United States Of America v. One Smith & Wesson 66 Revolver et al

Filing 37

ORDER granting 32 Motion for Reconsideration. The Government is directed to retain, not destroy, Defendant Firearms pending final resolution of this case. The Clerk is directed to Administratively terminate this case pending further order of this Court. Signed by Judge William T. Moore, Jr on 3/30/16. (bcw)

U.S. DISTRJCI COURT
SAJN\H WV.
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

ZU!GHAR3Q P11 3:25
CL
SO. OS T. OF GA.

UNITED STATES OF AMERICA,
Plaintiff,
CASE NO. CV413-043

V.

ONE SMITH & WESSON 66
REVOLVER; ONE AMT-CALIFORNIA
BACK-UP PISTOL; ONE BRNO
ZBROJOVKA 581 RIFLE; and ONE
MOSSBERG 600AT SHOTGUN,
Defendants,
JOSEPH ALEXANDER KOVACS,
Claimant.

ORDER

Before the Court is the Government's Motion for
Reconsideration. (Doc. 32.) In that motion, the Government
requests that the Court reconsider its March 31, 2015 order
(Doc. 29) denying the Government's Motion for Summary
Judgment (Doc.

22) . Claimant Joseph Alexander Kovacs has

filed a response opposing reconsideration. (Doc. 36.) For
the following reasons, the Government's motion is GRANTED.
As a result, the Government shall have sixty days from the
date of this order to determine whether Claimant's presence
in this country is lawful such that the return of Defendant
Firearms would cause him to be in violation of federal law.
This sixty-day period will not be extended. If Claimant can

legally possess Defendant Firearms, the Government is
DIRECTED to return them. If Defendant is legally prohibited
from possessing Defendant Firearms, the Government is
DIRECTED to retain, not destroy, Defendant Firearms pending
final resolution of this case. In the meantime, the Clerk
of Court is

DIRECTED

to

ADMINISTRATIVELY TERMINATE

this

case pending further order of this Court.
BACKGROUND
On September 2012, Customs and Border Protection
("CPB") agents determined that Claimant Joseph Alexander
Kovacs allegedly overstayed his six-month visitor's visa.'
(Doc. 1 ¶ 7.) At the time, Claimant was living aboard his
vessel, the Sea Breeze, at Lee Shore Marina in Savannah,
Georgia. (Id. ¶I 4, 7.) Upon determining Claimant's illegal
status, CBP agents searched his vessel, recovering and
seizing the four firearms ("Defendant Firearms") at issue
in this case. (Id. ¶ 9.) According to Claimant, he was
never prosecuted, much less adjudicated, of being in the
United States illegally. (Doc. 26.)
Following a joint investigation, the Bureau of
Alcohol, Tobacco, Firearms and Explosives administratively
seized Defendant Firearms. (Doc. 1 ¶ 13.) After the

It appears that Claimant is a natural-born Canadian
citizen. (Doc. 22 at 2.)
2

Government electronically published notice of the seizure,
Claimant filed a claim for Defendant Property. (Id. ¶T 1314.) As a result, the Government filed a Verified Complaint
for Forfeiture in Rem against Defendant Firearms. (Doc. 1.)
Claimant once again filed notice of his claim (Doc. 5) and
answered (Doc. 9; Doc. 10) the Government's verified
complaint.
In July 2014, the Government moved for summary
judgment, arguing that Defendant Firearms are subject to
forfeiture under 18 U.S.C. § 924(d) (1) because at the time
they were seized by the CEP Defendant Firearms were
unlawfully possessed by an individual unauthorized to be in
the United States, a violation of 18 U.S.C. § 922(g) (5).
The Court denied the Government's motion, concluding that
questions of fact remained regarding whether the Government
was required, pursuant to § 924 (d) (1), to return Defendant
Firearms to Claimant. (Doc. 29 at 4-5.) The Government now
seeks reconsideration of that order.
In its Motion for Reconsideration, the Government
advances two main arguments. First, the Government contends
that "the Government need not commence—let alone prevail
in—a criminal prosecution" for Defendant Firearms to be
subject to civil forfeiture. (Doc. 32 at 4.) Second, the

3

Government maintains that it is undisputed Claimant was and
remains unlawfully in the United States. (Id. at 5-9.)
ANALYSIS

As an initial matter, the Court is not convinced that
the Government's motion should be considered timely.
Federal Rule of Civil Procedure 60(c) (1) requires that
parties move for relief from an order based on mistake
"within a reasonable time," but no more than 1 year after
the entry of the order. While falling within the 1-year
limitation, the Government waited 323 days to seek
reconsideration. The Court hardly considers that delay
reasonable, particularly where absolutely nothing happened
in this case during the interim. 2 In any event, the Court
will consider the merits of the Government's motion despite
the lengthy delay. In the future, however, the Government
would be wise to move with a slightly greater sense of
urgency when seeking reconsideration.
Despite

the

Government's

protestations

to

the

contrary, the Court remains unconvinced that the Government
is not required to commence or prevail in a criminal

2

Inactivity on behalf of the Government was very common in
this case. It does not appear from the record that the
Government conducted any meaningful discovery. Moreover,
the Court had to prod the Government into filing its motion
for summary judgment approximately five months after the
deadline for filing dispositive motions. (Doc. 21.)
rd

prosecution for Defendant Firearms to be subject to
forfeiture. The Government's Verified Complaint seeks
forfeiture under 18 U.S.C. § 924 (d) (1) . That provision
expressly carves out additional protections for owners of
firearms, expressly stating that
upon acquittal of the owner or possessor, or
dismissal of the charges against him other than
upon motion of the Government prior to trial
• . . , the seized or relinquished firearms or
ammunition shall be returned forthwith to the
owner or possessor or to a person delegated by
the owner or possessor unless the return of the
firearms or ammunition would place the owner or
possessor or his delegate in violation of law.
Id. 3 The plain language of this statute appears to require
some sort of conviction under § 922 before Defendant
Firearms are subject to forfeiture. To conclude otherwise
would render that portion of § 924 an absolute nullity.
To be fair, it is an awkwardly drafted provision.
Moreover, its interpretation is made even more difficult by
the dearth of federal courts that have attempted to address
its meaning. However, the Court arrives at its conclusion

This provision was added by the Firearms Owners'
Protection Act, Pub. L. No. 99-308, 100 Stat. 456 (1986).
As can be easily inferred from its name, Congress thought
the legislation necessary to protect a citizen's right to
bear arms, 132 Cong. Rec. H1649-03, at 81 (1986), and curb
perceived law enforcement agencies' abuses of gun owners'
civil liberties, Id. at 6-10. See generally United States
v. Fifty-two Firearms, 362 F. Supp. 2d 1308, 1317-20 (M.D.
Fla. 2005) (discussing legislative history of Firearms
Owners' Protection Act)
5

by addressing the plain language of the statute and all
reasonable inferences stemming from that interpretation:
Defendant Firearms must be returned to Claimant absent an
ongoing or successful prosecution for the unlawful conduct
that formed the basis for the seizure.
In its motion, the Government cites no case to the
contrary. Neither United States

V.

$6,190.00 in U.S.

Currency, 581 F.3d 881 (9th Cir. 2009), nor von Hofe v.
United States, 492 F.3d 175 (2d Cir. 2007), address civil
forfeiture of firearms under § 924(d) (1). Rather, $6,190.00
in U.S. Currency involves the civil forfeiture of the cash
proceeds of criminal activity, while von Hofe concerns the
civil forfeiture of individuals' interests in real property
used to grow marijuana. Moreover, the Supreme Court's
decision in United States v. One Assortment of 89 Firearms,
465 U. S. 354 (1984), predates the enactment of § 924(d) (1).
Absent these inapplicable cases, the Government has not
provided any legal support for its argument that Defendant
Firearms are subject to forfeiture based on only the
Government's allegation of unlawful conduct.
Turning to the Government's second argument, the Court
disagrees that Claimant's unlawful status is undisputed.
The Government's entire argument appears to be predicated
on its own conclusion, based on its own view of the facts,

that Claimant unlawfully overstayed his visa. This might
very well be true, but the Court is not going to simply
take the Government's word for it. For his part, Claimant
clearly quarrels with the Government's allegation,
forcefully stating that

"United States immigration has

given Claimant Joseph Kovacs permission to, as he is, be a
'visitor for pleasure' here. This makes Claimant's presence
here in the United States legal."

(Doc. 36 at 2.) Moreover,

the record in this case contains absolutely no
documentation concerning whether Claimant's presence in
this country was or remains unlawful.
Claimant is not entitled to Defendant Firearms if he
was unlawfully in this country at the time of their
seizure. 18 U.S.C. § 922(g) (5). Additionally, Claimant is
not entitled to Defendant Firearms if he is currently in
this country unlawfully. 18 U.S.C. § 924(d) (1). It seems to
this Court, then, those are the issues to be resolved.
Therefore, the Government shall have sixty days from the
date of this order to determine whether Claimant's presence
in this country is lawful such that the return of Defendant
Firearms would cause him to be in violation of federal law.
If Claimant can legally possess Defendant Firearms, the
Government is

DIRECTED

to return them. If Defendant is

legally prohibited from possessing Defendant Firearms, the

7

Government is

DIRECTED

to retain, not destroy, Defendant

Firearms pending final resolution of this case. In the
meantime, the Clerk of Court is

DIRECTED

to

ADMINISTRATIVELY TERMINATE this case pending further order
of this Court.
CONCLUSION
For the foregoing reasons, the Government's Motion for
Reconsideration (Doc. 32.) is

GRANTED.

As a result, the

Government shall have sixty days from the date of this
order to determine whether Claimant's presence in this
country is lawful such that returning to him Defendant
Firearms would cause him to be in violation of federal law.
This sixty-day period will not be extended. If Claimant can
legally possess Defendant Firearms, the Government is
DIRECTED to return them. If Defendant is legally prohibited
from possessing Defendant Firearms, the Government is
DIRECTED to retain, not destroy, Defendant Firearms pending
final resolution of this case. In the meantime, the Clerk
of Court is

DIRECTED

to

ADMINISTRATIVELY TERMINATE

this

case pending further order of this Court.
SO ORDERED this

day of March 2016.

WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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