United States v. 133 Firearms with 36 Rounds of Ammunition
| Decision Date | 15 February 2012 |
| Docket Number | Case No. 2:08-cv-1084 |
| Parties | United States of America, Plaintiff, v. 133 Firearms with 36 Rounds of Ammunition, Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
This is an in rem civil forfeiture action brought by the government against 133 firearms and 36 rounds of ammunition. The verified complaint for forfeiture filed on November 14, 2008, alleges that the defendant firearms and ammunition were involved in and intended to be used in one or more violations of 18 U.S.C. §922(a)(1)(A), engaging in the business of dealing in firearms without a license, and that the defendants are therefore subject to forfeiture pursuant to 18 U.S.C. §924(d)(1) and (3). According to the complaint, the firearms and ammunition were seized from the residence of Terry Thompson, 270 Kopchak Road, Zanesville, Ohio, on June 18, 2008, during the execution of a search warrant by agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"). The complaint includes a list of the defendant firearms.1 On December 29, 2008, Terry Thompson and his wife, Marian Thompson,filed a verified claim to the firearms, claiming joint ownership of the defendant firearms and ammunition.
On January 19, 2012, a notice of death was filed concerning the death of Terry Thompson on October 18, 2011. A motion for substitution of his estate as a party has ben filed and is unopposed. The motion to substitute Terry Thompson's estate as a party will be granted.
This matter is before the court on the government's motion for summary judgment. Counsel for the estate has indicated that no further briefing is required following the substitution of the estate as a party. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The central issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record, by showing that the materials cited do not establish the absence or presence of a genuine dispute, or by demonstrating that an adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A) and (B). In considering a motion for summary judgment, this court must draw all reasonable inferences and view all evidence in favor of the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Am. Express Travel Related Servs. Co. v. Kentucky, 641 F.3d 685, 688(6th Cir. 2011).
The moving party has the burden of proving the absence of a genuine dispute and its entitlement to summary judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party's burden of showing the lack of a genuine dispute can be discharged by showing that the nonmoving party has failed to establish an essential element of his case, for which he bears the ultimate burden of proof at trial. Id. Once the moving party meets its initial burden, the nonmovant must set forth specific facts showing that there is a genuine dispute for trial. Id. at 322 n. 3. "A dispute is 'genuine' only if based on evidence upon which a reasonable jury could return a verdict in favor of the non-moving party." Niemi v. NHK Spring Co., Ltd., 543 F.3d 294, 298 (6th Cir. 2008). A fact is "material" only when it might affect the outcome of the suit under the governing law. Id; Anderson, 477 U.S. at 248.
According to the affidavit of ATF Agent James M. Ash (Doc. 3), marked as Exhibit A and submitted in verification of the complaint, Terry Thompson was formerly a federally licensed firearms dealer. Mr. Thompson surrendered his license in April, 2003, and turned in his records to ATF on or about January 26, 2004, thereby terminating his license to sell firearms. At that time, Mr. Thompson's reported inventory consisted of 55 firearms. Doc. 3, ¶ 3. By letter dated March 5, 2004, ATF informed Mr. Thompson that it had received his firearms records, that his license had been placed on inactive status, and that he was no longer authorized to conduct business using the license. Doc. 60, Ex. A.
The affidavit describes conversations between a confidentialinformant and Mr. Thompson during meetings on April 24, 2008, May 13, 2008, and May 20, 2008, at Mr. Thompson's residence, 270 Kopchak Road, Zanesville, Ohio. The informant wore a wire during these meetings and the conversations were recorded. Excerpts from the transcripts of these recordings are included in the record. During these meetings, Mr. Thompson showed the informant various firearms, and discussed other firearms sales he had made recently. At the meeting on May 20, 2008, the informant purchased a Smith & Wesson .44 caliber revolver, a Remington 12 gauge shotgun, and nine rounds of ammunition from Mr. Thompson for $1,500 in cash, and Mr. Thompson provided a signed, handwritten receipt for the firearms. Mr. Thompson told the informant that he surrendered his firearms license because he did not like to fill out the paperwork, and that he would not divulge anything about the firearms purchase to the authorities.
On June 18, 2008, a search warrant was executed at the Kopchak Road residence, resulting in the seizure of 133 firearms and 30 rounds of ammunition. Five of the weapons were fully automatic, and eight of the weapons were classified. At least 100 of the weapons were not in Mr. Thompson's reported inventory at the time he surrendered his federal firearms license. Doc. 3, ¶ 11. Several of the firearms seized had price tags affixed to them. Doc. 60, Ex. D. The agents did not uncover any evidence during the investigation that Mrs. Thompson was involved with dealing in firearms without a license, and Agent Ash characterized Mrs. Thompson's participation in the discussions with the informant as being .5 percent. Ash Dep. pp. 72, 90.
The record also includes the declarations of Mr. and Mrs. Thompson and excerpts from their depositions. Mr. Thompsontestified that two of the seized firearms belonged to his friend, Tom Absalon, and that he had possession of the guns to sell for Mr. Absalon. Mr. Thompson testified that when he surrendered his license, he transferred all of the firearms in his inventory to his name. TT Dep. p. 26. Mr. Thompson couldn't say exactly how often he sold a firearm after he surrendered his license, but stated the sales were "very, very causal." TT Dep. pp. 67-68. He also testified that Mrs. Thompson had an interest in the firearms because her money was used in their purchase. TT Dep. p. 59. In his declaration, Mr. Thompson stated that since 2003, he has only made occasional casual sales as part of his personal firearm collection, and that the principal objective of the gun collection was for his personal enjoyment. TT Decl., ¶¶ 6, 8. He denied engaging in repetitive purchases and resales of firearms, and stated that he has never engaged in the business of selling firearms without a license. TT Decl., ¶¶ 9-10, 12.
Mrs. Thompson testified at her deposition that she acted as her husband's secretary in their businesses and knew what he was paying for the weapons he bought. MT Dep., p. 26. She stated that the 22 firearms transferred from the business inventory which were not recovered during the search were traded on vehicles or motorcycles that they sold, and that Mr. Thompson acquired the additional 100 firearms through trading. MT Dep., pp. 26-27. Mrs. Thompson stated that she did not personally trade, but that she was usually there when firearms were delivered. MT Dep., p. 27, 29. She stated that she was part owner of the firearms because she gave her paycheck to her husband. MT Dep. p. 33. Mrs. Thompson denied that she or her husband engaged in repetitive purchases or resales of firearms or the business of selling firearms without a license.MT Decl. ¶¶ 4-5, 7.
The government seeks forfeiture of the defendant firearms pursuant to 18 U.S.C. §924(d). Under that section, "any firearm or ammunition involved in or used in any ... willful violation of any other provision of this chapter ... or any firearm or ammunition intended to be used in any offense referred to in paragraph (3) of this subsection, where such intent is demonstrated by clear and convincing evidence, shall be subject to seizure and forfeiture[.]" 18 U.S.C. §924(d)(1). Forfeiture actions under §924(d) are civil proceedings. United States v. Eighty-Six Firearms and Twenty-Two Rounds of Ammunition, 623 F.2d 643, 644 (10th Cir. 1980).
Where it is alleged that the firearm was "involved in or used in" any of the offenses listed in 18 U.S.C. §924(d)(3), the government's burden of proof is by a preponderance of the evidence. United States v. Four Hundred Seventy Seven (477) Firearms, 698 F.Supp.2d 890, 892-93 (E.D.Mich. 2010). In addition, where the government's theory of forfeiture is that the property was used to commit or was involved in the commission of a criminal offense, the government must establish that there was a substantial connection between the property and the offense. 18 U.S.C. §983(c)(3). Where the basis for forfeiture is that the firearm was intended to be used in one of the enumerated offenses, the government's burden is by clear and convincing evidence. Four Hundred Seventy Seven (477) Firearms, 698 F.Supp.2d at 982-93.
For purposes of §924(d)(1), the term "used" means more than mere possession, and entails active employment or utilization of the firearm. United States v. Cheeseman, 600 F.3d 270, 276-78 (3d Cir. 2010). The term "involved in" means "to engage as aparticipant;" ...
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