U.S. v. Parsons
| Decision Date | 07 February 2007 |
| Docket Number | No. CR06-4065-MWB.,CR06-4065-MWB. |
| Citation | 472 F.Supp.2d 1169 |
| Parties | UNITED STATES of America, Plaintiff, v. James J. PARSONS, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Forde Fairchild, Assistant U.S. Attorney, Sioux City, IA, for Plaintiff.
Priscilla Elizabeth Forsyth, Federal Public Defender, Sioux City, IA, for Defendant.
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND ...........................................1170
A. Procedural Background .............................................1170
B. Factual Background ................................................1171
II. LEGAL ANALYSIS ........................................................1172
A. Federal Rule of Criminal Procedure 41(g) ..........................1172
B. Balancing of Equities .............................................1174
III. CONCLUSION ............................................................1178
On July 27, 2006, an indictment was returned against defendant James J. Parsons. In Count 1, defendant Parsons is charged with possession of machine guns, specifically a German World War II machine gun model number MG34, serial number 889, a Sten machine gun, serial number 74118, and a Browning machine gun, model number 1919, no serial number, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2). In Count II, defendant Parsons is charged with possessing three hand grenades and three machine guns, the same three machine guns charged in Count I, which were not registered to him in the National Firearms Registration and Transfer Record, in violation of §§ 5841, 5861(d) and 5871. Defendant Parsons subsequently appeared before United States Magistrate Judge Paul A. Zoss and entered a plea of guilty to Counts 1 and 2 of the indictment. On December 22, 2006, the court accepted Judge Zoss's Report and Recommendation, and accepted defendant Parsons's plea of guilty in this case to Counts 1 and 2 of the indictment. On January 19, 2007, the court sentenced defendant Parsons to concurrent terms of imprisonment of 366 days.
Before he was sentenced, defendant Parsons filed a Motion For Return Of Property (# 26). In his motion, filed pursuant to Federal Rule of Criminal Procedure 41(g), defendant Parsons seeks to designate that his firearm collection should be given to a friend, Louis W. Aloia.1 The government filed a timely response to defendant Parsons's motion.
The following facts are drawn from defendant Parsons's Presentence Investigation Report and from exhibits and witnesses presented at the time of defendant Parsons's sentencing hearing.2
Defendant Parsons is a 67 year old chiropractor who has resided and practiced Chiropractics in Miami since 1973. He is a longtime collector of firearms. On July 20, 2006, defendant Parsons was a passenger in a Budget Rental truck which was stopped by an officer with the Iowa Department of Transportation, Office of Motor Vehicle Enforcement in order to ensure that the truck had the appropriate paperwork. The truck was being driven by defendant Parsons's fiancee, Sherril Gold. Defendant Parsons and Gold explained that they had rented the truck and were in the process of moving their personal household belongings from Florida to Montana. Gold provided the officer with the truck's rental agreement. After defendant Parsons refused to consent to a load inspection, the officer proceeded to have a canine unit conduct a drug sniff of the vehicle. After the canine alerted on the vehicle, the officer cut the lock on the door of the truck.3 Law enforcement officers subsequently obtained a search warrant for the truck. Defendant Parsons then told law enforcement officers that he had three machine guns in the truck and one pound of black powder. Defendant Parsons told the officers that there were no hand grenades in the truck.
A search of the truck revealed the following: a German World War II MG34 machine gun; a Sten machine gun; a Browning design Model 1919 type machine gun; tens of thousands of live rounds of ammunition; 114,000 live ammunition primers; 56 long guns; an unarmed anti personal device consisting of a rattrap modified to fire two shotgun shells when a trip line was disturbed; three hand grenade bodies with plugs and fuses; one pound of black powder; 120 electronic matches; a bottle containing eight ounces of Thermite; two ignitors; two bottles containing four ounces each of Pryo Magnesium; approximately 50 feet of cannon fuse; and, a military style HC smoke grenade with fuse. The government has retained possession of the following firearms seized from defendant Parsons: a Winchester model 94 rifle, serial number 24634539; a Browning model light twelve shotgun, serial number 71G63173; a Winchester model light twelve shotgun, serial number 49746; U.S.A. Military surplus rifle, serial number 298854; a Polytechnologies model AK47S rifle, serial number DF-03461; a Remington model 550-1 rifle without a serial number; a Winchester model 94 rifle, serial number 2265238; a Remington model 660 rifle, serial number 120659; a model SWP45 rifle without a serial number; a DSA model SA58 rifle, serial number DS23495; a Winchester model Win-Lite shotgun, serial number 25643; a Browning model 78 rifle, serial number 1449W37; a U.S.A. Military surplus rifle, serial number 2118694; a Mossberg model 44US rifle, serial number 102790; a Winchester model 97 shotgun, serial number 899846; a Czechoslovakian made model M98/29 rifle, serial number C06635; a Remington model Sportsmaster 52 rifle, serial number 1LRRO; a Remington model 1100 shotgun, serial number L842702V; a Weatherby model Mark V rifle, serial number 29000; a Heckler and Koch model HK91 rifle, serial number A033872; a Mossberg model 44US rifle, serial number 145985; a Norinco MAK-90 rifle, serial number 04369; a Czechoslovakian made model M98/29 rifle, serial number P4021; a Remington model U.S. Gov't .03-A3, serial number 3450609; a Chinese made SKS rifle, serial number 27018424; an American Spirit Arms model ASA15 rifle, serial number AS14286; a Browning unknown model rifle, serial number 655717; a Kimber model Classic Stainless pistol, serial number K053789; a Beretta model 21A pistol, serial number BES18723U; a Colt model Anaconda pistol, serial number AN10475; a Smith & Wesson model 15-2 revolver, serial number K736050; a Czechoslovakia model CZ52 pistol, serial number FK14622; a Colt model Commander pistol, serial number CLW033397; a Ruger model Super Blackhawk revolver, serial number 82-39443; a Beretta model 950 pistol, serial. number BR07381T; a Czechoslovakia unknown model pistol, serial number Z12890; a Manurhin model PPK pistol, serial number 140333S; a Colt model MKIV Series 70 pistol, serial number 11464G70; a FEG unknown model pistol, serial number B95301; a Smith & Wesson model 29-2 pistol, serial number N310025; an Astra model 600/43 pistol, serial number 53005; an Interarms model Virginian revolver, serial number 0521; a Colt model MKIV 70 pistol, serial number 71125G70; a Glock model 40 pistol, serial number ELC722; a Smith & Wesson model 41 pistol, serial number A293207; a Walther model PPK/S pistol, serial number 121986S; a Czechoslovakia unknown model pistol, serial number D08544; an Intratec model Tec-22 pistol, serial number 065927; a Smith & Wesson model 422 pistol, serial number TBH1559; a Kimber model Stainless Gold Match, serial number K077290; a Colt model MKIV Series 70 pistol, serial number 86206G70; a Calwestco Inc. model Jennings pistol, serial number 616028; a Ruger model Super Blackhawk revolver, serial number 86-30683; and, an Auto Nine unknown model pistol, serial number 905430. In addition to the firearms, the government has retained possession of the following items seized from defendant Parsons: several boxes of miscellaneous firearm ammunition brass; 114,000 assorted firearm ammunition components; and, 48,-681 rounds of firearm ammunition of assorted calibers.
Defendant Parsons seeks to have all of these items turned over to his friend, Louis W. Aloia. Up until the time defendant Parsons pleaded guilty to the charges in this case, he could lawfully own and possess all of the firearms, ammunition and other items he seeks to have turned over to Aloia. Aloia testified that if these items are turned over to him, he intends to have a federally licensed firearms dealer in his home state of Arizona sell some of the firearms and he will keep the remainder. Aloia would solely determine what to do with the proceeds of the sale of the firearms. Aloia would not permit defendant Parsons to see or possess any of the firearms he retained from Parsons's gun collection. The government's counsel indicated that if the government retains possession of the items that most, if not all of them, will be destroyed.
Federal Rule of Criminal Procedure 41(g)(formerly Rule 41(e)) provides that:
A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
As the Eighth Circuit Court of Appeals has explained:
The plain language of Rule 41(e) allows persons whose property has been seized by the government to petition the district court for the return of the confiscated property. See Fed.R.Crim.P. 41(e). Rule 41(e) compels a district court to afford such persons an opportunity to submit evidence in order to demonstrate that they are lawfully entitled to the...
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