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Thursday, November 19, 2009
Ind. Decisions - One today from 7th Circuit
In U.S. v. Leroy F. Miller (ND Ind., CJ Miller), a 5-page opinion, Judge Easterbrook writes:
Leroy Miller was convicted of aiding and abetting the possession of firearms by Ricky Fines, a felon. Last year we affirmed Miller’s conviction and 10-month sentence. 547 F.3d 718 (7th Cir. 2008). Miller then asked the district court to return the 34 firearms that had been seized at his farm. See Fed. R. Crim. P. 41(g). To retain them, Miller contended, the United States needs an order of forfeiture—but forfeiture may be initiated only within 120 days of the seizure. 18 U.S.C. §924(d)(1). A timely administrative proceeding was filed but abandoned; the United States concedes that it was defective. The indictment, which includes a count seeking forfeiture, was returned more than 120 days after the seizure. The United States acknowledges that it is too late to commence a forfeiture proceeding. But it maintains that the district court nevertheless must order the functional equivalent of forfeiture, because Miller’s felony conviction prevents him from possessing the weapons and makes their return unlawful.Miller responded by asking the district judge to order the United States to sell the weapons for his account or deliver them to someone legally entitled to possess them. The judge declined and instead authorized the United States to destroy the guns. 2009 U.S. Dist. LEXIS 39458 (N.D. Ind. Apr. 28, 2009). The judge concluded that the United States is not obliged to act as a felon’s auctioneer, and that handing the guns over to one of Miller’s relatives would leave him in constructive possession, which would be as unlawful as physical possession. The judge recognized that the United States, having missed the statute of limitations for initiating a forfeiture proceeding, has no legal entitlement to the weapons. Forced to choose between unlawful outcomes, the judge thought it best for the United States to destroy the guns. Miller’s appropriate remedy, the judge thought, would be to collect just compensation from the United States for a taking. (The judge suggested a suit under 42 U.S.C. §1983, but as that statute applies only to state actors the judge surely meant a suit under the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491.)
The district court’s disposition finds support in the decisions of two circuits. * * *
It is hard to see how either the United States or Miller can be made better off by replacing an actual sale with litigation in which the parties will offer expert evaluations of the weapons’ market value, and the Treasury will be out of pocket that amount (because destroying the guns does not produce any revenue to cover the cost of a judgment under the Tucker Act).
More than that. We do not see why all alternatives to sale or destruction necessarily would be unlawful. * * *
Because the United States did not commence a timely forfeiture proceeding, Miller’s property interest in the firearms continues even though his possessory interest has been curtailed. If the United States does not want to sell them for his account, then it must offer Miller some other lawful option: having a trustee sell or hold the guns, or giving them to someone who can be relied on to treat them as his own. The judgment of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion. 11-19-
Posted by Marcia Oddi on November 19, 2009 12:14 PM
Posted to Indiana Decisions