588 F.3d 418 (7th Cir. 2009), 09-2256, United States v. Miller

Docket Nº:09-2256.
Citation:588 F.3d 418
Opinion Judge:EASTERBROOK, Chief Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Leroy F. MILLER, Defendant-Appellant.
Attorney:Daniel L. Bella, Attorney, Office of the United States Attorney, Hammond, IN, John M. Maciejczyk, Attorney, Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee. H. Jay Stevens, Attorney, Indiana Federal Community Defenders, Inc., South Bend, IN, for Defendant-Appellant.
Judge Panel:Before EASTERBROOK, Chief Judge, and KANNE and TINDER, Circuit Judges.
Case Date:November 19, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 418

588 F.3d 418 (7th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Leroy F. MILLER, Defendant-Appellant.

No. 09-2256.

United States Court of Appeals, Seventh Circuit.

November 19, 2009

Submitted Oct. 15, 2009.

Daniel L. Bella, Attorney, Office of the United States Attorney, Hammond, IN, John M. Maciejczyk, Attorney, Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.

H. Jay Stevens, Attorney, Indiana Federal Community Defenders, Inc., South Bend, IN, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and KANNE and TINDER, Circuit Judges.

EASTERBROOK, Chief Judge.

Leroy Miller was convicted of aiding and abetting the possession of firearms by Ricky Fines, a felon. Last year we affirmed Miller's conviction and 10-month sentence. 547 F.3d 718 (7th Cir.2008). Miller then asked the district court to return the 34 firearms that had been seized at his farm. See Fed.R.Crim.P. 41(g). To retain them, Miller contended, the United States needs an order of forfeiture-but forfeiture may be initiated only within 120 days of the seizure. 18 U.S.C. § 924(d)(1). A timely administrative proceeding was filed but abandoned; the United States concedes that it was defective. The indictment, which includes a count seeking forfeiture, was returned more than 120 days after the seizure. The United States acknowledges

Page 419

that it is too late to commence a forfeiture proceeding. But it maintains that the district court nevertheless must order the functional equivalent of forfeiture, because Miller's felony conviction prevents him from possessing the weapons and makes their return unlawful.

Miller responded by asking the district judge to order the United States to sell the weapons for his account or deliver them to someone legally entitled to possess them. The judge declined and instead authorized the United States to destroy the guns. 2009 WL 1228560, 2009 U.S. Dist. LEXIS 39458 (N.D.Ind. Apr. 28, 2009). The judge concluded that the United States is not obliged to act as a felon's auctioneer, and that handing the guns over to one of Miller's relatives would leave him in constructive possession, which would be as unlawful as physical possession. The judge recognized that the United States, having missed the statute of limitations for initiating a forfeiture proceeding, has no legal entitlement to the weapons. Forced to choose between unlawful outcomes, the judge thought it best for the United States to destroy the guns. Miller's appropriate remedy, the judge thought, would be to collect just compensation from the United States for a taking. (The judge suggested a suit under 42 U.S.C. § 1983, but as that statute applies only to state actors the judge surely meant a suit under the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491.)

The district court's disposition finds support in the decisions of two circuits. See United States v. Felici, 208 F.3d 667, 670...

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