United States v. ONE ASST. OF 89 FIREARMS, Civ. A. No. 77-590.

Decision Date30 December 1980
Docket NumberCiv. A. No. 77-590.
Citation511 F. Supp. 133
CourtU.S. District Court — District of South Carolina
PartiesUNITED STATES of America, Plaintiff, v. ONE ASSORTMENT OF 89 FIREARMS, Defendant.

Mary G. Slocum, Eric Wm. Ruschky, Glen E. Craig, Asst. U. S. Attys., Columbia, S. C., James C. Bright, Regional Counsel ATF, for plaintiff.

SIMONS, Chief Judge.

This forfeiture action, brought pursuant to 18 U.S.C. § 924(d), comes before the court with a long and somewhat complex history.

The assortment of firearms in question was seized by the Bureau of Alcohol, Tobacco and Firearms on January 20, 1977, from the residence of Patrick M. Mulcahey in Columbia, S. C. Subsequently, Patrick Mulcahey was tried for alleged criminal violations pertaining to such firearms.1 A jury found Mulcahey not guilty of the charges against him on March 16, 1977.

On March 31, 1977, the plaintiff filed this civil action in rem seeking forfeiture to the United States of an assortment of firearms, as identified in an exhibit to the Complaint. The basis for such forfeiture, as alleged in the Complaint, was that: "said firearms were had and possessed and used and intended to be used on January 20, 1977, and prior thereto by Patrick M. Mulcahey in Richland County, South Carolina, in violation of the laws of the United States by engaging in the business of a dealer in firearms and ammunition without the said Patrick M. Mulcahey having first applied for and received a license as a dealer in firearms...." A warrant for arrest and notice was issued April 4, 1977. Patrick M. Mulcahey filed a Claim and Answer on April 14, 1977.

Upon Motion of the plaintiff, the court ordered amendment of the Complaint on July 6, 1977, and on the same date issued a Warrant for Arrest and Notice thereon. On July 18, 1977, the claimant filed his Claim and Answer to the Amended Complaint. Subsequent to that time, the parties entered into discovery proceedings and as a result thereof have stipulated that the transcript of the aforementioned criminal proceeding, United States v. Mulcahey, Criminal No. 77-0013 (D.S.C.1977), would be submitted to the court in lieu of testimony.

By Order dated November 14, 1978, Judge Robert W. Hemphill, to whom this case was assigned initially, granted the plaintiff's Motion to Strike the second and third defenses of the defendant's Answer, and denied the claimant's Motion for Summary Judgment. Pursuant to the parties' stipulations, the case was submitted for decision on the basis of the aforementioned transcript and briefs, all of which have been filed with the court.

From this background, and on the basis of the evidentiary sources presented by the government and the claimant, the court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. The commencement of this action was authorized, sanctioned and directed in accordance with 26 U.S.C. § 7401, as demonstrated by a letter with attachments from James C. Bright, Regional Counsel, Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury, said letter being incorporated into plaintiff's Brief as Appendix II.

2. The claimant, Patrick M. Mulcahey, did not have a Federal firearms dealer's license during the period July 1, 1975 to March 31, 1977, as shown by the certification of the lack of such record in official files by the Supervisor, Firearms Explosives Licensing Section, Regulatory Enforcement, Bureau of Alcohol, Tobacco and Firearms, United States Department of the Treasury for the Southeast Region, Atlanta, Georgia. This certification and attendant documents are incorporated in plaintiff's Brief as Appendix III.

3. On May 13, 1976, the claimant at his residence, 1407 Woodlawn Avenue, Columbia, South Carolina, sold a Ruger .357 Magnum Pistol, Serial Number XXX-XXXXX to undercover Special Agent George D. Ferguson, Jr., and informant Kenneth E. Williford for $130. On this occasion, according to Special Agent Ferguson's report, the claimant possessed and offered for sale three other firearms, to wit: A Colt .38 Special Automatic for $160; a Carbine for $160; a .38 Caliber Rifle. The claimant stated, according to Ferguson's report, that he had 5,000 rounds of .223 caliber ammunition and would take $450 for it. Also, it was stated in the report that Williford was present with a firearm described as an "Enforcer" and Mulcahey offered him $60 plus the carbine for it.

4. On May 19, 1976, at his residence, the claimant sold a Taurus .38 Caliber Pistol, Serial Number 858162 to undercover Special Agent Ferguson and informant Williford for $90. On this occasion, according to the agent's report, the claimant possessed and offered for sale four other firearms, to wit: A .38 caliber rifle for $100; a 9 mm automatic nine-shot for $175; a Smith & Wesson .357 Magnum, Model 19 for $215; and a .45 automatic for $175. When asked if he had any more guns for sale, the claimant replied, according to the agent's report, that he did not know exactly what he had on hand and did not know how many he wanted to sell. According to the report, when the claimant again asked about the "Enforcer," informant Kenneth E. Williford stated that it needed repairs. Claimant replied that he would like to take it and fix it.

5. On May 26, 1976, at his residence, the claimant sold a Smith & Wesson 9 mm automatic, Model 39-2, Serial Number A275312 to informant Kenneth E. Williford for $180 in the presence of Special Agent George D. Ferguson, Jr. Prior to making this sale the claimant required Williford to execute a Form 4473 which was later seized at claimant's residence on January 20, 1977. According to the agent's report, at the time of the sale of this firearm, the claimant possessed and offered for sale the following firearms: an Army .45 automatic, a .22 rifle, a carbine, a .357 Smith & Wesson, and a Colt .45 caliber with pearl handles. The claimant said that he would sell Williford more guns. The claimant again said that he would like to have the "Enforcer" and Williford told him that he thought he had it sold.

6. In mid 1976, the claimant purchased a Smith & Wesson .357 revolver, Serial Number 8K15410, from non-licensee, Karl O. Grant, for $150. This weapon was seized on January 20, 1977, from the claimant and is on the list of firearms attached to the forfeiture Complaint.

7. In the latter part of 1976, the claimant purchased a Smith & Wesson, Model 60, Revolver, .38 caliber, Serial Number R132162 from non-licensee, Randall B. Richardson, for $170. This firearm was seized on January 20, 1977, from the claimant and is on the list of firearms attached to the forfeiture Complaint.

8. On August 21, 1976, the claimant purchased from Thomas O. Lain, d/b/a Lain's Gun Shop, a licensed firearms dealer, two Ruger caliber .223 rifles.

9. On October 5, 1976, the claimant purchased from Thomas O. Lain, d/b/a Lain's Gun Shop, a licensed firearms dealer, three Ruger Mini, Model 14, .223 Caliber Rifles, Serial Numbers XXX-XXXXX, XXX-XXXXX, and XXX-XXXXX. Two of these weapons, XXX-XXXXX and XXX-XXXXX, were seized on January 20, 1977, from the claimant and are on the list of firearms attached to the forfeiture Complaint.

10. On December 31, 1976, the claimant purchased from Thomas O. Lain, d/b/a Lain's Gun Shop, a licensed firearms dealer, two firearms, to wit: One Ruger Mini, 14 Model, .223 Caliber Rifle, Serial Number XXX-XXXXX, and one Smith & Wesson, 9 mm, Model 59, Pistol, Serial Number A345245. These two firearms were seized on January 20, 1977, from the claimant and are on the list of firearms attached to the forfeiture Complaint.

11. On January 13, 1977, the claimant at his residence offered for sale to informer Kenneth Williford and undercover Special Agent R. Jerry Embree two Springfield rifles for $150 each, two S & W Automatic Pistols, and one .357 Revolver. On this occasion, the claimant said that everything he had was for sale except one pump shotgun that he was putting a front sight on.2

12. On January 20, 1977, Special Agent Robert Holland, assisted by other agents, executed a Federal search warrant on claimant's residence, 1407 Woodlawn Avenue, Columbia, South Carolina, and seized 105 firearms.

13. Thirteen of the 105 firearms seized were determined to have been stolen and were returned to their owners. The 92 remaining firearms were described on the list attached to the original Complaint. One Luger Model 1918, 9 mm automatic pistol, serial number 8914 was added by amendment to the original Complaint. From this total of 93 firearms, four were returned to the claimant's wife pursuant to Judge Robert Hemphill's Order of July 6, 1977. This leaves 89 firearms as the subject of this Order.

14. Of the 89 firearms remaining as the subject of this action, nine are the property of members of the Mulcahey family other than the claimant. As identified at Mulcahey's criminal trial, these firearms and their owners are as follows: Government's exhibits 77 and 78 — property of claimant's wife; Government's exhibits 24 and 59 — property of claimant's daughters; Government's exhibits 14, 91 and 97 — property of claimant's older son; Government's exhibits 39 and 109 — property of claimant's younger son.3 While the firearms owned by members of the Mulcahey family other than the claimant were present in the Mulcahey residence at the time of seizure, there is no evidence that these particular firearms were stored together with the firearms owned by the claimant, that they were offered for sale by the claimant, or that they were otherwise used in any manner in the forfeitable offense.

CONCLUSIONS OF LAW

1. The Government has proved by the preponderance of the evidence that the claimant, Patrick M. Mulcahey, was engaging in the business of dealing in firearms and ammunition without being licensed to do so as required by federal law. It is well established that a forfeiture proceeding under 18 U.S.C. § 924(d) is remedial in nature and is properly characterized as a civil...

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3 cases
  • United States v. One Assortment of 89 Firearms
    • United States
    • U.S. Supreme Court
    • February 22, 1984
    ...§ 922(a)(1). Such firearms are rendered subject to forfeiture under 18 U.S.C. § 924(d), which forfeiture is hereby ordered." 511 F.Supp. 133, 139 (1980). B A divided United States Court of Appeals for the Fourth Circuit, sitting en banc, reversed.4 685 F.2d 913 (1982). The en banc majority ......
  • U.S. v. One Assortment of 89 Firearms
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 26, 1982
    ...18 U.S.C. § 922(a)(1). Such firearms are rendered subject to forfeiture under 18 U.S.C. § 924(d), which forfeiture is hereby ordered. 511 F.Supp. 133 at 139. In connection with this conclusion, the Court found that these firearms were used by Patrick M. Mulcahey from May 13, 1976, to Januar......
  • U.S. v. One Assortment of 89 Firearms
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • August 23, 1982
    ...§ 924(d) of 80 firearms seized from the home of Patrick Mulcahey, who was alleged to have been a dealer in firearms without a license. 511 F.Supp. 133. Mulcahey had previously been indicted for unlawfully and knowingly engaging in the business of dealing in firearms without a license in vio......

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