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United States v. Three Winchester 30-30 Caliber Lever Action Carbines

decided: October 31, 1974.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
THREE WINCHESTER 30-30 CALIBER LEVER ACTION CARBINES, ETC., DEFENDANT-APPELLANT, AND EDGAR ALLEN TUCKER, INTERVENING DEFENDANT-APPELLANT



Appeal from the United States District Court for the Eastern District of Wisconsin - No. 70 690 C Myron L. Gordon, Judge.

Sprecher and Tone, Circuit Judges, and Perry, Senior District Judge.*fn*

Author: Sprecher

SPRECHER, Circuit Judge.

The United States brought this action in accordance with 26 U.S.C. § 7401*fn1 seeking to have three Winchester rifles condemned and forfeited pursuant to the provisions of 18 U.S.C. § 924(d).*fn2 As a basis for this forfeiture action the government relies on a violation of 18 U.S.C. App. § 1202(a)(1), which makes it illegal for a convicted felon to possess any firearm.*fn3 Jurisdiction is based on 28 U.S.C. § 1345.*fn4

I

The essential facts of this case were established by stipulation. The defendant is the same individual who had been convicted of a felony in municipal court in Milwaukee, Wisconsin on March 25, 1954. The felony was the crime of carnal knowledge and abuse. On April 7, 1970, agents of the Commissioner of the Internal Revenue Service seized from the defendant's residence in Milwaukee three Winchester 30-30 Caliber lever carbines, which were at that time owned by the defendant. Thereafter this forfeiture action was commenced. The defendant is a member of the Menominee Indian Tribe who used the weapons for hunting in Menominee County, a former Menominee Indian reservation.

The defendant appeals from the order of the district judge condemning as forfeited to the United States the three Winchester rifles, asserting two grounds for reversal: First, that there was no evidence from which the district judge could conclude that the seized firearms were involved in interstate commerce. Second, because of his status as an Indian and certain rights granted by treaty to the Menominee Indians that the combined effect of 18 U.S.C. App. § 1202(a)(1) and 18 U.S.C. § 924(d) are not applicable to him.*fn5 We see no merit in either contention and accordingly affirm the order of the district court.

II

18 U.S.C. § 924(d) provides that any firearm involved in a violation of a criminal law of the United States is subject to seizure and forfeiture. The criminal offense upon which the government has based its action is 18 U.S.C. App. § 1202(a)(1), which prohibits a convicted felon from "receiv[ing], possess[ing], or transport[ing] in commerce or affecting commerce . . . any firearm." The defendant argues that there is no basis in the record upon which the district judge could ascertain that the rifles involved here moved in commerce.

The record reveals that written in hand on the bottom of the typed stipulations submitted on behalf of the government and defendant is the following:

The three Winchester rifles . . . were manufactured by the Winchester Western Corporation in New Haven, Connecticut, and were purchased by the claimant in December of 1969 and January of 1970, in Milwaukee, Wisconsin.

Next to this paragraph is the handwritten entry "Added per stipulation -- TSJ." At oral argument counsel for the government informed this court that TSJ were the initials of the district judge's law clerk.

Also part of the record on this appeal is a letter from assistant United States Attorney, David J. Cannon to Judge Myron L. Gordon setting forth the above added stipulation, and representing that this addition was made by agreement of the parties. The letter bears a designation of "cc: Attorney John A. Udovc" who was defendant's trial counsel.*fn6 At oral argument defendant's counsel on appeal told the court that "[trial counsel] informed me that further stipulation was not made . . . he informed me later that he did receive a copy of the letter."

It is, of course, generally true that a stipulation is an agreement between the parties, and that there must be mutual assent by the parties. Winchester Drive-In Theatre, Inc. v. Twentieth Century-Fox Film Co., 232 F. Supp. 556 (N.D. Cal. 1964), rev'd on other grounds, 351 F.2d 925 (9th Cir. 1965), cert. denied, 382 U.S. 1011, 15 L. Ed. 2d 526, 86 S. Ct. 620 (1966); Holland Banking Co. v. Continental National Bank, 9 F. Supp. 988 (W.D. Mo. 1934). Here we have a case where it is admitted by defendant's attorney that trial counsel did in fact receive a copy of the letter containing the added stipulation which was sent to the trial judge. The defendant did not ...


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