Petitioners Brief — United States v. One Assortment of 89 Firearms

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FILED

JUN 11 1983

No, 82-1047 ALEXANDER L. STEVAS,

{

Office-Supreme Court, U.S:

In the Supreme Court of the Uitited States

OCTOBER TERM, 1982

; UNITED STATES OF AMERICA, PETITIONER

ONE ASSORTMENT OF 89 FIREARMS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

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

VINCENT GAMBALE

Attorneys

Department of Justice

Washington, D.C. 205380

(202) 633-2217

* oe

= =

SR see

QUESTION PRESENTED

Whether a gun owner’s prior acquittal on criminal

charges involving firearms precludes a subsequent in

rem forfeiture proceeding against the firearms.

TABLE OF CONTENTS

EET aN We He be

I incite crhrscsceenctvebsnauisecnsnbasenuiietotnmanntalesd

RESET ae eee on eS

i ic an. allicnactadeetstsseniabaiebosionmvelesbnhtelen

Introduction and summary of argument ..........................

on NOES

Argument:

I. The decision in Coffey v. United States does not

compe) preclusion of a civil forfeiture action

following a criminal acquittal —.......0000.0000000000..... 11

Il. Forfeiture under 18 U.S.C. 924(d) is a civil,

I CO ii nitconrutcniusncindnesnsidebanniealldlinasigiag 17

A. The procedures for executing a forfeiture

under 18 U.S.C, 924(d) and the rationale be-

hind the sanction itself evidence Congress’

intent to create a civil, remedial penalty........ 18

B. Forfeiture under 18 U.S.C, 924(d) is not so

punitive in purpose or effect as to require

classification as a criminal penalty ................ 28

III. The fact that forfeiture proceedings are “quasi-

criminal” for some constitutional purposes does

not compel preclusion of the present action........ 86

Conclusion ......... PURSE POR fer ache? Cibemmonm ee aS IER TSA 42

TABLE OF AUTHORITIES

Cases:

Ashe V, Swenson, 897 U.S. 486 .........ccccccccesceeceeeseeeeee 16

Ballard v. State, 595 P.2d 1802 .0..........ccccccccecceeeeeeees 40

Bell v. Wolfish, 441 U.S, 620 .0....2.....cccccccccccseseeeeeeeeeee 29, 31

4 Bellis v. United States, 417 U.S. 85 o0.......ccccccceseeee 88

’ Boyd v. United States, 116 U.S. 616 ......0......... 10, 36, 37, 38

Brady Vv. Daly, 175 U.S. 148

(111)

Cases—Continued Page

Calero-Toledo v. Pearson Yacht Leasing Co., 416

TRIE TIED cs ciacondicveietidiesitbpdasinasanagusatinsistceg bua tacdinesa te 18, 19, 21

Coffey v. United States, 116 U.S. 436 ....6, 8, 11, 18, 14, 17

Cummings Vv. Missouri, 71 U.S. (4 Wall.) 277........ $1

DeVeau V. Braisted, 868 U.S. 144 ......ccccccccccceecceneeee $1

Dickerson v. New Banner Institute, No. 81-1180

OR i 28, 24-25

Epps v. Bureau of Alcohol, Tobacco & Firearms,

Oe PY NTO esnecideitnesbceukansnisincinecvatenbinboancaato 4

Fisher v. United States, 425 U.S. 391.000.000.000 88

Flemming Vv. Nestor, 868 U.S, 608 ..........cccccccccceceeees 80, 31

Gaviand, Ex parte, 71 U.S. (4 Wall. 333 (1866) ).... $1

Glup v. United States, 523 F.2d 557 ............. cameaali 9, 27, 28

Helvering V. Mitchell, 8308 U.S. 891 .00.........000000000000 passim

C.J. Hendry Co. v. Moore, 318 U.S, 188 ..........00........ 19

Hepner Vv. United States, 218 U.S. 108 -....00...000....... 39

Huddleston v. United States, 415 U.S. 814 .......... 10, 24, 26

Kennedy v. Mendoza-Martinez, 372 U.S. 144.......29, 30, 31,

82, 38, 34

Lees V. United States, spr. ............ccccccccccecscceesseceeneces 37, 39

Mackin v. United States, 117 U.S. 848 0000000000000... 81

Murphy Vv. United States, 272 U.S. 680 ...... 6, 14, 15, 29, 41

One Lot Emerald Cut Stones v. United States, 409

BN I ten 2a en tach iscsadacinn Sntioigialncaetbiaies tied ladies passim

One 1958 Plymouth Sedan vy. Pennsylvania, 380

OE A ERA aR ea apo Re SEES 10, 36, 37-38

Rex Trailer Co., Inc, v. United States, 350 U.S.

SaPI iinlics chakendengacirandsicttusetesbninlieiicapaacigintesteid tate ast tial 16

Scarborough v. United States, 431 U.S. 568 ............ 23

Stone v. United States, 167 U.S. 178 ..00.00.0000.... 6, 14, 15, 41

The Palmyra, 25 U.S. (12 Wheat.) 1 ...000000000000000.. 19

Trop V. Dulles, 856 U.S. 86 20.........ccccccccccccesceeeeeeeeeees 33

United States v. Brown, 488 F.2d 94.00.0000... 40

United States v. Chouteau, 102 U.S. 608 .................. 12

United States v. Constantine, 296 U.S. 287 .......... 83, 35, 36

il United States v. $8,850, No. 81-1062 (May 28,

| | gy ites SECs eae AEE re SIE VOID 16, 4

United States v. 86 Firearms, 623 F.2d 648 ............ 22, 27

United States v. $83,320 in United States Currency

United States v. Fields, 425 F.2d 883

682 F.2d BB ecco... ceN 92

Ys ry, aK

ile <

Nine 9 Se epi Ba i “tant pat lee te ail aie

Cases—Continued Page

United States v. 57 Miscellaneous firearms, 422

es Ni aa an sa lack encheceseneaneinlinapeeasanbs 28, 32

United States v. 14 Handguns, 524 F. Supp. 395...... 28, 32

United States v. Frederickson, 581 F.2d 711 .......... 40

United States v. Hill, 447 F.2d 817 ..000.......0.000c000 40

United States v. La Franca, 282 U.S. 568 ........0002-. 18, 35

United States v. Lovett, 828 U.S. 808 ...00.000000000...... $1, 33

United States v. McManigal, No. 82-1754 (7th Cir.

I I i pins 21

United States v. Mulcahey, No. 77-00018 (D. S.C.

SIS Ms PEED, sasctcucadaacpsohenpitlegsatbintopesianadienindieciiecsiontes 8

United States v. One Assortment of Seven Fire-

BE, TEENIE BIND IND sicnccecenensceacctaptuecssiensnbeecse 28, 26-27, 36

United States v. One Assortment of 12 Rifles & 21

Handguns, 318 F. Supp. 641 .00.0.....0.....cccccccceceeceee 28

United States v. One Dodge Sedan, 113 F.2d 562... 18

United States v. One Heckler-Koch Rifle, 629 F.2d

Nea ARINC Sich PYROS Sh AIAN ME SIS ek SE 27

United States v. One 1974 Porsche 911-S, 682 F.2d

EOC ls otra Pte see AS ST are Pe a 22

United States v. One 1977 Lincoln Mark V Coupe,

643 F.2d 154, cert. denied, 454 U.S, 8175 .............. 22

United States v. One 1972 Toyota Mark II, 505

RAINE sedis scascith chink sad ondbiespabbinaansnianticesiticebeddielpenibhdadins 22

United States v. Regan, 282 U.S. 87 .0.........00ccc00c0e 89

United States v. 16,179 Moslo Italian .22 Caliber

Winlee Derringer Convertible Starter Guns, 448

F.2d 468, cert. denied, 404 U.S, 988 ......... ~.25, 26, 32, 33

United States v. Ten Firearms and Twenty-Four

Rounds, 444 F. Supp, 808 20....0.......cccccccccceceeeeees nee 28

United States v. $364,960 in United States Cur-

vency, G61 F.2d 819 ...........ccccccescecssesssenseensseseeessenee 22

United States v. $3,799 in United States Currency,

EP EAI ccccenit bance cioeetacsentnnansbecoosdinnibinebinnebesace 23

United States v. 26 Firearms, 485 F. Supp. 549,

og OD | 8, DER ANGLAR RRO OSU TTL BOD 28, 28

United States v. $2,500 in United States Currency,

689 F.2d 10 ooo cccccececeee 14

United States v. Ulrici, 102 U.S. 612 12

United States v. United States Coin & Currency, ‘5

401 U.S, 715 a... 10,38 BY

Cases—Continued Page

United States Vv. Various Firearms, 523 F.2d 47..28, 27, 38

United States v. Walters, 688 2.2d 9AT ........cccccccceees 23, 27

United States v. Ward, 448 U.S. 242....10, 15, 17, 18, 28, 29,

$1, 34, 36, 87, 38, 89, 40

United States v. Winsett, 518 F.2d 61 ............0...... 40

United States ex rel. Marcus V. Hess, 317 U.S. 587.. 16

United States ex rel. Sperling v. Fitzpatrick, 426

gE AR ELEY SN RC paces eo 29, 40

Various Items of Personal Property v. United

States, 282 U.S. B77 .........cccccccceees coos y 16, 19, 20, 40-41

Wilson, Ex parte, 114 U.S, 417 .....cccccccccccccseneeesees 81

Wong Wing Vv. United States, 163 U.S. 228 ............. 80, 31

Constitution and statutes:

U.S. Const.:

AM scsi salihantihsdel ieaieeiesinscinstiitibeiiail 19

a 88, 39, 40

Amend, V (Double Jeopardy Clause) ....12, 14, 16, 37,

38, 39, 40

rie: te, TI TE. BB cvecececncctimncsseccectessstsoescocesaiiis 85

Endangered Species Act of 1978, 16 U.S.C. (&

IY hii A cintiadnadiinititantadibenisaseicsciiitpitpsiiiablteia 35

Gun Control Act of 1968, Pub. L. No, 90-618, 82

Nh MEE REE SCS IE Sema Se OS» 8, 23-24

Internal Revenue Code of 1954, 26 U.S.C. (& Supp.

V):

RTI 0) sisclcshaccshosremtppeiecnieliiienatibiaial 17, 25 )

Section (& Supp. TV) 6826 .o..ccccccccccceene 22

, EY WI hades ictinsshseenecintisbbdackinpcapnidiitnlonndssnatined 23

I accel 21 .

Section T82B ...........2....00..0.. 21

Section 7825 25

. Section 7826 ..............csese 25

‘ Section 7827 22

] Mobile Home Construction and Safety Standards

ar Act of 1974, 42 U.S.C. (& Supp. IV) 5410 .......... 35

vil

Constitution and statutes—Continued Page

Racketeer Influenced and Corrupt Organizations

Act, 18 U.S.C. (& Supp. V) 1961:

8 i REZ RD SRN 20

TINIE III (son cushions seensncnttlinidinebeibiesaaiie 20

I II asc sehen snceanpninseneaiaitichensiistaliis 20, 84

Surface Mining Control and Reclamation Act of

1970, 30 U.S.C. (Supp. V) 1268 .................0s00+0 35

EEE COUT GUD | cicnscccecescrecnseszosissenseasnesonsie 19

Ee RIC BEATA Lie 19

RES Scere MRE Ne 84

ENT » | EERE nae mE eee 2, 8, 5, 26

IN CRT ASC ET a AA 80

ESET Tc ce aC 2

Be ee ee II, VW) GIG vcd ccececccccnnscccesatasescnncecip 7,20

os esdanguinasenabiiniionl 3

ci nareeesciginceslepecieabeliiedil passim

| th AR ee ieee 19

er ED (AD... csssennencnbnnmiessonbiniiiel 22

OE Te TT ) ee 22

SE ED, AD. MIE o. ccccecscuncnceesnananineeninnedebeneil 85

is I 0 sansonsngileiinenlindiielaniliel 34

TI cE Ls scendatibcciipieeibceglaianene 23

27 C.F.R.:

PI SSP rar 22

REED COD cnc cissscnpessesncheasicbiniabombels

EET RR RRC ee SALES! 22

Be SIO, ncnesecncccnshisincecinsinlinestinembesciamedh 25

Miscellaneous : ¢

Annot., 27 A.L.R.2d 1187 (19538) 18 -

. 1B J. Moore & T. Currier, Moore’s Federal Prac-

tice | 0.418[3] (2d ed. 1982) 18, 17

B wip ayaa hears cr ancacebnmays t B vas

% 1982) 21

H.R. Rep. No, 1577, 90th Cong., 2d Sess, (1968)... 24

ha S. Rep. No, 1097, 90th Cong., 2d Seas. (1968)... 24 =)

w S. Rep. No. 92-617, 91st Cong., Ist Sess, (1969)... 20 al

In the Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-1047

UNITED STATES uF AMERICA, PETITIONER

Vv.

ONE ASSORTMENT OF 89 FIREARMS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The en banc opinion of the court of appeals (Pet.

App. la-14a) is reported at 685 F.2d 913. The earlier

panel opinion (Pet. App. 15a-29a) is reported at 669

F.2d 206. The opinion of the district court (Pet. App.

STATUTE INVOLVED

Sec‘iic. 924(d) of Title 18 provides:

Any firearms 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, or any vio-

lation of any other criminal law of the United

States, shall be subject to seizure and forfeiture

and all provisions of the Internal Revenue Code

of 1954 relating to the seizure, forfeiture, and

disposition of firearms, as defined in section

5845(a) of that Code, shall, so far as applicable,

extend to seizures and forfeitures under the pro-

visions of this chapter.

STATEMENT

1. On March 31, 1977, the United States com-

menced an in rem civil action in the United States

District Court for the District of South Carolina seek-

ing forfeiture to the United States of an assortment

of firearms seized on January 20, 1977, by Special

Agents of the Bureau of Alcohol, Tobacco and Fire-

arms. The complaint alleged (J.A. 6-7) that the fire-

arms had been used and possessed on January 20,

1977, and prior thereto by Patrick M. Muleahey while

he was engaged in the business of dealing in firearms

without a license, in violation of 18 U.S.C. 922(a) (1)

and 923(a). Forfeiture was sought pursuant to 18

U.S.C. 924(d).*

! The number of firearms involved in this action has varied

somewhat with time. Federal agents seized 105 firearms from

residence on January 20, 1977. Pet. App.

Mulcahey filed a claim for recovery of the firearms

and also filed an answer to the forfeiture complaint.

In his answer, Mulcahey raised collateral estoppel and

res judicata as a bar to the forfeiture. Mulcahey had

previously been tried and acquitted of charges that he

had been engaged in the business of dealing in fire-

arms without being licensed, in violation of 18 U.S.C.

922(a)(1) and 924(a). United States v. Mulcahey,

No. 77-00013 (D.S.C. Mar. 16, 1977) (Pet. App.

2a). At the criminal trial, the government’s evidence

showed that Mulcahey had not been issued a license

to deal in firearms for the period of July 1, 1975, to

March 31, 1977, but that he nevertheless bought and

sold significant numbers of firearms on numerous

occasions during this period (Pet. App. 33a-35a).

Mulcahey testified in his own defense, admitting that

he had no license (J.A. 17) and that he had bought

and sold firearms during the period set forth in the

indictment (J.A. 17-37). He claimed, however, that

he had been entrapped into making the illegal fire-

arms transactions (see, e.g., J.A. 17-18, 23-27, 33-34).

The trial court thereafter submitted the entrapment

defense to the jury (J.A. 45-46). The jury returned

a general verdict of not guilty.

Qn-motion of the government in the forfeiture pro-

ceeding, the district court, per Judge Hemphill, struck

Mulcahey’s collateral estoppel and res juilicata de-

fenses (Pet. App. 45a-5la). Judge Hemphill noted

that a “forfeiture proceeding is remedial in nature

and is properly characterized as a civil proceeding”

origins! complaint for forfeiture. That complaint was there-

afcer amended to include an additional automatic pistol, bring-

‘ng the total to 98. Id. at 36a, 45a. Four of these guns were

later returned to Mulcahey’s wife, leaving 89 guns as the sub-

ject of the forfeiture proceeding. Id. at 36a.

(id. at 47a). Because of the difference in the burden

of proof between civil and criminal actions, the court

concluded that Mulcahey’s acquittal on the criminal

gun control charge “ ‘is not a bar to the civil admin-

istrative action by the government, which is remedial

in nature, arising out of the same facts on which the

criminal proceeding was based’ ” (Pet. App. 51a, quot-

ing Epps v. Bureau of Alcohol, Tobacco & Firearms,

375 F. Supp. 345, 346 (E.D. Tenn. 1973) ; emphasis

omitted).

The parties had previously stipulated that, in lieu

of live testimony, the transcript of the prior criminal

trial would be submitted to the court disposing of the

forfeiture action (Pet. App. 2a). Upon reviewing

that transcript, Judge Simons, to whom the case had

been reassigned, found that Muleahey had indeed

bought and sold significant quantities of ammunition

and numerous firearms without a federal license (id.

at 33a, 39a). In agreement with Judge Hemphill’s

previous order in the case, Judge Simons held that a

forfeiture proceeding under 18 U.S.C. 924(d) is re-

medial in nature and is properly characterized as a

civil proceeding (Pet. App. 37a). After an extensive

analysis of Mulcahey’s activities, he concluded that

the government had proved by a preponderance of the

evidence that Mulcahey had been engaged in the busi-

ness of dealing in firearms and ammunition without

the required federal license (ibid.).2 The firearms

2Judge Simons found that the government’s evidence

“clearly establishes that during an eight-month period from

May 13, 1976, to January 20, 1977, [Mulcahey] did engage in

the business of dealing in firearms without being licensed to

do so” (Pet. App. 38a). The court summarized Mulcahey’s

firearms transactions as follows (ibid.):

(a) seven purchases of firearms on four separate occa-

sions;

Be ile yk

de at &

owned by Mulcahey that were used or intended to be

used in violation of 18 U.S.C. 922(a) (1) were there-

fore found subject to forfeiture under 18 U.S.C.

924(d).°

(b) three offers to purchase a firearm * * * on three

separate occasions;

(d) seventeen offers to sell firearms (at least nine differ-

ent firearms) on four occasions,

The court noted that Mulcahey “exhibited a marked inabil-

ity to recall the date he acquired the seized firearms, from

whom and how these firearms were acquired, and the pur-

chase price or other things of value given * * * in exchange for

each firearm” (Pet. App. 38a). The seized firearms and the

guns bought and sold by Mulcahey, moreover, were “of the

sort commonly dealt in by licensed dealers” (id. at 39a), and

three or four of the transactions shown by the government

involved “the same type of firearm” (ibid.). Mulcahey had

purchased six Ruger Mini 14, .223 caliber rifles between

August 21, 1976, and December 3, 1976, yet only three of these

rifles “remained among those firearms seized pursuant to the

warrant on January 20, 1977” (ibid.). The court found this

“to be strong evidence of dealing in firearms, rather than

collecting” (ibid.). Mulcahey, furthermore, held himself out

as a firearms dealer when he required a government agent to

fill out a federal firearms form prior to the purchase of a

handgun (id, at 41a; J.A. 21-22). The court concluded that

Mulcahey’s “own statements, his course of dealing, and the

wealth of circumstantial evidence in the record prove by a

preponderance 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)” (Pet. App. 42a-43a).

* The court ordered the forfeiture of 80 firearms. Nine fire-

arms were found to be the property of various members of

Mulcahey’s family (Pet. App. 36a) and were not included in

the forfeiture order (id, at 48a-44a).

2. A divided panel of the court of appeals reversed

(Pet. App. 15a-29a). Relying on Coffey v. United

States, 116 U.S. 486 (1886), the panel held that the

forfeiture action was barred by Mulcahey’s criminal

acquittal because the criminal action involved “the

identical facts” of the forfeiture proceeding and the

“essential elements” of the forfeiture action had there-

fore been resolved against the government (Pet. App.

22).

Chief Judge Winter dissented (Pet. App. 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 forfei.ure in the pres-

ent 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 Helver-

ing v. Mitchell, 308 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 forfeiture 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”

(Pet. App. 24a). Judge Winter noted that the ra-

tionale adopted by the majority was rejected in One

Lot Emerald Cut Stones v. United States, 409 U.S.

232 (1972), because the forfeiture provision at issue

in that case was found to be civil in nature. He con-

tended that similar reasoning controlled in this case.

“The forfeiture statute here, 18 U.S.C. § 924(d), was

manifestly designed to aid in the enforcement of gun

control laws by preventing the circulation of firearms

which had been illegally obtained. One Lot Emerald

Cut Stones thus compels the conclusion that the for-

feiture at issue here is civil in nature, so that the

double jeopardy and res judicata claims must be re-

jected. It matters not, despite the majority’s views,

that the necessary allegations in the criminal pro-

ceeding and the forfeiture proceeding were identical”

(Pet. App. 27a; footnote omitted).

8. On rehearing en banc the court of appeals ad-

hered to the panel decision by a 5-4 vote (Pet. App.

la-l4a). The majority again specifically relied on

Coffey and rejected the government’s argument that

a prior criminal acquittal does not bar a subsequent

civil forfeiture proceeding (id. at 3a-5a). The ma-

jority reasoned that the “issue of whether the fire-

arms were used or intended to be used in violation of

the [Gun Control] Act was tried in [the criminal

prosecution] and conclusively decided” (id. at 7a).

The court further 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. V) 924 and “[e]verything in § 924 provides a

penalty, be it fine, prison or forfeiture, for the viola-

tion of a provision of the Gun Control Act” (Pet. App.

9a-10a). The court distinguished Helvering v. Mit-

chell and other Supreme Court precedent providing

for civil penalties subsequent to a criminal acquittal

on the ground that “[t]here is nothing remedial about

forfeiture under § 924(d)” (Pet. App. 10a).

Judge Winter, joined by three others, again dis-

sented. Relying in large part on the analysis of his

dissent at the panel stage, Judge Winter also noted

that the “majority errs when it confidently asserts

that the jury verdict in the criminal action conclu-

sively settled the issue that Mulcahey was not engaged

in the business of dealing in firearms without a li-

cense” (Pet. App. 18a). Because of Mulcahey’s asser-

tion of entrapment, “it is equally possible that the

jury found that Mulcahey was engaged in the busi-

ness of dealing in firearms without a license, but had

been entrapped into commiting an illegal sale, as [that

it] found that Muleahey was not su engaged” (ibid.).

Judge Winter also remained convinced that “the for-

feiture provisions of 18 U.S.C. § 924(d) are civil in

nature so that any determination in the criminal pros-

ecution is irrelevant to a decision of forfeiture” (Pet.

App. 18a; emphasis in original). This conclusion is

reinforced, Judge Winter reasoned, by the fact that

the forfeiture provision is significantly broader in

scope than the criminal sanctions of the Gun Control

Act of 1968, Pub. L. No, 90-618, 82 Stat. 1213 (Pet.

App. 18a-14a). Section 924(d) provides “disjunc-

tively that ‘Any firearm involved in or used or in-

tended to be used in, any violation of this chapter

* * * shall be subject to seizure and forfeiture * * *’

(emphasis added). * * * Nothing in the provision of

§ 922 under which Mulcahey was prosecuted renders

an intention to engage in the business of dealing in

firearms without a license illegal” (Pet. App. 13a-

14a; footnote omitted).

INTRODUCTION AND SUMMARY OF ARGUMENT

Section 924(d) of Title 18 of the United States

Code provides for the seizure and forfeiture of “[a]ny

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 criminai firearms charges bars a subse-

quent forfeiture action under 18 U.S.C. 924(d), not-

withstanding the fact that forfeiture actions under

Section 924(d) have traditionally been subject to the

preponderance of evidence standard of proof rather

than the much stricter criminal standard. Although

the doctrinal basis for its preclusion rule is unclear,

the lower court’s decision rests on the premise that

“Tt]}he criminal verdict conclusively decided that the

firearms * * * were not ‘involved in or used or in-

tended to be used in the violation’” of federal law

(Pet. App. 8a). This factual resolution, the court

concluded, is binding on all subsequent judicial pro-

ceedings involving the firearms and bars the forfei-

ture 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, estab-

lishes only that the government has not shown beyond

a reasonable doubt that certain facts exist; it does not

“conclusively” establish (Pet. App. 7a, 8a) that those

facts do not exist. Helvering v. Mitchell, 303 U.S.

891, 397 (1938). The decisions of this Court, there-

fore, clearly hold that a criminal acquittal does not

bar a subsequent “civil action requiring a different

degree of proof.” Helvering, 303 U.S. at 405. The

court of appeals, in apparent recognition of this rule,

concluded that a forfeiture under 18 U.S.C. 924(d)

is neither “civil” (Pet. App. 12a) nor “remedial” (id.

at 10a). This determination, however, is at odds with

the longstunding view that in rem forfeiture actions

are civil penalties (Helvering, 303 U.S. at 400; Vari-

ous Items of Personal Property v. United States, 282

U.S. 577, 580-581 (1931) ), and with the explicit con-

dusion of numerous other circuits that 18 U.S.C.

924(d) embodies a remedial, civil sanction. £..,

Glup v. United States, 523 F.2d 557, 561 (8th Cir.

1975).

It is beyond serious dispute that a civil action is

not barred by a prior criminal acquittal involving the

same conduct, whether tiie asserted ground for pre-

clusion be identified as res judicata, double jeopardy,

collateral estoppel, or the decision in Coffey. See One

Lot Emerald Cut Stones vy. United States, 409 U.S.

232, 235-237 (1972) ; Helvering, 303 U.S. at 397-406.

The actual bone of contention in this litigation, there-

fore, is whether 18 U.S.C. 924(d) imposes a civil or

criminal penalty. See United States v. Ward, 448

U.S. 242, 248 (1980). The decisions of this and other

courts, however, clearly indicate that the forfeiture

provision at issue here was designed as a remedial,

civil measure to remove dangerous weapons from un-

regulated channels of commerce. Huddleston y. United

States, 415 U.S. 814, 824-825 (1974). Congress pro-

vided civil procedures for enforcing the sanction, and

forfeiture itself is not so punitive in purpose or effect

as to require classification as a criminal penalty.

The fact that some proprietary forfeitures can be

termed “quasi-criminal,” moreover, does not support

the decision below. Although this Court has applied

the “quasi-criminal” label in determining whether

the fundamental protections against unreasonable

searches and seizures and self-incrimination apply to

forfeiture proceedings (United States v. United States

Coin & Currency, 401 U.S. 715 (1971); One 1958

Plymouth Sedan vy. Pennsylvania, 380 U.S. 693

(1965) ; Boyd v. United States, 116 U.S. 616 (1886) ),

those cases simply do not transform forfeiture pro-

ceedings into criminal actions for all constitutional

and procedural purposes. Ward, 448 U.S. at 261-

255; One Lot Emerald Cut Stones, 409 U.S. at 237.

ARGUMENT

I. THE DECISION IN COFFEY v. UNITED STATES

DOES NOT COMPEL PRECLUSION OF A CIVIL

FORFEITURE ACTION FOLLOWING A CRIMINAL

ACQUITTAL

The decision of the en banc court below rests

squarely upon a single aged precedent—Coffey v.

United States, swpra. Coffey is, however, a slender

reed upon which to hang the entire weight of the pre-

clusion rule fashioned by the court of appeals. In-

deed, the more recent opinions of this Court demon-

strate that the broad preclusion doctrine announced

in Coffey no longer retains 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 found that

“where an issue raised as to the existence of the act

or fact denounced has been tried in a criminal pro-

ceeding, instituted by the United States, and a judg-

ment of acquittal has been rendered in favor of a par-

ticular person, that judgment is conclusive in favor

of such person, on subsequent trial of a suit in rem

by the United States, where, as against him, the ex-

istence of the same act or fact is the matter in issue,

as a cause for the forfeiture of the property prose-

cuted in such suit in rem” (116 U.S. at 443).

in Coffey provided that whenever any

person engaged in the distilling business “defraud[s] * * *

the United States of the tax on the spirits distilled by him

> —_

The Coffey Court experienced some difficulty in

explicating the rationale behind the broad rule of pre-

clusion announced by the case. Although the Court

had concluded in a pair of earlier decisions that

nominally civil penalty proceedings, brought subse-

quent to a criminal acquittal, were barred by double

jeopardy considerations (United States v. Chouteau,

102 U.S. 608, 611-612 (1881); United States v.

Ulrici, 102 U.S. 612 (1881)), the Coffey Court did

not cite those cases or explicitly ground its opinion

on Fifth Amendment principles. Rather, the Court

appeared to base its decision on notions of collateral

estoppel. The Court did note that one argument

against giving a criminal acquittal preclusive effect

was the fact that an acquittal “may have taken place

because of the rule requiring guilt to be proven 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 * * *” (116

U.S. at 443). But it nevertheless concluded that the

differing standards of proof between a criminal pros-

ecution and a civil forfeiture action did not prevent

preclusion because “the fact or act has been put in

issue and determined against the United States; and

all that is imposed 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 dif-

ference only in the consequences following a judg-

ment adverse to the claimant” (ibid.).

Coffey has remained something of an enigma, be-

cause the Court did not specify the legal foundation

for the preclusion rule developed in the opinion. Was

the forfeiture action barred by res judicata? Collat-

eral estoppel? Double jeopardy? Subsequent courts

and commentators have been uncertain. See generally

1B J. Moore & T. Currier, Moore’s Federal Practice

§ 0.418[8] (2d ed. 1982); Annot., 27 A.L.R.2d 1137,

1138-1140 (1953).° See also United States v. One

Dodge Sedan, 118 F.2d 552, 558 (8d Cir. 1940) (col-

lecting numerous cases and law review articles criti-

cizing Coffey). The decision can be read broadly as

precluding any subsequent court action brought by

the government that is based upon the same “aat[s]

or fact[s}” (116 U.S. at 448) involved in a prior

criminal prosecution. The decision can also be read

considerably more narrowly, as precluding only the

imposition of criminal punishments following a crim-

inal acquittal. See, e.g., 116 U.S. at 443 (“all that is

imposed by the statute, as a consequence of guilt, is a

punishment therefor’). Compare United States v.

La Franca, 282 U.S. 568, 572, 575 (1981) (civil suit

brought to collect a tax for the illegal sale of liquor

is precluded by a prior criminal conviction because

the tax was held to be merely an additional “punish-

ment for infraction of the law”), Although the court

of appeals adopted a broad reading of Coffey, the

decisions of this Court since 1886 have plainly re-

stricted the case to the narrow grounds just stated.

res judicata principles or upon the rules as to double jeopardy

or autrefois acquit. The difference in the burden of proof

imposed upon the government in the two proceedings, and at

least technical difierences in the parties and issues, logically

preclude an application of res judicata; and if double jeopardy

is relied upon, it is difficult to explain the cases

feiture.” 27 A.L.R.2d at 1189 (footnotes omitted).

One Lot Emerald Cut Stones, 409 U.S. at 235; Hel-

vering, 303 U.S. at 405-406; Murphy v. United States,

272 U.S. 680, 6381-632 (1926); Stone vy. United

States, 167 U.S. 178, 186-187 (1897).

In Helvering v. Mitchell, the Court was faced with

an action to recover a substantial monetary penalty

for fraudulent avoidance of income tax. The defend-

ant argued that his prior acquittal on charges of will-

fully attempting to evade and defeat the tax pre-

cluded the subsequent penalty action. The court of

appeals, relying principally on Coffey, agreed and

held that the penalty action was precluded (see 303

U.S. at 396). This Court, in an opinion by Justice

Brandeis, reversed.

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 (3) 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 burdens

of proof in criminal and civil actions do prevent ap-

plication of res judicata or collateral estoppel to civil

suits brought following a criminal acquittal. Com-

pare 116 U.S. at 443 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 pre-

eludes application of the doctrine of res judicata.

ae get atl ee ae

The acquittal was ‘merely * * * an adjudication that

the proof was not sufficient to overcome all reason-

able doubt of the guilt of the accused.’ * * * 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.” Hel-

vering, 303 U.S. at 397. See also One Lot Emerald

Cut Stones, 409 U.S, at 235 (“the difference in the

burden of proof in criminal and civil cases precludes

application of the doctrine of collateral estoppel’) ;

Murphy v. United States, supra, 272 U.S. at 632-633

(“the judgment in the criminal case does not make

the issues in the present [civil case] res judicita’’) ;

Stone v. United States, supra, 167 U.S. at 188 (“In

the criminal case [the petitioner’s] acquittal may

have been due to the fact that the Government failed

to show, beyond a reasonable doubt, the existence of

some fact essential to establish the offense charged,

while the same evidence in a civil action * * * might

have been sufficient to entitle the Government to a

verdict”).

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

historically been “enforcible by civil proceedings”

(303 U.S. at 400). See also Various Items of Per-

sonal Property v. United States, swpra, 282 U.S. at

581 (Fifth Amendment’s Double Jeopardy Clause

does not apply to in rem forfeitures).

Finally, the Helvering 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 fol-

lowed by a civil action requiring a different degree of

proof’” (303 U.S. at 405). See also United States v.

$8,850, No. 81-1062 (May 23, 1983), slip op. 5,

14 (Court remands civil forfeiture action for further

proceedings notwithstanding claimant’s prior acquit-

tal on criminal charges involving the property sub-

ject to forfeiture); One Lot Emerald Cut Stones,

409 U.S. at 237 (same). As Judge Winter correctly

noted in his original dissent from the panel opinion,

Coffey bars only a “subsequent criminal forfeiture

* * * arising out of the same facts” as an earlier

criminal acquittal (Pet. App. 23a).° Coffey there-

fore does not—contrary to the apparent conclusion

of the court of appeals (Pet. App. 7a)—bar all judi-

* This is the sole aspect of the Coffey decision that has finy

e.g., Ashe V. Swenson, 397 U.S. 436, 445-447 (1970) (collateral

estoppel is embodied in the Fifth Amendment guarantee

against double jeopardy); Rez Trailer Co., Inc. v. United

States, 350 U.S. 148, 148-152 (suit brought to recover mone-

cial inquiry into the “same act[s] or fact[s]” (116

U.S. at 443) that were the subject of a criminal

prosecution. Coffey demands preclusion only where

a subsequent penalty proceeding is properly deemed

to be criminal in nature. 1B J. Moore & T. Currier,

{ 418[3], at 2856.

IL FORFEITURE UNDER 18 U.S.C. 924(d) IS A CIVIL,

REMEDIAL PENALTY

Because the decisions of this Court unequivocally

establish that a criminal acquittal does not preclude

a subsequent civil action founded on the same facts,

the crucial question in this case is whether forfeiture

under 18 U.S.C. 924(d) is a civil, remedial penalty.

Based on two rather limited considerations, the court

below concluded that 18 U.S.C. 924(d) is neither.

The court reasoned that forfeiture under Section

924(d) is not “civil” because it “is a part of the

‘Penalties’ section of the law” (Pet. App. 9a). It

next concluded that there is nothing “remedial” 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 “penalty” is not,

of course, determinative of whether it is a civil or

a criminal penalty. Moreover, the fact that forfeited

firearms are sometimes destroyed does not negate the

remedial congressional purpose behind the forfeiture

itself. A more balanced and careful analysis leads

to a result directly opposite to the court of appeals’

conclusion.

“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.” Ward, 448 U.S. at 248. See also One Lot

Emerald Cut Stones, 409 U.S. at 237; Helvering, 303

U.S. at 399. The Court’s inquiry in this regard has

“traditionally proceeded on two levels.” Ward, 448

U.S. at 248. First, the Court has sought to deter-

mine whether Congress “indicated either expressly or

impliedly a preference for one label or the other”

(ibid.). Second, when Congress has indicated its in-

tention to establish a civil penalty, the Court hag in-

quired “whether the statutory scheme was so punitive

either in purpose or effect as to negate that inten-

tion” (id. at 248-249). This analysis plainly indi-

cates the civil, remedial nature of the forfeiture pen-

alty established by Section 924(d).

A. The Procedures for Executing a Forfeiture Under

18 U.S.C. 924(d) and the Rationale Behind the

Sanction Itself Evidence Congress’ Intent to Create

a Civil, Remedial Penalty

1. Forfeitures “have been recognized as enforcible

by civil proceedings since the original revenue law

of 1789.” Helvering, 303 U.S. at 400. The historical

roots of modern in rem forfeiture actions, as well as

the express legislative structure of 18 U.S.C. 924(d),

evidence the undeniably civil nature of the forfeiture

action at issue here.

The historical origins of the law of forfeiture were

most recently traced by this Court in Calero-Toledo v.

Pearson Yacht Leasing Co., 416 U.S. 663, 680-690

(1974). In the course of that opinion, the Court

noted that early English law provided for two basic

types of forfeiture: forfeiture resulting from “con-

viction for felonies and treason,” and “statutory for-.

feitures of offending objects used in violation of the

customs and revenue laws” (416 U.S. at 682). For-

feiture based upon a felony ccnviction, a form of

forfeiture that has not been gener’ lly adopted into

. } hy ns iat aia

nde ew Fx det * es me

A ay Sed Rt gee Us RE a a

American law (see U.S. Const. Art. III, §3; 18

U.S.C. 3563; Rev. Stat. 5326 (1874 ed); 1 Stat.

117)), “did not, strictly speaking, attach in rem;

but it was a part, or at least a consequence, of the

judgment of conviction.” The Palmyra, 25 U.S. (12

Wheat.) 1, 14 (1827).” Statutory forfeitures, by

contrast, were enforced in the Court of Exchequer

by means of civil in rem procedures operating di-

rectly against the item to be forfeited. Calero-Toledo,

416 U.S. at 682. The item to be forfeited was “con-

sidered as the offender,” and the proceeding in rem

stood “independent of, and wholly unaffected by any

criminal proceeding in personam.’ The Palmyra,

25 U.S. at 14-15. Unlike forfeitures based upon

conviction of a felony, moreover, statutory for-

feitures became a part of American jurisprudence

“‘Tljong before the adoption of the Constitution’ ”

(Calero-Toledo, 416 U.S. at 683, quoting C. J. Hendry

Co. v. Moore, 318 U.S. 133, 139 (1943)) and have

been consistently regarded as civil proceedings, sep-

arate and apart from any criminal prosecution. In-

deed, precisely because a statutory in rem forfeiture

“is no part of the punishment for the criminal of-

fense,” this Court has held that “[t]he provision of

the Fifth Amendment to the Constitution in respect

of double jeopardy does not apply” te in rem for-

feiture actions (Various Items of Personal Property

v. United States, 282 U.S. 577, 581 (1931) ), and the

“innocence of the owner of property subject to for-

feiture has almost uniformly been rejected as a de-

fense” (Calero-Toledo, 416 U.S. at 683).

7 The “convicted felon forfeited his chattels to the Crown

and his lands escheated to his lord,” while the “convicted

traitor forfeited all of his property, real and personal, to the

Crown” (Calero-Toledo, 416 U.S. at 682).

Congress was certainly aware of this history when

it enacted 18 U.S.C. 924(d). Although Section 924

lists forfeiture as &. “penalty,” the congressional re-

ports on the legislation reflect Congress’ knowledge

of the distinction between traditional criminal sanc-

tions and the in rem forfeiture penalty provided by

Section 924(d). Both the Senate and House reports

state that Section 924 “contains the penalty and for-

feiture provisions,” clearly indicating that Congress

was cognizant of the fact that an in rem statutory

forfeiture “is no part of the punishment for the crim-

inal offense.” Various Items of Personal Property v.

United States, supra, 282 U.S. at 581.°

* Wh. re Congress has intended to create a criminal rather

than a civil in rem forfeiture, it has expressly provided for

such a result. The Racketeer Influenced and Corrupt Organi-

zations Act (RICO), for example, contains both civil (18

U.S.C. 1964) and criminal (18 U.S.C. 1968) penalties, with

forfeiture listed as a criminal penalty contingent upon convic-

tion (18 U.S.C. 1968(a)). The legislative reports on RICO,

furthermore, demonstrate Congress’ sensitivity to the distinc-

tion between criminal forfeitures and civil in rem forfeitures.

As the Senate report noted (S. Rep. No. 92-617, 91st Cong., Ist

Sess. 79-80 (1969) ):

The concept of forfeiture as a criminal penalty which is

embodied in [Section 1963(a)] differs from other pres-

ently existing forfeiture provisions under Federal statutes

where the proceeding is in rem against the property and

the thing which is declared unlawful under the statute, or

which is used for an unlawful purpose, or in connection

with the prohibited property or transaction, is considered

the offender, and the forfeiture is no part of the punish-

ment for the criminal offense * * *

Under the criminal forfeiture of section 1968 * * * the

proceeding is in personam against the defendant who is

the party to be punished upon conviction of violation of

any provision of the section, not only by fine and/or im-

Congress’ intent that Section 924(d) be regarded

as a civil rather than a criminal penalty is most

clearly evidenced, however, by the procedural mecha-

nisms it established for enforcing forfeitures under

the statute. Section 924(d) does not prescribe the

steps to be followed in effectuating a forfeiture, but

rather incorporates by reference the procedures of

the Internal Revenue Code of 1954.° 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 dis-

trict where such seizure is made” (26 U.S.C. 73238).

As outlined above, in rem actions are, by their very

nature, civil proceedings, with jurisdiction dependent

upon seizure of a physical object, in contrast with the

in personam nature of criminal actions. See Calero-

Toledo, 416 U.S. at 684.

In addition to the in rem nature of the action, the

Internal Revenue Code provides a summary, admin-

istrative proceeding for forfeiture of seized goods

prisonment, but also by forfeiture of all interest in the

[RICO] enterprise.

See also United States vy. McManigal, No. 82-1754 (7th Cir.

May 19, 1988), slip op. 20 (“the forfeiture of a portion of

a person’s property as a consequence of a criminal conviction

was unknown to the federal criminal law until the passage of

{[RICO]”); 1 C. Wright, Federal Practice & Procedure § 125.1,

at 889 (2d ed.) (“[u]ntil [the passage of RICO] American

law did not use the concept of a ‘criminal forfeiture’ ”).

* Section 924(d) provides that “all provisions of the In-

ternal Revenue Code of 1954 relating to the seizure, for-

feiture, and disposition of firearms” apply to “forfeitures un-

der the provisions of this chapter.” Chapter 75, subch. C, Part

II of the Internal Revenue Code of 1954 contains the proce-

dural “Provisions Common to Forfeitures.” 26 U.S.C. 7321-

valued at $2,500 or less. See 26 U.S.C. 7825 (re-

quiring the filing of a claim and posting of a bond

in order to obtain judicial proceedings regarding for-

feiture of goods valued at less than $2,500). See also

27 C.F.R. 72.22-72.26 (Bureau of Alcohol, Tobacco and

Firearms regulations detailing the procedures for

administrative forfeiture of seized firearms). Notice

of a seizure under 18 U.S.C, 924(d) may be provided

by publication (26 U.S.C. (& Supp. V) 6325; 27

C.F.R. 72.22(a)(8)), and the Bureau of Alcohol,

Tobacco and Firearms is empowered to remit or miti-

gate a forfeiture under the administrative proce-

dures applicable to “forfeitures under the custom

laws.” 26 U.S.C. 7327; 27 C.F.R. 72.31. See gen-

erally United States v. $8,850, supra, slip op. 2-3.

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, 303 U.S.

at 402.”

%TIn line with the civil procedural rules governing for-

feitures under 18 U.S.C. 924(d), it is well established that the

government need establish its case only by a preponderance

of the evidence. United States v. 86 Firearms, 628 F.2d 648,

644 (10th Cir. 1980). In accordance with cases construing the

burden of proof under other federal forfeiture statutes (e.g.,

United States v. $83,320 in United States Currency, 682

F.2d 578, 576-577 (6th Cir. 1982) (21 U.S.C. (Supp. V)

881 (a) (6)); United States v. $364,960 in United, States Cur-

rency, 661 F.2d 819, 324 (5th Cir. 1981) (21 U°S.C. (Supp.

V) 881 (a) (6)); United States v. One 1974 Porsche 911-S,

682 F.2d 288, 285 (ist Cir. 1982) (21 U.S.C, 881(a)(4));

United States vy. One 1977 Lincoln Mark V Coupe, 648 F.2d

154, 156 (8d Cir.), cert. denied, 454 U.S. 818 (1981) (2%

U.S.C. 881(a) (4)); United States v. One 1972 Toyota Mark

IT, 606 F.2d 1162, 1164 (8th Cir. 1974) (21 U.S.C. 881(a) (4));

Wits Ae 1 dos MLS

Wy ae OP Ire ete Vi

2. The fact that civil rather than criminal pro-

cedures apply to a Section 924(d) forfeiture is not

the only evidence that the sanction cannot be deemed

a criminal penalty. Although the court of appeals

found “nothing remedial about forfeiture under

§924(d)” (Pet. App. 10a), the section in fact fur-

thers a broadly remedial aim: the elimination of

widespread, unregulated commerce in lethal weapons.

Section 924(d) was first enacted in Title IV of the

Omnibus Crime Control and Safe Streets Act of

1968, Pub. L. No. 90-351, Section 901, 82 Stat. 233,

which this Court has previously described as a “care-

fully constructed package of gun control legislation.”

Scarborough v. United States, 431 U.S. 563, 570

(1977). See also Dickerson v. New Banner Institute,

No. 81-1180 (Feb. 23, 1983), slip op. 16. Later that

same year, Congress strengthened the provisions of

Title IV by extending its proscriptions to rifles, shot-

guns, and ammunition. Gun Control Act of 1968,

United States v. $3,799 in United States Currency, 684 F.2d

674, 678 (10th Cir. 1982) (26 U.S.C. 7302); United States v.

Fields, 425 F.2d 8838, 885 (3d Cir. 1970) (49 U.S.C. 782)),

two district courts have concluded that once the government

has shown probable cause to justify a forfeiture under Sec-

tion 924(d), the burden of proof shifts to the claimant.

United States v. 14 Handguns, 524 F. Supp. 395, 397 (S.D.

Tex. 1981) ; United States v. 26 Firearms, 485 F. Supp. 549,

551 (W.D. Pa. 1980), aff’d, 689 F.2d 777 (8d Cir. 1980)

(table), Courts, furthermore, regularly grant summary judg-

ment in favor of the government (¢.g., United States v. Vari-

ous Firearms, 523 F.2d 47, 48 (7th Cir. 1975)), and routinely

permit the government to appeal from an adverse decision in

a forfeiture case—something that would be impermissible if

the forfeiture action were “criminal.” See, e.g., United States

v. Walter, 688 F.2d 947 (6th Cir. 1981); United States v. One

Assortment of Seven Firearms, 682 F.2d 1276 (5th Cir.

Pub. L. No. 90-618, 82 Stat. 1218. Section 924(d)

was retained in this later legislation without altera-

tion.

When Congress enacted the 1968 gun control legis-

lation, “it was concerned with the widespread traffic

in firearms and with their general availability to

those whose possession thereof was contrary to the

public interest.” Huddleston v. United States, 415

U.S. 814, 824 (1974). Congress concluded that “the

ease with which firearms could be obtained contrib-

uted significantly to the prevalence of lawlessness

and violent crime in the United States.” Jbid., citing

S. Rep. No. 1097, 90th Cong., 2d Sess. 108 (1968).

The Gun Control Act of 1968, in particular, was de-

signed to “control the indiscriminate flow” of fire-

arms across state borders and to “assist and encour-

age States and local communities to adopt and en-

force stricter gun control laws.” H.R. Rep. No, 1577,

90th Cong., 2d Sess. 8 (1968). The 1968 gun control

legislation is “thus aimed at restricting public access

to firearms.” Huddleston, 415 U.S. at 824.

As this Court has previously recognized, the “prin-

cipal agent of federal [gun control] enforcement is

the dealer.” Huddleston, 415 U.S. at 824, All com-

merce in ammunition and firearms is channeled

through federally licensed dealers, “the focus of the

federal scheme,” in order “to eliminate the mail order

and the generally widespread commerce in [fire-

arms], and to insure that, in the course of sales or

other dispositions by these dealers, weapons [will]

not be obtained by individuals whose possession of

them would be contrary to the public interest.” Id.

at 825; Dickerson v. New Banner Institute, supra,

slip op. 5. Section 924(d) plays an important role

in furthering the “broad prophylactic purpose” of

the 1968 gun control legislation (Dickerson v. New

Banner Institute, supra, slip op. 15) by eliminat-

ing stocks of firearms that have been used or in-

tended for use outside regulated channels of com-

merce.

Firearms that are found subject to forfeiture under

18 U.S.C. 924(d) may be destroyed. See 26 U.S.C.

7326, 5872(b). The court of appeals concluded that

this fact demonstrated that Section 924(d) could not

be viewed as a remedial sanction (Pet. App. 10a).

The possible destruction of forfeited weapons, how-

ever, reinforces rather than negates the remedial pur-

pose behind the provision. The forfeiture sanction

provided by Congress in Section 924(d) is not merely

punitive; it is designed to discourage unregulated

commerce in firearms and to remove from circulation

firearms that have been either illegally obtained and

distributed or set apart for such use. As the Second

Circuit has stated, the forfeiture sanction is de-

signed “to keep potentially dangerous weapons out of

the hands of unlicensed dealers.” United States v.

16,179 Moslo Italian .22 Caliber Winlee Derringer

Convertible Starter Guns, 443 F.2d 468, 466 (2d

Cir.), cert. denied, 404 U.S. 983 (1971).™

4 The court of appeals’ assertion that forfeited firearms are

invariably destroyed (Pet. App. 10a) is not in fact entirely

accurate. 26 U.S.C. 7326 provides that forfeited firearms will

be disposed of in accordance with the provisions of 26 U.S.C.

5872(b). Section 5872(b) provides that, if there is no admin-

istrative remission or mitigation, forfeited firearms will be

either destroyed, sold to a state government, or transferred

“without charge to any executive department or independent

establishment of the Government for use by it.” Cf. 41 C.F.R.

101-48.808 (forfeited firearms will not be sold to state govern-

ments except as scrap). Thus, contrary to the court of ap-

peals’ statement that forfeiture cannot be remedial because

the “firearms do not go into the public treasury” (Pet. App.

Section 924(d), finally, is materially broader in

scope than the criminal provisions of the 1968 gun

control legislation. The criminal provisions of 18

U.S.C. 922 proscribe only completed, specifically de-

lineated acts. For example, 18 U.S.C. 922(a) (1),

_the section under which Mulcahey was indicted, out-

laws only the completed act of engaging in the busi-

ness of dealing in firearms without a license. By

contrast, the forfeiture sanction reaches firearms that

are merely “intended to be used” in violation of the

law. Section 924(d), therefore, reaches a broader

range of conduct than the criminal provisions of the

gun control act, and that breadth “is persuasive evi-

dence that Congress did not intend forfeitures to be

an additional penalty for the commission of a crimi-

nal act but rather that they be a separate civil sanc-

tion, remedial in nature” (Pet. App. 14a, Winter,

C.J., dissenting). Section 924(d) was designed to

remove dangerous goods from illegal channels of com-

merce, and the court of appeals’ narrow, contrary

construction of the section is not “consonant with the

achievement of [the] congressional objective [behind

the 1968 gun control legislation]” (Huddleston, 415

U.S. at 825).

8. Consistent with the above analysis, at least six

circuits have concluded that 18 U.S.C, 924(d) em-

bodies a civil sanction.” Because of the cil nature

10a), forfeited firearms may, in a very real sense, “ ‘reimburse

the Government for the heavy expense of investigation’ ” of a

gun control violation (ibid., quoting Helvering, 308 U.S. at 401)

since the federal government can and does use the forfeited

firearms.

12 United States Vv. 16,175 Moslo Italian .22 Caliber Winlee

Derringer Convertible Starter Guns, supra, 448 F.2d at 466;

United States v. One Assortment of Seven Firearms, 682 F.2d

of an in rem forfeiture proceeding, these cases rec-

ognize that the government’s burden under Section

924(d) “is to establish its case by a preponderance

of the evidence.” United States v. 86 Firearms, 623

F.2d 643, 644 (10th Cir. 1980). The decisions, more-

over, reflect the fact that Section 924(d)’s remedial

civil forfeiture sanction was designed by Congress

to reach activities outside the criminal provisions of

the 1968 Gun Control Act. See, e.g., United States v.

One Assortment of Seven Firearms, 632 F.2d 1276,

1278 (5th Cir. 1980) (because Section 924(d) reaches

firearms that are merely “intended to be used” in

violation of federal gun control law, forfeiture may

be ordered even where no actual criminal violation

occurs). While none of the above cases undertakes

an analysis as extensive as the one set out in this

brief, the unanimous conclusion of six courts of ap-

peals that Section 924(d) provides a civil penalty is

persuasive evidence that the forfeiture in this case is

not, as the court below concluded, “criminal in na-

ture” (Pet. App. 9a). To the contrary, as the Eighth

Circuit stated in Glup v. United States, supra, 523

F.2d at 561, “[i]t is well established that a forfeiture

proceeding under 18 U.S.C. § 924(d) is remedial in

nature and is properly characterized as a civil pro-

ceeding.” *

1276, 1278 (5th Cir. 1980); United States v. Walters, 638 F.2d

947, 950 (6th Cir. 1981); United States v. One Heckler-Koch

Rifle, 629 F.2d 1250, 1251 (7th Cir. 1980) ; United States v.

Various Firearms, 523 F.2d 47, 48 (7th Cir. 1975); Glup v.

United States, 523 F.2d 557, 561 (8th Cir. 1975); United

States v. 86 Firearms, 623 F.2d 648, 644 (10th Cir. 1980).

18 In Glup, the owner of an assortment of firearms forfeited

under Section 924(d) brought an action to recover the weapons

following his acquittal on criminal firearms charges. The court

B. Forfeiture Under Section 924(d) is not so Punitive

in Purpose or Effect as to Require Classification as

a Criminal Penalty

The procedures prescribed by Congress for execut-

ing forfeitures under Section 924(d) and the congres-

sional purpese behind the sanction all evidence Con-

gress’ 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 ef-

fect as to negate that intention” (Ward, 448 U.S. at

249).

Whether a nominally civil remedy in reality im-

poses a criminal penalty is rarely self-evident. The

Court has rightly noted that “sometimes it is hard te

of appeals held that forfeiture was proper notwithstanding

the acquittal because “[n]one of the six counts on which ap-

pellant was acquitted involved thc previously forfeited fire-

arms” (523 F.2d at 561). In dictum, however, the court ad-

dressed the precise issue presented by this case, concluding

that even if the criminal tiial and the forfeiture action had in-

volved the same firearms, the criminal acquittal would not affect

the civil forfeiture action (ibid.). At least one district court has

likewise held that a forfeiture under 18 U.S.C. 924(d) may

follow an acquittal on related criminal gun control charges.

United States v. One Assortment of 12 Rifles & 21 Hand-

guns, 313 F. Supp. 641, 642 (N.D. Fla. 1970). Several other

district courts have so stated in dictum. United States v.

26 Firearms, 485 F. Supp. 549, 551 (W.D. Pa. 1980), aff’d,

639 F.2d 771 (3d Cir. 1980) (table) (“Forfeiture has been

awarded even where there was an acquittal on the under-

lying violation of criminal statutes”) ; United States v. Ten

Firearms and Twenty-Four Rounds of Ammunition, 444 F.

Supp. 305, 308-809 (N.D. Tex. 1977) (acquittal on criminal

gun control charges does not bar forfeiture under Section

924(d)); United States v. 57 Miscellaneous Firearms, 422 F.

Supp. 1066, 1070 n.2 (W.D. Mo. 1976) (“[i]t is even possible

to suffer a civil forfeiture under 18 U.S.C. 924(d) if the-de-

fendant stands trial and is acquitted on the criminal charge’).

say how a given detriment imposed by the law shall

be regarded.” Murphy v. United States, supra, 272

U.S. at 632. The mere fact that a certain sanction

“is imposed in consequence of a crime is not conclu-

sive” (ibid.), because “ ‘[p]unishment, in a certain

and very limited sense, may be the result of [any]

statute * * * so far as the wrong-doer is concerned,’

but this is not enough to label it as a criminal stat-

ute.” U.S. ex rel. Marcus v. Hess, supra, 317 U.S. at

551, quoting Brady v. Daly, 175 U.S. 148, 157 (1899).

The Court, therefore, has traditionally considered a

variety of factors in determining whether a partic-

ular civil sanction is so punitive in purpose or effect

as to require treatment as a criminal penalty. Al-

though the Court has not developed an “exhaustive”

or “conclusive” catalogue of the factors that are rele-

vant in such an inquiry (Ward, 448 U.S. at 250), the

considerations set forth in Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 168-169 (1963), have been

found pertinent in making this analysis.* See Ward,

448 U.S. at 255-257 (Blackmun, J., concurring) ; Bell

v. Wolfish, 441 U.S. 520, 539-540 (1979). A careful

study of these factors demonstrates that 18 U.S.C.

14 Those factors include (372 U.S. at 168-169; footnotes

omitted) :

Whether the sanction involves an affirmative disability or

restraint, whether it has historically been regarded as a

punishment, whether it comes into play only on a finding

of scienter, whether its operation will promote the tradi-

tional aims of punishment—retribution and deterrence,

whether the behavior to which it applies is already a

crime, whether an alternative purpose to which it may

rationally be connected is assignable for it, and whether

it appears excessive in relation to the alternative purpose

assigned * * *,

924(d) should not be classified as a criminal penalty.

Indeed, of the seven Mendoza-Martinez factors, only

one—whether or not the proscribed conduct is already

a crime—lends any support to the proposition that 18

U.S.C. 924(d) imposes a criminal penalty.

Forfeiture under 18 U.S.C. 924(d) does not impose

an “affirmative disability or restraint” within the

meaning of Mendoza-Martinez, 372 U.S. at 168. This

first criterion for analyzing whether an act of Con-

gress is civil or criminal in nature was drawn by the

Mendoza-Martinez Court from Flemming v. Nestor,

363 U.S. 603, 617 (1960), where the Court concluded

that the statutory termination of social security bene-

fits because of past membership in the Communist

Party did not involve an “affirmative disability or re-

straint” (ibid.). The reasoning in Nestor compels an

analogous result in this case. Forfeiture, like the ter-

mination of social security benefits, does not approach

the “ ‘infamous punishment’ of imprisonment” (F'lem-

ming v. Nestor, supra, 363 U.S. at 317). Compare

Wong Wing v. United States, 163 U.S. 228, 237

(1896) (imprisonment at hard labor). Furthermore,

while it may involve hardship similar to that involved

in Nestor, a proprietary forfeiture does not have the

stigmatizing effect of a criminal conviction or result in

a marked restriction of personal liberty.” Forfeiture

18 The declaration of a forfeiture under Section 924(d) does

not render the prior possessor of the forfeited firearms a

“criminal” or engender the disabilities commonly associated

with a criminal conviction. A forfeiture order, for example,

does not preclude a gun owner from possessing firearms in the

future. Cf. 18 U.S.C. 922(h)(1) (persons convicted of “a

crime punishable by imprisonment for a term exceeding one

year” may not receive any firearm that has been shipped in

interstate commerce).

under Section 924(d), therefore, does not evidence an

unduly punitive intent on the part of Congress.”*

The second factor noted by the Court in Mendoza-

Martinez—whether a particular sanction “has histori-

cally been regarded as a punishment” (872 U.S. at

168)—plainly demonstrates the civil nature of Sec-

tion 924(d). The forfeiture sanction provided by Sec-

tion 924(d) is a “traditional[] * * * civil remedy.”

Ward, 448 U.S. at 256 (Blackmun, J., concurring).

Proprietary forfeitures, unlike the historically puni-

tive sanction of exile involved in Mendoza-Martinez

(see 372 U.S. at 168 n.23) and the similarly criminal

penalties at issue in the other cases cited by the

Mendoza-Martinez Court on this point,” have histori-

16 In addition to Flemming v. Nestor, the Mendoza-Martinez

Court cited two other cases to illustrate the phrase “affirmative

disability or restraint.” Ez parte Garland, 71 U.S. (4 Wall.)

833 (1866); United States v. Lovett, 328 U.S. 308 (1946).

Garland involved an ex post facto enactment and Lovett a

prohibited bill of attainder, both of which were designed to

“punish [an] individual for past activity,’” rather than reg-

ulate “ ‘a present situation, such as the proper qualifications

for a profession’” (Flemming v. Nestor, supra, 363 U.S. at

614, quoting DeVeau v. Braisted, 363 U.S. 144, 160 (1960)).

The punitive intent of the legislature appears to have been the

controlling factor in each case. Flemming v. Nestor, supra,

363 U.S. at 615-616. Cf. Bell v. Wolfish, supra, 441 U.S. at 589

n.20 (certain restrictions on the liberty of pretrial detainees

“may on [their] face appear to be punishment,” although they

may in fact be incidents of a lawful nonpunitive governmental

objective).

11 Wong Wing Vv. United States, supra, 163 U.S. at 235, 237;

(imprisonment at hard labor); Ez parte Wilson, 114 U.S. 417,

426-429 (1885) (same); Mackin v. United States, 117 U.S.

$48, 350-351 (1886) (same); Cummings v. Missouri, 71 U.S.

(4 Wall.) 277 (1836) (exclusion from a profession by means

of a bill of attainder).

cally been classified as civil sanctions. As this Court

stated in Helvering, 303 U.S. at 400 (citations omit-

ted) :

Forfeiture of goods or their value and the pay-

ment of fixed or variable sums of money are

* * * sanctions which have been recognized as

enforcible by civil proceedings since the original

revenue law of 1789. * * * In spite of their com-

parative severity, such sanctions have been up-

held against the contention that they are essen-

tially criminal and subject to the procedural rules

governing criminal prosecutions.

In light of this history, it is unlikely that Congress

thought it was utilizing a civil cloak to obscure a

criminal penalty when it enacted 18 U.S.C. 924(d).

In contrast to most criminal penalties, forfeiture

under Section 924(d) does not ‘‘come[] into play only

on a finding of scienter”’ (Mendoza-Martinez, 372

U.S. at 168). Indeed, there is no scienter requirement

at all for forfeitures under 18 U.S.C. 924(d). United

States v. 16,175 Moslo italian .22 Caliber Winlee Der-

ringer Convertible Starter Guns, supra, 443 F.2d at

466; United States v. 14 Handguns, 524 F. Supp. 395,

398 (S.D. Tex. 1981) ; United States v. 57 Miscellane-

ous Firearms, 422 F. Supp. 1066-1071 (W.D. Mo.

1976). Nor is the primary function of the statute to

“promote the traditional aims of punishment—retri-

bution and deterrence” (Mendoza-Martinez, 372 U.S.

at 168). Although it may reasonably be anticipated

that the prospect of a proprietary forfeiture will de-

ter some individuals from violating federal gun con-

trol law, the deterrent or retributive aspects of a Sec-

tion 924(d) forfeiture are no more pronounced than

the unquestionably civil forfeitures at issue in One

ee gi

was, tae ia

Lot Emerald Cut Stones, supra, and Various Items

of Personal Property v. United States, supra.”

In any event, and whatever the deterrent effect of

Section 924(d), the statute plainly has an “alterna-

tive purpose” apart from the promotion of “the tradi-

tional aims of punishment” (Mendoza-Martinez, 372

U.S. at 168). Section 924(d) furthers the broad pro-

phylactic goals of the Gun Control Act of 1968 by

rernoving firearms from unregulated channels of com-

merce. See United States v. 16,179 Moslo Italian .22

Caliber Winlee Derringer Convertible Starter Guns,

supra, 443 F.2d at 466. And while the elimination of

stocks of firearms that were intended for illegal dis-

tribution may result in some personal hardship for

their prior owners, that fact alone is insufficient to

render Section 924(d) penal in nature. As Justice

Frankfurter stated in his concurring opinion in United

States v. Lovett, 328 U.S. 308, 324 (1946): “The

fact that harm is inflicted by governmental authority

does not make it punishment. Figuratively speaking

all discomforting action may be deemed punishment

because it deprives of what otherwise would be en-

joyed. But there may be reasons other than punitive

for the deprivation.” Section 924(d) is designed to

make widespread, unregulated commerce in firearms

impossible, and that purpose is unrelated to the pun-

18 The two cases cited in Mendoza-Martinez regarding ret-

ribution and deterrence (372 U.S. at 168) involved a monetary

penalty far in excess of what could reasonably be related to

any remedial purpose (United States v. Constantine, 296 U.S.

287 (19385)), and the loss of citizenship based upon a court

martial conviction for deserting an Army post for less than

one day (Trop v. Dulles, 356 U.S. 86 (1958)). In contrast to

these cases, Section 924(d) does not impose a sanction entirely

disproportionate to the misconduct triggering the penalty.

ishment of any individual gun dealer, collector, or

purchaser.

Forfeiture, finally, is not “excessive” in relation to

the remedial purpose of Section 924(d) (Mendoza-

Martinez, 372 U.S. at 169). In fact, the sanction in

this case could hardly be any more closely tied to the

remedial goal of Section 924(d): renioval of fire-

arms from illicit circulation.

Although the factors delineated in Mendoza-Martinez

“may often point in different directions” (372 U.S.

at 169), the above considerations indicate a single

conclusion: 18 U.S.C. 924(d) is civil rather than

penal in nature. The sole Mendoza-Martinez fac-

tor that lends any support to the court of appeals’

conclusion that 18 U.S.C. 924(d) is “criminal in na-

ture” (Pet. App. 9a) is that much of “the behavior

to which it applies is already a crime” (Mendoza-

Martinez, 372 U.S. at 168). This Court, however, has

previously found that this factor is not of controlling

significance. Ward, 448 U.S. at 250.

The fact that civilly penalized conduct may also be

a crime “seems to point toward a finding that [a par-

ticular sanction] is criminal in nature.” Ward, 448

U.S. at 250. But, because “Congress may impose both

a criminal and a civil sanction in respect to the same

act or omission” (Helvering, 303 U.S. at 399), “that

indication is not as strong as it seems at first blush”

(Ward, 448 U.S. at 250). See One Lot Emerald Cut

Stones, 409 U.S. at 235. Indeed, Congress regularly

imposes parallel civil and criminal penalties on speci-

fied activities precisely to afford a broad range of

governmental responses to prohibited conduct. See,

e.g., 18 U.S.C. 1964 (setting forth civil remedies in

addition to criminal penalties for violation of RICO) ;

18 U.S.C, 287 and 31 U.S.C. 231 (criminal and civil

penalties for presenting “false, fictitious, or fraudu-

lent” claims against the government) ; 29 U.S.C. 666

(criminal and civil penalties for violation of the Oc-

cupational Safety and Health Act of 1970) ; 42 U.S.C.

(& Supp. IV) 5410 (criminal and civil penalties for

violation of Mobile Home Construction and Safety

Standards Act of 1974); 30 U.S.C. (Supp. V) 820

(criminal and civil penalties for violation of coal mine

health and safety standards); 30 U.S.C. (Supp. V)

1268 (criminal and civil penalties for violating any

permit issued under the Surface Mining Control and

Reclamation Act of 1970); 16 U.S.C. (& Supp. V)

1540 (criminal and civil penalties for violation of the

Endangered Species Act of 1973). In some contexts,

the civil penalties may even prove as effective as the

criminal ones in deterring future misconduct. See,

e.g., 15 U.S.C. 15 (treble damage provision of the

Clayton Act). Therefore, in analyzing the possible

penal nature of a nominally civil sanction, whether or

not particular conduct is already a crime gains im-

portance only where there is some substantial addi-

tional basis for concluding that Congress specifically

intended the civil sanction in question to be additional

punishment for engaging in the proscribed conduct.”

19 See, e.g., United States v. LaF ranca, supra, 282 U.S. at

572-573 (“the exaction here in question is not a true tax, but a

penalty involving the idea of punishment for infraction of the

law”); United Siates v. Constantine, supra, 296 U.S. at 295

(“Where, in addition to the normal and ordinary tax fixed by

law, an additional sum is to be collected by reason of conduct of

the taxpayer violative of the law, and this additional sum is

grossly disproportionate to the amount of the normal tax, the

conclusion must be that the purpose is to impose a penalty as

a deterrent and punishment of unlawful conduct”). To what

extent those cases survive Helvering is uncertain, but their

continuing vitality is surely limited to rather egregious cir-

cumstances.

There is no basis in this case for concluding that

Congress intended Section 924(d) to operate as a

penal sanction. As noted earlier (page 26, supra),

Congress purposefully drafted Section 924(d) to

reach a broader range of conduct than is proscribed

by the criminal provisions of the 1968 Gun Control

Act. Because the sanction embodied in Section

924(d) is not limited to criminal misconduct (United

States v. One Assortment of Seven Firearms, supra,

632 F.2d at 1278), there is no reason to assume that

Congress “intend[ed] forfeiture[] to be [a criminal]

penaity” (Pet. App. 14a, Winter, C.J., dissenting).

Congress did not enact Section 924(d) primarily to

“impose a penalty as a deterrent and punishment for

unlawful conduct” (United States v. Constantine, su-

pra, 296 U.S. at 295), and the fact that the section

may apply to some conduct that is a crime “does not

mandate characterization of [this] proceeding as

‘crimina]’” (Ward, 448 U.S. at 257 (Blackmun, J.,

concurring) ). To the contrary, inasinuch as the

“other [Mendoza-Martinez] factors weigh in the op-

posite direction” (ibid.), the civil, remedial nature of

18 U.S.C. 924(d) is readily apparent.

Ii THE FACT THAT FORFEITURE PROCEEDINGS

ARE “QUASI-CRIMINAL” FOR SOME CONSTITU-

TIONAL PURPOSES DOES NOT COMPEL PRE-

CLUSION OF THE PRESENT ACTION

Forfeiture proceedings have in some contexts been

labelled “‘quasi-criminal” because their object is to

penalize through civil processes the commission of of-

fenses against the law. See One 1958 Plymouth Sedan

v. Pennsylvania, 380 U.S. 698, 700 (1965), citing

Boyd v. United States, 116 U.S. 616, 633-634 (1886).

In Boyd the Court went so far as to state (116 U.S.

at 634) that forfeitures, “though they may be civil in

form, are in their nature criminal.” The court of ap-

peals, relying on this dictum, concluded that forfei-

ture under 18 U.S.C. 924(d) is “criminal in nature

and the prior jury verdict is a bar to the present

proceeding” (Pet. App. 9a). The decision in Boyd,

however, simply will not support such a broad con-

clusion, as is clear from the analysis in Ward. Swe

448 U.S. at 251-255.

In Boyd, the petitioners had been indicted for

fraudulently attempting to deprive the United States

of certain customs duties on imported merchandise,

under a statute that called for forfeiture of the im-

ported property as well as a fine and imprisonment.

116 U.S. at 617. While the criminal indictment was

pending, petitioners filed a claim for the goods held

by the United States. The prosecution, in response,

obtained a district court order requiring petitioners

to produce the invoice covering the goods in question.

Petitioners objected to this order on the ground that

it subjected them to an unreasonable search and sei-

zure and violated their Fifth Amendment self-

incrimination rights. This Court, in ruling on those

contentions, concluded that civil suits for “penalties

and forfeitures” are “quasi-criminal” in nature and

are therefore “within the reason of criminal proceed-

ings for all the purposes of the Fourth Amendment

of the Constitution, and of that portion of the Fifth

Amendment which declares that no person shall be

compelled in any criminal case to be a witness against

himself * * *” (116 U.S. at 634).

This Court has subsequently enforced the above

precise holding of Boyd. See, e.g., Lees v. United

States, 150 U.S. 476 (1893) (monetary penalty pro-

ceeding is sufficiently criminal to trigger the self-

incrimination clause of the Fifth Amendment) ; One

1958 Plymouth Sedan v. Pennsylvania, supra (Fourth

Amendment exclusionary rule applies to state pro-

ceeding for the forfeiture of an automobile allegedly

involved in the illegal transportation of liquor) ;

United States v. United States Coin & Currency, 401

U.S. 715 (1971) (self-incrimination clause of the

Fifth Amendment applies to a proceeding by the

United States to secure forfeiture of money found in

the possession of a gambler at the time of his ar-

rest).” “This Court has declined, however, to zive

full scope to the reasoning and dicta in Boyd, noting

on at least one occasion that ‘[s]everal of Boyd’s ex-

press or implicit declarations have not stood the test

of time.’” Ward, 448 U.S. at 258, quoting Fisher v.

United States, 425 U.S. 391, 407 (1976). One such

assertion in Boyd that has never been accorded its

“full scope” (ibid.) is the statement that forfeitures

“are in their nature criminal” (116 U.S. at 634).

Read literally, the dictum in Boyd relied upon by

the court of appeals (Pet. App. 9a) would require

the wholesale application of criminal procedural and

constitutional law to in rem forfeiture actions. But

the subsequent decisions of this Court have stopped

far short of such a result, “In determining whether

particular rules of criminal procedure are applicable

to civil actions to enforce sanctions, the cases have

2 While Boyd’s extension of Fourth Amendment search and

seizure and Fifth Amendment self-incrimination rights to

“penalty and forfeiture” actions remains more or less intact,

the substantive content of those rights has been altered dra-

matically since 1886. Indeed, so far as Boyd’s Fourth and

Fifth Amendment analysis is concerned, “[i]t would appear

that * * * the precise claim sustained in Boyd would now be

rejected for reasons not there considered.” Fisher v. United

States, 425 U.S. 391, 408 (1976), citing Bellis v. United States,

417 U.S. 85 (1974).

10") ya

Po rh, fe ite 2 ieee

usually attempted to distinguish between the type of

procedural rule involved rather than the kind of

sanction being enforced.” Helvering, 303 U.S. at 400

n.3. Thus, in United States v. Regan, 232 U.S. 37

(1914), the Ceurt declined to hold that the govern-

ment must prove its case beyond a reasonable doubt

in order to collect a civil monetary penalty—even

though the Court had previously held that a similar

statute triggered the Fifth Amendment’s self-

incrimination clause. Lees v. United States, swpra.

“Boyd and Lees, according to Regan, were limited in

scope to the Fifth Amendment’s guarantee against

compulsory self-incrimination, which ‘is of broader

scope than are the guarantees in Art. III and the

Sixth Amendment governing trials and criminal pros-

ecutions.’”” Ward, 448 U.S. at 253, quoting United

States v. Regan, supra, 232 U.S. at 50. Similarly,

in Hepner v. United States, 213 U.S. 103 (1909), the

Court upheld the entry of a directed verdict in favor

of the United States under the predecessor to the

statute involved in Regan. According to Hepner (213

U.S. at 112), “the Lees and Boyd cases do not modify

or disturb but recognize the general rule that penal-

ties may be recovered by civil actions, although such

actions may be so far criminal in their nature that

the defendant cannot be compelled to testify against

himself in such actions in respect to any matters in-

volving, or that may involve, his being guilty of a

criminal offense.” Recent decisions of this Court, of

course, similarly recognize the essentially civil nature

of in rem forfeiture actions. One Lot Emerald Cut

Stones, 409 U.S. at 232; Helvering, 303 U.S, at 400.

Boyd and its progeny may be taken to establish

that the Fourth Amendment’s protections against un-

reasonable searches and seizures and the Fifth

Amendment’s self-incrimination privilege have some

fs.

application to certain penalty and forfeiture actions.

These cases do not, however, require across-the-board

application of criminal procedural and constitutional

rights to any case that can be loosely labelled ‘“quasi-

criminal.” *“* The only issue raised by Boyd in this

case, therefore, is whether forfeiture under 18 U.S.C.

924(d) is “so far criminal in [its] nature” (Ward,

448 U.S. at 253) as to trigger the double jeopardy

clause of the Fifth Amendment.” The short answer

to this question is that this Court has already deter-

mined that “[t]he provision of the Fifth Amendment

to the Constitution in respect of double jeopardy does

not apply” to in rem forfeiture actions (Various

Items of Personal Property v. United States, supra,

21 A probation revocation proceeding, for example, is almost

certainly “quasi-criminal,” yet the federal courts have held

that, notwithstanding possible Fourth Amendment concerns,

the exclusionary rule is not applicable to probation revocation

proceedings. See, e.g., United States v. Frederickson, 581 F.2d

711, 713 8th Cir. 1978) (per curiam); United States v. Win-

sett, 518 F.2d 51, 58-55 (9th Cir. 1975); United States v.

Farmer, 512 F.2d 160, 162-163 (6th Cir.), cert. denied, 423

U.S. 987 (1975) ; United States v. Brown, 488 F.2d 94, 95 (5th

Cir, 1978) (per curiam); United States v. Hill, 447 F.2d 817,

819 (7th Cir. 1971); United States ex rel. Sperling v. Fitz-

patrick, 426 F.2d 1161, 1163 (2d Cir. 1970) (parole revoca-

tion). See also Ballard v. State, 595 P.2d 1802 (Utah 1979)

(acquittal of motorist charged with driving under the influence

of alcohol is not a bar to administrative revocation of the

motorist’s driver’s license).

*2 Double jeopardy is the only constitutional doctrine that

could conceivably bar a civil forfeiture action following a crim-

inal acquittal, because the government has never been required

to meet the reasonable doubt standard in a civil penalty action

[see United States \ Regan, supra] and “the difference in the

burden of proof in criminal and civil cases [therefore] pre-

cludes application of the doctrine of collateral estoppel.” One

Lot Emerald Cut Stones, 409 U.S. at 232.

282 U.S, at 581) because “Congress may impose both

a criminal and a civil sanction in respect to the same

act or omission” (Helvering, 303 U.S. at 399). As de-

veloped above, 18 U.S.C, 924(d) provides a civil,

remedial sanction, and nothing in Boyd or the cases

applying Boyd suggests that a prior criminal acquit-

tal on gun control charges precludes the government

from enforcing the civil forfeiture at issue here.

The decision of the court of appeals is somewhat

obscure, in that it is not entirely clear whether the

court believes the forfeiture action in this case is

barred by res judicata, double jeopardy, collateral

estoppel, or some generalized rule of preclusion

emanating from Coffey v. United States, swpra. What-

ever the foundation for the decision, however, it is

pellucidly clear that a criminal acquittal does not, on

auy of the above grounds, pretermit a subsequent

civil, remedial action. One Lot Emerald Cut Stones,

409 U.S. at 235-287; Helvering, 303 U.S. at 397-405;

Murphy v. United States, supra, 272 U.S. at 631-

632; Stone v, United States, supra, 167 U.S. at 186-

187. Congress enacted Section 924(d) for the reme-

dial purpose of eliminating dangerous weapons ‘rom

unregulated channels of commerce, and it provided

civil procedures for enforcement of the section. For-

feiture, moreover, is not an unduly punitive sanction;

indeed, Section 924(d) does not impose a disability

any more harsh than the forfeiture at issue in One

Lot Emerald Cut Stones or the stiff monetary penalty

involved in Helvering. In these circumstances, the

court of appeals plainly erred in concluding that a

gun owner’s prior acquittal on criminal firearms

charges bars a subsequent civil in rem action against

the firearms.

CONCLUSION

The judgment of the court of appeals should be re-

versed,

Respectfully submitted,

Rex BE, LEr

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

VINCENT GAMBALE

Attorneys

JUNE 1983

WU. 8. GOVERNMENT PRINTING OFrien, 1008 aoease 67

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.