IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

 )

v. ) CRIMINAL NO. 15-0083-WS

 )

BENJAMIN MEEK CHILDERS, II, )

 )

Defendant. )

ORDER

This matter comes before the Court on third party Rick Michael Cross’s Motion for 

Return of Property (doc. 25). The Motion is now ripe for disposition.

Defendant, Benjamin Meek Childers, II, was charged in an Indictment (doc. 13) filed on 

April 30, 2015, with smuggling LSD into the United States, in violation of 18 U.S.C. § 545, and 

with possession of a firearm by an unlawful drug user, in violation of 18 U.S.C. § 922(g)(3). 

The Indictment included a forfeiture allegation that purported to reach “any firearm and 

ammunition involved or used in the commission of the offense.” (Doc. 13, at 2.) On June 15, 

2015, Childers entered a guilty plea as to the § 545 charge and executed a Consent to Forfeiture 

(doc. 22, at 15-16) in which he confessed the forfeiture to the United States of his interest in 

some 30 enumerated firearms. A Preliminary Order of Forfeiture (doc. 29) was entered on 

August 19, 2015, forfeiting Childers’ interest in the subject firearms to the United States, subject 

to the right of third-party claimants to file petitions contesting the forfeiture and the resolution of 

such claims via ancillary proceedings pursuant to 21 U.S.C. § 853(n) and Rule 32.2(c), 

Fed.R.Civ.P. Childers will be sentenced by the undersigned on September 14, 2015.

On August 7, 2015, more than three months after the Indictment was issued, third-party 

claimant, Rick Michael Cross, filed a Motion for Return of Property pursuant to Rule 41(g), 

Fed.R.Crim.P. Cross contends that 17 of the firearms in question actually belong to him, that 

they had no connection to the offenses for which Childers was indicted, and that they had merely

been stored at Childers’ home for safekeeping or repairs. The Court agrees with the Government 

that Cross’s exclusive remedy lies under the ancillary proceeding mechanism of § 853(n) and 

Rule 32.2(c), not a motion pursuant to Rule 41(g). See, e.g., Brown v. United States, 692 F.3d 

Case 1:15-cr-00083-WS-B Document 30 Filed 08/26/15 Page 1 of 2
-2-

550, 552 (6th Cir. 2012) (“A third party’s only avenue for protecting her interest is the procedure 

set forth in 21 U.S.C. § 853(n)”) (citation and internal marks omitted); United States v. Nava, 

404 F.3d 1119, 1125 (9th Cir. 2005) (“Section 853(n) is the exclusive proceeding in which third 

parties may claim interests in property subject to criminal forfeiture.”); Sunrise Academy v. 

United States, 791 F. Supp.2d 200, 204 (D.D.C. 2011) (“The statutory scheme governing 

criminal forfeiture proceedings thus affords third-party claimants only one avenue for asserting 

their interests in property allegedly subject to forfeiture: an ancillary proceeding held after the 

entry of a preliminary order of forfeiture in the criminal case.”); Chaim v. United States, 692 F. 

Supp.2d 461, 471 (D.N.J. 2010) (“It is also clear that once there is an indictment with a forfeiture 

allegation, an innocent third party ... cannot then commence a Rule 41(g) proceeding.”). As the 

Eleventh Circuit has observed, “Section 853 affirmatively bars interference by non-party 

petitioners outside of the ancillary proceeding described in Section 853(n) and in Federal Rule of 

Criminal Procedure 32.2(c).” United States v. Cone, 627 F.3d 1356, 1358 (11th Cir. 2010).

In light of the foregoing authorities, if Cross wishes to litigate his claim of interest in 17 

of the firearms identified in the Preliminary Order of Forfeiture in this criminal case, then he 

may do so by invoking the ancillary proceeding mechanism of § 853(n) and Rule 32.2(c), which 

he will have a full and fair opportunity to do in accordance with the terms of the Preliminary 

Order of Forfeiture entered last week. What Cross may not do, however, is circumvent those 

procedures and interfere in this criminal case via a Rule 41(g) Motion. Accordingly, Rick 

Michael Cross’s Motion for Return of Property (doc. 25) is denied pursuant to 21 U.S.C. § 

853(k), without prejudice to his ability to renew and pursue his claims of interest in and 

ownership of the 17 firearms in an ancillary proceeding, provided that he complies with the 

requirements of § 853(n), Rule 32.2(c) and the Preliminary Order of Forfeiture.

DONE and ORDERED this 26th day of August, 2015.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

Case 1:15-cr-00083-WS-B Document 30 Filed 08/26/15 Page 2 of 2