U.S. v. One Assortment of 89 Firearms

• Decision Date: 23 August 1982
• Docket Number: No. 81-1055,81-1055
• Citation: 685 F.2d 913
• Parties: UNITED STATES of America, Appellee, v. ONE ASSORTMENT OF 89 FIREARMS, Appellant, National Rifle Association of America, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 913

685 F.2d 913

UNITED STATES of America, Appellee, v. ONE ASSORTMENT OF 89 FIREARMS, Appellant National Rifle Association of America, Amicus Curiae.

No. 81-1055.

United States Court of Appeals Fourth Circuit.

Argued June 8, 1982.

Decided Aug. 23, 1982.

Herbert W. Louthian, Columbia, S.C., for appellant.

Richard E. Gardiner, Springfield, Va., for amicus curiae.

Mary E. G. Slocum, Asst. U. S. Atty., Columbia, S.C. (Henry Dargan McMaster, U. S. Atty., Columbia, S.C., on brief), for appellee.

Before WINTER, Chief Judge, and BUTZNER, RUSSELL, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN and CHAPMAN, Circuit Judges, sitting en banc.

CHAPMAN, Circuit Judge.

This is an appeal from a judgment ordering forfeiture under 18 U.S.C. § 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 violation of 18 U.S.C. § 922(a)(1). Finding that Mulcahey's acquittal on the criminal charge is a bar to the forfeiture, we reverse.

On January 20, 1977, an assortment ¹ of firearms was seized by agents of the Bureau of Alcohol, Tobacco and Firearms. Following an indictment under 18 U.S.C. § 922(a)(1), Mulcahey was tried by a jury and on March 16, 1977 was acquitted of the charge. The present action in rem against the same assortment of firearms was initiated on March 31, 1977 by service of a complaint seeking forfeiture pursuant to 18 U.S.C. § 924(d). Mulcahey, as claimant, filed a claim for recovery of the firearms and also filed an answer to the complaint. The parties entered into a stipulation that the transcript in the criminal trial of United States v. Mulcahey, No. 77-00013, would be submitted to the court in lieu of testimony. Upon motion of the United States prior to trial, the district court struck Mulcahey's second defense of collateral estoppel, res judicata and the bar to the present proceedings of the jury verdict in No. 77-00013. Upon trial of the forfeiture the same firearms which had been seized by the ATF and used by the United States Attorney as evidence in the criminal action were again introduced into evidence. The district court ordered a forfeiture of 80 of the firearms. The court concluded:

... (T)he firearms here in question were involved in, used and intended to be used in violation of 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.

The court found that these firearms were used by Mulcahey from May 13, 1976 to January 20, 1977, while Mulcahey was engaged in the business of dealing in firearms without being properly licensed. The criminal indictment against Mulcahey charged him with being engaged in the business of dealing in firearms without being licensed to do so from on or about May 12, 1976, up to the return of the indictment on January 19, 1977.

Mulcahey seeks return of the firearms upon the ground that the jury verdict in the criminal action conclusively settled the issue that he was not engaged in the business of dealing in firearms without a license, and he contends that the present action is barred by the holding in Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684 (1886). We agree.

Coffey was tried on a criminal charge of violating the revenue laws of the United States by operating a distillery without payment of the required taxes. He was acquitted on this charge, and shortly thereafter the United States sought forfeiture of the distilling equipment. Coffey raised the prior acquittal as a bar to the forfeiture action, and the Supreme Court agreed, stating at page 442, 6 S.Ct. at page 440;

The principal question is as to the effect of the indictment, trial, verdict and judgment of acquittal set up in the fourth paragraph of the answer. The information is founded on sections 3257, 3450 and 3453; and there is no question, on the averments in the answer, that the fraudulent acts and attempts and intents to defraud, alleged in the prior criminal information, and covered by the verdict and judgment of acquittal, embraced all of the acts, attempts and intents averred in the information in this suit.

The question, therefore, is distinctly presented, whether such judgment of acquittal is a bar to this suit. We are of the opinion that it is.

At 443, 6 S.Ct. at 440 the Court stated:

Yet, where an issue raised as to the existence of the act or fact denounced has been tried in a criminal proceeding, instituted by the United States, and a judgment of acquittal has been rendered in favor of a particular person, that judgment is conclusive in favor of such person, on subsequent trial of a suit in rem by the United States, where, as against him, the existence of the same act or fact is the matter in issue, as a cause for the forfeiture of the property prosecuted in such suit in rem. It is urged as a reason for not allowing such effect to the judgment, that the acquittal in the criminal case may have taken place because of the rule requiring guilt to be proved beyond a reasonable doubt; and that, on the same evidence, on the question of preponderance of proof, there might be a verdict for the United States, in the suit in rem. Nevertheless, the fact or act has been put in issue and determined against the United States; and all that is imposed by the statute, as a consequence of guilt, is a punishment therefor. There could be no new trial of the criminal prosecution after the acquittal in it; and a subsequent trial of the civil suit amounts to substantially the same thing, with a difference only in the consequences following a judgment adverse to the claimant.

Coffey was acquitted on a charge of operating a still without paying the necessary tax thereon and could raise this acquittal as a bar to an action for forfeiture of the distilling equipment. Mulcahey was acquitted on a charge of being engaged in the business of dealing in firearms without a license and can raise this acquittal as a bar to the present forfeiture action involving the 89 firearms, since a jury has already found that these 89 firearms were not being used by Mulcahey in the business of dealing in firearms without a license.

The government argues that the present action is controlled by One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972), in which the court held that forfeiture of the ring and stones was not barred by the owner's acquittal on charges of violating 18 U.S.C. § 545 which covers willfully and knowingly, with intent to defraud the United States, smuggling articles into the United States without submitting the same to required customs procedures. The court found that the second action was not barred because the essential elements of proof in the two actions were not the same. In the criminal action it was necessary to prove a knowing and willful intent to defraud the United States, which was not required in the forfeiture. The court was careful to point out that if the elements of proof were the same then the government would be barred. At page 234, 93 S.Ct. at page 491 the court stated:

Collateral estoppel would bar a forfeiture under § 1497 if, in the earlier criminal proceeding, the elements of a § 1497 forfeiture had been resolved against the government. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970).

In Mulcahey's criminal proceeding the elements of the present forfeiture were all resolved against the government, so the present action is barred by collateral estoppel.

One Lot Emerald Cut Stones did not overrule Coffey. The court in One Lot Emerald Cut Stones, at footnote 5 distinguished the two cases as follows:

The difference in the issues involved in the criminal proceeding, on the one hand, and the forfeiture action, on the other, serves to distinguish Coffey v. United States, 116 U.S. 436 (6 S.Ct. 437, 29 L.Ed. 684) (1886), relied upon by the District Court in the present case. Coffey involved a forfeiture action commenced after an acquittal. This Court noted, in holding the forfeiture barred, that "(t)he information (for forfeiture) is founded on §§ 3257, 3450 and 3453; and there is no question, on the averments in the answer, that the fraudulent acts and attempts and intents to defraud, alleged in the prior criminal information, and covered by the verdict and judgment of acquittal, embraced all of the acts, attempts and intents averred in the information in this suit." Id., at 442, 6 S.Ct., at 440. The Court specifically distinguished the situation where "a certain intent must be proved to support the indictment, which need not be proved to support the civil action." Id., at 443, 6 S.Ct., at 440. See also Stone v. United States, 167 U.S. 178, 17 S.Ct. 778, 42 L.Ed. 127 (1897).

The present case is not controlled by One Lot Emerald Cut Stones. The stones which were the subject of the forfeiture in that case became contraband and subject to seizure once they came into the United States without payment of the required duty. The criminal action for alleged smuggling of these stones proved only that the holder of the stones did not knowingly with the intent to defraud the United States smuggle the articles into the country. Intent to defraud was not an issue in the later forfeiture proceeding and did not need to be proved, because the stones were admittedly in the United States without being subjected to required customs proceedings and as a result were contraband, subject to seizure. Firearms are not contraband and are not subject to seizure unless they are used or intended to be used in violation of the Gun Control Act. This issue of whether the firearms were used or intended to be used in violation of the Act was tried in No. 77-00013 and conclusively decided. The government now wishes to...