UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Civil No. 08-cv-394-JM

R GUNS Model 44,

7.62 x 54 caliber rifle,

Serial Number 11844;

Winchester, Model 1300,

12 caliber shotgun,

Serial Number L3580523;

Sturm Ruger, Model MINI 12,

223 caliber rifle,

181-99128;

Sturm Ruger, Model 10/22,

22 caliber rifle,

Serial Number 350-62131;

Walther, Model P22,

22 caliber pistol,

Serial Number L010173;

Berretta, Pietro S.P.A.,

Model CX4 Storm, 9 caliber rifle,

Serial Number CX04102;

Servu Forearms, Model BFG50,

50 BMG caliber rifle,

Serial Number 1253;

Century Arms International,

Model L1A1 Sporter, 308 caliber rifle,

Serial Number 104090;

Century Arms International,

Model L1A1 308 caliber rifle,

Serial Number AD6215176;

Case 1:08-cv-00394-LM Document 47 Filed 07/22/09 Page 1 of 4
Harrington and Richardson Model 088,

16 caliber shotgun,

Serial Number 9300371;

Norinco, Model MAK90,

762 caliber rifle,

Serial Number 9300371;

Norinco, Model MAK90,

762 caliber rifle,

Serial Number 9475459;

Arsenal Co. Of Bulgaria, Model SLR95,

762 caliber rifle,

Serial Number IM371098;

Serbu Firearms, Model BFG50,

50 BMG caliber rifle,

Serial Number 1292

O R D E R

The United States moves for partial judgement, i.e., for

judgment dismissing the claim of Cirino Gonzalez. Cirino

Gonzales, by counsel, objects.

Background Facts

This is an in rem asset forfeiture action against several

weapons involved in crimes for which Cirino Gonzalez and others

have been convicted. Cirino Gonzalez filed a claim to three of

the weapons and he has filed a timely answer. Cirino’s brother,

Romeo Lee Gonzalez, filed a claim for the same three weapons.

In Cirino Gonzalez’ answer, he admits that he gave the three

weapons to his brother Romeo in June 2007 and that Romeo claimed

Case 1:08-cv-00394-LM Document 47 Filed 07/22/09 Page 2 of 4
an interest in the property. In his trial testimony, Cirino

testified that he gave the guns to his brother and they were his

brother’s property. The weapons were at the residence shared by

Cirino and his brother when Cirino was arrested.

Discussion

As the government succinctly and correctly argued, Cirino

Gonzalez has no standing to challenge the forfeiture until and

unless he demonstrates an ownership or possessory interest in the

guns. See, United States v. 116 Emerson Street, 942 F.2d 74, 78

(1st Cir. 1991).

Whether one has the requisite ownership interest in property

in an in rem action is determined under state law. The weapons

were seized in Texas where Cirino was arrested. Texas law

applies. An inter vivo gift is completed under Texas law when

the donor delivers the property to the donee with the intent to

transfer ownership. See, e.g. Woodworth v. Cortez, 660 S.W. 2d

561, 563-64 (Tex Civ. App. 1983); see also, United States v.

$9,041,598.68 in United States Currency, 976 F. Supp. 633, 639

S.D. Tex. 1997). In his answer and at his trial, Gonzalez has

admitted that he gifted the weapons to his brother with the

intent to transfer ownership. Paragraphs 9 through 11 of

Gonzalez’ answer clearly acknowledge that he gave the weapons at

issue to his brother. “A party’s assertion of fact in a pleading

Case 1:08-cv-00394-LM Document 47 Filed 07/22/09 Page 3 of 4
is a judicial admission by which he is bound.” Schott Motorcycle

Supply, Inc. v. American Honda Motor Company, Inc., 976 F.2d 58,

61 (1st Cir. 1992). His admission is consistent with his

father’s and brother’s filing. He is bound by the admission. He

therefore has no standing.

Judgement is ordered for the United States against Cirino

Gonzalez.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: July 22, 2009

cc: Seth R. Aframe, Esq.

 David H. Bownes, Esq.

 Stanley W. Norkunas, Esq.

 Romeo Lee Gonzalez, pro se

Case 1:08-cv-00394-LM Document 47 Filed 07/22/09 Page 4 of 4