Central Airlines, Inc. v. United States
169 F.3d 1174
8th Cir.
1999
Check Treatment

UNITED STATES OF AMERICA, Appellee, v. DEAN TRUELSON, Appellant.

No. 98-2512

United States Court of Appeals, Eighth Circuit

Decided March 18, 1999

173 F.3d 1174

were four to six gun collector books but no purchase receipts for most of the firearms. Only one box of ammunition appeared to be “old, antiquated, or collector-type ammunition.” Truelson testified that he had never fired any of the guns and only purchased some of the ammunition because it was on sale. Only on cross examination was Truelson directly asked whether he possessed the firearms for collection. He responded:

Q. Is it your testimony today, though, that ... you ... were purchasing or possessing firearms for collection purposes if I‘m understanding you correctly?

A. With my son, yeah, pretty much.

(Emphasis added.) Based upon this evidence, and taking into account the dismissed drug trafficking charges, the district court1 found that Truelson had not proved the firearms were possessed solely for lawful sporting purposes or collection.

On appeal, Truelson argues he possessed the firearms “solely for ... collection” and is therefore entitled to the § 2K2.1(b)(2) reduction. Truelson bears the burden of proof on this issue. We review the district court‘s finding regarding his purpose in possessing the firearms for clear error. See . The issue turns upon the relevant surrounding circumstances, which include “the number and type of firearms, the amount and type of ammunition, the location and circumstances of possession and actual use, [and] the nature of the defendant‘s criminal history.” U.S.S.G. § 2K2.1, cmt. (n. 10). Truelson argues there was insufficient evidence of a nexus between the firearms and his alleged drug trafficking, relying on . But that case turned on the question whether the firearms were “otherwise unlawfully use[d]” for purposes of § 2K2.1(b)(2), not on whether they were used “solely for ... collection.” In this case, taking into account the variety of new and used guns, the presence of partially used ammunition, Truelson‘s equivocal answer regarding collection, and the evidence of on-going drug activity, the district court‘s finding that Truelson failed to prove the firearms were possessed solely for collection was not clearly erroneous.

The judgment of the district court is affirmed.

CENTRAL AIRLINES, INC.; Central Air Southwest, Inc.; Dewey E. Towner, doing business as Central Air Southwest, Appellants, v. UNITED STATES of America; Federal Aviation Agency; William D. Stewart; Walter J. Hutchings; Thomas E. Stuckey; John C. Curry; Mark G. Camacho; Timothy C. Titus, Appellees.

No. 98-2652

United States Court of Appeals, Eighth Circuit

Submitted Feb. 8, 1999. Decided March 18, 1999.

Joel B. Laner, Kansas City, Missouri, argued, for Appellants.

Wendy L. Rome, Washington, DC, argued (Frank W. Hunger and Stephen L. Hill, on the brief), for Appellees.

BEFORE: FAGG and HANSEN, Circuit Judges, and ROSENBAUM,* District Judge.

PER CURIAM.

After conducting an inspection, the Federal Aviation Administration (FAA) informed Central Airlines, Inc., Central Air Southwest, Inc., and Dewey E. Towner, doing business as Central Air Southwest, (collectively “Central Airlines“) that their planes did not comply with federal regulations governing flight in known or forecast icing conditions. Central Airlines protested the FAA‘s interpretation of the applicable regulations but, faced with threats of fines and the grounding of any noncompliant aircraft, Central Airlines installed the required equipment. The FAA later admitted it had incorrectly interpreted the regulations. Central Airlines then filed suit against the United States and the FAA employees who conducted the inspection. The employees moved to dismiss the claims against them, and that motion was ultimately granted. See . The Government also moved to dismiss Central Airlines’ negligence claim brought under the Federal Tort Claims Act (FTCA). The district court granted the Government‘s motion, Central Airlines now appeals, and we affirm.

Central Airlines contends the district court committed error in dismissing its negligence claim. We disagree. The FTCA allows claims against the United States for the negligent acts of its employees only if “a private person[ ] would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1) (Supp. II 1996); see 28 U.S.C. § 2674 (1994) (United States liable in tort “in the same manner and to the same extent as a private individual under like circumstances“); (same). The parties agree that the acts and omissions in this case occurred in Missouri.

Central Airlines alleged in its complaint that its negligence claim was based on the FAA‘s failure “to fairly and accurately interpret, inform about, and enforce the rules and regulations concerning ... flight into forecast or known icing conditions.” As the district court properly concluded, Missouri law does not recognize a negligence cause of action analogous to Central Airlines’ claim against the FAA for misinterpreting FAA regulations. Apparently recognizing the flaw in this argument as presented to the district court, Central Airlines now contends its claim under the FTCA was also based on the FAA‘s negligent inspection of Central Airlines’ aircraft. Central Airlines did not plead this negligent inspection contention in its complaint, nor did Central Airlines bring that contention to the district court‘s attention in its briefs or during the hearing on the Government‘s motion to dismiss. Because Central Airlines raises its negligent inspection argument for the first time on appeal, we decline to address it. See .

We affirm the district court‘s dismissal of Central Airlines’ negligence claim.

Notes

1
The HONORABLE MARK W. BENNETT, United States District Judge for the Northern District of Iowa.
*
The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota, sitting by designation.