# Petition — United States v. One Assortment of 89 Firearms

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0148%3A01

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 354

## Text

on: : ‘reme Court, U.S.

wig ag ewe MPR
No. 20 1982

ith
ju the Supreme Court of the United States

OCTOBER TERM, 1982

* arms SEs e \ ‘

UNITED STATES OF AMERICA, PETITIONER
ONE ASSORTMENT OF 89 FIREARMS |

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

REx E. LEE
Solicitor General

D. LOWELL JENSEN
Assistant Attorney General

ANDREW L. FREY
Deputy Solicitor General

RICHARD G. WILKINS
Assistant to the Solicitor General

SIDNEY M. GLAZER
Attorney

Department of Justice
Washington, D.C. 20530
(202) 633-2217

QUESTION PRESENTED

Whether a prior acquittal on criminal charges in-
volving firearms precludes a subsequent in rem for-
feiture proceeding against the firearms.

(1)

TABLE OF CONTENTS

Page
Cpbenbees REO W ....ceccccscrssssciestatseeeesnaen IS LOSES 1
Jurisdiction .......-..censessisctscccciesdsicietecbescekessseuuanaaaeeaaanee 2
Starbute fewolwed .—ecencccccosnsccsnsssisnistesteseeee 2
DOR CTNGTE 2 nncccccccensancirocnsnsuntdinunn 2
Reasons for granting the petition ..00..0...........c.ccceccceceeeeees 7
CemCR EOE nnn ecannccensessnncinsenniosnsstsealisuieassee 19
BORGES Bh onnecncceececceevsseserrncinsiene la
Mappa, BB annnnncccccnceeiecie-sensensie lba
Bimmpemn GT CC an essceesesscnicseversversssitnne 80a
Agpendiz D). .......--usiness. The fact that the claimant
kept the entire assortment of firearms so accessible to
his surplus shov room, that he repeatedly went into the
non-public area of his residence to obtain the firearms
he did display to the government agents, the claimant's
own statements, his course of dealing, and the wealth of
circumstantial evidence in the record prove by a pre-
ponderance of the evidence that he used or intended to
use all of the firearms he personally possessed as an
inventory to be drawn from in the course of dealing
in firearms, in violation of 18 U.S.C. § 922(a) (1).

5

2. A divided panel of the court of appeals reversed
(App. B, infra, 15a-29a). Relying on Coffey v.
United States, 116 U.S. 436 (1886), the panel held
that the forfeiture action was barred by Mulcahey’s
criminal acquittal because the criminal action in-
volved “the identical facts’ of the forfeiture pro-
ceeding and the “essential elements” of the forfeiture
action had therefore been resolved against tl.> gov-
ernment (App. B, infra, 22a).

Chief Judge Winter dissented (App. B, infra,
23a-29a). He concluded (id. at 23a) that while
“Coffey holds that a subsequent criminal forfeiture
is barred by an earlier acquittal on criminal charges
arising out of the same facts,” more recent Supreme
Court decisions “compel the conclusion that the for-
feiture in the present case is civil.’”’ A subsequent
civil action, Judge Winter reasoned, is not barred by
a criminal acquittal “because the standards of proof
in criminal and civil proceedings are different”
(ibid.). Relying on Helvering v. Mitchell, 303 U.S
391 (1938), Murphy v. United States, 272 U.S. 630
(1926), and Stone v. United States, 167 U.S. 178
(1897), Judge Winter concluded that “if the for-
feiture proceeding is civil in nature,” res judicata
does not bar the civil action, and “the standard of
proof argument, by itself, is enough to defeat any
resort to collateral estoppel” (App. B, infra, 24a).
Judge Winter noted that the rationale adopted by the
majority was rejected in One Lot Emerald Cut
Stones v. United States, 409 U.S. 232 (1972), be-
cause the forfeiture provision at issue in that case
was found to be civil in nature. He contended that
similar reasoning controlled in this case. “The for-
feiture statute here, 18 U.S.C. § 924(d), was mani-
festly designed to ait in the enforcement of gun

6

control laws by preventing the circulation of firearms
which had been illegally obtained. One Lot thus com-
pels the conclusion that the forfeiture at issue here
is civil in nature, so that the double jeopardy and res
judicata claims must be rejected. It matters not,
despite the majority’s views, that the necessary
allegations in the criminal proceeding and the for-
feiture proceeding were identical” (App. B, infra,
at 27a, footnote omitted).

3. On rehearing en banc the court of appeals ad-
hered to the panel decision by a 5-4 vote (App. A,
infra, la-4a). The majority again specifically relied
on Coffey v. United States, supra, and rejected the
government’s argument that a prior criminal ac-
quittal does not bar a subsequent forfeiture proceed-
ing (App. A, infra, 3a-5a). It concluded that the
sanction at issue here is criminal in nature, relying
on the fact that the forfeiture provision is contained
in 18 U.S.C. (& Supp. IV) 924 and “[e]verything in
§ 924 provides a penalty, be it fine, prison or for-
feiture, for the violation of a provision of the Gun
Control Act” (App. A, infra, 9a-10a). The court dis-
tinguished Helvering v. Mitchell, supra, and other
Supreme Court precedent providing for civil penalties
subsequent to a criminal acquittal on the ground that
“Tt}here is nothing remedial about forfeiture under
§ 924(d)” (App. A, infra, 10a).

Judge Winter, joined by three others, again dis-
sented. Relying in part on the reasoning of his dis-
sent at the panel stage, he further noted that the
“majority errs when it confidently asserts that the
jury verdict in the criminal action conclusively set-
tled the issue that Mulcahey was not engaged in the
business of dealing in firearms without a license”
(App. A, infra, 18a). Because of Mulcahey’s asser-

7

tion of entrapment, “it is equally possible that the
jury found that Mulcahey was engaged in the bus-
iness of dealing in firearms without a license, but
had been entrapped into committing an illegal sale,
as [that it] found that Mulecahey was not so en-
gaged” (ibid.). Judge Winter also remained con-
vinced “that the forfeiture provisions of 18 U.S.C.
924(d) are civil in nature so that any determina-
tion in the criminal prosecution is irrelevant to a
decision of forfeiture” (App. A, infra, 18a; emphasis
in original). This conclusion is reinforced, Judge
Winter reasoned, by the fact that the forfeiture pro-
vision is significantly broader in scope than the crim-
inal sanctions (id. at 18a-14a). The forfeiture provi-
sion provides “disjunctively that ‘[a]ny firearm in-
volved in or used or intended to be used in, any viola-
tion of this chapter * * * shall be subject to seizure
and forfeiture * * *’ (emphasis added). [18 U.S.C.
924(d)]. Nothing in the provision of § 922 under
which Mulcahey was prosecuted renders an intention
to engage in the business of dealing in firearms with-
out a license illegal” (App. A, infra, 18a-14a; foot-
note omitted).

REASONS FOR GRANTING THE PETITION

Section 924(d) of Title 18 of the United States
Code provides for the seizure and forfeiture of
“fajny firearm or ammunition involved in or used
or intended to be used in, any violation of [federal
gun control law].” Relying solely on Coffey v. United
States, 116 U.S. 436 (1886), the court of appeals
ruled that an acquittal on criminal charges bars a
subsequent forfeiture action under 18 U.S.C. 924(d),
notwithstanding the fact that forfeiture actions
under Section 924(d) have traditionally been sub-
ject to the preponderance of evidence standard of

8

proof rather than the much stricter criminal stand-
ard. Although the doctrinal basis for its preclusion
rule is unclear, the lower court’s decision rests on the
premise that “[t]he criminal verdict conclusively de-
cided that the firearms * * * were not ‘involved in
or used or intended to be used in the violation’” of
federal law (App. A, infra, 8a). This factual resolu-
tion, the court concluded, is binding on all subsequent
judicial proceedings involving the firearms and bars
the forfeiture action here.

The premise and conclusion of the court of appeals
conflict with controlling legal precedent and are
faulty as a matter of logic. An acquittal, of course,
establishes only that the government has not shown
beyond a reasonable doubt that certain facts exist;
it does not “conclusively” establish that those facts
do not exist. The decisions of this Court, therefore,
clearly hold that a criminal acquittal does not bar a
subsequent “civil action requiring a different degree
of proof.” Helvering v. Mitchell, 303 U.S. 391, 405
(1988). The court of appeals, in apparent recogni-
tion of this rule, concluded that a forfeiture under
18 U.S.C. 924(d) is neither “civil” (App. A, infra,
12a) nor “remedial” (id, at 10a). This conclusion,
however, conflicts with the decisions of numerous
other circuits that have held that 18 U.S.C. 924(d)
embodies a remedial, civil penalty. See, e.g., Glup v.
United States, 523 F.2d 557, 561 (8th Cir. 1975).

The en banc decision of the court of appeals raises
issues that merit the attention of this Court. The
lower court has disregarded controlling decisions of
this Court and, by attaching a “criminal” label to
this forfeiture action, has rendered an opinion in
direct conflict with every other court of appeals that

9

has addressed the question whether 18 U.S.C. 924(d)
embodies a civil or a criminal sanction.

1. The decision of the en bane court below rests
squarely upon a single aged precedent—Coffey v.
United States, supra. Coffey, however, is a slender
reed upon which to hang the entire weight of this
decision. Indeed, more recent opinions of this Court
raise the question whether the “rule” of the Coffey
case retains any independent vitality.

The Court in Coffey held that a forfeiture action
brought against certain distilling equipment was
barred by the owner’s prior acquittal on charges of
removing and concealing distilled spirits with the in-
tent to defraud the revenue.‘ The Court reasoned
that ‘“‘where an issue raised as to the existence of the
act or fact denounced has been tried in a criminal
proceeding, instituted by the United States, and a
judgment’ of acquittai has been rendered in favor of
a particular person, that judgment is conclusive in
favor of such person, on subsequent trial of a suit
in rem by the United S.ates, where, as against him,
the existence of the same act or fact is the matter in
issue, as a cause for the forfeiture of the property
prosecuted in such suit in rem” (116 U.S. at 443).
The Court noted and rejected the argument that the
criminal acquittal should not bar the in rem action
because the acquittal “may have taken place because
of the rule requiring guilt to be proved beyond a rea-
sonable doubt, and that, on the same evidence, on the
question of preponderance of proof, there might be a

* The statute at issue in Ceffey provided that whenever any
person engaged in the distilling business “defraucs * * * the
United States of the tax on the spirits distilled by him * * *
he shall forfeit the distillery aid distilling apperatus * * *
and shall be fined * * * and be imprisoned” (116 U.S. at 487).

10

verdict for the United States * * *” (ibid.). The
Court concluded that differing standards of proof be-
tween a criminal and a forfeiture action do not pre-
vent preclusion because “ie fact or act has been put
in issue and determined against the United States;
and all that is imposed by the statute, as a conse-
quence of guilt, is a punishment therefor. 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 dif-
ference only in the consequences following a judgment
adverse to the claimant” (ibid.).

The Coffey decision has remained something of an
enigma, because the Court did not specify the legal
foundation for the preclusion rule announced by the
case. Was the forfeiture action barred by res judi-
cata? Collateral estoppel? Double jeopardy’? Subse-
quent courts and commentators have been uncertain.
See generally 1B J. Moore & T, Currier, Moore’s Fed-
eral Practice {| 418[3] (2d ed. 1982). See also United
States v. One Dodge Sedan, 118 F.2d 552 (8d Cir.
1940) (collecting cases and law review articles criti-
cizing Coffey). Whatever the original foundation for
the Coffey rule, however, later decisions of this Court
have given it an extremely narrow scope, See Helver-
ing v. Mitchell, 303 U.S, 391, 405-406 (1988); Mur-
phy v. United States, 272 U.S. 630, 681-6382 (1926) ;
Stone v. United States, 167 U.S. 178, 186-187 (1897).

In Helvering, the Court was faced with an action
to recover a substantial monetary penalty for fradu-
lent avoidance of income tax. The defendant argued
that his prior acquittal on charges of willfully at-
tempting to evade and defeat the tax precluded the
subsequent penalty action. The court of appeals, re-
lyingy principally on Coffey, agreed and held that the

11

penalty action was precluded (see 303 U.S. at 396).
The Court, in an opinion by Justice Brandeis, re-
versed,

The defendant in Helvering advanced three basic
arguments: (1) that the second penalty action was
barred by “res judicata” (apparently used in a broad
sense as including collateral estoppel, see 303 U.S. at
397); (2) that the penalty action was barred by the
Double Jeopardy Clause (id. at 398); and (8) that
the Coffey decision required preclusion (id, at 405).
The Court rejected each argument.

The res judicata and collateral estoppel arguments
were quickly dispatched by the Helvering Court. The
Court simply reversed the position taken in Coffey
and concluded that differences between the burden of
proof in criminal and civ'] actions do prevent applica-
tion of res judicata or collateral estoppel to civil suits
brought after a criminal acquittal. Compare 116 U.S.
at 448 with 303 U.S. at 397. See also United States
v. $2,500 in United States Currency, 689 F.2d 10, 15
(2d Cir. 1982) (Helvering “reject[s] the holding of
Coffey’). “The difference in degree of the burden of
proof in criminal and civil cases precludes application
of the doctrine of res judicata. The acquittal was
‘merely * * * an adjudication that the proof was not
sufficient to overcome all reasonable doubt of the guilt
of the accused.’ * * * That acquittal on a criminal
charge is not a bar to a civil action by the Govern-
ment, remedial in its nature, arising out of the same
facts on which the criminal proceeding was based has
long been settled.” Helvering v. Mitchell, supra, 308
U.S, at 897. See also One Lot Emerald Cut Stones v.
United States, 409 U.S. 282, 285 (1972) (“differ-
ence[s] in the burden of proof in criminal and civil
cases precludes application of the doctrine of collat-
eral estoppel”) ; Murphy v. United States, swpra, 272

12

U.S. at 682-633; Stone v. United States, supra, 167
U.S. at 188.

The Helvering Court similarly rejected the defend-
ant’s double jeopardy argument on the ground that
the second penalty action was civil, not criminal in
nature. “Congress may impose both a criminal and a
civil sanction in respect to the same act or omission
** *. The question for decision is thus whether [the
second action] imposes a criminal sanction.” 308 U.S.
at 8399. The Court held that “[f]orfeiture of goods or
their value or the payment of fixed or variable sums
of money” are civil sanctions because they have his-
torically been “enforcible by civil proceedings” (id.
at 400).

Finally, the Court rejected the notion that Coffey
mandated preclusion of the second suit. The Court
stated flatly that “the rule of the Coffey case ‘[does]
not apply to a situation where there ha[s] been an
acquittal on a criminal charge followed by a civil ac-
tion requiring a different degree of proof’ (808 U.S.
at 405). Therefore, as Judge Winter correctly noted
in his original dissent to the panel opinion, Coffey
bars only a “subsequent criminal forfeiture * * *
arising out of the same facts” as an earlier criminal
acquittal (App. B, infra, 28a). This is the sole as-
pect of the Coffey decision that has any continuing
vitality today. One need not, moreover, reach as far
back as Coffey for an expression of this rule. See,
e.g., Ashe v. Swenson, 397 U.S. 486, 445-447 (1970).
Thus, the crucial question in this case is not, as the
court of appeals apparently believed, whether Coffey
mandates preclusion, but rather whether 18 U.S.C.
924(d) provides a civil or criminal penalty. The
court of appeals erred in concluding that 18 U.S.C.
924(d) embodies a criminal sanction,

13

2. The lower court’s ruling that 18 U.S.C. 924(d)
provides a criminal sanction does not comport with
this Court’s decision in United States v. Ward, 448
U.S, 242 (1980), nor with the teachings of Helvering
v. Mitchell, swpra, and One Lot Emerald Cut Stones
v. United States, supra, Those decisions persuasively
demonstrate that a forfeiture action under 18 U.S.C.
924(d) is not precluced by a prior crimir.al acquittal
because the statute provides a penalty that is civil
and remedia! in nature.

Based on two rather limited considerations, the
court below concluded that 18 U.S.C. 924(d) is nei-
their “civil” ner “remedial.” The court reasoned that
18 U.S.C, 924(d) is not “civil” because it “is a part
of the ‘Penalties’ section of the law” (App. A, infra,
9a). It next concluded that there is nothing “rem-
edial” about the statute because following forfeiture
the “firearms are destroyed” (id. at 10a). See 26
U.S.C. 5872(b). This perfunctory analysis is plainly
insufficient. The fact that forfeiture is listed as a
“nenalty” is not, of course, determinative of whether
it is a civil or a criminal penalty. Moreover, the fact
that forfeited firearms are destroyed rather than re-
sold does not negate the remedial congressione! pur-
pose behind the forfeiture itself. A more balanced
and careful analysis leads to a result directly op-
posite to the one reached by the court of appeals.

“This Court has often stated that the question
whether a particular statutorily-defined penalty is
civil or criminal is a matter of statutory construc-
tion.” United States v. Ward, supra, 448 U.S. at 248.
See alao One Lot Emerald Cut Stones, supra, 409 U.S.
at 237; Helvering, supra, 303 U.S. at 399. The
Court’s inquiry in this regard has “traditionally pro-
ceeded on two levels.” United States vy. Ward, supra,
448 U.S. at 248. First, the Court has sought to

*)
sa

14

determine whether Congress “indicated either ex-
pressly or impliedly a preference for one label or the
other” (ibid.). Second, where Congress has indicated
its intention to establish a civil penalty, the Court
has inquired “whether the statutory scheme was so
punitive either in purpose or effect as to negate that
intention” (id. at 249). This analysis clearly indi-
cates the civil nature of the forfeiture provision at
issue here.

Section 924(d) does not prescribe the procedures
to be followed in effectuating a forfeiture, but rather
incorporates by reference the procedures of the In-
ternal Revenue Code. This fact alone strongly indi-
cates Congress’ intention to establish Section 924(d)
as a civil rather than a criminal penalty. Forfeitures
“have been recognized as enforcible by civil proceed-
ings since the original revenue law of 1789.” Helver-
ing, 303 U.S. at 400. The Internal Revenue Code
provides that proceedings to enforce forfeitures “shall
be in the nature of a proceeding in rem in the United
States District Court for the district where such sei-
zure is made” (26 U.S.C. 7323). In rem actions are,
by their very nature, civil proceedings, with jurisdic-
tion dependent upon seizures of a plhiysical object, in
contrast to the in personam nature of criminal ac-
tions. See Calero-Toldeo vy. Pearson Yacht Lecsing
Co., 416 U.S. 663, 684 (1974). In addition to the in
rem nature of the action, the Internal Revenue Code
provides a summary, administrative proceeding for
forfeiture of seized goods valued at $2,500 or less.
See 26 U.S.C. 7325 (requiring the filing of a claim
and posting of a bond in order to obtain judicial pro-
ceedings regarding forfeiture of goods valued at less
than $2,500). Notice of the seizure may also be pro-
vided by publication. 26 U.S.C. (& Supp. IV) 6325.

15

Such procedures plainly could not be utilized in a
criminal action.’ “That Congress provided a dis-
tinctly civil procedure for [forfeitures under 18
U.S.C. 924(d)] indicates clearly that it intended a
civil, not a criminal sanction.” Helvering, supra, 303
U.S. at 402.

The fact that civil rather than criminal procedures
apply to a Section 924(d) forfeiture is not the only
evidence that the sanction cannot be deemed a crim-
inal penalty. The legislative intent behind Section
924(d) demonstrates a broadly remedial purpose for
the sanction. The forfeiture provided by Section
924(d) is not merely punitive; it is designed to pre-
vent the circulation of firearms that have been il-
legally obtained. As the Second Circuit stated, the
statute is designed “to keep potentially dangerous
weapons out of the hands of unlicensed dealers.”
United States vy. 16,179 Moslo Italian .22 Caliber
Winlee Derringer Convertible Starter Guns, 443 F.2d
463, 466 (2d Cir.), cert. denied, 404 U.S. 983

5In line with the civil procedural rules governing forfei-
tures under 18 U.S.C. 924(d), courts have concluded that the
government need establish its case only by a preponderance
of the evidence. United States v. 86 Firearms, 623 F.2d 648,
644 (10th Cir. 1980). One district court has even concluded
that once the government has shown probable cause to justify
a forfeiture, the burden of proof shifts to the defendant.
United States v. 26 Firearms, 485 F. Supp. 549 (W.D. Pa.
1980), aff'd, 639 F.2d 777 (3d Cir. 1980). Courts have regu-
larly granted summary judgment in favor of the government
(e.g., United States v. Various Firearms, 6283 F.2d 47, 48
(7th Cir. 1975)) and routinely permit the government to
appeal from an adverse decision in a forfeiture case—some-
thing that would be impermissible if the forfeiture action
were “criminal.” See, e.g., United States v. Walters, 688
F.2d 947 (6th Cir. 1981); United States v. Seven Firearms,
682 F.2d 1276 (5th Cir. 1980).

16

(1971).° See also Lewis v. United States, 445 U.S.
55, 66 (1980). And, as noted by Judge Winter in dis-
sent (App. A, infra, 14a), the scope of Section 924 (d)
is much broader than the criminal provisions of 18
U.S.C. 922(a)(1). Section 922(a)(1) outlaws only
the completed act of engaging in the business of deal-
ing in firearms without a license. The forfeiture sanc-
tion, by contrast, reaches firearms that are merely
“intended to be used” in violation of the law. Section
924(d), therefore, is clearly a remedial sanction,
broader in scope than the separate criminal provi-
sions of the gun control act, included by Congress as
an integral part of a “carefully constructed package
of gun control legislation.” Scarborough v. United
States, 431 U.S. 563, 570 (1977); United States v.
Batchelder, 442 U.S. 114, 120 (1979).

The procedures prescribed by Congress for execut-
ing the forfeiture and the congressional purpose be-
hind the sanction all evidence Congress’ intent that
18 U.S.C. 924(d) be classified as a civil rather than
a criminal penalty. The sanction, moreover, is not
“so punitive either in purpose or effect as to negate
that intention” (United States v. Ward, supra, 448
U.S. at 249). We recognize that a forfeiture proceed-
ing is frequently labeled quasi-criminal because its
object, like that of a criminal prosecution, is to
penalize through the civil process the commission of
an offense against the law. One 1958 Plymouth Sedan
v. Pennsylvania, 380 U.S. 6938, 700 (1965), citing
Boyd vy. United States, 116 U.S. 616, 633-634 (1886).
But, as this Court recently explained, a forfeiture

*Thus, rather than evidencing a punitive intent, as the
court below apparently concluded (App. A, infra, 10a), the
fact that forfeited firearms are destroyed furthers the broad
remedial purposes of federal gun control legislation. See
26 U.S.C. 5872(b).

17

proceeding is not “ ‘so far criminal in [its] nature’ ”
as to engage all the “procedural guarantees normally
associated with criminal prosecutions” (United States
v. Ward, supra, 448 U.S. at 251-255, quoting Hepner
v. United States, 213 U.S. 108, 112 (1909)). The
sanction in this case is no more criminal than the
forfeiture at issue in One Lot Emerald Cut Stunes
(see 409 U.S. at 232) or the stiff monetary penalty
involved in Helvering (see 303 U.S. at 400). The
court below therefore erred in applying the preclu-
sion rule announced in Coffey, inasmuch as that rule
has no application except to criminal sanctions sought
after a criminal acquittal. Helvering, supra, 303 U.S.
at 405; Ashe v. Swenson, supra, 397 U.S. at 445-447."

3. The decision below not only disregards con-
trolling Supreme Court precedent, it also conflicts
with the conclusion of six other circuits that 18
U.S.C. 924(d) embodies a civil sanction. United
States v. 16,175 Moslo Italian .22 Caliber Winlee
Derringer Convertible Starter Guns, supra, 443 F.2d
at 466; United States v. Seven Firearms, 632 F.2d
1276, 1278 (5th Cir. 1980) ; United States v. Walters,
supra, 638 F.2d at 950; United States v. Various
Firearms, 523 F.2d 47, 48 (7th Cir. 1975); Glup
v. United States, supra, 523 F.2d at 561; United
States v. 86 Firearms, 623 F.2d 648, 644 (10th Cir.
1980). As the Eighth Circuit stated in Glup: “It is
well established that a forfeiture proceeding under 18
U.S.C. 924(d) is remedial in nature and is properly

7 While the court below did not purport to rest its deci-
sion on double jeopardy grounds, we note that this Court
has held that a forfeiture action may be brought following a
criminal conviction, indicating that double jeopardy concerns
are not the foundation for the Coffey rule. See Various Items
of Personal Property v. United States, 282 U.S. 577 (1981).
See also United States v. Ward, supra, 448 U.S. at 258.

18

characterized as a civil proceeding’ (523 F.2d at
561). Thus, that court concluded that a forfeiture
action under Section 924(d) would not be barred by
a prior criminal acquittal (523 F.2d at 561). At
least one district court has likewise held that a for-
feiture under 18 U.S.C. 924(d) may follow an acquit-
tal on related criminal gun control charges. United
States v. One Assortment of 12 Rifles and 21 Hand-
guns, 313 F. Supp. 641, 642 (N.D. Fla. 1970).

The decision of the court of appeals necessarily
rests on the erroneous conclusion that an ostensibly
civil forfeiture penalty is in reality a criminal sanc-
tion. Forfeitures, however, have long been recog-
nized by this Court as enforcible by civil proceedings.
“In spite of their comparative severity, such sanc-
tions have been upheld against the contention that
they are essentially criminal and subject to the pro-
cedural rules governing criminal prosecutions.” Hel-
vering, supra, 303 U.S. at 400. See also United
States v. Regan, 232 U.S. 37 (1914) (tracing the
civil nature of forfeitures back to the earliest days
of this country). Review by this Court is warranted
in order to preserve the clarity that this area of the
law requires.°

* Unless the error of the lower court is corrected, litigants
in the Fourth Circuit and elsewhere will be unsure as to
whether civil procedures still contro] forfeiture actions under
18 U.S.C. 924(d). See generally note 5, supra. Absent clari-
fication by this Court, even convicted defendants may assert
that a forfeiture action following conviction is barred by
double jeopardy considerations. But see Various Items of
Personal Property v. United States, 282 U.S. 577 (1981)
(permitting forfeiture action following criminal conviction).
It is even possible that the rationale of the court of appeals’
decision would require application of the Federal Rules of

19

CONCLUSION

The petition for a writ of certiorari should be
granted.

Respectfully submitted.

Rex E. LEE
Solicitor General

D. LOWELL JENSEN
Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General
RICHARD G. WILKINS

Assistant to the Solicitor General

SIDNEY M. GLAZER
Attorney

DECEMBER 1982

Criminal Procedure to all forfeiture proceedings based on a
violation of federal criminal law. See, e.g., Fed. R. Crim. P.
7(c) (2), 81(e), 82(b) (2) (specifying procedural require-
ments for “criminal” forfeitures).

la
APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 81-1055

UNITED STATES OF AMERICA, APPELLEE
Vv.
ONE ASSORTMENT OF FIREARMS, APPELLANT

NATIONAL RIFLE ASSOCIATION OF AMERICA,
AMICUS CURIAE

Appeal from the United States District Court
for the District of South Carolina, at Columbia
Charles E. Simons, Jr., District Judge

Argued: June 8, 1982 Decided: August 238, 1982

Before WINTER, Chief Judge, BUTZNER, RUSSELL,
HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN and
CHAPMAN, Circuit Judges, sitting en banc.

CHAPMAN, Circuit Judge

This is an appeal from a judgment ordering for-
feiture under 18 U.S.C. §$924(d) of 80 firearms
seized from the home of Patrick Muleahey, who was
alleged to have been a dealer in firearms without a
license. Mulcahey had previously been indicted for

unlawfully and knowingly engaging in the business
of dealing in firearms without a license in violation
of 18 U.S.C. § 922(a)(1). Finding that Mulcahey’s
acquittal on the criminal charge is a bar to the for-
feiture, we reverse.

On January 20, 1977, an assortment’ of firearms
was seized by agents of the Bureau of Alcohol, To-
bacco and Firearms. Following an indictment under
18 U.S.C. § 922(a) (1), Muleahey was tried by a jury
and on March 16, 1977 was acquitted of the charge.
The present action in rem against the same assort-
ment of firearms was initiated on March 31, 1977 by
service of a complaint seeking forfeiture pursuant to
18 U.S.C. § 924(d). Muleahey, as claimant, filed a
claim for recovery of the firearms and also filed an
answer to the complaint. The parties entered into a
stipulation that the transcript in the criminal trial
of United States v. Mulcahey, No. 77-00013, would be
submitted to the court in lieu of testimony. Upon
motion of the United States prior to trial, the district
court struck Mulcahey’s second defense of collateral
estoppel, res judicata and the bar to the present pro-
ceedings of the jury verdict in No, 77-00013. Upon
trial of the forfeiture the same firearms which had
been seized by the ATF and used by the United States
Attorney as evidence in the criminal action were
again introduced into evidence. The district court or-
dered a forfeiture of 80 of the firearms. The court
concluded :

1The number of firearms in the assortment has varied
from time to time as the agents of ATF and the United States
returned certain firearms admittedly belonging to other per-
sons and the district court in its final order directed that
certain firearms be returned to owners other than Mulcahey.

8a

. . » [T]he firearms here in question were in-
volved in, used and intended to be used in viola-
tion of 18 U.S.C. §922(a)(1). Such firearms
are rendered subject to forfeiture under 18
U.S.C. §924(d), which forfeiture is hereby
ordered.

The court found that these firearms were used by
Mulcahey from May 13, 1976 to January 20, 1977,
while Muleahey was engaged in the business of deal-
ing in firearms without being properly licensed. The
criminal indictment against Muleahey charged him
with being engaged in the business of dealing in fire-
arms without being licensed to do so from on or about
May 12, 1976, up to the return of the indictment on
January 19, 1977.

Mulcahey seeks return of the firearms upon the
ground that the jury verdict in the criminal action
conclusively settled the issue that he was not en-
gaged in the business of dealing in firearms without
a license, and he contends that the present action is
barred by the holding in Coffey v. United States, 116
U.S. 486 (1886). We agree.

Coffey was tried on a criminal charge of violating
the revenue laws of the United States by operating
a distillery without payment of the required taxes.
He was acquitted on this charge, and shortly there-
after the United States sought forfeiture of the dis-
tilling equipment. Coffey raised the prior acquittal
as a bar to the forfeiture action, and the Supreme
Court agreed, stating at page 442:

The principal question is as to the effect of the
indictment, trial, verdict and judgment of ac-
quittal set up in the fourth paragraph of the an-
swer. The information is founded on sections
8257, 3450 and 3453; and there is no question,

4a

on the averments in the answer, that the fraudu-
lent acts and attempts and intents to defraud,
alleged in the prior criminal information, and
covered by the verdict and judgment of acquittal,
embraced all of the facts, attempts and intents
averred in the information in this suit.

The question, therefore, is distinctly presented,
whether such judgment of acquittal is a bar to
this suit. We are of the opinion that it is.

At 448 the Court stated:

Yet, where an issue raised as to the existence of
the act or fact denounced has been tried in a
criminal proceeding, instituted by the United
States, and a judgment or acquittal has been
rendered in favor of a particular person, that
judgment is conclusive in favor of such person, on
subsequent tria! of a suit in rem by the United
States, where, as against him, the existence of the
same act or fact is the matter in issue, as a cause
for the forfeiture of the property prosecuted in
such suit in rem. It is urged as a reason for not
allowing such effect to the judgment, that the ac-
quittal in the criminal case may have taken place
because of the rule requiring guilt to be proved
beyond a reasonable doubt; and that, on the same
evidence, on the question of preponderance of
proof, there might be a verdict for the United
States, in the suit in rem. Nevertheless, the fact
or act has been put in issue and determined
against the 'Inited States; and all that is im-
posed by the statute, as a consequence of guilt,
is a punishment therefor. There could be no new
trial of the criminal prosecution after the ac-
quittal in it; and a subsequent trial of the civil
suit amounts to substantially the same thing,

with a difference only in the consequences follow-
ing a judgment adverse to the claimant,

Coffey was acquitted on a charge of operating a
still without paying the necessary tax thereon and
could raise this acquittal as a bar to action for for-
feiture of the distilling equipment. Muleahey was ac-
quitted on a charge of being engaged in the business
of dealing in firearms without a license and can raise
this acquittal as a bar to the present forfeiture action
involving the 89 firearms, since a jury has already
found that these 89 firearms were not being used by
Mulcahey in the business of dealing in firearms with-
out a license.

The government argues that the present action is
controlled by One Lot Emerald Cut Stones and One
Ring v, United States, 409 U.S, 282 (1972), in
which the court held that forfeiture of the ring and
stones was not barred by the owner’s acquittal on
charges of violating 18 U.S.C, § 545 which covers
willfully and knowingly, with intent to defraud the
United States, smuggling articles into the United
States without submitting the same to required cus-
toms procedures, The court found that the second
action was not barred because the essential elements
of proof in the two actions were not the same, In the
criminal action it was necessary to prove a knowing
and willful intent to defraud the United States, which
was not required in the forfeiture. The court was
careful to point out that if the elements of proof
were the same then the government would be barred.
At page 234 the court stated:

Collateral estoppel would bar a forfeiture under
§ 1497 if, in the earlier criminal proceeding, the
elements of a § 1497 forfeiture had been resolved

against the government. Ashe v. Swenson, 397
U.S. 486, 448 (1970).

In Muleahey’s criminal proceeding the elements of the
present forfeiture were all resolved against the yov-
ernment, so the present action is barred by collateral
estoppel.

One Lot Emerald Cut Stones did not overrule Cof-
fey. The court in One Lot Emerald Cut Stones, at
footnote 5 distinguished the two cases as follows:

The difference in the issues involved in the crim-
inal proceeding, on the one hand, and the forfeit-
ure action, on the other, serves to distinguish
Coffey v. United States, 116 U.S. 486 (1886),
relied upon by the District Court in the present
case. Coffey involved a forfeiture action com-
menced after an acquittal. This Court noted, in
holding the forfeiture barred, that “[t]he infor-
mation [for forefeiture] is founded on §§ 3257,
3450 and 34538; and there is no question, on the
averments in the answer, that the fraudulent acts
and attempts and intents to defraud, alleged in
the prior criminal information, and covered by
the verdict and judgment of acquittal, embraced
all of the acts, attempts and intents averred in
the information in this suit.” /d. at 442. The
Court specifically distinguished the situation
where “a certain intent must be proved to support
the indictment, which need not be proved to sup-
port the civil action.” Jd, at 448. See also Stone
v. United States, 167 U.S, 178 (1897),

The present case is not controlled by One Lot Emerald
Cut Stones. The stones which were the subject of the
forfeiture in that case became contraband and sub-
ject to seizure once they came into the United States

Ta

without payment of the required duty. The crimin,
action for alleged smuggling of these stones proved
only that the holder of the stones did not knowingly
with the intent to defraud the United States smuggle
the articles into the country. Intent to defraud was
not an issue in the later forfeiture proceeding and did
not need to be proved, because the stones were admit-
tedly in the United States without being subjected to
required customs proceedings and as a result were
contraband, subject to seizure. Firearms are not
contraband and are not subject to seizure unless they
are used or intended to be used in violation of the
Gun Control Act, This issue of whether the firearms
were used or intended to be used in violation of the
Act was tried in No, 77-00018 and conclusively de-
cided, The government now wishes to relitigate the
same issue hoping for a different result.

To support a conviction under 18 U.S.C. § 922(a)
the government must prove two essential elements:
First, that the defendant, between the dates specified
in the indictment, engaged in the business of dealing
in firearms (or ammunition) ; and second, that at the
time he engaged in that business he was not a li-
censed importer, licensed manufacturer, or licensed
dealer in firearms, 2 Devitt and Blackmar, Federal
Jury Practice and Instructions § 59.10,

The same two essential elements must be proved in
the forfeiture action. The same firearms that were
introduced into evidence in the criminal action are the
subject of the forfeiture action, The United States
had its day in court on these identical issues in the
criminal proceeding and is collaterally estopped by
the verdict in that case from pursuing the matter in
this forfeiture action,

whos

54a

The provisions of 18 U.S.C. § 921(a) (13) and 27
CFR 178.11 defining certain firearms as “curios and
relics” make it clear that firearms classified as
“curios and relics” are “firearms” as defined in 18
U.S.C. § 921(a) (3)-(8). It is clear that the statute
provides for certain firearms to be classified as
“curios and relics” in order to create the category
of licensee as a collector ((18 U.S.C. § 923(b)) who
is a person “who acquires, holds, or disposes of fire-
arms and ammunition as curios and relics” ((18
U.S.C. § 921(a) (13)).

An unlicensed person is not prohibited from col-
lecting firearms generally or of the category of curios
or relics. Additionally, an unlicensed person may
only buy and sell firearms general! (including
“curios and relics”) within his own state, with cer-
tain exceptions, whereas if licensed as a collector
who “acquires, holds, and disposes of firearms as
curios and relics” he may acquire “curios and relics”
anywhere and dispose of them to any licensee wher-
ever located.

27 C.F.R. 178.41(d) makes it clear that a collec-
tor’s license applies “only to transactions related to
a collector’s activity in acquiring, holding, or dispos-
ing of curios and relics” and such license does not
authorize the collector licensee to acquire and dispose
of curios and relics in engaging in the business of a
dealer in firearms.

CONCLUSIONS

For the reasons stated above the court concludes
that the motion to strike the second and third de-
fenses is granted and that the defense motion for a
summary judgment is denied. (The court schedules

55a

a post-decision status hearing November 27, 1978, at
10:00 a.m. o’clock, at Columbia).

The Second and Third Defenses of the Answer are
stricken. The Motion for Summary Judgment is
denied.

AND IT IS SO ORDERED.

6. 6. covennment paimtine orice, 1902 sesas3 861180

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0148%3A01. Public record. Not legal advice.