United States of America v. 133 Firearms with 36 Rounds of Ammunition

Filing 69

OPINION AND ORDER denying 60 Motion for Summary Judgment; granting 66 Motion to Substitute Party. Signed by Judge James L Graham on 2/15/2012. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
United States of America,
Plaintiff,
v.

Case No. 2:08-cv-1084

133 Firearms with 36
Rounds of Ammunition,
Defendants.
OPINION AND ORDER
This is an in rem civil forfeiture action brought by the
government against 133 firearms and 36 rounds of ammunition.

The

verified complaint for forfeiture filed on November 14, 2008,
alleges that the defendant firearms and ammunition were involved in
and intended to be used in one or more violations of 18 U.S.C.
§922(a)(1)(A), engaging in the business of dealing in firearms
without a license, and that the defendants are therefore subject to
forfeiture pursuant to 18 U.S.C. §924(d)(1) and (3).

According to

the complaint, the firearms and ammunition were seized from the
residence of Terry Thompson, 270 Kopchak Road, Zanesville, Ohio, on
June 18, 2008, during the execution of a search warrant by agents
of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”).
The complaint includes a list of the defendant firearms.1

On

December 29, 2008, Terry Thompson and his wife, Marian Thompson,

1

Eight of the listed firearms were the subject of an indictment filed
against Terry Thompson in Case No. 2:09-cr-43. On April 4, 2010, pursuant to a
plea agreement, Mr. Thompson entered a guilty plea to Counts 2 and 3 of the
indictment, charging him with unlawful possession of machine guns and of firearms
without serial numbers, and agreed to forfeit the eight firearms. A final order
of forfeiture was filed on December 7, 2010. The eight firearms forfeited in the
criminal case are identified as Item Numbers 41, 113, and 127-132 in the instant
case.

filed a verified claim to the firearms, claiming joint ownership of
the defendant firearms and ammunition.
On January 19, 2012, a notice of death was filed concerning
the death of Terry Thompson on October 18, 2011.

A motion for

substitution of his estate as a party has ben filed and is
unopposed.

The motion to substitute Terry Thompson’s estate as a

party will be granted.
I. Summary Judgment Standards
This matter is before the court on the government’s motion for
summary judgment.

Counsel for the estate has indicated that no

further briefing is required following the substitution of the
estate as a party.

“The court shall grant summary judgment if the

movant shows 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).

The central issue is “whether the evidence

presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a
matter of law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251-52 (1986).

A party asserting that a fact cannot be or is

genuinely

disputed

must

support

the

assertion

by

citing

to

particular parts of materials in the record, by showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or by demonstrating that an adverse party cannot
produce admissible evidence to support the fact.

Fed. R. Civ. P.

56(c)(1)(A) and (B). In considering a motion for summary judgment,
this court must draw all reasonable inferences and view all
evidence in favor of the nonmoving party.

See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Am.
Express Travel Related Servs. Co. v. Kentucky, 641 F.3d 685, 688
2

(6th Cir. 2011).
The moving party has the burden of proving the absence of a
genuine dispute and its entitlement to summary judgment as a matter
of law.

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The moving party’s burden of showing the lack of a genuine dispute
can be discharged by showing that the nonmoving party has failed to
establish an essential element of his case, for which he bears the
ultimate burden of proof at trial.

Id.

Once the moving party

meets its initial burden, the nonmovant must set forth specific
facts showing that there is a genuine dispute for trial.
322 n. 3.

Id. at

“A dispute is ‘genuine’ only if based on evidence upon

which a reasonable jury could return a verdict in favor of the nonmoving party.”
(6th Cir. 2008).

Niemi v. NHK Spring Co., Ltd., 543 F.3d 294, 298
A fact is “material” only when it might affect

the outcome of the suit under the governing law. Id; Anderson, 477
U.S. at 248.
II. Background
According to the affidavit of ATF Agent James M. Ash (Doc. 3),
marked as Exhibit A and submitted in verification of the complaint,
Terry Thompson was formerly a federally licensed firearms dealer.
Mr. Thompson surrendered his license in April, 2003, and turned in
his

records

to

ATF

on

or

about

January

terminating his license to sell firearms.

26,

2004,

At that time, Mr.

Thompson’s reported inventory consisted of 55 firearms.
3.

thereby

Doc. 3, ¶

By letter dated March 5, 2004, ATF informed Mr. Thompson that

it had received his firearms records, that his license had been
placed on inactive status, and that he was no longer authorized to
conduct business using the license.

Doc. 60, Ex. A.

The affidavit describes conversations between a confidential
3

informant and Mr. Thompson during meetings on April 24, 2008, May
13, 2008, and May 20, 2008, at Mr. Thompson’s residence, 270
Kopchak Road, Zanesville, Ohio.

The informant wore a wire during

these meetings and the conversations were recorded.

Excerpts from

the transcripts of these recordings are included in the record.
During these meetings, Mr. Thompson showed the informant various
firearms, and discussed other firearms sales he had made recently.
At the meeting on May 20, 2008, the informant purchased a Smith &
Wesson .44 caliber revolver, a Remington 12 gauge shotgun, and nine
rounds of ammunition from Mr. Thompson for $1,500 in cash, and Mr.
Thompson provided a signed, handwritten receipt for the firearms.
Mr. Thompson told the informant that he surrendered his firearms
license because he did not like to fill out the paperwork, and that
he would not divulge anything about the firearms purchase to the
authorities.
On June 18, 2008, a search warrant was executed at the Kopchak
Road residence, resulting in the seizure of 133 firearms and 30
rounds of ammunition.

Five of the weapons were fully automatic,

and eight of the weapons were classified.

At least 100 of the

weapons were not in Mr. Thompson’s reported inventory at the time
he surrendered his federal firearms license.

Doc. 3, ¶ 11.

Several of the firearms seized had price tags affixed to them.
Doc. 60, Ex. D.

The agents did not uncover any evidence during the

investigation that Mrs. Thompson was involved with dealing in
firearms without a license, and Agent Ash

characterized Mrs.

Thompson’s participation in the discussions with the informant as
being .5 percent.

Ash Dep. pp. 72, 90.

The record also includes the declarations of Mr. and Mrs.
Thompson

and

excerpts

from

their
4

depositions.

Mr.

Thompson

testified that two of the seized firearms belonged to his friend,
Tom Absalon, and that he had possession of the guns to sell for Mr.
Absalon.

Mr. Thompson testified that when he surrendered his

license, he transferred all of the firearms in his inventory to his
name.

TT Dep. p. 26.

Mr. Thompson couldn’t say exactly how often

he sold a firearm after he surrendered his license, but stated the
sales were “very, very causal.”

TT Dep. pp. 67-68.

He also

testified that Mrs. Thompson had an interest in the firearms
because her money was used in their purchase.

TT Dep. p. 59.

In

his declaration, Mr. Thompson stated that since 2003, he has only
made occasional casual sales as part of his personal firearm
collection, and that the principal objective of the gun collection
was for his personal enjoyment.

TT Decl., ¶¶ 6, 8.

He denied

engaging in repetitive purchases and resales of firearms, and
stated that he has never engaged in the business of selling
firearms without a license.

TT Decl., ¶¶ 9-10, 12.

Mrs. Thompson testified at her deposition that she acted as
her husband’s secretary in their businesses and knew what he was
paying for the weapons he bought. MT Dep., p. 26.

She stated that

the 22 firearms transferred from the business inventory which were
not

recovered

during

the

search

were

traded

on

vehicles

or

motorcycles that they sold, and that Mr. Thompson acquired the
additional 100 firearms through trading. MT Dep., pp. 26-27. Mrs.
Thompson stated that she did not personally trade, but that she was
usually there when firearms were delivered.

MT Dep., p. 27, 29.

She stated that she was part owner of the firearms because she gave
her paycheck to her husband.

MT Dep. p. 33.

Mrs. Thompson denied

that she or her husband engaged in repetitive purchases or resales
of firearms or the business of selling firearms without a license.
5

MT Decl. ¶¶ 4-5, 7.
III. Forfeiture Standards
The government seeks forfeiture of the defendant firearms
pursuant to 18 U.S.C. §924(d). Under that section, “any firearm or
ammunition involved in or used in any ... willful violation of any
other provision of this chapter ... or any firearm or ammunition
intended to be used in any offense referred to in paragraph (3) of
this subsection, where such intent is demonstrated by clear and
convincing evidence, shall be subject to seizure and forfeiture[.]”
18 U.S.C. §924(d)(1).
proceedings.

Forfeiture actions under §924(d) are civil

United States v. Eighty-Six Firearms and Twenty-Two

Rounds of Ammunition, 623 F.2d 643, 644 (10th Cir. 1980).
Where it is alleged that the firearm was “involved in or used
in” any of the offenses listed in 18 U.S.C. §924(d)(3), the
government’s burden of proof is by a preponderance of the evidence.
United States v. Four Hundred Seventy Seven (477) Firearms, 698
F.Supp.2d 890, 892-93 (E.D.Mich. 2010).

In addition, where the

government’s theory of forfeiture is that the property was used to
commit or was involved in the commission of a criminal offense, the
government must establish that there was a substantial connection
between the property and the offense. 18 U.S.C. §983(c)(3). Where
the basis for forfeiture is that the firearm was intended to be
used in one of the enumerated offenses, the government’s burden is
by clear and convincing evidence. Four Hundred Seventy Seven (477)
Firearms, 698 F.Supp.2d at 982-93.
For purposes of §924(d)(1), the term “used” means more than
mere possession, and entails active employment or utilization of
the firearm.
Cir.

2010).

United States v. Cheeseman, 600 F.3d 270, 276-78 (3d
The

term

“involved
6

in”

means

“to

engage

as

a

participant;” “to relate closely;” “to have within or as part of
itself;” or “to require as a necessary accompaniment.”
(quoting

Merriam-Webster’s

ed.2003)).

The

display

Collegiate
of

firearms

Dictionary
to

Id. at 278
660

prospective

(11th
buyers,

particularly firearms with price tags, may help support a finding
that the firearms were “involved” in a §922(a)(1)(A) offense.

See

United States v. Kish, 424 Fed.Appx. 398, 405-06 (6th Cir. March
30, 2011); Eighty-Six Firearms, 623 F.2d at 645; United States v.
One Assortment of 12 Rifles and 21 Handguns, 313 F.Supp. 641, 642
(N.D.Fla. 1979).
The list of offenses in paragraph (3) includes an offense
under 18 U.S.C. §922(a)(1).

18 U.S.C. §924(d)(3)(C).

Section

922(a)(1) provides in relevant part that it shall be unlawful for
any person except a licensed firearms dealer “to engage in the
business of importing, manufacturing, or dealing in firearms, or in
the course of such business to ship, transport, or receive any
firearm

in

interstate

§922(a)(1)(A).

or

foreign

commerce[.]”

18

U.S.C.

However, §924(d) is broader in scope than the

criminal sanctions provided under §922(a)(1), and subjects to
forfeiture firearms and ammunition which are “involved in or used”
or which are “intended to be used in” any violation of §922(a)(1).
United States v. One Assortment of 89 Firearms, 465 U.S. 354, 36465 (1984); United States v. One Assortment of Seven Firearms, 632
F.2d 1276, 1279 (5th Cir. 1980)(forfeiture under §924(d) may be
ordered where government shows an intent to violate §922).
To sustain a conviction under §922(a)(1)(A), the government
must prove that the defendant “willfully” violated that section.
18 U.S.C. §924(a)(1)(D); Bryan v. United States, 524 U.S. 184, 18889 (1998).

In order to establish a “willful” violation of the
7

statute, the government must prove that the defendant “acted with
an evil-meaning mind, that is to say, that he acted with knowledge
that his conduct was unlawful.”

Id. at 193.

However, the

government does not have to prove that the defendant acted with
knowledge

of

the

licensing

requirement

or

knowledge

particular law which made his conduct illegal.

of

the

Id. at 191-196.

The term “dealer” means “any person engaged in the business of
selling firearms at wholesale or retail[.]” 18 U.S.C. §921(a)(11).
As applied to a dealer in firearms, the term “engaged in the
business” means
a person who devotes time, attention, and labor to
dealing in firearms as a regular course of trade or
business with the principal objective of livelihood and
profit through the repetitive purchase and resale of
firearms, but such term shall not include a person who
makes occasional sales, exchanges, or purchases of
firearms for the enhancement of a personal collection or
for a hobby, or who sells all or part of his personal
collection of firearms[.]
18 U.S.C. §921(a)(21)(C).
The term “with the principal objective of livelihood and
profit” means that “the intent underlying the sale or disposition
of firearms is predominantly one of obtaining livelihood and
pecuniary gain, as opposed to other intents, such as improving or
liquidating
§921(a)(22).

a

personal

firearms

collection[.]”

18

U.S.C.

No minimum number of sales, dollar volume of sales,

or number of employees is required to constitute “engaging in
business.”

United

States

v.

Gross,

313

F.Supp.

1330,

1333

(S.D.Ind. 1070); see also United States v. Powell, 513 F.2d 1249,
1250 (8th Cir. 1975)(dealing in firearms need not be a defendant’s
primary business, nor is it required that the defendant must make
a certain amount of profit from it in order to be found guilty
8

under §922(a)(1)); United States v. Approximately 627 Firearms,
More or Less, 589 F.Supp.2d 1129, 1134 (S.D.Iowa 2008).
IV. Application of Standards in this Case
A. Violation of §922(a)(1)(A)
The first issue is whether Mr. Thompson was engaged in the
business of selling firearms without a license.

In this case, the

evidence shows that Mr. Thompson sold six firearms within the
period of a month.

In addition, 22 firearms from his original

inventory were not recovered during the search of his residence,
and an additional 100 firearms seized in the search were not part
of the transferred inventory.

However, over four years had passed

since Mr. Thompson had surrendered his license.

Mr. Thompson

described the frequency of his gun transactions as “very casual”
and “very minimal.” While the record includes evidence which would
support a finding that Mr. Thompson was engaged in the business of
selling firearms without a license, there is also evidence which
might weigh against such a finding, and which is sufficient to
create a genuine dispute on that point.
The next issue is whether the firearms were “involved in” or
“intended to be used in” the offense of selling firearms without a
license. The government must prove that forfeiture is warranted as
to each firearm sought to be forfeited.

Even assuming arguendo

that Mr. Thompson was engaged in the business of selling firearms,
it is not clear from the evidence before the court whether all or
just some of the 133 firearms were “involved in” or “intended to be
used in” the offense, or had a substantial connection to the
offense.
For example, the fact that the informant was shown other guns
which were located at Mr. Thompson’s residence would help support
9

a finding that those firearms were “involved in” the offense, in
that they were being offered to excite the interest of a potential
buyer.

However, the record does not clearly show which of the

firearms on the list attached to the complaint were shown to the
informant.

There is evidence that some of the firearms had price

tags on them.
say.

However, the photographs do not show what the tags

Claimants argue that many of the tags were old or simply

contained information concerning the firearm, with no price. There
were weapons which were old, in poor condition or inoperable.
However, there were other weapons which, according to Mr. Thompson,
could be purchased as long as the buyer had the cash.

Mrs.

Thompson testified that some firearms, located in a wooden box
under the stairs, formerly belonged to Mr. Thompson’s father and
were set aside for his nephew; these firearms presumably were not
for sale.

Thus, even assuming that Mr. Thompson committed an

offense under §922(a)(1)(A), based on the record currently before
the court, a genuine dispute exists as to which of the firearms was
“involved in” or “intended for use in” the offense.
B. Mr. Thompson’s Status as a Convicted Felon
The government argued that Mr. Thompson could not prevail as
a claimant because the firearms could not be returned to him due to
his status as a convicted felon, and that Mr. Thompson could not
designate a third party to receive the firearms on his behalf.

As

a general rule, “seized property, other than contraband, should be
returned to the rightful owner after the criminal proceedings have
terminated.”

Sovereign News Co. v. United States, 690 F.2d 569,

577 (6th Cir. 1982).

However, the person seeking return of

property must show that they are lawfully entitled to possess it.
United States v. Headley, 50 Fed.Appx. 266, 267 (6th Cir. 2002).
10

Headley was a case in which the defendant sought the return of
firearms under Fed.R.Crim.P. 41(e). The court in Headley concluded
that the property could not be returned to defendant because a
convicted felon is prevented from possessing firearms.

Id.

The

court further concluded that since possession may be both actual
and constructive, the defendant lacked the power to delegate the
authority to possess firearms to another individual, or to request
that the firearms be transferred to a third party.

Id. (citing

United States v. Craig, 896 F.Supp. 85, 89 (N.D.N.Y. 1995)). These
holdings stem from the reasoning that returning firearms to a
convicted felon would be against the law, and also contrary to the
public policy which seeks to keep guns out of the hands of
convicted felons, and that the firearms should not be returned to
a third person, such as a friend or relative designated by the
defendant, because the defendant might still exercise constructive
possession, i.e., dominion and control, over the firearms.
However, the instant case does not involve a request for the
return of property under Rule 41(e), but rather a civil forfeiture
proceeding.

The government must first prove that the firearms are

subject to forfeiture. If the government fails to meet its burden,
the issue then becomes to whom the firearms may be returned.
Courts have recognized that even when a convicted felon has been
stripped of a possessory interest in firearms, he still has a
constitutionally

protected

ownership interest.

property

interest

limited

to

an

See United States v. Miller, 588 F.3d 418,

419-20 (7th Cir. 2009); Cooper v. City of Greenwood, 904 F.2d 302,
305 (5th Cir. 1990).
In this case, Mr. Thompson is now deceased, and his estate has
been substituted as a party.

The general practice in forfeiture
11

matters is to look to the law of the jurisdiction that created the
property right to determine the claimant’s legal interest.

United

States v. Salti, 579 F.3d 656, 668 (6th Cir. 2009); United States
v. Four Hundred Seventy Seven (477) Firearms, 698 F.Supp.2d 894,
899 (E.D.Mich. 2010).

Mr. Thompson was an Ohio resident.

Under

Ohio law, the estate and heirs now hold whatever property interest
Mr. Thompson had in the firearms.

See Czako v. Orban, 133 Ohio St.

248, 250, 13 N.E.2d 121 (1938)(heirs occupy the place of the
decedent and take the same interest in his property as he had at
the time of his death); Hopper v. Nicholas, 106 Ohio St. 292, 302,
140 N.E.2d 186 (1922)(administrator and heir at law of estate
stands in the legal shoes of the decedent); Kelley v. Buckley, 193
Ohio App.3d 11, 33, 950 N.E.2d 997 (2011)(a decedent’s legal
representative stands in the shoes of the decedent with respect to
his financial and commercial rights and obligations).

The parties

have cited no law which would preclude the estate or Mr. Thompson’s
heirs (assuming they are not convicted felons) from possessing
firearms or from taking custody of the firearms if the government
fails to meet its burden.

The public policy considerations which

favor keeping firearms out of the hands of convicted felons do not
apply to the estate and Mr. Thompson’s heirs.

Thus, if the

government fails to prove that the firearms are forfeitable and the
estate proves an ownership interest in the firearms through Mr.
Thompson’s

interest,

the

court

is

presently

unaware

of

any

authority which would preclude turning toe firearms over to the
estate.
C. Standing of Marion Thompson as a Claimant
The

parties

have

addressed

the

issue

of

whether

Marion

Thompson has an ownership interest in the defendant firearms.
12

To

contest a government forfeiture action, a

claimant must have

standing. Four Hundred Seventy Seven (477) Firearms, 698 F.Supp.2d
at 898.

A claimant must have a colorable ownership, possessory or

security interest in at least a portion of the defendant property.
Id. at 899. A claimant must have a colorable ownership, possessory
or security interest in at least a portion of the defendant
property.

United States v. $515,060.42 in U.S. Currency, 152 F.3d

491, 497 (6th Cir. 1998).

Colorable claims which confer standing

include an ownership interest.

Id. at 498.

Possessory interests

may also be sufficient to confer standing if some explanation is
provided
property.

regarding

the

claimant’s

relationship

to

the

seized

Id.

Mrs. Thompson argues that she has an ownership interest in the
firearms because it is marital property.

She relies on the

definition of “marital property” in Ohio Rev. Code §3105.171.
However, that section applies to the division of property in the
event of a divorce or other legal separation, and is not applicable
here.

There is no community property in Ohio, and marriage does

not grant a wife an interest in her husband’s real or personal
property except as statutorily granted for support and dower.
State v. Garber, 125 Ohio App.3d 615, 617, 709 N.E.2d 218 (1998).
Under Ohio Rev. Code §3103.07, each spouse is entitled to take,
hold and dispose of his or her property as if unmarried, and
ownership of property by one spouse is as distinct from ownership
by the other as if the spouses were strangers. Id.; Ohio Rev. Code
§3103.07.

Therefore, Mrs. Thompson does not have an ownership

interest in the defendant firearms simply because of her marriage.
However, Mrs. Thompson stated in her declaration that she
contributed

financially

towards
13

the

operation

of

the

former

firearms business. She also stated in her deposition that she gave
every paycheck to her husband, who used them in their businesses.
Mr. Thompson also testified in his deposition that Mrs. Thompson
contributed financially to the former firearms business.

Thus,

there is some evidence that she has a partial ownership interest in
at least the 33 guns which were previously a part of the inventory
of the business. She also may have an ownership interest if she is
a beneficiary of her husband’s estate.

This is sufficient to

create a genuine dispute regarding her status as a claimant.
D. Innocent Owner Defense
If the government proves that the firearms are subject to
forfeiture, then a claimant may still recover the firearms by
proving that he or she is an innocent owner.

A claimant can avoid

forfeiture by establishing the affirmative defense of innocent
ownership

by

a

preponderance

of

the

evidence.

18

U.S.C.

§983(d)(1).
With respect to a property interest in existence at the time
of the illegal conduct giving rise to the forfeiture took place,
the term” innocent owner” means an owner who did not know of the
conduct giving rise to forfeiture, or, upon learning of the conduct
giving rise for the forfeiture, did all that reasonably could be
expected under the circumstances to terminate such use of the
property.

18 U.S.C. §983(d)(2)(A)(i) and (ii).

To establish an

innocent owner defense under these provisions, the claimant must
establish that he or she was the owner of the property at the time
of the seizure under state and federal law.

United States v. Real

Property Located at 5208 Los Franciscos Way, 385 F.3d 1187, 1191 n.
3 (9th Cir. 2004); United States v. Lester, 85 F.3d 1409, 1412 (9th
Cir. 1996).

The owner must also establish that he or she did not
14

know the facts giving rise to the forfeiture; it is not sufficient
to demonstrate lack of knowledge that the transactions in question
were illegal. United States v. 1,679 Firearms, No. CV 06-5014 PJW,
2009 WL 3233518 at *4 (C.D.Cal. Sept. 30, 2009)(citing United
States v. Real Property at 874 Gartel Drive, 79 F.3d 918, 924 (9th
Cir. 1996)). A general denial of knowledge of the illegal activity
is insufficient to establish an innocent owner defense.

United

States v. Real Property Located at 2621 Bradford Drive, 369
Fed.Appx. 663, 665-66 (6th Cir. 2010).
With respect to a property interest acquired after the conduct
giving rise to the forfeiture took place, the term “innocent owner”
means a bona fide purchaser or seller for value who did not know
and was reasonably without cause to believe that the property was
subject to forfeiture.

18 U.S.C. §983(d)(3)(A)(i) and (ii).

Claimants do not argue that Mr. Thompson could have asserted
an innocent owner defense.

If the government proves that Mr.

Thompson did in fact engage in conduct which constituted an offense
under §922(a)(1)(A) and that the defendant firearms were involved
in the offense, then this conduct furnishes the basis for the
forfeiture, and Mr. Thompson would necessarily have had knowledge
of the facts giving rise to the forfeiture.

Mr. Thompson’s estate

would also be precluded from asserting an innocent owner defense.
The claim of an administrator of a claimant’s estate derives from
the deceased claimant, and the administrator can only assert
defenses that would have been available to the deceased claimant.
United States v. Real Property Located at 265 Falcon Road, Civil
NO. 08-700-JPG, 2009 WL 1940457 at *6 (S.D.Ill. July 7, 2009); see
also Hopper, 106 Ohio St. 292 at 302 (administrator and heir at law
of estate stands in the legal shoes of the decedent); Kelley, 193
15

Ohio App.3d at 33 (a decedent’s legal representative stands in the
shoes of the decedent with respect to his financial and commercial
rights and obligations). Further, the estate cannot raise defenses
which might be available to individuals who stand to inherit from
the estate.

United States v. 164 Pieces of Jewelry, 785 F.Supp.

885, 889 (D.Or. 1991).
Mrs. Thompson seeks to assert an innocent owner defense.
Insofar as she claims to have had an ownership interest in the
defendant firearms at the time of the seizure, she must show that
she did not know of the conduct giving rise to forfeiture.

There

is evidence in the form of the recorded statements of Mr. Thompson
to the informant that Mrs. Thompson was “the organizing faction
here in this deal” and that she had “been through the gun thing
with me from the beginning.”

Mrs. Thompson testified that she was

aware what her husband was paying for the weapons he bought because
she was his secretary and did all of the paperwork in every
business they owned.

However, Mrs. Thompson claims that she was

unaware of firearms transactions which factually constituted the
illegal

sale

of

firearms

without

a

license.

The

court

has

concluded that a genuine dispute exists as to whether Mr. Thompson
was engaging in the illegal sale of firearms, and as to which of
the firearms were “involved in” or “intended to be used in” the
offense.

The evidence also raises a genuine dispute as to whether

Mrs. Thompson is an innocent owner under 18 U.S.C. §983(d)(2)(A).2
2
If Mrs. Thompson claims a property interest in the defendant firearms as
an heir of Mr. Thompson’s estate, that interest became legally cognizable for
purposes of her status as a claimant only upon the death of her husband, which
was after the conduct resulting in the forfeiture took place. See Duncan v.
Kline, 81 Ohio St. 371, 385, 90 N.E.938 (1910)(presumptive or apparent heir has
no present right in property); Slaughter v. Fitzgerald, 66 Ohio App. 53, 67, 31
N.E.2d 744 (1939)(applying the maxim nemo est haeres viventis (no one is the heir
of a living person)). As an heir, she is not a bona fide purchaser for value and

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V. Conclusion
In accordance with the foregoing, plaintiff’s motion for
summary judgment (Doc. 60) is denied. The motion to substitute Mr.
Thompson’s estate as a party (Doc. 66) is granted.

Date: February 15, 2012

s/James L. Graham
James L. Graham
United States District Judge

therefore cannot be an innocent owner under §983(d)(3)(A). See 265 Falcon Road,
2009 WL 1940457 at *7 (where a person received a property interest as a
claimant’s heir without conveying any value for the property, that person is not
a bona fide purchaser for value under §983(d)(3)(A)); Guida v. Thompson, 160
N.E.2d 153, 159 (Ohio Com.Pl. 1957)(heirs take by inheritance, not by purchase).
Therefore, Mrs. Thompson cannot assert an innocent owner defense under
§983(d)(3)(A)(i) and (ii).

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