United States of America v. Armalite, Model AR-18, 5.56mm Caliber Rifle, Serial Number: S3731 et al
Filing
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MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 10/21/2014; re 10 MOTION for Summary Judgment Regarding George Dodson's Claim filed by United States of America ; an appropriate order shall issuecc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:13-CV-00972-TBR
UNITED STATES OF AMERICA
Plaintiff,
v.
ARMALITE, MODEL AR-18, 5.56mm CALIBER RIFLE,
SERIAL NUMBER: S3731, and
MODEL M-2 TYPE, .50 BMG CALIBER RIFLE,
SERIAL NUMBER: 1146433
Defendants.
MEMORANDUM OPINION
This matter comes before the Court upon the Government’s Motion for Summary Judgment
Against George Dodson. (Docket No. 10.) Dodson, who attempted to file a claim in this in rem action,
has not responded, and the time to do so has elapsed. Accordingly, this matter is ripe for adjudication.
For the reasons enumerated below, the Court will GRANT the Government’s Motion.
Background
In this civil forfeiture action, the Government seeks to forfeit and condemn to the use and benefit
of the United States of America the two defendant firearms: Armalite, Model AR-18, 5.56mm caliber
rifle, serial number: S3731; and a Model M2-type, .50 BMG caliber rifle, serial number: 1146433.
(Docket No. 1 at 1.)
These firearms were found in a storage unit rented to Dodson in Louisville, Kentucky. When
Dodson failed to pay rent on the unit for over three months, his contract with J-Town Village Office and
Storage deemed the property inside the unit abandoned. The storage company contacted the Bureau of
Alcohol, Tobacco, Firearms and Explosives (“ATF”) regarding the abandoned firearms, and on February
20, 2013, agents seized such property pursuant to the National Firearms Act, 26 U.S.C. §5801 et seq.
(Docket No. 1 at 2.)
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On June 27, 2013, the ATF Firearms Technology Branch tested the firearms and concluded that they
constituted machine guns according to 26 U.S.C. § 5845(a)(6) and (b). Each is subject to registration
under the National Firearms Act. 26 U.S.C. § 5841, 5845(b). However, neither firearm is registered in
the National Firearms Registration and Transfer Record (“NFRTR”).
In October 2013, the Government filed an in rem action against the defendant firearms and
moved the Court to issue a warrant for their arrest and seizure. (Docket No. 1 at 4.) On January 16,
2014, the Court entered the arrest warrant. On January 21, 2014, the Government sent direct notice of the
Government’s forfeiture action to Dodson via certified mail. (Docket Nos. 3, 4.) The notice advised
Dodson as follows:
Any person who assert an interest in the defendant property may contest
the forfeiture by filling a claim in the United States District Court,
Western District of Kentucky, 600 W. Broadway, Louisville, KY
404202, under case UNITED STATES OF AMERICA VS.
ARMALITE, MODEL AR-18, 5.56mm CALIBER RIFLE, ETL AL.,
within 35 days of the aforementioned date.
In accordance with Rule G(5)(i)(a) of the Supplemental Rules, “[t]he
claim must: (A) identify the specific property claimed; (B) identify the
claimant and state the claimant’s interest in the property; (C) be signed
by the claimant under penalty of perjury; and (D) be served on the
government attorney designated under rule G(4)(a)(ii)(C) or (b)(ii)(D).”
Additionally, a claimant must serve and file an answer to the complaint
or a motion under Rule 12 of the Federal Rules of Civil Procedure within
21 days after filing the claim. Rule 12 and Supplemental Rule G(5)(b).
Failure to strictly comply with the Supplemental Rules and the Federal
Rules of Civil Procedure may result in your claim being dismissed.
Claims and Answers are to be filed with the Clerk, United States District
Court, named above, with a copy thereof sent to Assistant United States
Attorney, Amy M. Sullivan, 717 W. Broadway, Louisville, Kentucky
40202.
(Docket No. 4-1 at 2.)
Based on the timeframe set forth by the Notice, Dodson’s claim was due by February 28, 2014,
and his answer by March 21, 2014. Dodson instead filed several letters acknowledging his late response,
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requesting the appointment of a public defender, and levying a number of accusations, varying in
relevance, against the Government. (See Docket Nos. 7, 8, 9, and 11.) Among Dodson’s claims is that
one of the guns was a “dummy item, made of legal scrap parts” and is not subject to the National
Firearms Act. (Docket No. 9 at 1.) However, Dodson has not filed a claim sworn under penalty of
perjury, nor has he filed an answer.
Legal Standard
Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on
file, and any affidavits show “that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In determining whether summary
judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against
the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact.”
Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether the party bearing
the burden of proof has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d
795, 799 (6th Cir. 1996). The plaintiff must present more than a mere scintilla of evidence in support of
his position; he must present evidence on which the trier of fact could reasonably find for him. See id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to
defeat a motion for summary judgment: “[T]he mere existence of a colorable factual dispute will not
defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an
issue of material fact must exist to render summary judgment inappropriate.” Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition
Corp., 681 F.3d 312 (6th Cir. 2012).
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Analysis
The Court will first address the Government’s burden of proof necessary to sustain the forfeiture
at issue. 18 U.S.C. § 3051(c)(1) provides:
Except as provided in paragraphs (2) and (3), and except to the extent
that such provisions conflict with the provisions of section 983 of title
18, United States Code, insofar as section 983 applies, the provisions of
the Customs laws relating to—
(A) the seizure, summary and judicial forfeiture, and
condemnation of property;
(B) the disposition of such property;
(C) the remission or mitigation of such forfeiture; and
(D) the compromise of claims,
shall apply to seizures and forfeitures incurred, or alleged to have been
incurred, under any applicable provision of law enforced or administered
by the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
The Customs laws governing forfeitures, 19 U.S.C. §§ 1602-1631, provide that where a person
whose property has been seized for forfeiture wishes to contest the seizure, he must first file a claim of
ownership of property. 19 U.S.C. § 1608. The Government must then initiate a civil judicial forfeiture
action. § 1604. The Government bears the burden of establishing probable cause to believe that the
property was used in violation of the law. The Government may rely upon an affidavit that contains
hearsay in support of its motion for summary judgment. See United States v. Broadening-Info Enters.,
Inc., 462 Fed. Appx. 93, 96 (2d Cir. 2012) (explaining that “the ordinary requirement that affidavits
submitted in support of a party’s motion for summary judgment be based upon personal knowledge and
admissible evidence does not apply under the pre-CAFRA1 evidentiary framework applicable here” and
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The Civil Asset Forfeiture Reform Act of 2000, 18 U.S.C. §983 et seq., (“CAFRA”) requires the Government to
prove by a preponderance of the evidence that the property is subject to forfeiture in most civil forfeiture
proceedings. § 983(c)(1). Although CAFRA provides that “a suit or action brought under any civil forfeiture statute
for the civil forfeiture of any property” shall be governed by CAFRA’s burden of proof requirements, § 983(c)(1), it
specifies limited exceptions. The law states that “‘civil forfeiture statute’ . . . (2) does not include-- . . . (B) the
Internal Revenue Code of 1986.” § 983(i). Here, the National Firearms Act provision under which this forfeiture
was initiated, 26 U.S.C. § 5872, is contained in Title 26, the Internal Revenue Code of 1986.
Accordingly, CAFRA does not dictate the applicable burden of proof. See United States v. One TRW, Model M14,
7.62 Caliber Rifle, 441 F.3d 416, 418 (6th Cir. 2006) (explaining the limited application of CAFRA in such cases);
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permitting the Government to establish probable cause through hearsay affidavits “so long as the
information contained therein is reliable.”).
The burden then shifts to the claimant to prove by a preponderance of evidence that the item was
seized improperly. § 1615; Any & All Radio Station Transmission Equip., 218 F.3d 543, 547 (6th Cir.
2000). If the claimant offers evidence to satisfy this standard, the Government may offer “probative
admissible evidence to contest the claimant’s proof.” United States v. One TRW, Model M14, 7.62
Caliber Rifle, 294 F. Supp. 2d 896, 899 (E.D. Ky. 2003) (quoting United States v. $129,727.00 U.S.
Currency, 129 F.3d 486, 492 (9th Cir. 1997)). But should the claimant fail to rebut the Government’s
showing, the property is forfeited. United States v. One TRW, Model M14, 7.62 Caliber Rifle, 441 F.3d
416, 419 (6th Cir. 2006).
To establish probable cause, the Government must prove the existence of reasonable grounds
“supported by less than prima facie proof but more than mere suspicion” supporting the proposition that
the property is subject to forfeiture. United States v. Rural Route 1, Box 137-B, 24 F.3d 845, 848 (6th Cir.
1994). The existence of probable cause is a question of law for the Court to decide. If the Government’s
evidence is sufficient to establish probable cause, and no issue of material fact remains, summary
judgment on the probable cause is warranted. Id. (citations omitted). That is, once the Government
satisfies its initial showing of probable cause, the Claimant must set forth facts showing that the facts
constituting probable cause did not exist. Id.
Here, the Government must show here that it has probable cause to believe that Dodson
possessed the defendant firearms in violation of the National Firearms Act. The alleged violation is the
possession of unregistered machine guns. The Government therefore bears the burden of proving that (1)
the property qualifies as machine guns under the National Firearms Act, and (2) the property was
United States v. One Harrington & Richardson Rifle, Model M-14, 7.62 Caliber Serial No. 85279, 378 F.3d 533
(6th Cir. 2004) (order) (applying the pre-CAFRA burden-of-proof standard to a forfeiture pursuant to the National
Firearms Act).
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possessed by Dodson and was not registered to him under the NFRTR. See U.S. v. One Harrington and
Richardson Rifle, Model M-14, 7.62 Caliber, Serial No. 85279, 278 F. Supp. 2d 888 (W.D. Mich. 2003).
The procedural defects of Dodson’s filings notwithstanding, the Government has satisfied its
showing of probable cause in both regards. The Government has presented evidence that both firearms at
issue were appropriately classified as machineguns under the National Firearms Act.2 The Government
relies upon the affidavit of ATF Special Agent Kenneth M. Stengel, who averred that both weapons
satisfied the statutory requirements. (Docket No. 10-2.) Although Dodson protests this conclusion, he
has offered no evidence demonstrating otherwise.
Furthermore, a search of the NFRTR revealed that neither weapon was registered, providing
probable cause for the ATF to believe that Dodson possessed a firearm in violation of 26 U.S.C. §
5861(d), which prohibits possession of an unregistered firearm.3
Because they were involved in a
violation of 26 U.S.C. Chapter 53, the firearms at issue are subject to forfeiture. See 26 U.S.C. § 5872(a)
(“Any firearm involved in any violation of the provisions of this chapter shall be subject to seizure and
forfeiture.”).
2
26 U.S.C. § 5845(b) defines a “machinegun” as
any weapon which shoots, is designed to shoot, or can be readily restored to
shoot, automatically more than one shot, without manual reloading, by a single
function of the trigger. The term shall also include the frame or receiver of any
such weapon, any part designed and intended solely and exclusively, or
combination of parts designed and intended, for use in converting a weapon
into a machinegun, and any combination of parts from which a machinegun can
be assembled if such parts are in the possession or under the control of a
person.
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“It shall be unlawful for any person . . . to receive or possess a firearm which is not registered to him in the
National Firearms Registration and Transfer Record.” 26 U.S.C. § 5861(d).
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CONCLUSION
For the foregoing reasons, the Court will GRANT the Government’s Motion for Summary
Judgment, (Docket No. 10). An appropriate Order will issue concurrently with this Opinion.
October 21, 2014
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