Napier v. United States of America

Filing 87

ORDER re 82 Disposition of Firearms, signed by Senior Judge Oliver W. Wanger on 09/30/11.

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

FOR THE EASTERN DISTRICT OF CALIFORNIA

8
9

DENNIS NAPIER,

10
11
12

1:10-cv-00040 OWW GSA

Petitioner,

ORDER RE DISPOSITION OF FIREARMS

v.
UNITED STATES OF AMERICA,

13

Respondent.

14
15

A show cause hearing was held September 19, 2011 to

16

determine whether firearms seized from Mr. Napier’s residence

17

cannot be sold at auction with the proceeds being returned to Mr.

18

Napier.

19
20

Doc. 82.

The United States presented the results of

Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)
traces run on each of the 10 firearms in question:

21
22
23

1.

Rohm, Model 57, .44 caliber, revolver, bearing
serial number:LG5891

2.

Sturm, Ruger & Co., Inc., Model P85, 9mm, pistol,
bearing serial number: 300- 51055

3.

Mossberg, Model 500, 12 gauge, shotgun, bearing
serial number: K500339

4.

Winchester, Model 94, 30-30 caliber, rifle, bearing
serial number L203728

24
25
26
27
28

1

1

5.

New England Firearms Co., Pardner Model, 12 gauge,
shotgun, bearing serial number: ND259016

6.

Marlin, Model 60, .22 caliber rifle, bearing serial
number:16394321;

7.

Russian Model 191/30, 7.62 x54R, rifle, bearing
serial number 9130102189

8.

Savage, Model Stevens, .410 gauge, shotgun, bearing
no serial number

9.

Browning Arms, Model Buckmark, .22 caliber, pistol,
bearing serial number: 655NZ16161

2
3
4
5
6
7
8
9

10. Hi-Point, Model C9, 9mm, pistol, bearing serial
number: P1426321

10
11
12
13
14

The ATF traces revealed that three weapons, Numbers 7, 9, and 10,
were purchased by Mr. Napier, but only Number 7 was purchased at
a time when Mr. Napier was arguably permitted to lawfully

15

purchase firearms.

16

purchased by Mr. Napier on October 1, 1991, which weapon he

17

should have divested himself of between his 1993 conviction and

18

the 2003 order Mr. Napier argues lifted his firearms prohibition.

19

Id.

20

Doc. 76 at 4-5.

Firearm Number 5 was

As to the remaining weapons, the traces indicate either that

there was no record of the firearm’s purchaser at all (Numbers 1,

21
22
23
24
25

2, 4, and 8); or the weapon was purchased by another person with
no record of Napier’s subsequent lawful ownership (Numbers 3
(reported as lost or stolen), and 6).
The government agreed that it would be appropriate to sell

26

firearm Number 7 by transferring it to a legitimate and bona fide

27

Federal Firearms Licensee (“FFL”) for sale, with remission of the

28

2

1

proceeds to Mr. Napier.

2

matter of equity in light of the record of confusion regarding

3

Mr. Napier’s firearms prohibition and the fact that he purchased

4

In addition, the Court orders that, as a

them with the reasonably mistaken belief he could possess them,

5
6
7

the Number 9 and Number 10 firearms should also be sold by an
FFL, with the proceeds returned to Mr. Napier.

8

Mr. Napier requested and was granted until Friday, September

9

23, 2011 to provide the government with proof of lawful ownership

10

of any of the other firearms.

11

filing of this Order, September 30, 2011, Mr. Napier has not

12
13

As of the date of electronic

provided any such ownership documentation.

Instead, on September

28, 2011, he filed an “opposition” that simply rehashes legal

14
15

arguments the Court has previously rejected.
Although the Court had previously determined that the time

16
17

for filing a notice of appeal had expired, under the most liberal

18

interpretation of the relevant appellate rules, Mr. Napier would

19

have had until September 26, 20111 to file a notice of appeal.

20

The Court ordered that, if Mr. Napier filed a notice of appeal by

21

that date, the firearms should all be held pending the resolution

22
23
24

of any appeal.

The September 26, 2011 deadline passed without

Mr. Napier filing a notice of appeal.

He has been warned on many

25

occasions about the necessity of filing notices of appeal to

26

perfect his rights.

27
1

28

The date discussed during the hearing was September 24, 2011, which is a
Saturday, making the deadline the next business day, September 26, 2011.

3

1

Accordingly, and for all the reasons set forth orally on the

2

record in the September 19, 2011 hearing, the United States is

3

directed to sell the Number 7, 8 and 9 firearms to an FFA with

4

the proceeds remitted to Mr. Napier.

The remaining nine firearms

5
6
7
8

shall be destroyed, as no appeal has been taken.
SO ORDERED
Dated: September 30, 2011
/s/ Oliver W. Wanger
United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4