359 A.2d 274 (D.C. 1976), 8943, Epstein v. United States

Docket Nº:8943.
Citation:359 A.2d 274
Party Name:Donald D. EPSTEIN, Appellant, v. UNITED STATES, Appellee.
Case Date:June 21, 1976
Court:Court of Appeals of Columbia District
 
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Page 274

359 A.2d 274 (D.C. 1976)

Donald D. EPSTEIN, Appellant,

v.

UNITED STATES, Appellee.

No. 8943.

Court of Appeals of Columbia District

June 21, 1976

Argued Dec. 3, 1975.

Rehearing en Banc Denied Aug. 27, 1976.

Page 275

Kenneth D. Wood, Gaithersburg, Md., for appellant.

Mary-Elizabeth Medaglia, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, James F. McMullin and Jonathan B. Marks, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY, NEBEKER and MACK, Associate Judges.

KELLY, Associate Judge:

On March 6, 1973, a warrant for the search of appellant's premises at 415 Ninth Street, N.W., was executed by agents of the Federal Bureau of Investigation. [1] The warrant authorized the seizure of 'pornographic books, magazines and objects, and business books, documents, records, bills of lading and invoices.' In conducting their search, the agents discovered a loaded carbine equipped with a 'banana clip' which is used for additional ammunition when the weapon has been modified for use as a machine gun, as well as a large assortment of loaded pistols, rifles and shotguns. The carbine was found lying on a table and the other weapons either in or on an office desk, mounted on the office walls or in cabinets. An immediate telephone check of the weapons' serial numbers was made to determine if any had been reported stolen and while none had been so reported, the agents did learn that in the District of Columbia possession of a machine gun was prohibited [2] and that twenty-three of the

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weapons had not been properly registered as required by D.C.Pol.Reg. Art. 51, s 1. [3] Acting on this information the officers seized the machine gun and all of the unregistered weapons.

Appellant was charged with one count of possession of a prohibited weapon and one count each of possession of an unregistered firearm and of unregistered ammunition. [4] He thereafter filed a motion for suppression of evidence and for return of property pursuant to Super.Ct.Cr.R. 41(g). [5] Before any hearing on this motion was held, however, the government entered a nolle prosequi on the three charges. Appellant then filed a new motion solely for the return of property. The government opposed the return of the property by arguing that as the weapons were not registered the appellant could not legally take possession of them. A hearing on the motion failed to resolve the issue, with the court granting appellant three weeks in which to register the weapons or at least to initiate the registration process. It was indicated that a settlement by the parties was preferred but that if necessary there would be another hearing to determine the legality of the seizure.

Appellant's right to possession remained unresolved; consequently, he again sought return of the weapons by attacking the validity of the search warrant for the pornographic materials on which the March 6 search was based. It was then revealed that as a result of that search not only was appellant charged with weapon offenses but also had been charged in the United States District Court for the District of Columbia with interstate transportation of pornographic material, and that he, represented by the same counsel, was acquitted of the charge by a jury. During the course of that trial testimony was given by Metropolitan Police Officer Reid Edles who was the source relied upon by F.B.I. agents in an affidavit submitted in support of the search warrant for pornographic material. Cross-examination of Edles had elicited inconsistencies between the contents of the affidavit and...

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