United States District Court, Central District of Illinois, Springfield Division
June 8, 2001
UNITED STATES OF AMERICA, PLAINTIFF,
MISCELLANEOUS FIREARMS, EXPLOSIVES, DESTRUCTIVE DEVICES AND AMMUNITION, DEFENDANTS.
The opinion of the court was delivered by: Mills, U.S. District Judge:
This is a peripheral sequel to United States v. Fleischli,
119 F. Supp.2d 819 (C.D.Ill. 2000).
More specifically, it is a civil forfeiture action.
On August 11, 1998, agents of the Bureau of Alcohol, Tobacco &
Firearms ("ATF") seized firearms and ammunition from the home of Joseph
and Donna Fleischli at 1119 South MacArthur and from Mr. Fleischli's
business at 1905 East Washington. Various explosives and other items
were also seized from Mr. Fleischli's business.
On October 16, 1998, Donna Fleischli — the Claimant here —
timely filed a claim as to nearly all of the seized items. The ATF
requested that Claimant execute a Bond for Costs and a Power of Attorney
and also inquired as to which firearms she was claiming. By letter dated
March 1, 1999, the ATF received the requested information. However,
because the Bond for Costs was incomplete, the ATF requested by letter on
April 29, 1999, that Claimant properly complete and execute the form.
The ATF received all of the necessary information by May 20, 1999. It
was then that it referred the matter to the United States Attorney's
Office for initiation of a judicial action to enforce the forfeiture of
property. The forfeiture action was filed on February 8, 2000.
The cause is now ripe for a ruling on Claimant's motion for partial
II. SUMMARY JUDGMENT STANDARD
Summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The movant must point out those parts of the
record which demonstrate the absence of any genuine issue of material
fact. See Catrett, 477 U.S. at 323. In deciding a motion for summary
judgment, the record is viewed in favor of the non-moving party and all
reasonable inferences are to be drawn in favor of that party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A. Local Rule 7.1(D)
Before proceeding to a discussion of the merits, the Court will discuss
the local rule that pertains to summary judgment motions. The applicable
local rule provides that "[a]ll motions for summary judgment, responses
and replies shall comply with the requirements of this rule." Local Rule
7.1(D). It further provides that any filings that do not so comply shall
be stricken by the Court. See id.
Claimant submitted her allegedly undisputed material facts along with
her motion for summary judgment. Local Rule 7.1(D)(2) provides the
procedure for responding to a motion for summary judgment. Specifically,
any party opposing the motion must (1) list and number any fact which is
conceded to be undisputed and material; (2) list by number any fact which
is claimed to be disputed; (3) list by number any fact which is claimed
to be immaterial to the motion; and (4) list and number any additional
material fact raised in opposition to the motion. See Local Rule
7.1(D)(2)(b). The Government has failed to comply with the requirements
of the local rule by not responding to Claimant's allegedly undisputed
material facts and by not asserting any additional material facts to
defeat Claimant's motion.
As the Court earlier noted, Claimant has submitted a list of material
facts which she alleges is not in genuine dispute. Most of the allegedly
undisputed material facts concern the items that were seized on August
11, 1998, and whether they constitute "firearms," "ammunition," or
"explosives." Summary judgment "shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c); Catrett, 477 U.S. at
322. Unless the non-movant responds to the movant's allegedly undisputed
material facts, it is very difficult for the Court to determine if there
is a "genuine issue as to any material fact" and therefore whether
summary judgment is appropriate. However, there appear to be only two
bases for the instant motion: (1) the forfeiture action was not timely
filed; and (2) some of the items seized do not constitute "explosives"
or "explosive materials." Thus, in the interest
of judicial economy, the
Court will attempt to determine if there is a genuine issue as to any
material fact on the basis of the record.
The complaint in this action asserts that the forfeiture of firearms
and ammunition is based upon 18 U.S.C. § 924(d)(1) and
26 U.S.C. § 5872. Section 924(d)(1) provides in pertinent part:
[a]ny firearm or ammunition involved in or used in any
knowing violation of subsection . . . (g) . . . [or]
. . . (j) . . . of section 922 . . . or willful
violation of any other provision of this chapter . .
. shall be subject to seizure and forfeiture . . . and
all provisions of the Internal Revenue Code of 1986
relating to the seizure, forfeiture, and disposition
of firearms . . . shall, so far as applicable, extend
to seizures and forfeitures under the provisions of
this chapter. 18 U.S.C. § 924(d)(1).
Section 5872(a) provides in relevant part that "[a]ny firearm involved
in any violation of the provisions of this chapter shall be subject to
seizure and forfeiture."
26 U.S.C. § 5872(a).
Claimant notes that the seizure in this case occurred on August 11,
1998, and that the instant forfeiture proceeding was filed on February
8, 2000. "Any action or proceeding for the forfeiture of firearms or
ammunition shall be commenced within one hundred and twenty days of such
seizure." 18 U.S.C. § 924(d)(1). Thus, Claimant asserts that
pursuant to the statute, this Court lacks jurisdiction of the instant
forfeiture proceeding in that it was instituted well over 120 days after
the seizure. The Government contends that it satisfied § 924(d)(1)
by initiating an administrative forfeiture proceeding pursuant to
26 U.S.C. § 7325 within the necessary 120 days. Section 7325
requires an initial administrative procedure "[i]n all cases of seizure
of any goods . . . as being subject to forfeiture . . . which . . . are
of the appraised value of $100,000 or less." 26 U.S.C. § 7325. This
administrative procedure requires the following process: (1) list and
appraisement of seized items; (2) notice of seizure; (3) execution of bond
by claimant; and (4) sale in the absence of bond. See id. The
Government asserts that by commencing an administrative forfeiture
proceeding within 120 days after the seizure, it satisfied the timing
requirement of § 924(d)(1).
The relevant portion of § 924(d)(1) has apparently been interpreted
in only three reported cases, one of which originated in this district.
Specifically, in United States v. Twelve Miscellaneous Firearms,
816 F. Supp. 1316 (C.D.Ill. 1993), Judge McDade concluded that the
phrase" [a]ny action or proceeding" in § 924(d)(1) did not refer
solely to court actions. See id. at 1317. Instead, that language also
included administrative actions. See id. Thus, the Court determined
that "a forfeiture action is timely so long as the Plaintiff commences at
least an administrative action within 120 days of the seizure of the
property in question." Id.
Here, Claimant does not dispute that an administrative action was
commenced within 120 days. However, she urges the Court to reject Judge
McDade's interpretation of the statutory language, contending that it
does not follow that the initiation of administrative proceedings tolls
the 120 day statute of limitations.
Claimant requests that this Court adopt the reasoning of the Eastern
District of Virginia in United States v. Fourteen Various Firearms,
889 F. Supp. 875 (E.D. VA. 1995). That court determined that the
language of the statute was plain and unambiguous, noting also that the
term "[a]ny action or proceeding" encompasses judicial and administrative
See id. at 877. The court further noted that the term
"proceeding" includes administrative and judicial litigation. See id.
Accordingly, that court held that "any administrative proceeding or
judicial action for the forfeiture" had to be commenced within 120 days
of the date of seizure. See id. (emphasis in original).
However, the court in Virginia noted that nothing in the statute or the
Internal Revenue Code indicated that initiating an administrative
procedure tolled the 120 days in which "any action or proceeding for the
forfeiture of firearms" must be commenced. See id. It concluded that
"any" included both "judicial" and "administrative." See id. at 878
(holding that "any action or proceeding for forfeiture, not just an
administrative one, must be commenced within 120 days of seizure")
(emphasis in original). Because the judicial action was not initiated
within 120 days of seizure, the court determined that it did not have
jurisdiction over the complaint. See id. The court noted that if the
120 day period causes an "unreasonable burden" on the Government in
commencing judicial forfeiture actions, that is a problem for Congress,
not the courts, to address. See id. Claimant asserts that this Court
should follow the reasoning of the Eastern District of Virginia and hold
that § 924(d)(1) requires both the administrative and judicial
proceedings to be commenced within the 120 day period. Because only the
administrative proceeding here was initiated within 120 days, Claimant
asserts that the judicial proceedings were not timely commenced.
More recently, a sister court in Texas determined that even though the
United States waited nine months after the seizure to file its
complaint, § 924(d)(1) was nevertheless satisfied by its commencement
of an administrative forfeiture proceeding within the required 120 days.
See United States v. Twelve Firearms, 16 F. Supp.2d 738, 740 (S.D. TX.
1998). That court recognized the decisions by this Court in Twelve M
iscellaneous Firearms and by the Eastern District of Virginia in
Fourteen Various Firearms. See id. The Southern District of Texas
adopted the reasoning of this Court, finding that the analysis of the
Eastern District of Virginia was not persuasive. See id. The court
determined that the word "any" in § 924(d)(1) is ambiguous. See id.
at 741. It therefore sought to adopt an interpretation of the statute
that led to a reasonable result. See id. Accordingly, the court
concluded that the statute "merely requires the United States to initiate
either an administrative forfeiture proceeding or a judicial forfeiture
action within 120 days of a seizure." See id (emphasis in original).
The court concluded that requiring the United States to initiate a
judicial forfeiture action as well as an administrative forfeiture
proceeding within 120 days would defeat the purpose of simplified
administrative proceedings. See id. Accordingly, it determined that the
United States had satisfied the 120 day requirement of § 924(d)(1) by
commencing an administrative forfeiture proceeding within that period.
This Court finds that the more appropriate course is to hold that a
forfeiture action is timely as long as the Government commences at least
an administrative action within 120 days of the seizure of the property.
Unlike Fourteen Various Firearms on which Claimant relies, this Court's
reasoning in Twelve Miscellaneous Firearms has been adopted by at least
one other court. See Twelve Firearms, 16 F. Supp.2d at 740. Claimant
asserts that if § 924(d)(1) were interpreted so that the initiation
of administrative proceedings tolls the 120 day statute of limitations,
the Government would have no limitations on when it had to file a
judicial action. Nevertheless,
the Government would still have to file some action,
administrative or judicial, within the 120 day period pursuant to §
924(d)(1). Moreover, if Congress had intended that the statutory
limitations period should apply to a judicial forfeiture complaint even w
hen an administrative action has been commenced, it could have
specifically indicated so as it has in other instances. See Twelve
Firearms, 16 F. Supp.2d at 741.
Accordingly, the Government satisfied the 120 day requirement of §
924(d)(1) in commencing an administrative proceeding within that period.
Thus, Claimant's motion for partial summary judgment on the basis that
the forfeiture action was not timely filed is denied.
The Government also seeks the forfeiture of certain items that are
alleged to be "explosives" or "explosive materials." The alternative
basis on which Claimant contends that she is entitled to summary judgment
is that certain items purported to be "explosives" or "explosive
materials" do not meet the statutory definition. In support of this
assertion, Claimant submits the affidavit of her husband, Joseph
Fleischli. The Government in its response indicates that it intends to
consult with a weapons expert to determine whether these items are
"explosives" and will present an affidavit "should the court deem it
necessary." The Government contends that it is premature at this point
to grant summary judgment with respect to these items.
As Claimant notes, "explosive materials" are defined as "explosives,
blasting agents, and detonators." 18 U.S.C. § 841(c). "Explosives"
are defined as "any chemical compound mixture, or device, the primary or
common purpose of which is to function by explosion; the term includes,
but is not limited to, dynamite and other high explosives, black powder,
pellet powder, initiating explosives, detonators, safety fuses, squibs,
detonating cord, igniting cord, and igniters." 18 U.S.C. § 841(d).
Claimant contends that the following items do not meet this definition:
35 mm Practice Rocket sn: NONE
37 mm Rubber Projo CS Gas sn: NONE
M781 Practice Rounds sn: NONE
2.36 Military type rockets sn: NONE
box of 14 U.S. Navy Cartridge Signals sn: MK 4 MED 3
blue rifle grenade practice sn: MARKED M 31 LOTS 36-6
ctg M 781 Practice cartridges sn: NONE
Dummy Bond BDU 28/B sn: LOT MA 106-1-12-64
Light 66MM Anti-Tank Weapon sn: NONE
2.75 War Head M229 Rocket sn: M427 W/FUSE
2.75 Rocket smoke screening RPX M264 sn: BBG93GG03-005
20mm API LC 59P Rounds sn: NONE
60MM Mortar RD drilled rifle grenade tube sn: NONE
Claimant alleges that these items are not encompassed by the definition
of "explosive materials" and that the entry of summary judgment is
therefore appropriate. Claimant supports this assertion solely with the
affidavit of her husband.
Claimant also notes that "this chapter shall not apply to . . . (4)
small arms ammunition and components thereof; [and] (5) commercially
manufactured black powder in quantities not to exceed fifty pounds."
18 U.S.C. § 845(a). The Government seeks the forfeiture of
"containers of smokeless powder sn: NONE."
Claimant asserts that smokeless powder is a component of small arms
ammunition and is therefore exempt from the prohibition
Once again, Claimant supports this assertion only with Mr. Fleischli's
affidavit. Claimant also contends via Mr. Fleischli's affidavit that the
following items are commercially manufactured black powder in quantities
of less than fifty pounds and are therefore not subject to forfeiture:
Packages suspected black power sn: NONE
Red and white can with black powder sn: NONE
glass jar marked 2FF black powder sn: NONE
Can Hercules Black Powder sn: NONE
Can filled with 700X dupont black powder sn: NONE
gallon jug of black powder sn: NONE
Accordingly, Claimant maintains that she is entitled to summary judgment
as to those items.
The Government emphasizes that Claimant offers no evidence other than
Mr. Fleischli's affidavit that the seized items fail to meet the
definition of "explosives."
It notes that it intends to consult with a weapons expert to determine
whether the items are "explosives" and will present an affidavit should
the Court deem it necessary. The Government nevertheless contends that
it is premature at this time to grant summary judgment to Claimant.
Because the Government has presented no evidence as to whether the
aforementioned items are "explosives," Claimant contends that it has
failed to "set forth specific facts showing that there is a genuine issue
for trial" and that the Government has therefore failed to meet its
burden pursuant to Rule 56(e). See Fed.R.Civ.P. 56(e).
Claimant is correct in that the non-movant cannot typically rest on the
allegations of the complaint as the Government has done in this
instance. Mr. Fleischli's affidavit claims that the items were seized
from his home and business and that he is familiar with them. The
affidavit states in a conclusory fashion that certain items are not
"explosive materials." Moreover, it states that other items include
components of small arms ammunition or constitute commercially
manufactured black powder, which are exempt from the prohibition on
Mr. Fleischli's affidavit is of little assistance to the Court. An
affiant needs to supply more than the bottom line in order to aid the
Court. He must supply a basis for his opinion. See Vollmert v.
Wisconsin Dep't. of Trans., 197 F.3d 293, 298-99 (7th Cir. 1999) (holding
that an expert must supply a factual basis for his opinion).
Mr. Fleischli's affidavit includes only conclusory statements that
certain items are not "explosives" or "explosive materials." In sum, the
items are not "explosives" because he says they are not. Moreover, the
Court notes that the affidavit is self-serving as M r. Fleischli is the
husband of Claimant and that it was his home and business from which the
items were seized. The Court therefore finds that the entry of summary
judgment would be inappropriate.
Nevertheless, the Government's failure to provide the Court with an
affidavit indicating whether the items were "explosives" is baffling.
The Government indicated that it would present an affidavit "should the
Court deem it necessary."
How ever, the party opposing a summary judgment motion must take
reasonable steps to provide the Court with evidence to create a genuine
issue of material fact.
See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); see
also Schacht v. Wisconsin Dep't of Corr., 175 F.3d 497, 504 (7th Cir.
1999) (noting that summary judgment is the "put up or shut up" stage of
litigation). The Government asserts that it is "premature to grant
summary judgment with respect to these items" at this time. However,
Rule 56 provides that "[a] party against whom a claim, counterclaim,
cross-claim is asserted or a declaratory judgment is sought may, at any
time, move with or without supporting affidavits for a summary judgment
in the party's favor as to all or any part thereof." Fed.R.Civ.P.
56(b). Therefore, it escapes the Court as to how it can be premature to
grant summary judgment with respect to these items. If Claimant's
affidavit had been of more assistance to the Court in determining whether
the seized items were "explosives," the entry of partial summary judgment
would have been entirely appropriate. However, because the affidavit did
not assist the Court in determining whether some of the seized items were
"explosives" or "explosive materials," Claimant's motion for partial
summary judgment as to that issue will be denied.
Ergo, Claimant's motion for partial summary judgment is DENIED.
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