United States v. ONE ASSORTMENT OF 12 RIFLES & 21 HANDGUNS

• Decision Date: 03 June 1970
• Docket Number: Civ. A. No. 442.
• Citation: 313 F. Supp. 641
• Parties: The UNITED STATES of America, Plaintiff, v. ONE ASSORTMENT OF 12 RIFLES AND 21 HANDGUNS.
• Court: U.S. District Court — Northern District of Florida

313 F. Supp. 641

The UNITED STATES of America, Plaintiff, v. ONE ASSORTMENT OF 12 RIFLES AND 21 HANDGUNS.

Civ. A. No. 442.

United States District Court, N. D. Florida, Gainesville Division.

June 3, 1970.

Clinton Ashmore, Asst. U. S. Atty., Northern District of Florida, Tallahassee, Fla., for plaintiff.

Selig I. Goldin, Gainesville, Fla., for intervenor.

ORDER

MIDDLEBROOKS, District Judge.

This cause came on for hearing upon filing of cross-motions for summary judgment by plaintiff and by intervenor, Gail Anthony Miller. The facts of this case preceding this hearing should be outlined since this action involves a forfeiture under Section 5872 of the 1968 Gun Control Act. (See Title 26, United States Code, Section 5872)

On August 19, 1969, members of the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service, Treasury Department, seized weapons made the subject matter of this litigation from intervenor for breach of the provisions of Title 18, United States Code, Section 924(d). An indictment charging intervenor with violation of Title 18, United States Code, Sections 923 and 924(a) was returned and on April 14, 1970, upon trial in this Court, intervenor was acquitted of the charges by a jury of twelve. At the trial it was proven that intervenor had made sales of guns to agents of plaintiff and that intervenor had not registered as a licensed dealer under Title 18, United States Code, Section 923(a). It was intervenor's contention, however, that he was conducting only isolated sales which were not prohibited by the law nor violation of the law. None of the guns here seized was sold to plaintiff's agents although testimony adduced at the trial conclusively showed that they were on display in the same area where the sales were made and no doubt would have been sold by intervenor had there been a willing buyer.

Intervenor in support of his motion for summary judgment has attempted to supply this Court with authority which would show that as a matter of law he is entitled to judgment and the return of his guns. See Heath v. United States, 169 F.2d 1007 (10th Cir. 1948); Supreme Malt Products Co., Inc. v. United States, 153 F.2d 5 (1st Cir. 1946); Henry v. United States, 204 F.2d 817 (6th Cir. 1953); United States v. Griesel et al., 122 F.Supp. 646 (D.C.Minn.1954). Each of these cases, however, was concerned with what specific activities of a defendant would constitute being "engaged in business" as contemplated by the Internal Revenue Code. These decisions would be of some import in consideration of what would constitute an unlawful act under Title 18, United States Code, Section 922(a). However, insofar as this forfeiture action is concerned, these decisions would be of little relevance for the language with which this Court is concerned reads as follows:

"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 * * * shall, so far as applicable, extend to seizures and forfeitures under the provisions of this chapter." 18 U.S.C. § 924(d).

This action, being one civil in nature, is governed by a standard altogether different from that governing a criminal prosecution under Title 18, United States Code, Sections 923 and 924(a). See United States v. Burch, 294 F.2d 1 (5th Cir. 1961). Thus, the measure of proof to sustain the position of the government in this type case is by a preponderance of the evidence. See United States v. United States Currency, 264 F.Supp. 394 (M.D.Pa.1966...