United States v. One Assortment of 93 Firearms
Citation | 463 F. Supp. 365 |
Decision Date | 14 November 1978 |
Docket Number | Civ. A. No. 77-590. |
Parties | UNITED STATES of America, Plaintiff, v. ONE ASSORTMENT OF 93 FIREARMS, Defendant. |
Court | United States District Courts. 4th Circuit. United States District Court of South Carolina |
Glen E. Craig, Asst. U. S. Atty., Columbia, S. C., for plaintiff.
Herbert W. Louthian, Columbia, S. C., for Patrick M. Mulcahey, owner of property.
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION TO STRIKE.
This is a forfeiture action, originally filed March 31, 1977, and in which and by which plaintiff seeks condemnation as forfeited to the United States1, and a decree for the proper disposal thereof of 92 assorted firearms, as listed in an exhibit to the complaint, on the ground that "said firearms were had and possessed and used and intended to be used on January 20, 1977, and prior thereto by Patrick M. Mulcahey and Richland County, South Carolina, in violation of the laws of the United States by engaging in the business of a dealer in firearms and ammunition without the said Patrick M. Mulcahey having first applied for and received a license as a dealer in firearms * * *". In his answer, filed April 18, 1977, Mulcahey, first claimed ownership of the property described in the complaint and entered a general denial; for a second defense Mulcahey declared that he had been tried on the criminal side of the court, under the provisions of Chapter 44, Title 18, United States Code, in violation of Title 18, United States Code, §§ 922(a)(1) and 924(a) and thereafter acquitted by a verdict of a jury which rendered the issues before the court as res judicata, and collaterally estops the government from proceeding. A third defense alleges that the property was seized solely for the purpose of use of said property in evidence in a criminal proceeding and the criminal proceeding having been terminated, that plaintiff had no right to retain or condemn the property.
It is the last two defenses that plaintiff would strike, as positioned in its motion to strike, filed September 20, 1977. On November 9, 1977, defendant moved for summary judgment on the grounds that the owner had been acquitted in the criminal prosecution and that such criminal prosecution bars the forfeiture action. Therefore the motions involve the same issue, to wit: whether the admitted fact that the owner of the firearms was acquitted in a criminal prosecution foreclosed the forfeiture action as pursued by the government. The complaint verifies the fact that plaintiff accuses Mulcahey of violation of 18 U.S.C. §§ 922(a)(1), 923(a), and 924(d). At the hearing on the motions it was admitted that the verdict in the criminal trial on these charges was not guilty. A recitation or finding of fact is unnecessary as the facts are not in dispute.
Initially, this court finds the complaint is lodged under the forfeiture provisions of 18 U.S.C. § 924(d) which states:
It is to be noted that the section is not a criminal statute in term or in effect, but provides a civil penalty — forfeiture — for "any violation of the provisions of this chapter or any rule or regulation promulgated thereunder * * *." Such is the case before the court, a civil pursuit, as countenanced by the statute. A forfeiture proceeding is remedial in nature and is properly characterized as a civil proceeding. Glup v. United States, 523 F.2d 557, 561 (8th Cir. 1975); One Lot Stones v. United States, 409 U.S. 232, 237, 93 S.Ct. 489, 493, 34 L.Ed.2d 438, 443 (1972) citing Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 634, 82 L.Ed. 917 (1930).
In Glup the Eighth Circuit stated:
The reasoning in One Lot Stones is also applicable here:
If for no other reason, the forfeiture is not barred by the Double Jeopardy Clause of the Fifth Amendment because it involves neither two criminal trials nor two criminal punishments "Congress may impose both a criminal and a civil sanction in respect to the same act or omission * * *" (Citing Helvering v. Mitchell, supra.)
An examination of the record here shows one criminal case, another civil. The difference in the criminal proceeding on the one hand and the forfeiture proceeding on the other emphasizes the distinction here. The present action invokes the provisions of 26 U.S.C. § 5872(a)2 and 26 U.S.C. § 7323(a)3. The criminal action was not based on, neither included nor involved such sections.
This forfeiture action was properly brought under the provisions of 18 U.S.C. § 924(d) invoking the provisions of 26 U.S.C. § 5872(a) and 26 U.S.C. § 7323(a). This is an action in rem commenced by the Complaint for Forfeiture filed on March 31, 1977.4 The court ordered (April 4, 1977) that Warrant for Arrest and Notice issue. The court obtained jurisdiction over the property by the Marshal arresting it and retaining custody thereof under the direction of the court. There is nothing in such statutes that requires the property be seized under a warrant specifically providing that it is seized for forfeiture.
Where the property is lawfully seized as evidence in a criminal proceeding, it may be made the subject of a forfeiture proceeding under the provisions of 18 U.S.C. § 924(d), 26 U.S.C. §§ 5872(a), and 7323(a). It is clear that a claimant in a forfeiture proceeding is not entitled to the return of the defendant property on the ground he was acquitted in the related criminal proceeding. Glup, supra; United States v. One 1969 Buick Riviera Automobile, 493 F.2d 553 (5th Cir. 1974).
Of interest to this discussion is Epps v. Bureau of Alcohol, Tobacco & Firearms, 375 F.Supp. 345 (E.D.Tenn.1973), affirmed without opinion, 495 F.2d 1373 (6th Cir.). There the court stated as follows:
It is undisputed that the plaintiff did not, at the pertinent times, have a license to engage in the business of dealing in firearms and ammunition; but, he was acquitted of having violated the provisions of 18 U.S.C. § 922(a)(1) on November 7, 1972, in United States of America, plaintiff v. William E. Epps, Jr., defendant, criminal action no. 7260, this district and division. Such acquittal on such criminal charge is not a bar to the civil administrative action by the government, which is remedial in nature, arising out of the same facts on which the criminal proceeding was based. Helvering v. Mitchell (1938), 303 U.S. 391, 397, 58 S.Ct. 630, 82 L.Ed. 917, 921 (headnote 2). Forfeiture of goods is a civil sanction, remedial in nature. Ibid., 303 U.S. at 400, 82 L.Ed. at 922 (headnote 6); see also Colacicco v. United States, infra, 2 Cir. 143 F.2d 410 at 411-4122. (Emphasis added.) (p. 346).
It is obvious the second defense is insufficient.
In paragraph 9 of the complaint Mulcahey alleges that some of the appraised values of the firearms are not accurate and that the appraised total value is approximately one-third of the actual total value. This is not a valid defense.
The general statute (26 U.S.C. § 7323) providing for judicial...
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