McKeehan v. United States

Citation438 F.2d 739
Decision Date19 February 1971
Docket NumberNo. 20328.,20328.
PartiesJack Dailey McKEEHAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Jack D. McKeehan, Knoxville, Tenn., on brief for petitioner-appellant.

John L. Bowers, Jr., U. S. Atty., W. Thomas Dillard, Asst. U. S. Atty., Knoxville, Tenn., on brief for respondent-appellee.

Before WEICK and CELEBREZZE, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

CELEBREZZE, Circuit Judge.

This is an appeal by an intervenor from the United States District Court, Eastern District of Tennessee in a civil action in rem to enforce a forfeiture of certain firearms seized by the United States under the authority of 26 U.S.C. § 5872(a), as amended in 1968, and 26 U.S.C. § 7321 (1964). 26 U.S.C. §§ 7323, 7325 (1964). The District Court found that the seized firearms were not registered in the National Firearms Registration and Transfer Record as required by law, 26 U.S.C. § 5841, as amended in 1968, and it further found that the intervenor's admitted possession of the seized firearms in June, 1969 was proof of the unlawful act of possessing a firearm which is not registered to the possessor in the National Firearms Registration and Transfer Record. 26 U.S.C. § 5861(d), as amended in 1968. Based on such findings, the District Court held that the intervenor-possessor's failure to register the seized weapons during the amnesty period made his continued possession unlawful; and therefore, the firearms seized by the United States are lawfully forfeited to the United States of America.

The civil forfeiture proceedings in the District Court were tried upon the following stipulated facts:


(Filed January 13, 1970)

That the machineguns in question were acquired by the intervening petitioner while a paratrooper in combat during World War II; that these weapons were shipped by petitioner as authorized by the U. S. Military authorities to petitioner's parents, Mr. and Mrs. J. Colson McKeehan, at 919 Temple Avenue, Knoxville, Tennessee, during the spring of 1945 along with other war souvenirs.

That the instant machineguns are "firearms" as defined in 26 U.S.C. 5845 (a) (6) as further defined in 26 U.S.C. 5845(b).

That following World War II and while a student in college during 1946 or 1947, petitioner gave possession of these machineguns to a longtime childhood friend, Henry W. McIlwaine, Jr., then residing with his parents, Mr. and Mrs. H. Whiting McIlwaine, at 4110 Towanda Trail, Knoxville, Tennessee; that said friend by hobby collected guns; that the understanding between petitioner and his friend was that, should petitioner ever have a gun room in years to come, he could reacquire possession of these three machineguns for such purpose; that said guns remained stored in the home of the parents of petitioner's friend up until early spring of 1969, the father of petitioner's friend having died on December 8, 1968, and the family homestead was being vacated during March, 1969; petitioner's friend, Henry W. McIlwaine, Jr., and petitioner both had finished college and long since left the residences of their respective parents and, for fol. 2 practical purposes, had forgotten about the three machineguns.

During the moratorium for registering machineguns between November 2 and December 1, 1968, said machineguns were still stored in the residence of H. Whiting McIlwaine, Sr., at 4110 Towanda Trail, S. W., Knoxville, Tennessee. Whatever publicity was utilized by the U. S. Government authorities to publicize the moratorium did not serve to bring the machineguns to mind for either petitioner or his friend.

That petitioner, his friend, and his friend's father all qualify as law abiding citizens; that these guns could have been legally registered during the amnesty period of November 2, 1968, through December 1, 1968, and that said possession would have been for a lawful purpose.

On or about June 16, 1969, petitioner voluntarily made known, delivered and surrendered said machineguns to the U. S. Treasury Department, Internal Revenue Service, Alcohol and Tobacco Tax Division office in Knoxville, Tennessee.

That the three machineguns have a fair market value exceeding that given by authorized representatives of the United States Government at the time seizure was declared during August, 1969. That petitioner satisfied the necessary steps to have this matter transferred to this honorable court for judicial review of his rights pertaining to these guns. That shortly following commencement of this forfeiture action by the United States Government, petitioner was indicted, arrested, released under $1,000 bond, arraigned, plead "not guilty" and scheduled for trial on November 18, 1969. By agreement, the forfeiture matter was to be determined simultaneously with the criminal charge. On November 17, 1969, on its own motion, the United States dismissed with full prejudice its criminal indictment. On November 18, 1969, petitioner appeared with his corroborating witness, Henry W. McIlwaine, Jr., and, by agreement, this Court fol. 3 took the matter under advisement on a stipulation of facts, allowing petitioner and the Government time to file briefs.

On appeal, it is contended that statutory forfeiture proceedings are quasi-criminal actions against the owner of the forfeited items and should not be applied to owners who had no actual notice of the thirty-day amnesty period created by Congress under the 1968 Act Amendments, Pub.L. 90-618 § 207(b)-(d),1 and who otherwise have not engaged in criminally culpable nor wilfully negligent conduct.

It is well established in American jurisprudence,2 however, that absent a contrary legislative expression3 personal property may be seized and statutorily forfeited without payment of any compensation even though its owner may not have engaged in any conduct which may be characterized criminal or wilfully negligent. Various Items of Personal Property v. United States, 282 U.S. 577, 581, 51 S.Ct. 282, 75 L.Ed. 558 (1931); United States v. One Ford Coupe Automobile, 272 U.S. 321, 47 S.Ct. 154, 71 L.Ed. 279 (1926); Goldsmith Jr.-Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376 (1921); Dobbin's Distillery v. United States, 96 U.S. 395, 24 L.Ed. 637 (1877); Henderson's Distilled Spirits, 14 Wallace (81 U.S.) 44, 20 L.Ed. 815 (1871); Palmyra, 12 Wheat. (25 U.S.) 1, 6 L.Ed. 531 (1827).

This case, however, contains four interesting features which distinguish it from the above-cited precedents.

First, Appellant merely possessed the seized firearms without any actual knowledge4 that Congress has placed upon all passive possessors of certain firearms a duty to come forward and register their firearms. Pub.L. 90-618 § 207 (b); 26 C.F.R. §§ 179.120, 179.190-91 and 179.200-201. And further not only was Appellant without actual notice that he was required to register his firearms for such a passive purpose as possessing personal souvenirs; but also he was not engaging with the firearms in any activity which normally would have placed him on notice as to the statutory registration requirement. Historically, we can find no other case involving the civil forfeiture of chattels in which the allegedly inequitably treated owner had not engaged in some affirmative commercial enterprise, financing, transfer or sale which would have placed him in a position where he either knew or should have known of the existence of the revenue laws regulating his activity. Various Items of Personal Property v. United States, supra (corporate owner of a distillery, warehouse and denaturing plant engaged in production of alcohol); United States v. One Ford Coupe Automobile, supra ("innocent" corporate owner who was financing sale of automobile on conditional sales contract); Goldsmith Jr.-Grant Co. v. United States, supra ("innocent" corporate owner who sold automobile on credit and retained title for unpaid purchase money); Dobbin's Distillery v. United States, supra (owner of a distillery and related property who without personal knowledge of lessee's misconduct leased his property and suffered it to be occupied and used by lessee); Henderson's Distilled Spirits, supra (purchaser of distilled spirits at bonded warehouse assumes risk the distilled spirits he purchases and carries away may have been made or used in violation of the Internal Revenue laws).

Second, Appellant possessed firearms which were lawfully imported under the auspices of the United States Military authorities5 and which Congress has not declared to be contraband per se (e. g. counterfeit coins or securities of the United States) or inherently dangerous to society such that their use was limited to law enforcement officials or for purposes of scientific inquiry (e. g. marijuana, heroin or opium). Quite the contrary, possession of firearms is generally lawful except when such guns are intended to be used or have been used in violation of the National Firearms Act, its Amendments or the regulations issued pursuant thereto. See 26 U.S.C. § 7302; 49 U.S.C. § 781(b) (2) (1964). Also, the collection of most firearms as "war souvenirs" or "curios" is recognized by Congress to be a lawful activity. See 18 U.S.C. § 925(a) (4) (A), 925(d) (2), as amended in 1968; 26 C.F.R. §§ 178.11 (c), 178.26. And further the continued possession of the very firearms in question is recognized by Congress to be a lawful activity as long as they are duly registered. Pub.L. 90-618 § 217 (1968); 26 C.F.R. § 179.120.

In the instant case, the stipulated facts do not support a conclusion that the Appellant used or intended to use the seized firearms in violation of the law. The parties have stipulated that the Appellant was a "law abiding citizen" who placed his firearms in a gun collection and possessed them — actually or constructively — with the continuing lawful purpose of maintaining valuable "souvenirs" or "curios" from his wartime...

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