U.S. v. Fifty-Two Firearms
| Citation | 362 F.Supp.2d 1308 |
| Decision Date | 10 February 2005 |
| Docket Number | No. 6:04CV1658ORL18JGG.,6:04CV1658ORL18JGG. |
| Parties | UNITED STATES of America, Plaintiff, v. FIFTY-TWO FIREARMS, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Daniel W. Eckhart, U.S. Attorney's Office, Orlando, FL, for Plaintiff.
This cause came on for consideration without oral argument on the following motion:
THEREON it is ORDERED that the motion to reconsider is GRANTED. On reconsideration, however, the result stands.
Pursuant to a search warrant executed on April 7, 2004, the government seized fifty-two firearms from the residence of Jack E. Holt, a citizen.1 The government asks this Court to order those firearms arrested in rem, condemned, and civilly forfeited to the government. See Verified Complaint for Forfeiture In Rem, Docket No. 1 at 8 — 9; Amended Verified Complaint for Forfeiture In Rem, Docket No. 6 at 11. The government argues that the fifty-two firearms are subject to forfeiture under 18 U.S.C. §§ 924(d)(1) and 983 because the firearms were involved in violations of the Gun Control Act — first, engaging in a firearms business without a license in violation of 18 U.S.C. § 922(a)(1), and second, selling a firearm to a convicted felon in violation of 18 U.S.C. § 922(d)(1). See Docket No. 6 at 1, 9 — 10.
This Court previously denied without prejudice the government's petition asking the Clerk to issue warrants of arrest in rem and summonses for the fifty-two firearms.2 Docket Nos. 3, 5. The government now asks the Court — without the benefit of a brief or memorandum of law as required by Local Rule 3.01(a) — to reconsider its prior denial on two grounds: 1.) the amended verified complaint shows probable cause for the issuance of the arrest warrants in rem; and 2.) the government filed the civil complaint in this case in a timely manner. Docket No. 7. Specifically, the government asks this Court to reconsider its ruling that this civil forfeiture proceeding is untimely because it was not commenced within 120 days of the seizure as required by 18 U.S.C. § 924(d)(1).3
The government filed its motion to reconsider ex parte, so the motion is unopposed. The Court has not yet arrested the in rem property (the defendant firearms), and the government's verified amended complaint makes no in personam claim against individuals. Also, the government has not yet served process on any individual who may have an interest in the firearms.
The civil forfeiture statutes of the United States permit the forfeiture of firearms in three situations relevant to this case. First, any firearm involved in or used in any wilful violation of any criminal law of the United States is subject to seizure and forfeiture where such intent (wilfulness) is demonstrated by clear and convincing evidence. 18 U.S.C. § 924(d)(1). The criminal laws of the United States include 18 U.S.C. § 922(d)(1) () and 18 U.S.C. § 922(a)(1) (). Second, a firearm is subject to forfeiture if it is intended to be used in a violation of 18 U.S.C. § 922(d)(1) () where such intent is demonstrated by clear and convincing evidence, and where the transferor intends to use the firearm in such an offense. See 18 U.S.C. §§ 924(d)(1) and 924(d)(3)(D). Third, a firearm also is subject to forfeiture if it is intended to be used in a violation of 18 U.S.C. § 922(a)(1) () where such intent is demonstrated by clear and convincing evidence, and where the firearm intended to be used in such an offense is involved in a pattern of activities which includes a violation of 18 U.S.C. § 922(a)(1) (). See 18 U.S.C. §§ 924(d)(1) and 924(d)(3)(C).
Congress has placed limits on the federal courts by enacting general rules for civil forfeiture proceedings, including proceedings to forfeit firearms. See 18 U.S.C. § 983 ().4 Pursuant to rule-making authority, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives ["BATF"] also has promulgated regulations for administrative forfeiture proceedings. See generally, 27 C.F.R. Part 72; 27 C.F.R. § 478.152. Under § 983, an administrative agency such as BATF may commence an administrative forfeiture proceeding, and send notice to interested parties no more than 60 days after a seizure.5 18 U.S.C. § 983(a)(1)(A)(i); see also 27 C.F.R. § 72.22. The government may instead file a civil judicial forfeiture action against the property in the United States District Court within 60 days, and provide notice of that action. 18 U.S.C. § 983(a)(1)(A)(ii).
A "non-judicial" or administrative forfeiture proceeding may precede a "judicial" forfeiture action. A person claiming property seized in an administrative civil forfeiture
proceeding may file a verified claim with the agency. 18 U.S.C. § 983(a)(2)(A); see also 27 C.F.R. § 72.22(b). The government must then file a complaint for forfeiture in the United States District Court in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims no later than 90 days after a claim has been filed with the administrative agency. 18 U.S.C. § 983(a)(3)(A); Supplemental Rules A and C(1)(b) ().
Prior to seizure by the Court, a judicial officer reviews the verified complaint without notice to the parties, and determines whether probable cause exists for an action in rem. Local Admiralty Rule 7.03(b)(1). If the conditions for an in rem action appear to exist, the Court issues an order for the arrest of the property. See Supplemental Rule C(3)(a)(ii)(A); Local Admiralty Rule 7.03(b)(1); see also Forms MDF 702 and MDF 703 in Appendix to Local Admiralty Rules. A person who asserts an interest in the property must file a verified claim in the district court identifying his interest within ten days of completion of service of the complaint, and must answer within twenty days after filing his claim. Supplemental Rule C(6)(a)(i); Local Admiralty Rule 7.03(f).
Congress has imposed some additional limits to protect firearm owners. Only those firearms particularly named and individually identified as involved in or used in a violation of the federal criminal laws are subject to seizure, forfeiture, and disposition where such intent (wilfulness or intent to use firearm in the offense) is demonstrated by clear and convincing evidence. 18 U.S.C. § 924(d)(2)(C), accord, 27 C.F.R. § 478.152(b). The government must return the seized firearms to the owner "forthright" upon the involuntary dismissal of charges against the owner or upon his acquittal. 18 U.S.C. § 924(d)(1), accord, 27 C.F.R. § 72.21(c). Any action or proceeding for the forfeiture of the firearms must be commenced within 120 days of the seizure.6 18 U.S.C. § 924(d)(1); accord, 27 C.F.R. § 72.21(b); 27 C.F.R. § 478.152(a).
In construing a statute, the district court first looks to the plain language of the statute. See Albernaz v. United States, 450 U.S. 333, 336, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); accord, United States v. Veal, 153 F.3d 1233, 1245 (11th Cir.1998). Words are interpreted with their ordinary and plain meaning because the Courts assume that Congress uses words in a statute as they are commonly understood. See Veal, 153 F.3d at 1245; United States v. McLeod, 53 F.3d 322, 324 (11th Cir.1995).
Review of legislative history is unnecessary "unless a statute is inescapably ambiguous." Veal, 153 F.3d at 1245; Solis-Ramirez v. U.S. Department of Justice, 758 F.2d 1426, 1430 (11th Cir.1985) (per curiam); accord, United States v. Rush, 874 F.2d 1513, 1514 (11th Cir.1989) (). The plain language of the statute is conclusive as clearly expressing legislative intent unless the resulting application would be "absurd" or "internal inconsistencies" must be resolved. See United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981); Veal, 153 F.3d at 1245. When statutory language is clear and unambiguous, it controls interpretation "absent a legislative intent to the contrary." United States v. Grigsby, 111 F.3d 806, 816 (11th Cir.1997). When a court does consider congressional intent, however, it may consider titles and section headings as meaningful when construing the whole statute. House v. Commissioner of Internal Revenue, 453 F.2d 982 (5th Cir.1972).
According to Eleventh Circuit Pattern Jury Instruction No. 34.5, the offense of knowingly selling a firearm to a convicted felon, 18 U.S.C. § 922(d)(1), requires proof of the following elements beyond a reasonable doubt: 1.) that the defendant sold the firearm described in the indictment, at or about the time alleged; 2.) that the person who bought the firearm had been convicted in a court of a crime punishable by imprisonment for a term exceeding one year, that is, a felony offense; and 3.) that the defendant acted with knowledge or with reasonable cause to believe that such person had been so convicted. To have "reasonable cause to believe" that someone is a convicted felon means to have knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person, knowing the same things, to reasonably conclude that the other person was in fact a convicted felon. Eleventh Circuit Pattern Jury Instruction No....
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