Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-C-4675 -- Stanley J. Roszkowski, Judge
Before Fairchild, Chief Judge, and Swygert and Cudahy, Circuit Judges.
This is a forfeiture action by the United States against one Heckler-Koch rifle and various firearm accessories. Defending the action is Don McBain (the respondent). The district court granted the government's motion for summary judgment from which the respondent appeals. We reverse.
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). To the extent that the record is unclear or the facts conflicting, the evidence in the record must be viewed in the light most favorable to the party opposing the motion. Applying that standard to the rather untidy record before us, we believe that it shows the following course of events. In July, 1976, the defendant property was "loaned to McBain by one Sam Puleo, a resident of Fort Lauderdale, Florida." (Answer to Amended Complaint P 6, R. 37.) Uncontested affidavits submitted by the government establish that Puleo has been convicted of a felony and has never been granted relief from the disabilities imposed by the Gun Control Act because of that conviction. (R. 46, Ex. B; R. 50.) On July 18, 1976, the respondent returned "home to Chicago" with the rifle and accessories on a Delta Airlines flight. Before boarding he delivered the rifle "to agents of the Common Carrier" and "informed said agents and employees of Delta Airlines of the nature of the item being given to them for transport." (Answer to Amended Complaint P 7.) Upon his arrival at O'Hare International Airport, the respondent did not recover custody of the rifle from Delta. The defendant property was later seized by federal officials at O'Hare and it remains in the possession of federal authorities. The respondent as of July 19, 1976, did not possess an Illinois Firearms Owner's Identification Card. (R. 21, Ex. A.) Neither was he a federally licensed importer, manufacturer, dealer, or collector of firearms. (This fact, repeatedly alleged in the government's complaints, has never been specifically denied by the respondent. It is obviously a matter within his personal knowledge and his failure to deny the allegation must be deemed an admission of its truth. Fed.R.Civ.P. 8(d). See also R. 42, Ex. B.)
18 U.S.C. § 924(d), the provision of the Gun Control Act which authorizes this action, provides in pertinent part: "Any firearm or ammunition involved in or used or intended to be used in, any violation of the provisions of this chapter . . . shall be subject to seizure and forfeiture . . . ." The government's complaint alleged that the respondent's conduct in obtaining the defendant property in Florida and transporting it to Illinois violated a variety of the provisions of the Gun Control Act. Its motions for summary judgment, however, relied on only two: 18 U.S.C. § 922(e) and 18 U.S.C. § 922(a)(3).*fn1
The government's first motion for summary judgment advanced the theory that the respondent's conduct violated 18 U.S.C. § 922(e). That section provides:
It shall be unlawful for any person knowingly to deliver or cause to be delivered to any common or contract carrier for transportation or shipment in interstate or foreign commerce, to persons other than licensed importers, licensed manufacturers, licensed dealers, or licensed collectors, any package or other container in which there is any firearm or ammunition without written notice to the carrier that such firearm or ammunition is being transported or shipped; except that any passenger who owns or legally possesses a firearm or ammunition being transported aboard any common or contract carrier for movement with the passenger in interstate or foreign commerce may deliver said firearm or ammunition into the custody of the pilot, captain, conductor or operator of such common or contract carrier for the duration of the trip without violating any of the provisions of this chapter.
It is uncontested that the respondent did not provide Delta Airlines with written notice that he was presenting a firearm for transport. He conceded this at oral argument. The controversy here concerns the provision permitting a passenger to deliver the firearm "into the custody of the pilot, captain, conductor or operator of such common or contract carrier for the duration of the trip without violating any of the provisions of this chapter." We shall refer to this portion of § 922(e) as the "passenger proviso."
Before the district court, the government argued that the respondent had failed to specifically allege delivery into the "custody of the pilot" or other individual specifically named in the proviso. This, suggested the government, constituted an implicit admission of the respondent's failure to comply with the proviso, entitling the government to summary judgment. The district court denied the motion for judgment, holding that although the respondent's pleadings were less than clear, arguably his conduct fell within the ambit of the proviso. Subsequently, the respondent's attorney represented to the district court in a brief that "Defendant (sic) does not yet know the name of the baggage clerk who was told that the weapon was being presented for transport." (R. 44.) Although this representation is neither in a pleading nor an affidavit, arguably it may be treated as an admission that delivery was not made into the hands of the airline's pilot, and, for our present purposes, we will so assume. See 10 C. Wright & A. Miller, Federal Practice and Procedure § 2723 at 490 (1973) ("admissions in the brief of the party opposing the motion may be used in determining that there is no genuine issue as to any material fact, since they are functionally equivalent to "admissions on file' "). The issue thus presented is whether delivery of the firearm to an airline baggage clerk, instead of a pilot, is insufficient as a matter of law to constitute compliance with the passenger proviso.*fn2
The government, citing United States v. Burton, 351 F. Supp. 1372 (W.D.Mo.1972), aff'd, 475 F.2d 469 (8th Cir.), cert. denied 414 U.S. 835, 94 S. Ct. 178, 38 L. Ed. 2d 70 (1973), and United States v. Williams, 485 F.2d 1383 (4th Cir. 1973), cert. denied 416 U.S. 941, 94 S. Ct. 1947, 40 L. Ed. 2d 293 (1974), argues that the passenger proviso must be strictly construed to mean that a traveler with a gun must personally deliver the firearm into the hands of the "pilot, captain, conductor, or operator" and delivery to other agents of the common carrier cannot constitute compliance with the proviso. Neither case cited by the government directly supports its position. First, the Gun Control Act is a penal provision. See 18 U.S.C. § 924(a). Thus, if the act is to be strictly construed, it should be strictly construed against, not in favor of, the government.*fn3 Second, Burton and Williams do no more than hold that to comply with the passenger proviso, a passenger must at least give the carrier actual notice that the item to be transported is a firearm.*fn4 This construction of the proviso is necessary to effectuate the purpose of the Act to restrict certain interstate commerce in firearms. Section 922(f) makes it unlawful for a carrier to transport firearms when it has reasonable cause to believe that the shipment would violate the Act. Section 922(e) was enacted in order to inform the carrier of the character of the items it was shipping, thus placing on it the duty to inquire into the legality of the shipment. Thus, it is imperative that the carrier be given actual notice of the character of the items it is transporting. Here the respondent in his answer alleged that he delivered the rifle "to agents of the common carrier" and "informed said agents . . . of the nature of the item being given to them." If his representations, as yet unrebutted by the government, are true, the respondent did not run afoul of the holdings of Burton and Williams.
Since neither Burton nor Williams answers the precise question before us, we must construe the passenger proviso in a manner consistent with its language and purpose keeping in mind that it is a criminal provision that we are examining. The government has suggested no reason why only manual tradition into the hands of the pilot in the case of an airline would be consistent with the purpose of the Act. Although § 922(e) does distinguish between the "carrier" and "the pilot, captain, conductor or operator of such . . . carrier," this difference in the statute's terminology does not necessarily carry the significance that the government suggests. The proviso containing the latter language was added on the floor of the House after the bill had been reported out of committee. See 114 Cong.Rec. 23088 (July 24, 1968). The purpose of the proviso is evidently to permit the lawful transportation of a passenger's firearm while insuring that the weapon is placed under the control of the person in charge of the trip. It would seem that a passenger who transfers custody of a firearm to a responsible agent of the carrier and who gives notice that it is in fact a firearm which is being transferred would substantially comply with the proviso. That conduct could reasonably be considered constructive delivery into the custody of the pilot.*fn5 Indeed, one decision implies that delivery of a firearm to an airline ticket agent might be sufficient to come within the proviso as long as actual notice that a gun is being delivered is given. See United States v. Keuylian, 602 F.2d 1033 (2d Cir. 1979). This interpretation of the proviso also seems more reasonable than that advanced by the government because the rather rigorous security measures in effect at many airports make it unlikely that an airline passenger could personally deliver a firearm into the custody of the airline's pilot. We cannot attribute to Congress the intent to specifically declare certain conduct to be outside the penal provisions of the Act with the knowledge that it is practically impossible to engage in that conduct. To do so would render the passenger proviso a nullity and be contrary to the practice of the courts to construe criminal statutes in favor of the defendant.
We conclude that as long as a passenger delivers the firearm to a responsible agent of the airline for delivery to the pilot with notice that it is a firearm that is being transferred, the passenger has complied with the requirements of 18 U.S.C. § 922(e). Whether, as appears to be the case here, a baggage clerk is necessarily such a responsible agent of a carrier need not be decided now. That determination may very well depend on the facts of the particular case. It is sufficient for present purposes to note that on the record before us we cannot say that there is no genuine issue of material fact as to the identity and responsibility of the person to whom the respondent claims to have ...