United States v. Twenty-Two Firearms
| Decision Date | 15 January 1979 |
| Docket Number | Civ. A. No. 78-K-1101. |
| Citation | 463 F. Supp. 730 |
| Parties | UNITED STATES of America, Plaintiff, v. TWENTY-TWO FIREARMS, Defendant. |
| Court | U.S. District Court — District of Colorado |
Charles L. Casteel, Asst. U. S. Atty., Denver, Colo., for plaintiff.
David S. Williamson, Constantine & Prochnow, Englewood, Colo., for defendant.
This is a forfeiture proceeding by means of which the government seeks to declare twenty-two firearms forfeit because such firearms were allegedly involved in, or used or intended to be used in, a violation of 18 U.S.C. § 922(a)(1) which prohibits a person from engaging in the business of firearms dealing without having first obtained a license from the Secretary of the Treasury as provided by 18 U.S.C. § 923. Among the essential allegations contained in the complaint is the recitation that "... this action has been authorized pursuant to authority conferred by 26 U.S.C. § 7401." That statute reads as follows:
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.
There are many sound reasons for the existence and enforcement of the statute. One of the most telling is that the law abhors a forfeiture and another is the extreme harshness of the remedy which can have inordinately disparate results depending more upon the selection of the res to be forfeited than upon the gravamen of the offense.
Irrespective of the reasons for its existence, however, it is binding upon the government and upon the court. Robert L. Schear filed a notice of claim in this action that he is the owner of the items which are the subject of this action thereby entitling him to restitution of them and an answer to the complaint in which he alleged in part as follows:
1. This claimant denies the allegations contained in paragraph 1 of the Complaint except that he is without information or knowledge sufficient to form a belief as to the allegation contained in paragraph 1 with respect to the authority conferred by 26 U.S.C. § 7401.
Rule 8(b), F.R.Civ.P. provides that Thus the requirements of the statute were placed in issue.
In the absence of a denial, the authorization of the Secretary or his delegate and the direction of the Attorney General or his delegate to commence the action may be presumed. U. S. v. One 1941 Cadillac Sedan, 145 F.2d 296 (C.C.A.Ind.1944). However, the law is clear, and I so hold, that where allegations of authority to proceed and direction to commence the action are denied, the issues are put to proof and the conditions precedent shall not be presumed. There is too much danger that, in the absence of proof of compliance with the conditions precedent, I would be proceeding without jurisdiction. U. S. v. One 1972 Cadillac, Coupe DeVille, 2-Door Hardtop, 355 F.Supp. 513 (D.C.Ky.1973). Additionally, such proof will prevent a multiplicity of litigation. It is entirely possible that the immunity normally afforded to those bringing suit would not be available since responsibility for such prosecution lies only with the Attorney General or his delegate and not with those generally authorized to represent the government. See generally, Flood v. Harrington, 532 F.2d 1248 (9th Cir. 1976). Finally, with respect to this point, it seems only fair that if the government chooses to pursue such a harsh and procrustean remedy as forfeiture, then its compliance with the law should be judged with the same exactitude which it expects of its citizens.
In U. S. v. One 1976 Buick Skylark, 2-Door Coupe, 453 F.Supp. 639 (D.C.Colo. 1978) I discussed the state of the law of forfeiture since Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 633, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974). 453 F.Supp. at pages 641-642 the following appears:
The courts have little, if any, discretion in forfeiture cases. (U. S. v. One 1973 Jaquar Coupe, 431 F.Supp. 128...
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