Jack Dailey McKeehan v. United States

CELEBREZZE, and Before WEICK Judges, O’SULLIVAN, Circuit and Sen- Judge. ior Circuit Judge, Weick, Circuit concurred opinion. filed Judge. CELEBREZZE, Circuit appeal by an

This is intervenor Court, District from the United States Eastern District of Tennessee civil rem action in to enforce forfeiture of firearms seized certain authority of 26 U.S.C. 5872(a), and 26 amended § U.S.C. U.S.C. (1964). The District Court firearms found that seized Reg- registered in the National Firearms as re- and Transfer Record istration ,as by law, quired 26 U.S.C. § found and it further amended admitted the intervenor’s June, 1969 was possessing a unlawful act proof of the registered to the is not firearm Reg- possessor Mcllwaine, Jr., in the National Firearms petitioner W. both college long istration Transfer Record. had finished since left 5861(d), amended in 1968. respective parents residences of their findings, and, Based on such practical the District purposes, for [fol. had 2] forgotten intervenor-posses- Court held that machineguns. the about the three register weap- sor’s failure to the seized During register- the moratorium for during amnesty period ons the his made ing machineguns between November 2 possession unlawful; continued 1, 1968, machineguns and December said therefore, by the firearms were still stored in the residence of H. lawfully United States are forfeited Whiting Mcllwaine, Sr., at 4110 Towan- the United of States America. Trail, W., Knoxville, da S. Tennessee. proceedings publicity The civil forfeiture in the Whatever by was utilized upon District Court tried the fol- were U. publi- S. Government authorities lowing stipulated facts: cize the moratorium did not serve to bring machineguns to mind for ei- petitioner ther or his friend. STIPULATION OF FACTS petitioner, friend, That his and his January 13, 1970) (Filed qualify abiding friend’s father all as law machineguns question in That citizens; guns that these could have been intervening acquired by peti- legally registered during amnesty pe- paratrooper tioner while combat 2, 1968, through riod of November De- during II; weap- World that these War 1, 1968, possession cember and that said by shipped petitioner ons were as author- purpose. would have been for a lawful by Military ized U. S. authorities 16, 1969, petitioner On or about June petitioner’s parents, Mr. and Mrs. J. voluntarily known, made delivered and McKeehan, Avenue, Temple Colson at 919 machineguns surrendered said Knoxville, during Tennessee, spring Treasury Department, U. S. Internal along war souvenirs. with other Service, Revenue Alcohol and Tobacco machineguns That the instant are Knoxville, Tax Division office Ten- “firearms” as defined in 26 U.S.C. nessee. (a) (6) as defined in further 26 U.S.C. machineguns That the three have a 5845(b). exceeding fair market value that by following representatives That II and authorized World War college during while a student United at the time States Government August, 1947, gave during petitioner possession seizure was declared machineguns longtime petitioner these to a child- That satisfied the nec- friend, Jr., essary steps Henry Mcllwaine, hood to have this matter trans- W. residing ju- parents, ferred to honorable court for then with his Mr. and this rights Whiting Mcllwaine, pertaining H. dicial review of his Mrs. Tennessee; guns. shortly following Trail, Knoxville, these That com- Towanda guns; by hobby friend mencement of this that said collected forfeiture action Government, understanding peti- petitioner between States indicted, arrested, that, released under tioner his friend was should bond, gun years $1,000 arraigned, guil- petitioner plead ever have a room in “not ty” come, reacquire for trial on November he could scheduled 18, machineguns By agreement, pur- these three guns pose; matter was to be determined simultane- said remained stored charge. ously petitioner’s parents the criminal On No- the home 17, 1969, motion, up early spring 1969, friend vember on its own until having preju- petitioner’s dismissed with full father friend died 1968, family 8, dice its criminal indictment. On Novem- on December and the during 18, 1969, being petitioner appeared with ber homestead was vacated corroborating witness, March, 1969; Henry Henry petitioner’s friend, W. may though agreement, compensation its owner and, by even Mcllwaine, Jr., engaged conduct ad- not have the matter took 3] Court [fol. wilfully facts, criminal or be characterized stipulation allow- aon visement negligent. of Personal Items ing time Various petitioner and Government 577, Property to file briefs. (1931); L.Ed. statu- appeal, contended it is On Coupe Auto- Ford quasi- proceedings are tory forfeiture mobile, the owner actions Jr.-Grant Goldsmith ap- not be and should forfeited items Co. actual notice had no who plied to owners (1921); Dobbin’s amnesty period thirty-day created Distillery States, 96 U.S. Amend- Congress Act under the 1968 (1877); Dis- Henderson’s 24 L.Ed. 637 207(b)-(d),1 and ments, 90-618 Pub.L. § (81 U.S.) Spirits, 14 tilled Wallace engaged in crim- have not otherwise who Palmyra, 12 wilfully negligent con- inally culpable nor (1827). (25 U.S.) 6 Wheat. duct. case, in- however, contains four This in Ameri established It is well distinguish teresting it which features however, absent jurisprudence,2 can precedents. above-cited from the per legislative expression3 contrary a and statu property possessed be seized First, merely Appellant sonal any torily payment of any without forfeited actual firearms without promulgated pursuant regulations to cognizable 1. The “on the revenue side of the 207(b), permit exchequer.” Palmyra, Di- § Pub.L. 90-618 12 Wheaton (& Tax US) (1827). rector of Alcohol and Tobacco Service, Japan, Revenue Division of the Internal In some under circumstances peri- Treasury Department, purchaser to “establish or of for- an innocent owner ninety (90) amnesty, goods judicial remedy, not ods of days to exceed feitable Japanese a single any period (Law in the case of Customs Law #61 liability immunity 118(1), 4/2/54), the Di- from Article rather than non-judicially to the rector will contribute determines reviewable administrative purposes part.” remedy given 26 CFR 179.120 of this to an innocent owner or (b). purchaser in the U.S.C. United States One § summary 2. For under a civil forfeiture Cadillac, 337 F.2d 730 tribes, Rome, the laws of the Germanic Mitchell, supra See 13-14. at England, Greece W. see Oliver Holmes, example, ed. Mark De- The Common Law For in order work for- Mass.1963) (Cambridge, Wolfe at relating Howe feiture under certain statutes 2-12. preservation game, the owner of England, goods common re- criminally law forfeiture the seized must be con- violating provisions sulted from conviction and victed of certain misprision treason, prae- treason, Code, the Conservation U.S.C. § judge, munire, drawing weapon (1964). on a see Also § U.S.C. papish recusancy many protects cases which certain innocent owners felony. statutory at motor Lands were forfeited attainder forfeitures their section, 204(b), back to the but transfer of title related vehicles. A similar § defeating Liquor Repeal thereby in- time of and Enforce- the offense Law judicially purchasers. provides for Chattels ment Act of 1935 termediate supervised goods forfeited at the time of con- remission of forfeitures where good faith and there viction and no relation back the claimant acted there was negligence. showing Also Sir William is no of wilful the time of the offense. Blackstone, above, Congress created a dis- on the Laws as noted cretionary Commentaries power Cooley, England, 4th to remit administrative ed. Thomas M. forfeitures, (Chicago, Ed. James Andrews U.S.C. § DeWitt 421; 1899), of the ad- at b.iv at exercise b.ii however, Develop- discretion, Mitchell, is not ministrator’s 387. See Thomas judicial subject in the review. United States ment of the Law of Forfeiture Cadillac, Haven, 1969), (New This doctrine, however, not common law was Congress up- supra knowledge placed Spirits, (purchaser has tilled of dis- passive possessors spirits fire- of certain tilled on all bonded as- warehouse regis- duty spirits pur- arms a to come forward sumes risk the distilled he away may 90-618 chases and ter their firearms. Pub.L. carries have 179.120, (b); 179.190-91 made used violation of Internal 26 C.F.R. laws). And further not and 179.200-201. Revenue Appellant notice that without actual Second, Appellant possessed firearms register required to his firearms he was lawfully imported which were passive purpose possessing for such a auspices Military of the United States souvenirs; personal he not also was Congress authorities and which has not engaging the firearms activ- g. per (e. declared to be contraband se normally ity placed have would counterfeit coins or securities of the regis- statutory him notice as States) inherently dangerous Historically, requirement. we tration society such that their use was limited involving the civil can find no other case pur- to law enforcement officials or for al- which the chattels poses inquiry (e. g. of scientific mari- legedly inequitably treated owner had juana, Quite opium). heroin or the con- engaged in some affirmative com- trary, generally possession of firearms is financing, enterprise, transfer mercial guns except lawful are when such intend- placed him in a have sale which would ed to be used or have been used in viola- position either or should where he knew Act, tion the of National Firearms its of the reve- have known of the existence regulations Amendments or the issued regulating activity. his Vari- nue laws 7302; pursuant thereto. See 26 U.S.C. § Property v. Unit- ous Items of Personal Also, 781(b) (2) (1964). the U.S.C. § supra States, (corporate owner of a ed collection of most as sou- firearms “war denaturing distillery, warehouse and recognized by or venirs” “curios” Con- alcohol); engaged plant production of gress activity. to be a lawful See Coupe Ford Auto- United 925(a) (4) (A), 925(d) (2), as U.S.C. § mobile, supra (“innocent” corporate 1968; amended in 26 C.F.R. 178.11 §§ financing of auto- owner who was sale (c), 178.26. And further the continued contract); mobile on conditional sales very ques- firearms in Co. v. United Goldsmith Jr.-Grant recognized Congress by a tion is to be supra (“innocent” States, corporate own- long duly activity they lawful as are on credit and re- er who sold automobile registered. Pub.L. 90-618 217 § money); purchase unpaid tained title for 26 C.F.R. 179.120. § States, Distillery Dobbin’s supra (owner distillery and related of a case, stipulated In the instant the personal property knowl- who without support Ap- do not a conclusion that the edge his of leased lessee’s misconduct pellant used or intended to use the seized occupied property and suffered it to be in violation of the law. The' by lessee); parties stipulated Appel- and used Henderson’s Dis- have that the entirely 1969),, generally, 4. it is While not clear see 5 Moore. wording stipulation (1968 ed.), that of facts Federal Practice 52.04 we af- Appellant actually finding notified of firm was not the District Court’s of no period, stipulated amnesty existence of the actual notice it has been where “petitioner District that District Court found Court had benefit knowledge “petitioner appear [ing] or his friend had no actual * * * although amnesty period.” corroborating of this And witness.” [a] question 52(a), there is some Rule Fed.R.Civ.Proc. given to to the standard of review factual findings depositions solely importation 5. based No doubt such lawful oc- statutory stipulations, compare curred United States Steel under a or administra- Corporation Fuhrman, predecessor 925(a) tive to 18 U.S.C. 1969) (4) (A), General Electric as amended Bros., Inc., Sciaky Co. v. F.2d 1068 Third, abiding Appellant’s not in- firearms are citizen” who lant was “law gun of crime whose seizure collection strumentalities placed his firearms justified by actually con- Con- and forfeiture possessed them — continuing gressionally purpose structively lawful declared to make —with costly maintaining “souv- limit to the more the access purpose valuable activity. g., ex- of criminal e. his means See “curios” from wartime enirs” or Congressional history stipulations do Amend- of 1950 periences. While (1964) in course, Appellant from not, ments free the U.S.C. obligation prior registration to the which of contraband article definition his drugs, ex- as it to narcotic Act Amendments relates Firearms National vehicles, strongly suggest Ap- panded they so vessels do “major capital requisite mens aircraft —the investment pellant not did have the violating “operating support to criminals” and tools of conviction of rea to pos- by dope peddlers” may for- Act be Firearms the National — Cong.Service feited. firearms from U.S.Code of the seized session Jeffers, also, See 2953. See supra, 53-54, Haynes Brig (where- Adhel, 722,19 L.Ed.2d 923 Malek any case, may (owner by Appellant, in have a ves- How. engaged may any from criminal have able to shield himself sel who invoking personal deprived Amend- his Fifth be sanctions misconduct aggres- privilege). piratical the enactment After his vessel if it used ment necessity Amendment case Act “the re- National Firearms sion where voluntary Ap- only adequate quiring actions of means of it as register wrong, attempting suppressing his fire- pellant in or of offense insuring injured par- stipulated indemnity dismissal and the arms charges against Appellant ty,” Distillery Dobbin’s strong 400). firearms seized that the evidence 96 U.S. at of the in a violation not involved Fourth, instant forfeiture cannot the have Act Firearms which would National grounds, justified on be administrative subjected and forfeiture. them to seizure recouping of the costs of as: present Further, case does not even this enforcing law, investigating and allegations in most forfeiture the usual 391, 401, Mitchell, Helvering 303 U.S. v. Internal Revenue laws under the actions or L.Ed. 58 S.Ct. penal due taxes are that excise registration collecting unpaid or an activity prior as the payable from such due, One transfer tax manufacture, importation or sale Buick, (6th Cir. 392 F.2d goods. Finally, on the facts confiscated justification This lack administrative of say case, that cannot in this we Appellant is fact that results from the may properly be classi- seized any alleged engaged in ac- have articles” and re- as “contraband fied tivity an intent to defraud the Unit- theory. upon tained any or have revenues ed 48, 53-54, Jeffers, 72 S.Ct. 342 U.S. due, pay if the revenue taxes failed (1951); United States L.Ed. manufacture, importation, any, on the Buick, 392 F.2d 672 v. One 1965 firearms. or transfer of sale Black, See United States summary, the instant forfei (dic- 1970) depriving Appellant ture action shotgun received tum: sawed off any compensation personalty without paid trans- result nontax as a accused on, distinguishable prior precedents from date Fire- of National after effective grounds: (1) fer inade- at least four defined Amendment of 1968 arms Act Appellant con- quacy of notice contraband) added). sidering pos- passive (emphasis of his nature purpose person possessor, session, (2) rather than the the lawfulness conceiving gives Appellant’s possessing for this interest us a basis pur- firearms, (3) any declared action for certain constitutional the lack of personam. legislative poses policy as an In so action in “legal doing, creating fic- aid we are not the circumstances of this case will tion”, destroying enforcing are char- make the one.6 We laws or the criminal acterizing underlying ac- more difficult instrumentalities of crime costly tion their are fol- lack of as to substance. We or to obtain lowing pur- any the mandate of the United States or revenue sound administrative Supreme repeatedly pose justify it has Court when the instant forfeiture. facts, impo- held that under certain circumstances find the Based on these we possessor Appellant of chattels entitled to sition of forfeiture on the protection penal dep- and Fifth Fourth unconstitutional causes an Amendments when civil forfeiture ac- personal property rivation “without quasi-criminal penal just Amendment, tions take on a compensation.” Fifth Plymouth cast. One 1958 Sedan v. Com- United States Constitution. Pennsylvania, monwealth of 380 U.S. course, appreciate, in- We 14 L.Ed.2d 170 rem, stant action is a civil action in Boyd, United States v. the seized firearms and not a personam against criminal action in possessor Lastly, of the firearms. 26 U.S.C. we believe that the dismissal 7323(a). further, charges against And Appellant we are aware question that chattels are not entitled to con- raises a substantial as to wheth- action, process. collaterally er estop- stitutional due This States is however, ped securing typical Appel- is not a for- from in rem a forfeiture of personalty alleged lant’s action. The lack of for feiture valid its use legislative, 5861(d), violation of administrative revenue 26 U.S.C. rem, purpose pursuing question amended in the item in 1968.7 In that this Property acquittal 6. Various Items of Personal that prejudice dismissal with full 577, 581, federal criminal case (1931) (in collaterally estop 282 Supreme which the United States upheld instituting proceeding against a civil forfeiture a civil proceeding observing, acquitted while “it is the individual case second property proceeded against, and, upon based the same factual issues. Cof legal fiction, fey States, guilty 436, resort to a held 6 United 116 U.S. though 437, (1886). and condemned as it were con- S.Ct. 29 L.Ed. 684 United Zucker, 475, 478-479, scious instead of inanimate and 161 insenti- U.S. ent.”) 581, 641, (1896) (dic 282 U.S. at 51 S.Ct. at 16 S.Ct. tum), Stanley States, v. United 1940), day (6th the same On and before 898 A the same Cir. United States v. judge, Jewelry, federal Lot of United filed a Precious Stones and 134 against three-count criminal indictment P. 61 See Ashe v. Cir. Appellant alleging wilfully Swenson, 443, 436, that he 397 90 S.Ct. knowingly possessed 1189, received and 25 L.Ed.2d United Pontiac, three firearms in violation States v. One 5861(d) 5871, 1939) (dictum). Contra, amended Dodge Sedan, 1968 and the instant forfeiture States v. One F.2d action. (3rd precisely limiting Both cases were tried on But see stipulated Coffey same set crim- construction decision facts. The States, 178, inal counts were dismissed with full Stone 167 U.S. prejudice, ; 778, (1897) but —in the words Dis- Mur S.Ct. be, phy 630, weapons trict Court —“the accused 272 U.S. hereby are, guilty (1926). same L.Ed. Helver and forfeited ing Mitchell, (Em- United States 303 U.S. 58 S.Ct. America.” phasis principle added.) of collateral This estoppel may force where the Under certain have added limited circumstances the essentially proceeding Supreme second “civil” Court has held charged ap- violation Section ment argued Court on this before not considering (d), be said that it it cannot from peal, we shall refrain chap- this violation of were involved at this time. dismissal, the Gov- ter. Because of such judgment the District Court The only ought estopped, not to be ernment reversed. charge instituting criminal another against McKeehan, from forfeit- also Judge (concurring). WEICK, Circuit alleged ing of- property same for the should of dismissal judgment. The fense. in the I concur forfeiting By McKeehan’s be conclusive. stipulation of states: at- property, is still the Government mo- on its November “On punish tempting him for with tion, dismissed although has fore- it the firearms indictment.” prejudice its criminal full prosecuting him. itself from closed my full opinion with the dismissal Coffey acquittal equivalent

prejudice defense sustains the unreg- charge possession of the estoppel. There a defendant had been can The Government istered firearms. involving charges acquitted on criminal longer for the prosecute McKeehan no Revenue laws. of the Internal violations same offense. brought Subsequently the a Government February 4, the District On proceeding the de- memorandum, Court, entered the in its property, the same fendant’s based on following order: Revenue laws. violations of the Internal is, that the ac- therefore, “It ordered The Court The Court denied forfeiture. hereby be, weapons same and the cused said: are, guilty and forfeited to no trial of “There could be new States of America.” acquit- prosecution after the weapons it; contraband. subsequent trial of tal and a brought substantially They trophies into were war the civil suit amounts to per- country by soldier, thing, this difference the same with a weap- following judg- consequences mission of the Government. in the 26 U.S.C. § ons committed no offense. the claimant.” ment adverse to “any 5861(d) for it an offense makes at 440-441. * * * person (d) possess to receive property The forfeiture of McKeehan’s registered him a firearm which is not clearly punishment him for constitutes Registration Trans- the National statute; but the Govern- violation of the ** *.” fer Record inflicting precluded itself from ment has provides penalty punishment. Section 5871 any person “who violates or fails Coffey cited as— has been comply any provision chap- “ * * * authority proposi- for the * * ter present had if defendants tion that “any provides Section fire- 5872 against criminally proceeded on been pro- arm involved in violation facts that account of the same acts and subject chapter visions of to shall be in sustain this must be shown order to ** seizure and forfeiture 1890, and statute of action under the acquitted, In the verdict and view the dismissal of the indict- had been prejudice, acquittal ment bar- with full indict- would have (1965), criminal in 1246 v. character. See United 85 S.Ct. States States LaFranca, 568, Kramer, (2d 574-575, 282 289 F.2d 909 v. U.S. 51 Cir. (dic- 278, supra (1931) ; Helvering Mitchell, S.Ct. But see v. Chouteau, Dodge 603, tum) ; United States v. One Se- U.S. 26 L. Plymouth (1880). dan, supra. Ed. 246 Sedan Cf. Pennsylvania, 700-701, 693, v. 380 U.S. subsequent proceeding, facts, red a civil out of these same and this deter- facts, equivalent finding acts and based on the same mination is him not to guilty. forfeiture instituted to enforce * * Zucker, v. United States subsequent proceeding, civil 641, 475, 478-479, S.Ct. 161 U.S. forfeiture, nature of can be characterized (1896). seeking impose pun- as an action however, doctrine, ishment, Coffey penal sanction, has or a Mc- Starting distinguished proceeding Keehan. limited. 178, any sense, quasi- Stone not remedial 186-187, 778, Plymouth 17 S.Ct. nature. One 1958 Coffey’s ap- Pennsylvania, limited Sedan v. 693, the Court plication instances where the second suit, nature, penalty imposed civil argue appellant ap- Failure of penal individual sanction on the same plicable question appeal of law on does acquitted previously of the crim- who was preclude it, our consideration charge. See, Murphy inal fairly presented by where it is the rec- 632, 272 U.S. ord. (1926) Coffey inapplica- where held was subsequent ble because the civil suit’s punishment.

purpose prevention, not Helvering Mitchell, In v. the Court

said: charge acquittal a criminal

“That by the is not a bar to a civil action BOHNERT, Thomas Hector Petitioner- nature, Government, remedial in its Appellant, arising on which out same facts proceeding the criminal has was based Brig. Gen. James FAULKNER Stan added) long (Emphasis been settled.” ley Resor, Secretary Army, Respondents-Appellees. Wall, F.2d Johnson (4th No. 1964), stated that Cir. Court Coffey doctrine— Appeals, “ * * * is limited to situations those Sixth Circuit. impose where the Government seeks Feb. though punishment which, civil form, penal in nature and is based

upon the same as the criminal

proceeding.”

Although Coffey ma- has been much ligned, Burch, F.2d 1961), 4-5 has the case still vitality subsequent within its restric-

tions, authority and we have no over-

rule it. United Ford Sedan,

Fairlane Tudor

It would seem that the instant case directly

falls within what left of Coffey doctrine. There has a final charges

determination of the criminal

against McKeehan, in that he cannot be again

prosecuted charge arising on

Case Details

Case Name: Jack Dailey McKeehan v. United States

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 19, 1971

Citation: 438 F.2d 739

Docket Number: 20328

Court Abbreviation: 6th Cir.