Cite as U.S. v. One Assortment of 12 Rifles and 21 Handguns, 313
F.Supp. 641 (N.D.Fla. 1970)

            The United States of America, Plaintiff,

                               v.

          One Assortment of 12 Rifles and 21 Handguns.

                        Civ. A. No. 442.

United States District Court, N. D. Florida, Gainesville Division.

                          June 3, 1970.


     Clinton Ashmore, Asst. U. S. Atty., Northern District of
Florida, Tallahassee, Fla., for plaintiff.

     Selig I. Goldin, Gainesville, Fla., for intervenor.

                             ORDER 

     MIDDLEBROOKS, District Judge.

     This cause came on for hearing upon filing of cross-motions
for summary judgment by plaintiff and by intervenor, Gail Anthony
Miller. The facts of this case preceding this hearing should be
outlined since this action involves a forfeiture under Section 5872
of the 1968 Gun Control Act. (See Title 26, United States Code,
Section 5872)

     On August 19, 1969, members of the Alcohol, Tobacco and
Firearms Division of the Internal Revenue Service, Treasury
Department, seized weapons made the subject matter of this
litigation from intervenor for breach of the provisions of Title
18, United States Code, Section 924(d). An indictment charging
intervenor with violation of Title 18, United States Code, Sections
923 and 924(a) was returned and on April 14, 1970, upon trial in
this Court, intervenor was acquitted of the charges by a jury of
twelve. At the trial it was proven that intervenor had made sales
of guns to agents of plaintiff and that intervenor had not
registered as a licensed dealer under Title 18, United States Code,
Section 923(a). It was intervenor's contention, however, that he
was conducting only isolated sales which were not prohibited by the
law nor violation of the law. None of the guns here seized was sold
to plaintiff's agents although testimony adduced at the trial
conclusively showed that they were on display in the same area
where the sales were made and no doubt would have been sold by
intervenor had there been a willing buyer.

     Intervenor in support of his motion for summary judgment has
attempted to supply this Court with authority which would show that
as a matter of law he is entitled to judgment and the return of his
guns. See Heath v. United States, 169 F.2d 1007 (10th Cir. 1948);
Supreme Malt Products Co., Inc. v. United States, 153 F.2d 5 (1st
Cir. 1946); Henry v. United States, 204 F.2d 817 (6th Cir. 1953);
United States v. Griesel et al., 122 F.Supp. 646 (D.C.Minn. 1954),
Each of these cases, however, was concerned with what specific
activities of a defendant would constitute being "engaged in
business" as contemplated by the Internal Revenue Code. These
decisions would be of some import in consideration of what would
constitute an unlawful act under Title 18, United States Code,
Section 922(a). However, insofar as this forfeiture action is
concerned, these decisions would be of little relevance for the
language with which this Court is concerned reads as follows:

     "Any firearm or ammunition involved in or used or intended to
     be used in, any violation of the provisions of this chapter or
     any rule or regulation promulgated thereunder * * * shall, so
     far as applicable, extend to seizures and forfeitures under
     the provisions of this chapter." 18 U.S.C. section 924(d).

     This action, being one civil in nature, is governed by a
standard altogether different from that governing a criminal
prosecution under Title 18, United States Code, Sections 923 and
924(a). See United States v. Burch, 294 F.2d 1 (5th Cir. 1961).
Thus, the measure of proof to sustain the position of the
government in this type case is by a preponderance of the evidence.
See United States v. United States Currency, 264 F.Supp. 394
(M.D.Pa. 1966).

     The "engaged in business" language was relevant in the
criminal prosecution because there it could be used to show that
occasional isolated sales of guns did not fall within the
prohibitive language of the statute. In this instant action the
evidence clearly shows that these weapons seized were "involved" in
the sales made since they were displayed on the premises in view of
the prospective buyers. Keeping this in mind, this Court is of the
opinion that the preponderance of the evidence would show also that
the guns seized were used in violation of the statute. Testimony
was given at trial by intervenor that he sold the guns to acquire
money. Had he not been apprehended when he was, he would have sold
all of his guns. As was stated in United States v. United States
Currency, supra, at page 396: 

     "The word 'intended' in the statute does not refer to
     intention to evade tax, but to the use to which the property
     is to be put. (Citation omitted). Of course, proof of the
     intended use need not be direct, but may be established by
     circumstantial evidence. 

     Thus, this circumstantial evidence along with the direct
testimony of the government agents who purchased various guns from
intervenor establishes that the guns owned by intervenor were
"involved or intended to be used" in violation of the provisions of
Title 18, United States Code, Section 922 et seq.

     Therefore, this Court under the findings of fact as present
and under the conclusions of law as stated is of the opinion that
judgment be entered in favor of plaintiff and the guns be forfeited
to the United States. It is therefore,

     Ordered and adjudged that this property be condemned as
forfeited to the United States and disposal of same be made
according to law.