Epps v. Bureau of Alcohol, Tobacco & Firearms, Civ. A. No. 3016.

• Decision Date: 26 July 1973
• Docket Number: Civ. A. No. 3016.
• Citation: 375 F. Supp. 345
• Parties: William E. EPPS, Jr., Plaintiff, v. BUREAU OF ALCOHOL, TOBACCO & FIREARMS, etc., Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

375 F. Supp. 345

William E. EPPS, Jr., Plaintiff, v. BUREAU OF ALCOHOL, TOBACCO & FIREARMS, etc., Defendant.

Civ. A. No. 3016.

United States District Court, E. D. Tennessee, Northeastern Division.

July 26, 1973.

Alfred W. Taylor, Milligan College, Tenn., for plaintiff.

John L. Bowers, Jr., U. S. Atty., and Charles N. Steadman, Asst. U. S. Atty., Knoxville, Tenn., for defendant.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

This is an action by the plaintiff Mr. Epps, Jr. seeking the return to him of certain firearms and ammunition seized by agents of the defendant federal bureau and declared forfeited administratively on September 13, 1972. He undertook to invoke the jurisdiction of this Court under 18 U.S.C. ch. 44. The defendant moved to dismiss the action, on the ground, inter alia, that this Court lacks jurisdiction over the subject matter. Rule 12(b)(1), Federal Rules of Civil Procedure.

The defendant exhibited with its answer official documents relating to the seizure and forfeiture of the foregoing articles. The plaintiff does not contest the accuracy of any such documents.

Exhibit A thereto reflects that 29 pistols, revolvers¹ and shotguns and 571 rounds of ammunition were seized from the plaintiff by agents of the defendant on July 15, 1972 in Sullivan County, Eastern judicial district of Tennessee, for violation of 18 U.S.C. § 922(a)(1). That statute makes it unlawful "* * * for any person except a * * * licensed dealer * * * to engage in the business of * * * dealing in firearms or ammunition. * * *" Idem. It is undisputed that the plaintiff did not, at the pertinent times, have a license to engage in the business of dealing in firearms and ammunition; but, he was acquitted of having violated the provisions of 18 U.S.C. § 922(a)(1) on November 7, 1972, in United States of America, plaintiff, v. William E. Epps, Jr., defendant, criminal action no. 7260, this district and division. Such acquittal on such criminal charge is not a bar to the civil administrative action by the government, which is remedial in nature, arising out of the same facts on which the criminal proceeding was based. Helvering v. Mitchell (1938), 303 U.S. 391, 397, 58 S.Ct. 630, 82 L.Ed. 917, 921 (headnote 2). Forfeiture of goods is a civil sanction, remedial in nature. Ibid., 303 U.S. at 400, 82 L.Ed. at 922 (headnote 6); see also Colacicco v. United States, infra, 143 F.2d at 411-4122 18 U.S.C. § 924(d), a part of 18 U.S. C. ch. 44, provides that:

* * * Any firearm or ammunition involved in or used or intended to be used in, any violation of the provisions of this chapter or any rule or regulation promulgated thereunder, or any violation of any other criminal law of the United States, shall be subject to seizure and forfeiture and all provisions of the Internal Revenue Code of 1954 relating to the seizure, forfeiture, and disposition of firearms, as defined in section 5845(a) of that Code, shall, so far as applicable, extend to seizures and forfeitures under the provisions of this chapter. * * *

26 U.S.C., ch. 75, subchap. C relates to the seizure, forfeiture and disposition of firearms as defined in § 5845(a) of the Internal Revenue Code of 1954. 26 U. S.C. § 7325 thereof relates to cases of seizure of goods, wares, or merchandise as being subject to forfeiture under the provisions of title 26, U.S.C., "* * * which, in the opinion of the Secretary of the Treasury or his delegate, are of the appraised value of $2,500 or less. * * *" Such Secretary or his delegate is under mandate thereunder, except in cases otherwise provided, to proceed, in pertinent parts, as follows:

* * * * * *

(1) List and appraisement. — The Secretary or his delegate shall cause a list containing a particular description of the goods, wares, or merchandise seized to be prepared in duplicate, and an appraisement thereof to be made by three sworn appraisers, to be selected by the Secretary or his delegate who shall be respectable and disinterested citizens of the United States residing within the internal revenue district wherein the seizure was made. Such list and appraisement shall be properly attested by the Secretary or his delegate and such appraisers * * *.

(2) Notice of seizure. — If such goods are found by such appraisers to be of the value of $2,500, or less, the Secretary or his delegate shall publish a notice for 3 weeks, in some newspaper of the district where the seizure was made, describing the articles and stating the time, place and cause of their seizure, and requiring any person claiming them to appear and make such claim within 30 days from the date of the first publication of such notice.

(3) Execution of bond by claimant. — * * * Upon the delivery of such bond to the United States in the penal sum of $250, conditioned that, in the case of condemnation of the articles so seized, the obligors shall pay all the costs and expenses of the proceedings to obtain such condemnation to the Secretary or his delegate, he shall transmit the same, with the duplicate list or description of the goods seized, to the United States attorney for the district * * *.

(4) Sale in absence of bond.—If no claim is interposed and no bond is given within the time above specified, the Secretary or his delegate shall give reasonable notice of the sale of the goods, wares, or merchandise by publication, and, at the time and place specified in the notice, shall, unless otherwise provided by law, sell the articles so seized at public auction, or upon competitive bids, in accordance with such regulations as may be prescribed by the Secretary or his delegate. * * *

Such exhibit A and an appendment thereto reflect further that the foregoing provisions of 26 U.S.C. § 7325(1) were complied with by a delegate of the Secretary of the Treasury under date of July 20, 1972. Exhibit C thereto reflects that the plaintiff was advised by a delegate of such Secretary under date of April 9, 1972, inter alia, that an assortment of firearms and ammunition (described in an accompanying notice of publication) had been seized as forfeited to the United States; that information had been received by the defendant's office in Nashville, Tennessee that the plaintiff

* * * * * *

may have an interest in the property, and this is to advise you that administrative proceedings have been instituted to perfect its forfeiture * * *;

that notice of the proceeding, as required by law, 26 U.S.C. § 7325(2), supra, was scheduled for publication on August 14, 21, 28, 1972 in The Greeneville Sun, Greeneville, Tennessee; that a copy of such notice was attached for the plaintiff's information; that:

If you have an interest in the property and desire judicial determination of the matter at any time, a claim and cost bond must be filed on or before the final claim date. You are cautioned that the timely filing of a claim and cost bond is a necessary condition for obtaining such judicial determination.

Without the timely filing of a claim and cost bond by you or any other person in respect to the property, it wll be administratively forfeited and disposed of according to law. The forfeiture will not be subject to judicial review.

Such exhibit reflected that final claim date to be September 13, 1972.

On the last aforementioned date, the plaintiff forwarded a petition to the defendant, stating that he was the owner of the firearms of the appraised value of $1,290 which had been seized; that he believed such seizure was wrongful and illegal since "* * * he at said time and place of the seizure on July 15, 1972 in Sullivan County, Tennessee, was not violating title 18 U.S.C. Chapter 44 or any other law, Federal or State, * * * and that his innocence will be proven in a Court of competent jurisdiction. * * *" He offered to introduce evidence on a hearing to support his protestation of innocence and stated he stood "* * * ready to pay the costs, if costs are assessed as a condition to the allowance of this Petition. * * *" He prayed to be permitted to file such petition, and that such property be restored to him. No cost bond was filed with such petition, unless the plaintiff's offer "* * * to pay the costs, if costs are assessed as a condition to the allowance of this Petition * * *" may be construed as a cost bond.

The...