The opinion
WEICK, Circuit Judge (concurring).
I concur in the judgment.
The stipulation of facts states:
“On November 17, 1969, on its motion, the United States dismissed with full prejudice its criminal indictment.”
In my opinion the dismissal with full prejudice is equivalent to an acquittal of the charge of possession of the unregistered firearms. The Government can no longer prosecute McKeehan for the same offense.
On February 4, 1970, the District Court, in its memorandum, entered the following order:
“It is, therefore, ordered that the accused weapons be, and the same hereby are, guilty and forfeited to the United States of America.”
The weapons were not contraband. They were war trophies brought into this country by a soldier, with the permission of the Government. The weapons committed no offense. 26 U.S.C. § 5861 (d) makes it an offense for “any person * * * (d) to receive or possess a firearm which is not registered to him in the National Registration and Transfer Record * * *.”
Section 5871 provides a penalty for any person “who violates or fails to comply with any provision of this chapter * *
Section 5872 provides that “any firearm involved in any violation of the provisions of this chapter shall be subject to seizure and forfeiture * *
In view of the dismissal of the indictment with full prejudice, which indictment charged violation of Section 5861 (d), it cannot be said that the firearms were involved in a violation of this chapter. Because of such dismissal, the Government ought to be estopped, not only from instituting another criminal charge against McKeehan, but also from forfeiting his property for the same alleged offense. The judgment of dismissal should be conclusive. By forfeiting McKeehan’s property, the Government is still attempting to punish him for possession of the firearms although it has foreclosed itself from prosecuting him.
Coffey v. United States, 116 U.S. 436 , 6 S.Ct. 437 (1886) sustains the defense of estoppel. There a defendant had been acquitted on criminal charges involving violations of the Internal Revenue laws. Subsequently the Government brought a forfeiture proceeding against the defendant’s property, based on the same violations of the Internal Revenue laws. The Court denied forfeiture. The Court said:
“There could be no new trial of the criminal prosecution after the acquittal in it; and a subsequent trial of the civil suit amounts to substantially the same thing, with a difference only in the consequences following a judgment adverse to the claimant.” 116 U.S. at 443 , 6 S.Ct. at 440-441 .
The forfeiture of McKeehan’s property clearly constitutes punishment of him for violation of the statute; but the Government has precluded itself from inflicting such punishment.
Coffey has been cited as—
“ * * * authority for the proposition that if the present defendants had been proceeded against criminally on account of the same acts and facts that must be shown in order to sustain this action under the statute of 1890, and had been acquitted, the verdict and judgment of acquittal would have bar *747 red a subsequent civil proceeding, based on the same acts and facts, and instituted to enforce a forfeiture * * United States v. Zucker, 161 U.S. 475, 478-479 , 16 S.Ct. 641, 642 (1896).
The Coffey doctrine, however, has been distinguished and limited. Starting with Stone v. United States, 167 U.S. 178, 186-187 , 17 S.Ct. 778 , 42 L.Ed. 127 (1897), the Court limited Coffey’s application to instances where the second suit, civil in nature, imposed a penalty or penal sanction on the same individual who was previously acquitted of the criminal charge. See, Murphy v. United States, 272 U.S. 630, 632 , 47 S.Ct. 218 (1926) where Coffey was held inapplicable because the subsequent civil suit’s purpose was prevention, not punishment. In Helvering v. Mitchell, 303 U.S. 391, 397 , 58 S.Ct. 630, 632 (1938) the Court said:
“That acquittal on a criminal charge is not a bar to a civil action by the Government, remedial in its nature, arising out of the same facts on which the criminal proceeding was based has long been settled.” (Emphasis added)
In Johnson v. Wall, 329 F.2d 149, 151 (4th Cir. 1964), the Court stated that the Coffey doctrine—
“ * * * is limited to those situations where the Government seeks to impose a punishment which, though civil in form, is penal in nature and is based upon the same facts as the criminal proceeding.”
Although Coffey has been much maligned, United States v. Burch, 294 F.2d 1, 4-5 (5th Cir. 1961), the case still has vitality within its subsequent restrictions, and we have no authority to overrule it. United States v. One 1956 Ford Fairlane Tudor Sedan, 272 F.2d 704 (10th Cir. 1959).
It would seem that the instant case falls directly within what is left of the Coffey doctrine. There has been a final determination of the criminal charges against McKeehan, in that he cannot be prosecuted again on the charge arising out of these same facts, and this determination is equivalent to finding him not guilty.
The subsequent civil proceeding, in the nature of forfeiture, can be characterized only as an action seeking to impose punishment, or a penal sanction, against Mc-Keehan. The forfeiture proceeding is not remedial in any sense, but is quasi-criminal in nature. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 , 85 S.Ct. 1246 (1965).
Failure of appellant to argue an applicable question of law on appeal does not preclude our consideration of it, where it is fairly presented by the record.