U.S. v. Walters

• Decision Date: 20 January 1981
• Docket Number: No. 78-3653,SIXTY-TWO,78-3653
• Citation: 638 F.2d 947
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. W. R. WALTERS et al., Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. TWO HUNDREDFIREARMS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 947

638 F.2d 947

UNITED STATES of America, Plaintiff-Appellant, v. W. R. WALTERS et al., Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellant, v. TWO HUNDRED SIXTY-TWO FIREARMS, Defendant-Appellee.

No. 78-3653.

United States Court of Appeals Sixth Circuit.

Argued Aug. 14, 1980.

Decided Jan. 20, 1981.

C. Cleveland Gambill, Asst. U. S. Atty., Lexington, Ky., Dale Cayot, Regional Counsel, BATF, Cincinnati, Ohio, for plaintiff-appellant.

Dan Jack Combs, Pikeville, Ky., for defendant-appellee.

Before ENGEL and JONES, Circuit Judges, and LAMBROS, District Judge. ^*

NATHANIEL R. JONES, Circuit Judge.

The United States appeals from a judgment dismissing its petition for forfeiture of 262 weapons. The district court held that it lacked jurisdiction because the United States Attorney General or his delegate failed to authorize the forfeiture action. The issues on appeal are: (1) whether the United States' failure to file objections to a Magistrate's Report in the district court prior to its adoption of such report constitutes a waiver of the right to appeal; (2) whether a United States Attorney is a delegate of the United States Attorney General authorized to commence a forfeiture action; and (3) whether the government's seizure of the 262 weapons violated the Fourth Amendment. For the reasons set forth below, we reverse the judgment of the district court and remand the case for appropriate proceedings.

I.

The defendant has a federal license to deal in firearms at two locations in Pikeville, Kentucky. The defendant sold firearms to undercover agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) at a gun show in Virginia without a license to deal in firearms at that location. He pleaded nolo contendre to the sale of firearms in violation of federal law, ¹ and he received and paid a fine of $1,500. Thereafter, pursuant to a search warrant procured in the Eastern District of Kentucky, ATF agents searched the defendant's residence and business. ATF agents seized 262 firearms because the defendant allegedly failed to produce either inventory records, or records of receipt or disposition.

On April 13, 1977, in a letter to the United States Attorney at Lexington, Kentucky, the Regional Counsel, Central Region, Bureau of Alcohol, Tobacco and Firearms, requested the commencement of forfeiture proceedings. On April 26, the defendant filed a motion in the United States District Court for the Eastern District of Kentucky for the return of the seized firearms. On May 31, the United States Attorney initiated forfeiture proceedings by filing a complaint in district court.

The actions were consolidated by the district court and referred to the United States Magistrate for hearing. Following an evidentiary hearing, the magistrate concluded that the United States Attorney General or his delegate had not authorized commencement of the forfeiture action pursuant to 26 U.S.C. § 7401. Therefore, in the magistrate's opinion, the district court lacked jurisdiction to issue a judgment enforcing the forfeiture. The magistrate recommended that the defendant's motion for the return of the firearms be granted.

Fifteen days later, the district court, after reviewing the magistrate's report and noting that no objection had been filed, adopted the report. The United States appeals the district court's order dismissing the forfeiture action.

II.

Before addressing the merits of this appeal, we must decide whether the United States' failure to object to the magistrate's report and recommendation prior to the district court's adoption of such report constitutes a waiver of a right to appeal the district court's order.

The Federal Magistrate's Act, 28 U.S.C. § 631 et seq. provides:

(B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.

(C) the magistrate shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties.

Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

§ 636(b)(1)(B) (emphasis added). Our inquiry focuses on the phrase "may serve and file written objections."

The defendant argues that the United States waived its right to appeal by failing to file objections to the magistrate's report and thereby obtain a de novo review of such issues in the district court. ² He relies upon United States v. Reeds, 552 F.2d 170 (7th Cir. 1977), to contend that this appeal, in effect, is a direct appeal from the magistrate's finding. However, Reeds is distinguishable from our case. In Reeds the defendant appealed directly from a magistrate's finding, while the United States appeals from an order of the district court. Direct appeals from the magistrate's findings are correctly denied, because only final orders of the district court are appealable pursuant to 28 U.S.C. § 1291. Taylor v. Oxford, 575 F.2d 152, 154 (7th Cir. 1978); Dye v. Cowan, 472 F.2d 1206 (6th Cir. 1977).

The United States contends that, in light of the advisory function of the magistrate, Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976), the district judge was still entirely free to "accept, reject or modify in whole or in part, the findings and recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(B). It argues that because the statute does not require the filing of objections and there was no desire to present additional evidence, it would have been a waste of judicial economy to demand a complete rehearing. Initial review at the district court was presumed because ultimate responsibility for decisionmaking in every instance is retained by the judge. Id.

The permissive language of 28 U.S.C. § 636 suggests that a party's failure to file objections is not a waiver of appellate review. However, the fundamental congressional policy underlying the Magistrate's Act to improve access to the federal courts and aid the efficient administration of justice ³ is best served by our holding The filing of objections provides the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately. This comports with judicial efficiency and "will often save the parties the expense and difficulty of appeal." Sick v. City of Buffalo, 574 F.2d 689, 693 (2nd Cir. 1978); United States v. Jones, 581 F.2d 816 (10th Cir. 1978). The decision in Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980) aptly recognized:

that a party shall file objections with the district court or else waive right to appeal. Additionally, through the exercise of our supervisory power, we hold that a party shall be informed by the magistrate that objections must be filed within ten days or further appeal is waived.

The purpose of the Magistrate's Act is to relieve courts of unnecessary work. Since magistrates are not Article III judges, it is necessary to provide for a redetermination by the court, if requested, of matters falling within subsection (b)(1)(B).

Id. at 605.

However, we give our ruling only prospective effect because rules of procedure should promote, not defeat the ends of justice, Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941), the position of the United States was plausible, and our rule was not invariably anticipated. Therefore, the final order of the district court is appropriately before this Court, pursuant to 28 U.S.C. § 1296.

III.

The main issue raised by the United States is whether it properly authorized the commencement of the forfeiture proceedings. The district court ruled that specific authorization from the Attorney General or his delegate was needed and such authorization was not provided. We disagree.

The United States brought the civil forfeiture action under 18 U.S.C. § 924(d) which provides:

(d) 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.

The jurisdictional requirement for bringing a forfeiture action is set forth in 26 U.S.C. § 7401:

No civil action for the collection or recovery of taxes, or of any fine, penalty, or forfeiture, shall be commenced unless the Secretary or his delegate authorizes or sanctions the proceedings and the Attorney General or his delegate directs that the action be commenced. Aug. 16, 1954, c. 736, 68A Stat. 873.

This statute was construed in United States v. One 1972 Cadillac Coup DeVille, 355 F.Supp. 513 (E.D.Ky.1973), to require (1) specific permission from the Secretary of the Treasury or his delegate to proceed and (2) direction from the Attorney General or his delegate that the action be commenced in district court. In the instant case, ...