 2020, the Court received into evidence multiple exhibits as well as the testimony of 

FBI Special Agent Sue Clark and Mr. Montgomery. Based on these materials, the Court makes the 

following factual findings: 

Except as noted below, Government Exhibits A through F represent the totality of items 

that federal agents seized in this matter pursuant to federal warrants issued in Case Nos. 

3:15mj231, 3:15mj421, 3:15mj449, and 3:17mj490. When questioned if there were other materials 

seized from him but not included on these lists, Mr. Montgomery identified a single item – namely, 

a cellular telephone taken from him at the time of his arrest in October 2017.2

 See R. 73, 11/20/20 

1 Subsequent superseding indictments added additional charges against Mr. Montgomery, such as improper storage 

of explosive materials and interstate threats to injure by means of fire or explosives. 

2 Mr. Montgomery also raised concerns over a cellular telephone seized from his adult daughter. Mr. Montgomery 

has not established standing to challenge that seizure and, in any event, the United States asserts it agreed to make 

arrangements to return that item to her. 

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Hearing Tr. at 617- 19. Notably, he neither made a claim nor submitted evidence demonstrating 

that the United States had in its possession the over 100 firearms that the GCSO seized from him 

during July 2015. See id. Through previous motions filed with this Court, he, in fact, conceded 

that law enforcement already had returned these firearms to him. See R. 25, Defendant’s Motion 

to Revoke Detention Order. 

Government Exhibits A – C: The parties have no dispute concerning these exhibits. See 

9/1/2020 Minute Entry. Specifically, the United States has agreed to return to Mr. Montgomery 

without any preconditions the items in Government Exhibit A. See Government Exhibit A. 

Government Exhibit B lists items that the government already has returned to the defendant. See 

Government Exhibit B. Finally, other than the item designated ATF 67, Government Exhibit C 

contains firearms that cannot be surrendered to Mr. Montgomery as a convicted felon but rather 

must be transferred to a Federal Firearms Licensee (“FFL”). See Government Exhibit C. 

Government Exhibit D: Government Exhibit D lists electronic media, each of which has 

one or more classified files on it, as well as a single paper document marked as classified. See 

Government Exhibit D; see R. 73, 11/20/20 Hearing Tr. at 592 - 594. Specifically, the Court 

reviewed in camera Government Exhibit 1, a document detailing certain information that the 

United States Department of Defense (“DOD”) deems classified or secret. See R. 74, 11/20/20 

Hearing Tr. at 631. Secret or classified information like that contained in Government Exhibit 1 

can be found on each of the electronic devices in Government Exhibit D. See R. 73, 11/20/20 

Hearing Tr. at 592 – 594. Under DOD regulations, the presence of a single classified item on a 

piece of electronic media renders that entire electronic media classified. Id. at 595-96. 

Based on the foregoing, the Court finds that the paper document as well as each item of 

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electronic media listed on Government Exhibit D constitutes classified material. See id. at 592 – 

96. It should be noted that Mr. Montgomery lacks a security clearance and therefore is not entitled 

to access or handle these materials. See id. The Court further finds that, where, as here, classified 

information has been improperly placed on electronic media, DOD regulations require the 

destruction of that electronic media. See id. 

Government Exhibit E: Government Exhibit E contains two categories of materials: (1) 

government/United States property; and (2) proprietary information that belonged to a defense 

contractor. Specifically, based on the exhibits of the United States and the testimony of Special 

Agent Clark, the Court finds that the following items on Government Exhibit E are marked as 

government property or as otherwise belonging to the United States: Items 1B92 (documents), see 

Gov. Ex. 6, R. 73, 11/20/20 Hearing Tr. at 599; 1B91, 1B66, 1B63, IB62 (various military badges 

and government identifications), see Ex. 7, R. 73, 11/20/20 Hearing Tr. at 599-600; Items 1B20, 

see Gov. Ex. 8, R. 73, 11/20/20 Hearing Tr. at 600-601; Items 1B19 (electronic media), see Gov. 

Ex. 9, R. 73, 11/20/20 Hearing Tr. at 601; 1B70 (documents), see Gov. Ex. 10, R. 73, 11/20/20 

Hearing Tr. at 601; 1B132, 1B90, 1B36, ATF63(k), ATF 63(n) (electronic media), see Gov. Ex. 

E, 11/20/20 Hearing Tr. at 601); ATF58, 1B13 (testing information); the Court therefore concludes 

that these items constitute property of, and belong to, the United States.3

Based on similar evidence, the Court finds that the remaining items on Government Exhibit 

E – namely, 1B127, 1B108, 1B57, 1B54, 1B39, and 1B15 (electronic media) – constitute 

3 The Court notes that items ATF 50, 51, and 52 are components to the Air Force missile 

warning system that Mr. Montgomery admitted that he improperly possessed and attempted to 

convert to his own use. These items therefore also belong to the United States. 

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proprietary information that belongs to various defense contractors, not Mr. Montgomery.4

 See 

Gov. Exs. 4-5; R. 73, 11/20/20 Hearing Tr. at 597-98, 601. Mr. Montgomery (or a company for 

whom he worked) previously served as a subcontractor with various defense contractors – 

including General Dynamic, DRA, and MacAulay-Brown. R. 73, 11/20/20 Hearing Tr. at 597-98, 

601. Generally (and as evidenced by written contracts between Mr. Montgomery and at least two 

of these companies), a subcontractor must return proprietary information to the defense contractor 

once the subcontractor ended its work on the project. See Gov. Exs. 4-5; R. 73, 11/20/20 Hearing 

Tr. at 597-98, 601. Here, Mr. Montgomery’s relationship with those companies ended long ago 

and yet he still was in possession of their proprietary information. Other than generalized claims 

that he properly possessed these materials, Montgomery offered no evidence to substantiate his 

claim that he had the right to keep proprietary information relating to the Air Force missile warning 

system from these companies. See generally R. 73, 11/20/20 Hearing Tr. These items therefore 

also belong to the United States. Accordingly, the Court concludes that the items identified above 

do not belong to Mr. Montgomery. 

Government Exhibit F: This exhibit contains a mixture of items. The parties have reached 

an agreement concerning the return of a variety of property on Government Exhibit F, including 

certain papers, manuals, and physical items.5

 See R. 73, 11/20/20 Hearing Tr. at 609-10 (agreeing 

to return manuals, ball bearings, lead pipe, etc.). 

4 For similar reasons, the Court also finds that, in the alternative, even if not property of the United States, Items 

1B132, 1B127, 1B108, 1B54, 1B39, 1B36, ATF 63(k) would constitute proprietary information of a defense 

contractor, not the property of Mr. Montgomery. See R. 73, 11/20/20 Hearing Tr. at 598. 

5 Specifically, the United States has agreed to return items 1B99 (aluminum powder); 1B97 (unmixed cannisters of 

aluminum powder, aluminum nitrate); 1B96 (bag of ball bearings); 1B94 (empty cannisters with residue); 1B89 

(jar); 1B88 (lead pipe with thread); 1B87 (modified lead cap); 1B84 (aluminum powder); 1B81, 1B82, 1B83 

(ammonium nitrate powder); 1B71 (laptop with 3D printer); 1B61, 1B56, 1B40, 1B34, 1B33, ATF23, 1B30 (books 

and paperwork); 1B29 (container with residue). 

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The United States has opposed the return of the remaining items on the list. Specifically, 

ATF 73 is an unregistered silencer that Mr. Montgomery forfeited to the United States. See R. 62, 

Judgment. ATF 64 contains blasting caps, which are an explosive under federal law, see, e.g., 18 

U.S.C. §§ 841(c)(explosive materials include detonators), § 841(f) (detonators including blasting 

caps), and may only be owned, transferred and possessed by certain licensed entities. See generally 

18 U.S.C. § 842 (defining unlawful acts concerning the transfer, possession and storage of 

explosives); 27 C.F.R. 555.201 et seq. Items 1B95, 1B86, 1B31, 1B32 are either exploding targets 

or contain mixed Tannerite, all which are considered dangerous ordinance under Ohio law. See 

O.R.C. § 2923.11(K)(3) (dangerous ordinance includes “sensitized ammonium nitrate”); Ohio 

Department of Commerce, Division of State Fire Marshal, Guidance on Explosive Targets (June 

28, 2013) (indicating that Tannerite and exploding targets constitute dangerous ordnance – namely, 

sensitized ammonium nitrate – under Ohio law and therefore are illegal to possess). Finally, Items 

1B76, 1B85, 1B93, 1B98, 1B100, 1B101, 1B102, 1B104 are smokeless powder or gun powder; 

these items constitute ammunition under federal law. See 18 U.S.C. § 921(a)(17)(A) 

(“ammunition” includes “powder”). 

II. ANALYSIS 

A. General Principles 

Federal Rule of Criminal Procedure 41(g) provides that “a person aggrieved” by the federal 

seizure and subsequent “deprivation of property may move for [its] return.” Fed. R. Crim. Proc. 

41(g). As a general rule, the United States properly may retain seized property during the pendency 

of an investigation of a defendant through completion of the criminal case against him. See United 

States v. Bowker, 372 F.3d 365, 387 (6th Cir. 2004) (stating “once the government's need for 

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[seized property] has ended”, court has jurisdiction to determine whether it should be returned to 

owner), vacated on other grounds by, 543 U.S. 1182; United States v. Hess, 982 F.2d 181, 186 (6th 

Cir. 1992) (indicating “seized property, other than contraband, should be returned to its rightful 

owner once the criminal proceedings have terminated”); United States v. Farrell, 606 F.2d 1341, 

1343 (D.C. Cir. 1979) (law enforcement may retain lawfully seized property until the conclusion 

of a criminal case). When a defendant files a motion for return of property at the conclusion of a 

criminal case, it does not automatically compel the release of federally-seized items to him. He 

has an obligation to demonstrate that he is “lawfully entitled to possess” this property. United 

States v. Headley, 50 Fed. Appx. 266, 267 (6th Cir. 2002) (discussing convicted felons efforts to 

seek return of firearms); United States v. Francis, 646 F.2d 251, 262 (6th Cir. 1981). Moreover, 

“a defendant's right to the return of lawfully seized property is subject to any continuing interest 

the government has in [it.]” United States v. Duncan, 918 F.3d 647, 654 (6th Cir. 1990). “The 

government's interest may take different forms as long as it is a legitimate interest.” Id. 

To that end, the United States cannot be compelled to surrender to a defendant contraband 

in its custody, such as turning over firearms to a convicted felon, see Henderson v. United States, 

575 U.S. 622, --, 135 S. Ct. 1780, 1786 (2005) (federal law prohibits release of seized firearms to 

a prohibited person), or releasing to someone electronic media that contains classified information. 

See In re Search Warrant for the Person of John F. Gill, 2014 WL 1331013, at *2 (E.D.N.C. Mar. 

31, 2014) (denying motion for return of iPhone containing classified information); Roark v. United 

States, 2015 WL 2085193, at *3 (D. Or. May 15, 2015) (classified files belong to the United States 

and cannot be returned to a claimant). Nor may a defendant seek the return of United States 

property seized from his possession; such items always belong to the government and therefore 

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cannot lawfully be returned to him. See United States v. Hoffman, 2018 WL 5973763, at *3 (E.D. 

Va. Nov. 14, 2018) (concluding that petitioner “lacks entitlement to lawful possession of” 

government property taken from him). Similarly, he is not entitled to the return of property over 

which he has no possessory interest, i.e., items that do not belong to him. See United States v. 

Pierre, 484 F.3d 75, 87 (1st Cir. 2007) (“[a] Rule 41(g) motion is properly denied if the defendant 

is not entitled to lawful possession of the seized property”). In such cases, a court should deny a 

motion for return of property and allow the United States to dispose of the items as the government 

sees fit. See, e.g., Duncan, 918 F.3d at 654. 

B. Property from the GCSO 

The Court will find moot Mr. Montgomery’s motion to return property from the GSCO – 

namely, the over 100 firearms that this state entity seized from him during 2015. See R. 56.1, 

GCSO Inventory. First, in filings with the Court, Mr. Montgomery has acknowledged that state 

authorities already returned these firearms to him. That circumstance alone renders that portion of 

his motion moot. Second, he has failed to establish that the United States ever had possession of 

this property. They do not appear in Government Exhibits A through F, which (outside of Mr. 

Montgomery’s cell phone) constitute the universe of items that the United States seized and held 

in connection with the case. When questioned whether any items were missing from these 

documents, Mr. Montgomery confirmed that there was none other than cell phone. For these 

reasons, this portion of his motion is denied. 

C. Items on Government Exhibit D 

The Court likewise denies Mr. Montgomery’s motion seeking return of the items on 

Government Exhibit D. The Court already has concluded that each of these items is 

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classified/secret. It is well-established that classified information is the property of the United 

States, and individuals do not have a right to such material. See United States v. Fowler, 932 F.2d 

306, 309– 10 (4th Cir. 1991) (copies of classified government documents are property of the 

United States). Classified material in the possession of someone not cleared to have it also is 

considered “contraband.” United States v. Moussaoui, 2002 WL 32001771 at *4 (E.D. Va. 2002). 

In any event, a defendant is not entitled to the return of property that has classified information 

stored on it. See, e.g., In re Search Warrant for the Person of John F. Gill, 2014 WL 1331013, at 

*2 (E.D.N.C. Mar. 31, 2014) (denying motion for return of iPhone containing classified 

information); Roark v. United States, 2015 WL 2085193, at *3 (D. Or. May 15, 2015) (classified 

files belong to the United States and cannot be returned to a claimant). 

At the evidentiary hearing, Mr. Montgomery speculated whether DOD properly classified 

these materials. However, the decisions of the executive branch concerning the classification of 

materials is beyond the scope of judicial review. See United States v. Marchetti, 466 F.2d 1309, 

1317 (4th Cir. 1972) (“[T]he process of classification is part of the executive function beyond the 

scope of judicial review.”); United States v. Collins, 720 F.2d 1195, 1198 n.2 (11th Cir. 1983) (“It 

is an Executive function to classify information, not a judicial one”). Based on the scant record 

before it, the Court declines to second-guess DOD’s classification determination here. 

In sum, the items on Exhibit D contain classified/secret information and therefore belong 

to the United States, not Mr. Montgomery. The Court therefore authorizes the United States to 

dispose of the items on Exhibit D in any manner it sees fit – including destruction consistent with 

DOD policies. 

D. Items on Government Exhibit E. 

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The Court also denies Mr. Montgomery’s motion seeking the return of the items on 

Government Exhibit E. To obtain the return of property, a claimant must demonstrate that he is 

lawfully entitled to it. See Headley, 50 Fed. Appx. at 267 (discussing that claimant must be able 

to lawfully possess the items that he seeks); see also United States v. Howell, 425 F.3d 971, 974 

(11h Cir. 2005) ([i]n order for an owner of property to invoke Rule 41(g), he must show that he 

had a possessory interest in the property seized by the government”). Here, the Court has 

concluded that the property on Exhibit E belongs either to the United States or to third party 

defense contractors, not to Mr. Montgomery. Mr. Montgomery therefore is not entitled to the 

return of these items as he has failed to establish his lawful ownership interest in them. See, e.g., 

Hoffman, 2018 WL 5973763, at *3 (concluding that petitioner “lacks entitlement to lawful 

possession of” government property taken from him); United States v. Hamilton, 2016 WL 

4787279, at *3 (N.D. Ga. June 3, 2016) (“Defendant therefore lacks standing to seek the return of 

this material” as “the specific property he seeks to recover belongs to a third party”). For these 

reasons, his motion to return the items on Exhibit E is denied. 

E. Items on Government Exhibit F. 

As the government does not oppose the return of a substantial portion of his motion 

concerning the items on Exhibit F, see supra footnote 5, the Court grants request to return those 

items. The Court denies, however, the request to return the remaining property on that list to Mr. 

Montgomery. First, he has agreed to forfeit to the United States ATF 73 (the unregister silencer). 

The item now belongs to the United States and therefore has no property interest in it. See Pierre, 

484 F.3d at 87 (“[a] Rule 41(g) motion is properly denied if the defendant is not entitled to lawful 

possession of the seized property”). 

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ATF 64 (blasting caps) as well as 1B95, 1B86, 1B31, and 1B32 (mixed Tannerite and 

exploding targets) constitute contraband under federal and state law. The former is an explosive 

under federal law that may only be lawfully possessed by certain regulated licensees, see, e.g., 18 

U.S.C. §§ 841(c)(explosive materials include detonators), § 841(f) (detonators including blasting 

caps), while the latter constitutes prohibited dangerous ordinance under state law. See O.R.C. § 

2923.11(K)(3) (dangerous ordinance includes “sensitized ammonium nitrate”); Ohio Department 

of Commerce, Division of State Fire Marshal, Guidance on Explosive Targets (June 28, 2013) 

(indicating that Tannerite and exploding targets constitute dangerous ordnance – namely, 

sensitized ammonium nitrate – under Ohio law and therefore are illegal to possess). As contraband, 

Mr. Montgomery is not entitled to these items, and United States has an interest in retaining them. 

Hess, 982 F.2d at 186 (government has no obligation to return contraband). His motion to return 

these items therefore is denied. 

Finally, the various gun and smokeless powder, see Gov. Ex. F, Items 1B76, 1B85, 1B93, 

1B98, 1B100, 1B101, 1B102, 1B104, constitute ammunition under federal law, see 18 U.S.C. § 

921(a)(17)(A) (“ammunition” includes “powder”); as a convicted felon, Mr. Montgomery cannot 

possess them. See Henderson v. United States, 575 U.S. 622, --, 135 S. Ct. 1780, 1786 (2005) 

(federal law prohibits release of seized firearms to a prohibited person). The United States, 

however, has indicated Case: 3:17-cr-00174-TMR Doc #: 76 Filed: 01/22/21 Page: 18 of 22 

PAGEID #: 693 18 that it will release Items 1B76, 1B85, 1B93, 1B100, 1B101, 1B102, 1B104 to 

the same FFL who Mr. Montgomery designates to accept the items listed in Exhibit C. 

III. CONCLUSION 

As addressed in the Court’s previous entry, see 9/1/2020 Minute Entry, as well as in this 

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order: 

1. The United States has agreed to return directly to Mr. Montgomery: (1) the items listed 

in Exhibit A; (2) cellular phone seized from him at the time of his arrest; (3) ATF 67, a book listed 

on Government Exhibit C; (4) 1B99, 1B97, 1B96, 1B94, 1B89, 1B88, 1B87, 1B84, 1B83, 1B82, 

1B81, 1B71, 1B61, 1B56, 1B40, 1B34, 1B33, ATF23, 1B30 and 1B29 listed on Exhibit F. The 

Court therefore GRANTS his motion to return these items and ORDERS the Government to do 

so. 

2. The United States already has returned to Mr. Montgomery items in Government Exhibit 

B. The Court therefore finds as MOOT his motion to return these items. 

3. The United States has agreed to release to a designated FFL: (1) the transferable firearms 

listed in Government Exhibit C; and (2) 1B76, 1B85, 1B93, 1B100, 1B101, 1B102, 1B104 

(various gun and smokeless powders) listed in Government Exhibit F. The Court therefore 

GRANTS his motion to return these items. 

4. The Court DENIES Mr. Montgomery’s motion to return all other property listed on 

GOVERNMENT EXHIBITS D, E, and F, including: (1) all of the items listed on Exhibit D; (2) 

all of the items listed on Exhibit E; and (3) ATF 73 (the unregistered silencer), ATF 64 (blasting 

caps), and 1B95, 1B86, 1B31, 1B32 (mixed Tannerite and exploding targets) on Government 

Exhibit F. The Court ORDERS that the United States may dispose of these items as it sees fit. 

The Court hereby ORDERS the following procedures concerning those items that will be 

returned directly to Mr. Montgomery (hereinafter “Returning Property”) as well as those items that 

will be transferred to an FFL (hereinafter “FFL Property”).6

 Mr. Montgomery shall retrieve the 

6 Mr. Montgomery previously agreed to retrieve these items from the FBI on December 18, 2020. As detailed in the 

United States’ Motion for Status Conference, Mr. Montgomery ultimately declined to do so, citing, among other 

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Returnable Property from the FBI at its offices within 45 days from the entry of this Order. Mr. 

Montgomery shall also have an FFL retrieve the FFL Property from the FBI at its offices within 

45 days from the entry of this Order. Mr. Montgomery shall schedule this date with FBI through 

the assistance of his counsel or probation officer. If Mr. Montgomery fails to retrieve the property 

within that timeframe, the Court will find that property has been abandoned to the United States 

and will authorize the United States to dispose of the property as it sees fit. 

For the purpose of facilitating the return of property, the Court authorizes Mr. Montgomery 

to have contact with the FBI, Special Agent Clark, or any other agent or employee of that agency. 

The Court declines to dictate to the FBI the procedures that it uses at its offices concerning the 

return of the above described property. 

DONE and ORDERED in Dayton, Ohio on Wednesday, February 17, 2021. 

s/Thomas M. Rose 

________________________________ 

THOMAS M. ROSE 

UNITED STATES DISTRICT JUDGE 

reasons, his concern that contact with the Special Agent Clark during the property transfer would violate his 

conditions of supervised release. 

Case: 3:17-cr-00174-TMR Doc #: 78 Filed: 02/17/21 Page: 15 of 15 PAGEID #: 715