U.S. v. One Trw, Model M14, 7.62 Caliber Rifle

• Decision Date: 26 November 2003
• Docket Number: No. CIV.A. 02-455-KSF.,CIV.A. 02-455-KSF.
• Parties: UNITED STATES of America, Plaintiff, v. ONE TRW, MODEL M14, 7.62 CALIBER RIFLE Serial Number 1488973 from William K. Alverson, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

294 F.Supp.2d 896

UNITED STATES of America, Plaintiff, v. ONE TRW, MODEL M14, 7.62 CALIBER RIFLE Serial Number 1488973 from William K. Alverson, Defendant.

No. CIV.A. 02-455-KSF.

United States District Court, E.D. Kentucky, Lexington.

November 26, 2003.

David Y. Olinger, Jr., U.S. Attorney's Office, EDKY, Lexington, KY, for USA, Plaintiff.

William K. Alverson, Nicholasville, KY, Pro se.

OPINION & ORDER

FORESTER, Chief Judge.

These matters are before the Court upon Claimant's motion to stay proceedings [DE # 13] and upon Plaintiff's motion for summary judgment [DE# 15]. These matters are ripe for review.

I. BACKGROUND INFORMATION

This is a civil action for the forfeiture of a firearm pursuant to 26 U.S.C. § 5872(a) in that the firearm in question was possessed in violation of 26 U.S.C. § 5861(d).

In October of 2001, the Bureau of Alcohol, Tobacco, and Firearms ("ATF") received information that MK Specialties ("MK"), a Federal Firearms Licensee, in Grafton, West Virginia, sold a number of firearms marketed as the MKS M-14 firearm ("M-14"). The MKS M-14s, including the Defendant Property, were assembled by MKS from M-14 receivers that had been cut in half. The ATF obtained a listing of the purchasers of these items. The list included claimant, William K. Alverson, ("Alverson")of Nicholasville, Kentucky. In early January of 2002, ATF special agents contacted Claimant and verified that he was in possession of the Defendant Property. On January 11, 20002, ATF special agents seized the Defendant Property from Claimant, at ATF's Lexington Field Office. At the time of the seizure, ATF special agents provided Claimant an ATF form 3400.23 "Receipt for Property and Other Items." Subsequent to the seizure, the Defendant Property was submitted to ATF's Firearms Technology Branch ("FTB") for analysis. ATF Firearms Enforcement Officer Richard Vasquez examined the Defendant Property and issued a Report of Technical Examination dated June 7, 2002. In that report, Officer Vasquez concluded that the Defendant Property was a machine gun within the meaning of the National Firearms Act ("NFA"), Chapter 53 of Title 26 United States Code, because it is designed to shoot automatically, and can be readily restored to shoot automatically.

ATF also conducted a search of the National Firearms Registration and Transfer Record that is maintained by the NFA branch of the ATF. The search revealed that the Defendant Property is not registered to Claimant or to any other person. It is unlawful for any person to possess a machine gun that is not registered to that person in the NFRTR. See 26 U.S.C. § 5861(d).

II. MOTION TO STAY

Claimant filed a motion to stay pending the outcome in U.S. v. Kelly, N.D. West Virginia, 1:03CR50; and U.S. v. One TRW, U.S. Rifle, Model 14, D. Arizona, CIV 02-625 TUC RCC. US v. Kelly is a criminal action against the manufacturer of the M-14 here at issue. The Arizona TRW case is a civil forfeiture action involving the same type of weapon here at issue. The Claimant in this action is proceeding pro se. He alleges that it would be prudent for this Court to stay the instant action because the Defendant in US v. Kelly, and the claimant in the Arizona TRW case are represented by attorneys and the records from those cases, which would thus be fully developed, will make available information and testimony that this Claimant will be unable to produce on his own.

However, Claimant sets forth no proposition of law in support of his motion, but asserts that a stay would best meet the ends of justice and efficiency, and posits that the results of the aforementioned actions might enable the government and the present Claimant to reach an agreement out of court. This Court finds that similar cases being litigated across the country and Claimant choosing to represent himself in this matter do not create reason to stay this matter. Furthermore, this Court has granted discovery extensions and has carefully explained procedure as each step in order to accommodate the Claimant's pro se status during trial preparation.

In U.S. v. One Harrington and Richardson Rifle, Model M-14, 7.62 Caliber Serial Number 85279, 278 F.Supp.2d 888 (W.D.Mich.2003), the district court dealt with a similar suit involving the seizure of property identical to that involved in this action. There, the Court was presented with the same argument made by Claimant today, and found that similar pending cases were irrelevant to the issues before the court.

The results of the pending related case will have no precedential impact upon this Court. Furthermore, the facts of this case are simple, and the evidence before the Court is complete. There is only one question for this Court to decide — whether the Claimant's M-14 fits the definition of a "machine gun" under the federal statute. If so, the gun must be forfeited to the government because it is illegal for the Claimant to have possessed it without having first registered the weapon. This is not a case in which complex scientific questions or other factual circumstances need to be meted out by a barrage of experts. In other words, the records of similar pending proceedings are not likely to be of much help to this Court. Therefore, because there is no controlling case law to the contrary, this Court will deny the Claimant's motion and proceed to rule on the Plaintiff's summary judgment motion at bar.

III. Motion for Summary Judgment

A. Summary Judgment Standard

Generally, Rule 56(c) of the Federal Rules of Civil Procedure allows this Court to grant summary judgment "if ... there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." In considering the evidence submitted by the parties, the Court does not weigh it or determine the truth of asserted matters. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court is to view all facts and draw all reasonable inferences in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Accordingly, "[t]he mere existence of a scintilla of evidence in support of the [opposing party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [opposing party]." Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir.1995) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (1986)).

Moreover, if the evidence presented is "merely colorable" and not "significantly probative," the Court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citation omitted). In most civil cases involving summary judgment, the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252, 106 S.Ct. 2505. Once the moving party has satisfied its burden of proof, the burden then shifts to the non-moving party, who may not simply rely on the pleadings but must "produce evidence that results in a conflict of material fact to be solved by a jury." Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir.1995).

B. Applicable Law

At the heart of this matter is the definition of "machine gun" under NFA. NFA Chapter 53 of Title 26 of the United States Code defines "machine gun" as:

Any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.

26 U.S.C. § 5845(b). It is illegal under the NFA for a person to be in possession of a machine gun that is not registered to him in the National Firearms Registration and Transfer Record. 26 U.S.C. § 5861(d).

Property involved in a violation of the NFA is subject to seizure and forfeiture to the United States. 26 U.S.C. § 5872(a). A person may file a claim of ownership of property seized by the government for forfeiture. 19 USC § 1608. Upon the filing of such a claim, the government must initiate a civil judicial forfeiture action and meet its initial burden to demonstrate probable cause to believe that the property was used in violation of law. Id. at § 1615; United States v. Any and All Radio Station Transmission Equip., 218 F.3d 543, 548 (6th Cir.2000).

Once the government establishes probable cause, then the burden shifts to claimant to prove, by a preponderance of the evidence, that the property was not related to the violation of federal law. 19 U.S.C. § 1615; United States v. Certain Real Property 566 Hendrickson Blvd., Clawson, Oakland County, Mich., 986 F.2d 990, 995 (6th Cir.1993). If claimant offers such evidence, the government may offer "probative admissible evidence to contest the claimant's proof." United States v. $129, 727.00 U.S. Currency, 129 F.3d 486, 492 (9th Cir.1997).

To establish probable cause, the government must demonstrate the existence of reasonable grounds "supported by less than prima facie proof but more than mere suspicion" for the belief that the property is subject to forfeiture. United States v. Rural Route 1, Box 137-B, 24 F.3d 845, 848 (6th Cir.1994). Whether there is probable cause is a question of law to be settled by the court. If the government's evidence is sufficient to establish...