Cite as Wheaton v. Caldera, No. 99-1398 (D.D.C. 1999) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FRANK H. WHEATON, III, Plaintiff, v. CIVIL ACTION NO. 99-1398 (JHG) LOUIS CALDERA, et al., Defendants. PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS FOR LACK OF JURISDICTION The plaintiff, by undersigned counsel, opposes the defendants' motion to dismiss for want of subject matter jurisdiction on the following grounds. FACTS The defendants' motion to dismiss contains a number of unsupported allegations of fact to which the plaintiff is unable to respond authoritatively. Despite being granted an unopposed extension, to November 14, 1999, to respond to plaintiff's initial discovery demands, defendants have totally defaulted on responding to plaintiffs' initial interrogatories, requests for production of documents and requests for admissions. Nor have the defendants reciprocated plaintiff's wholesale disclosure of his own files under Rule 26(a) (1), (2) and (3) of the Federal Rules of Civil Procedure. However, the default by the defendants in and of itself establishes certain facts which may aid the Court in its determination of subject matter jurisdiction. [footnote 1] Moreover, the plaintiff is willing to accept arguendo defendants' factual assertion that Records maintained by the Ridgefield [New Jersey] Police Department establish that the machine gun was seized in May 1986 when a Ridgefield gun dealer reported an attempt by Leon Wisneski to sell him (the dealer) the gun. Wisneski was charged with unlawful possession of an unregistered machine gun under New Jersey Statute 2C section 39-5.1. According to Wisneski's statement to police, he had received the machine gun sometime in 1976 from a construction contractor who found the machine gun while renovating a building that was once an American Legion [sic - VFW] Post in Dumont, New Jersey. (Defendants' Memorandum, p. 2). Plaintiff does not concede the accuracy or correctness of any of the defendants' other unsupported allegations of fact. Additional facts are established by plaintiff's first request for admissions coupled with the provision of Rule 36(a) of the Federal Rules of Civil Procedure that [t]he matter is admitted unless within 30 days after service of the request, or within such shorter or longer time as the court may allow or as the parties may agree in writing, subject to Rule 29, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney. [footnote 2] Those admissions are as follows: (1) The 1904 Maxim machinegun serial number 490 is presently in the possession, custody and control of the defendants. (2) The 1904 Maxim machinegun serial number 490 is registered in the National Firearms Registration and Transfer Record to the plaintiff, Frank H. Wheaton, III. (3) The 1904 Maxim machinegun serial number 490 is not registered in the National Firearms Registration and Transfer Record to any of the defendants, or to any officers, agents, or employees of any of the defendants, and has never been so registered to any of the defendants, or to any officers, agents, or employees of any the defendants. (4) It is unlawful for any person to receive or possess a machinegun which is not registered to him in the National Firearms Registration and Transfer Record, or to receive or possess a firearm transferred to him in violation of Chapter 53 of the Internal Revenue Code of 1986, as amended, 26 U.S.C. sections 5801-5872. (5) The defendants, and their officers, agents and employees, are each and severally subject to the laws of the United States, including Chapter 53 of the Internal Revenue Code of 1986, as amended. (6) No person, including the defendants, can obtain legal title to stolen property which is superior to that of the lawful owner. (7) The defendants did not receive the 1904 Maxim machinegun serial number 490 from its lawful owner. (8) When the defendants received the 1904 Maxim machinegun serial number 490 they made no effort to determine the lawful owner or legal registrant of the gun. (9) At the time defendants received the 1904 Maxim machinegun serial number 490, its registered owner was a matter of record in the official records of the defendant, the United States of America. (10) The following numbered documents described in the Plaintiff's Initial Disclosure Pursuant to Civil Rules 26(a)(1), (2) and (3), a copy of which has been served upon the defendants and which is incorporated herein by reference, are authentic copies of government documents maintained in the official records of the defendants in the ordinary course of business: 1-3, 5-7, 12, 15, 18-32. (11) Each of the documents described in paragraph (10) above which originated with the government, where dated, was executed on or about (within ten days of) the date shown on each document (with the exception of Documents 21 and 22 which appear to be misdated). If this request is denied, please refer to and answer the associated interrogatory. (12) Documents 21 and 22 are erroneously dated "1997" and should have been dated "1998." (13) Each of the documents described in paragraph (10), above, purporting to be signed by a government official, was in fact signed by that official or by someone legally authorized to sign on his or her behalf. If this request is denied please refer to and answer the associated interrogatory. In addition, the plaintiff is attaching hereto and incorporating by reference herein those documents identified in his initial disclosure to the defendants served and filed on September 13, 1999, and listed as follows: [footnote 3] 1. Federal Firearms License No. 8-22-006-01-9J-06480 of Wheaton Automatic Arms, expiring September 1, 1999 (1 page). 2. Special Tax Stamp of Frank H. Wheaton, III, as NFA Firearms Dealer dated 6/18/1997 (1 page). 3. IRS Form 4467 for registration of 1904 Maxim machinegun serial number 490 dated APR 10 1969 (1 page) 4. Cover and pages 133-135 of The Devil's Paintbrush: Sir Hiram Maxim's Gun by Dolf L. Goldsmith (Collector Grade Publications; Toronto, Canada; 1993) (4 pages). 5. FAX transmission dated July 31, 1997, to Gary Schaible from Frank H. Wheaton, III (1 page, without enclosure consisting of document No. 3, above) 6. FAX transmission from Gary Schaible to Frank H. Wheaton, III, dated August 5, 1997, in response to document No. 5, above (1 page). 7. BATF Form 4 dated NOV 18 1997 approving transfer of 1904 Maxim machinegun serial number 490 from Edward T. Jabaut to Frank H. Wheaton, III (1 page). 8. Cancelled check No. 2750 dated Aug 10, 1997, from Frank H. Wheaton, III, payable to Department of the Treasury, reflecting payment of the transfer tax on the transfer of 1904 Maxim machinegun serial number 490 from Edward T. Jabaut to Frank H. Wheaton, III (1 page). 9. Cancelled check No. 2748 dated Aug 10, 1997, from Frank H. Wheaton, III, payable to Ed Jabaut reflecting payment for the purchase of 1904 Maxim machinegun serial number 490 from Edward T. Jabaut (1 page). 10. Cancelled check No. 2749 dated Aug 10, 1997, from Frank H. Wheaton, III, payable to Joe Wells reflecting payment of a finder's fee in connection with the purchase of 1904 Maxim machinegun serial number 490 from Edward T. Jabaut (1 page). 11. Cover letter dated August 10 1997 from Frank H. Wheaton, III, to Joe Wells forwarding the checks consisting of documents 8, 9 and 10, above (1 page) 12. BATF "Error Letter" dated 8/10/97 from National Firearms Act Branch Examiner Tricia Lawrence to Edward T. Jabaut (1 page). 13. Note by Frank H. Wheaton, III, dated Oct 23 97 regarding document No. 12, above (1 page). 14. Letter dated Oct 31 97 to Edward T. Jabaut from Frank H. Wheaton, III, forwarding document No. 15, below (1 page). 15. Letter dated 30 October, 1997, from Edward T. Jabaut to Tricia Laurance [sic - Lawrence] (with 4 pages of enclosures consisting of copies of documents No. 3, 7 and 12, above, along with a roster of VFW posts) (5 pages). 16. Note dated Nov 22 97 by Frank H. Wheaton, III, regarding a telephone call from Edward T. Jabaut (1 page). 17. Note dated 12/4/97 by Frank H. Wheaton, III, regarding a meeting with Bob Fisch, Curator of the West Point Museum (1 page). 18. Letter dated December 15, 1997, to BrigGen John Mountcastle from Isabella A. Garofola (2 pages). 19. Letter dated January 23, 1968, to BrigGen John Mountcastle from Isabella A. Garofola (1 page). 20. Letter dated January 30, 1968, to Congressman Frank LoBiondo from Isabella A. Garofola (2 pages). 21. Letter (mis)dated 10 February 1997 [sic - 1998] to Isabella Garofola from Maj O. Lee Torres, Jr. (1 page). 22. Letter (mis)dated 11 March 1997 [sic - 1998] from Maj O. Lee Torres, Jr., to Isabella A. Garofola (1 page). 23. Letter dated March 26, 1998, from Isabella A. Garofola to Department of the Army Center for Military History (1 page). 24. Letter dated 4 April 1998 from James H. Jeffries, III, to Col Gerald J. Leeling (2 page with 1 page of enclosure). 25. Letter dated 28 April 1998 from James H. Jeffries, III, to Col Gerald J. Leeling (1 page with 2 pages of enclosures). 26. Letter dated 28 July 1998 from James H. Jeffries, III, to Col Gerald J. Leeling (1 page). 27. Undated letter from Nereida W. Levine to Edward T. Jabaut (1 page). 28. Letter dated 27 August 1998 from James H. Jeffries, III, to Nereida W. Levine (2 pages). 29. Letter dated SEP - 9 1998 from Christine M. Adams to James H. Jeffries, III (1 page). 30. Letter dated 06 OCT 1998 from Cheryl Fisher to James H. Jeffries, III (1 page). 31. Power of Attorney (BATF Form 6000.8) executed by Frank H. Wheaton, III, in favor of James H. Jeffries, III, on 23 Oct 1998 (1 page, two sided). 32. Letter dated January 7, 1999, from LtCol Paul M. Peterson to James H. Jeffries, III (1 page). This combination of admissions, concessions and documents reflects the following facts. The gun in question, a rare variety of antique Maxim machinegun, was lawfully registered with the Bureau of Alcohol, Tobacco and Firearms (hereafter "BATF") on April 10, 1969, under the amnesty provisions of the Gun Control Act of 1968 (hereafter "GCA"), section 207 of Public Law 90-618, by its previous owner, Edward T. Jabaut, who happened to be Post Commander of Veterans of Foreign Wars Post No. 761 in Dumont, New Jersey. The gun was apparently stolen by a building contractor renovating the Post Headquarters around 1976. The gun found its way into possession of the Ridgefield Police Department in May 1986 when it was seized as evidence in a criminal case. Sometime thereafter it was "donated" by the police department to the U.S. Military Academy museum at West Point, New York, where it remains in the custody and control of the defendants. Around July 1997 the plaintiff, Frank H. Wheaton, III, a federally licensed machinegun dealer, learned of the whereabouts of the stolen firearm and determined that it was lawfully registered to Jabaut in BATF's central registry. [footnote 4] Mr. Wheaton then entered an arms-length contract of purchase and sale with Mr. Jabaut and purchased the gun from Jabaut for valuable consideration. [footnote 5] Mr. Jabaut thereafter caused the ownership of the gun to be transferred in BATF's national registry to Mr. Wheaton. [footnote 6] Mr. Wheaton then, in late 1997, demanded possession of the gun from the defendants. For the past two years he has continued to demand its turnover and has been stalled by every echelon of the defendants to which he has turned. ISSUES 1. Who is the owner of the disputed gun? 2. Can a party acquire title to stolen property sufficient to defeat the rights of the registered owner? If so, can the same government which mandates registration and which maintains the central registry of such property acquire such title to stolen property when it has actual knowledge of the registered owner? 3. Does the victim of a theft "abandon" his right of ownership of his stolen property by virtue of the mere passage of time? 4. Can the victim of a theft sell his property interest in the stolen property without knowing the location of the property? 5. Can the purchaser acquire the victim's ownership rights in the stolen property by purchase? 6. Does the refusal of the federal government and its agents to return stolen property to its rightful owner constitute an unlawful seizure under the Fourth Amendment to the Constitution? 7. Does the refusal of the federal government and its agents to return stolen property to its rightful owner constitute a constitutionally prohibited deprivation of private property without due process of law or just compensation under the Fifth Amendment to the United States Constitution? 8. If the answer to either issue 6 or 7 is "yes," are they questions "arising under the Constitution, laws, or treaties of the United States" so as to vest this Court with subject matter jurisdiction? 9. If the answer to issue 8 is "yes," does the Court have the authority under the mandamus statute to compel the return of the property to its lawful owner? ARGUMENT The plaintiff contends that this Court's subject matter jurisdiction and power to grant the relief sought here can be demonstrated by a somewhat straightforward chain syllogism: (A) Edward T. Jabaut was the indisputable owner, legal registrant, and possessor of the gun in issue in 1976, when it was stolen from the VFW Post where he was Commander. [footnote 7] (B) A thief can neither acquire nor pass title to stolen property. Subsequent transferees of stolen property, even innocent ones, even governments, can gain no better title to the property than their transferor had. (C) The owner of stolen property does not abandon it by simple ignorance of its whereabouts or the factual or legal inability to seek its restoration. There is no statute of limitations or laches or doctrine of adverse possession which cuts off the rights of an owner of stolen property. (D) Ownership rights to private property cannot be extinguished by a government without due process of law. (E) The defendants here have made no showing (and can make none) that Jabaut's ownership rights in the subject gun have been either "abandoned" or extinguished. (F) As the owner of the gun Jabaut could legally sell all his right, title and interest in the gun to Wheaton, and did so. Wheaton stands in the same shoes as Jabaut as far as the ownership and right to possession of the gun is concerned. (G) The United States acquired no title to the gun by virtue of its "donation" by the police department or by virtue of the legal owner's ignorance of its whereabouts. At best, the United States had a temporary possessory interest inferior to the owner's title. (H) At the very moment it received the gun the United States and its agents, servants and instrumentalities were on formal, official notice through their own legislatively mandated records as to the identity of the owner of the gun. They either disregarded the contents of those records or disregarded their existence. They had an unequivocal ministerial duty to determine the legal registrant of the gun and to restore it to its owner. (I) After being informed of the identity of the true owner of the gun the United States and its agents, servants and instrumentalities have studiously ignored their legal duties, continued to possess stolen property belonging to the plaintiff, and continued to refuse to return it. The duty to return stolen property to its lawful owner is both unequivocal and ministerial. That is to say, it is both required by law and non-discretionary, (J) A "seizure" of property occurs where there is some meaningful interference with an individual's possessory interests in that property. When that meaningful interference is committed by a government or under color of government authority the Fourth Amendment prohibition against illegal seizures is implicated. (K) When the government and its agents seize or withhold a private citizen's property without compensation, notice, the opportunity to be heard, and other due process requirements, the Fifth Amendment due process and takings clauses are implicated. (L) Governmental interference with private property rights in violation of the Fourth and Fifth Amendments have consistently been held by the United States Supreme Court to involve federal questions under 28 U.S.C. section 1331, thereby vesting subject matter jurisdiction in the United States District Courts. (M) Given federal question subject matter jurisdiction under 28 U.S.C. section 1331 this Court has power under both the mandamus statute (28 U.S.C. section 1361) and the All Writs Act (28 U.S.C. section 1651) to order the gun restored to its rightful owner. It is hornbook law that no one can gain title to stolen property which is superior to or which defeats the claim of the victimized owner. McKnight v. CIR, 127 F.2d 572 (5th Cir. 1942); United States v. Nirenberg, 19 F.R.D. 421 (E.D.N.Y. 1956). Nor can there be any reasonable dispute based on the facts alleged by the defendants that the gun here was stolen. As the government notes in its own United States Attorneys Manual (section 9-61.248), "... the term [stolen, converted, and taken by fraud] covers any deprivation of one's title, United States v. Zepin, 533 F.2d 279 (5th Cir. 1976)." The defendants gain no solace from the fact that they may have received the gun in ignorance of its antecedents. Even if they themselves had not been the keepers of the federal records conclusively evidencing ownership of the gun, ignorance of a transferor's title in property is no defense in a replevin action by the owner against the possessor, "and one acquiring the property from the converter acquires no greater interest than the converter had. See Union Naval Stores v. United States, 240 U.S. 284 (1916)." United States Attorneys Manual (section 4-8.1140). Thus, in 1986 (or whenever the donation to the Army's museum occurred), when the federal defendants first acquired the gun they could have obtained no greater interest than the Ridgefield Police Department had acquired, [footnote 8] which in turn was only what the criminal Wisneski had to give, which in turn was only what the original thief had to give to Wisneski: bare possession of stolen property. We do not believe that the existence of official federal records showing the lawful owner of the gun is critical to this result, but it certainly emphasizes the callous indifference of the federal government and its officers here to the property rights of the lawful registrants of the gun. [footnote 9] The defendants cannot challenge the legal fact that Mr. Wheaton is now both the lawful owner and the lawful registrant of the gun. The attached exhibits, including cancelled checks and correspondence, demonstrate that Mr. Wheaton lawfully acquired all Mr. Jabaut's right, title and interest in the gun, had it lawfully registered to himself in the national registry, and is entitled to possession of the property. All that being said, the only remaining question is whether this Court has the subject matter jurisdiction to compel the government defendants to do that which their oaths of office alone should have sufficed to mandate. Since at least The Paquette Habana, 175 U.S. 677 (1900) (the wartime capture of foreign fishing vessels off the coast of Cuba by U.S. officials was unlawful because not authorized by Congress), through the case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (President Truman's Korean "Police Action" seizure of the steel mills under the rubric of "national security" was unconstitutional because not authorized by law or the Constitution), the United States Supreme Court has held that the unlawful seizure of private property by agents of the federal government from private citizens creates a federal constitutional question justiciable in the United States District Courts. In United States v. Lee, 106 U.S. 196 (1882), military officers (such as those here) acting at the order of the President and relying on title derived from a tax sale took possession of land to serve as a federal fort and cemetery. The fee owners of the land brought an action in ejectment against the occupying military officers and were successful in asserting their title against the officers. Relying on Lee, the Court of Appeals for this Circuit has held that there was jurisdiction over the members of the Federal Maritime Commission to entertain suit by a steamship company for return of its share certificates alleged to be illegally withheld by the Commission. Land v. Dollar, 154 F.2d 307 (1946). That ruling was affirmed by a unanimous Supreme Court (Justice Black taking no part). Land v. Dollar, 330 U.S. 731 (1947). Discussing various cases permitting suit in the federal courts by private citizens against government agents in property disputes, and distinguishing those cases which would expend themselves on the public treasury (and which would therefore be barred by sovereign immunity) the Court stated But public officials may become tort-feasors by exceeding the limits of their authority. And where they unlawfully seize or hold a citizen's realty or chattels, recoverable by appropriate action at law or in equity, he is not relegated to the Court of Claims to recover a money judgment. The dominant interest of the sovereign is then on the side of the victim who may bring his possessory action to reclaim that which is wrongfully withheld. Id. at 738 (emphasis added). Land was subsequently distinguished, and possibly limited to unconstitutional takings (as opposed to mere contract and tort disputes), by Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), but was certainly not overruled. Its principal teaching about jurisdiction was cited with approval, albeit in a dictum, by the Supreme Court in Warden v. Hayden, 387 U.S. 294, 308 (1967), (two decades after Larson) and relied on by this Circuit as recently as 1984 in Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C. Cir.) (en banc). That case involved an unconstitutional seizure of a United States citizen's cattle ranch in Honduras by the United States Army. [footnote 1O] Six of the ten circuit judges then sitting ruled that this Court had federal question jurisdiction: "It is settled law that the Executive's power to take private property of United States citizens must stem from an act of Congress or from the Constitution itself." Id. at 1510. The Court went on to state In the instant case, plaintiffs claim that no statute or constitutional provision authorizes the United States defendants to take plaintiffs' private property for a military training center. While we express no view on the merits of plaintiffs' first count, the plaintiffs have succeeded in stating a claim against the defendants for an unauthorized and unconstitutional deprivation of the use and enjoyment of their property. This claim is adjudicable in the federal district court. Id. at 1511 (emphasis added). On appeal, the Supreme Court granted certiorari, vacated the judgment, and remanded for reconsideration in light of intervening legislation and factual developments. 471 U.S. 1113 (1985). On remand, the Court of Appeals held essentially that the case was mooted ("attenuated" by intervening events and dismissed without prejudice. 788 F.2d 762 (1986). Nothing in this procedural disposition of the case undercuts the legal analysis or principles espoused in the original opinion. The majority also rejected an argument by (then) Circuit Judge Scalia that there was no unconstitutional taking (i.e., federal question) because money damages would be available to the plaintiffs. The Court responded: This cannot be the law. On any type of taking by the government, the citizen can always raise the threshold question, whether successfully or unsuccessfully, of the government's fundamental right to take his property. Then, and then only, if the government establishes its constitutional right to seize the property of the citizen, is the citizen relegated to the second question, i.e., how much should the plaintiff be compensated for the property which was taken. The fundamental first question cannot be evaded by offering "just compensation." Id. at 1524, fn. 95 (emphasis in original). We quote this portion of the opinion because it responds directly to the similar contention of the defendants (Memorandum, pp. 11-12) that plaintiff has an adequate remedy at law -- a claim under the Federal Tort Claims Act. The defendants acknowledge that the firearm is unique but seem to suggest that the plaintiff must, in effect, submit to a government tort and sell it to the United States by forced sale because he is powerless to require the government to do anything else. As this Circuit has stated, that cannot be the law. Moreover, the argument is directly refuted by the defendants' invocation of the Anti-Assignment Act, 31 U.S.C. section 3727 (Memorandum, p. 8). [footnote 11] If the claim here was for money damages the claim would belong to Jabaut and could not be purchased by or assigned to the plaintiff. Thus the Federal Tort Claims Act, even if a theoretically adequate remedy at law for someone, is not available to the plaintiff. The defendants will undoubtedly respond that there is no Fourth Amendment seizure or Fifth Amendment taking here which would trigger the Court's federal question jurisdiction. If they make those contentions, they will be wrong. The Army's acquisition of the gun here would seem to contravene the express provisions of 10 U.S.C. section 2676, which provide that "No military department may acquire property not owned by the United States unless the acquisition is expressly authorized by law." We are unaware of any provision of law which authorizes the Department of the Army to acquire stolen civilian property outside of a combat zone. More fundamentally, the Supreme Court has ruled that the Fourth Amendment applies with equal dignity to both illegal searches and illegal seizures independent of any law enforcement search or "privacy interest." Soldal v. Cook County, 506 U.S. 56 (1992). There, in a pure property rights dispute, the Court also held that "[a] [Fourth Amendment] 'seizure' of property ... occurs when 'there is some meaningful interference with an individual's possessory interests in that property.'" Id. at 61 (citing and quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Thus, the Army's "meaningful interference with" the plaintiff's "possessory interest" in his gun is an illegal seizure under the Fourth Amendment to the United States Constitution evoking this Court's federal question jurisdiction over the subject matter of this action. To the same effect are all those decisions cited above (as well as many of the cases cited and analyzed at length therein) involving violations of the two property deprivation clauses of the Fifth Amendment. Conclusive of the issue is the Supreme Court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), where the Court clearly and unequivocally grounded jurisdiction for a Fourth Amendment constitutional tort action against federal officers on Section 1331 of Title 28, United States Code, the jurisdictional base invoked by this plaintiff. [footnote 12] There are other founts of jurisdiction this Court could resort to should it choose, but which we do not believe necessary in view of the above-cited cases. For example, the Eight Circuit has stated in Black Hills Institute of Biological Research v. United States Department of Justice, 967 F.2d 1237, 1239 (1992): Rule 41(e) [of the Federal Rules of Criminal Procedure] is the typical instrument to seek the return of seized property [here, amusingly enough, a dinosaur named "Sue"] after an indictment has been returned. However, a motion prior to the filing of criminal charges is more properly considered a suit in equity rather than one under the Rules of Criminal Procedure Matter of Search of 4801 Fyler Avenue, 879 F.2d 385, 387 (8th Cir. 1989). Federal courts have recognized an independent cause of action for return of Property based on the general equitable jurisdiction of federal courts. Id.; United States v. Premises Known as 608 Taylor Avenue, 584 F.2d 1297 (3d Cir. 1978); Mr. Lucky Messenger Service, Inc. v. United States, 587 F.2d 15, 16-17 (7th Cir. 1978); Hunsucker v. Phinney, 497 F.2d 29, 32 (5th Cir. 1974), cert, denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975). This remedy should be exercised cautiously and subject to general equitable principles. Matter of Search, 879 F.2d at 389; Mr. Lucky Messenger, 587 F.2d at 17; Hunsucker, 497 F.2d at 32. Among the factors courts consider in granting this "anomalous jurisdiction" is whether the action involved a callous disregard for constitutional rights. Matter of Search, 879 F.2d at 387; Mr. Lucky Messenger, 587 F.2d at 17. [Emphases added] [footnote 13] CONCLUSION For all the foregoing reasons this Court should determine that it has subject matter jurisdiction under the Constitution and Section 1330 of Title 28, United States Code, to entertain and decide this action. The Court should determine the ownership of the disputed gun. If it determines that ownership is in the plaintiff, it should determine that the defendants' continuing refusal to return plaintiff's property constitutes an illegal seizure under the Fourth Amendment to the United States Constitution and a wrongful deprivation of property without due process or just compensation under the Fifth Amendment to the United States Constitution. Having so determined the Court should exercise its mandamus authority and order the defendants to return the plaintiff's property to him forthwith. Respectfully submitted, JAMES H. JEFFRIES, III (D.C. Bar No. 78808) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (336) 282-6024 Counsel for Plaintiff CERTIFICATE OF SERVICE I, James H. Jeffries, III, hereby certify that service of the foregoing Plaintiff's Opposition to Defendants' Motion to Dismiss has been made on the defendants by mailing a true copy, postage prepaid, to Michael A. Humphreys, Esquire, Assistant United States Attorney, Judiciary Center Building Suite 10-409, 555 4th Street, Northwest, 10th Floor, Washington, D.C. 20001, this 27th day of November, 1999. -------------- JAMES H. JEFFRIES, III (D.C. Bar No. 78808) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (336) 282-6024 Counsel for Plaintiff EXHIBITS 1-32 TO THIS OPPOSITION ARE IDENTICAL TO EXHIBITS 1-32 TO PLAINTIFF'S INITIAL DISCLOSURE SERVED ON THE DEFENDANTS ON SEPTEMBER 13, 1999, AND ARE NOT BEING DUPLICATED IN SERVICE COPIES. FOOTNOTES 1. This case appears to be one like Land v. Dollar, 330 U.S. 731 (1947), where "the question of jurisdiction is dependent on decision of the merits." Id. at 735 and fn. 4. See also Gordon v. National Youth Work Alliance, 675 F.2d 356, 368 and fn. 13 (D.C. Cir. 1982). 2. Plaintiff timely served his first request for admissions upon the defendants on September 13, 1999. Defendants sought and received an unopposed extension of time to November 14, 1999, in which to respond to plaintiff's discovery. No response has been received as of November 27, 1999. Plaintiff is filing his original first request for admissions with the Court as provided by Local Rule 107(b). 3. Because of the abbreviated response time after belated receipt of the defendants' motion to dismiss, and because the plaintiff resides in the Bahamas, undersigned counsel was unable to obtain a declaration by plaintiff authenticating those documents originating from him in time for submission with this opposition. Such authentication will be provided as promptly as it can be obtained. A number of the documents being tendered are deemed admitted to be authentic by virtue of the defendants' discovery default and none is believed to be ultimately in dispute by the defendants. But see footnote 6, infra. 4. See 26 U.S.C. section 5841. 5. The government has in at least one instance questioned Mr. Jabaut's power to sell an item of property not in his physical possession. Exhibits 27 and 28, infra. We are confident that this Court will have no difficulty in differentiating between the legal concepts of title and possession. 6. A typographical error in paragraph 10 of the complaint alleges the date of the approved transfer as November 18, 1987, when it should have read 1997, and the plaintiff hereby moves the Court for leave to so amend the complaint by interlineation. We are somewhat perplexed by the defendants' intimation at page 7 of their memorandum that this was an intentional misstatement, since it has always been clear from the exchanges of correspondence between the parties and the plaintiff's initial disclosures to counsel for the defendants that the correct year of transfer to Mr. Wheaton was always and indisputably 1997. We are also puzzled that the defendants would appear at the same page of their memorandum to attempt to impeach their own "purported" tax transfer document. We are also troubled that the defendants would cast a red herring before the Court as to factual matters they know are true. The approved BATF transfer and registration forms found at Exhibit 7 (and as an enclosure to Exhibit 24), infra, are indisputably true copies of an official record of the defendant, United States of America, have been admitted to be such, and will be further conclusively proved to be authentic if the defendants should persist in this unfortunate lack of candor. 7. We reject the defendants' self-serving euphemism that the gun "was found" by a contractor renovating the VFW Post. By virtue of the criminal provisions of the National Firearms Act of 1934, 26 U.S.C. sections 5801-5872 (hereafter "NFA") no one else in the entire world other than Jabaut could lawfully possess the gun without an approved transfer by BATF. See 26 U.S.C. sections 5861(b), (d), (e) and (j). The instant the contractor "found" the gun he became a federal felon. Apparently the contractor's acquisition of the gun was also forbidden by New Jersey law, as was his sale to Wisneski, according to the defendants' recitation of its subsequent history. Wisneski in turn became a federal felon the instant he possessed the gun. 8. Again, it is black letter law that an evidentiary seizure of non-contraband goods by law enforcement authorities conveys no title or property interest, but rather only a temporary possessory interest. See Rule 41(e) of the Federal Rules of Criminal Procedure, and the advisory notes thereto. 9. It does not say much for the professionalism of the New Jersey police either in failing to seek to learn of the lawful owner of property seized from a criminal (and obtained by him from a thief). A simple police inquiry to the Dumont VFW Post, which they knew about according to the defendants, would have revealed Jabaut's ownership, as would a report of the gun to BATF, as would an attempt to properly register the gun to the police department on a BATF Form 10, a true copy of which is attached as Exhibit 33. The latter procedure would have immediately revealed that the gun was already registered and belonged to Jabaut. As shown by the true copy of the attached letter from the Director of BATF (Exhibit 34 hereto, p. 2, n 2, sentence 3), the BATF considers the national registry to be accurate evidence of the person legally entitled to possession of an NFA firearm. It is incomprehensible to think that if the item had been a registered automobile the police would not have sought out the owner and returned the car to him. How would competent law enforcement officials fail to check on other potential officially registered property? How could the Army? 10. The Court will forgive us, we hope, for noting that a pattern of disregard for citizens' property rights by the United States Army is beginning to emerge in the cases cited here. More important, and more to the point, is the unhesitating position of the Article III courts to step in and redress these imbalances of power. 11. We do not respond to the defendants' silly reliance on a statute which has no application to other than money claims. Plaintiff claims no money; he claims his gun. 12. We do not believe the result would have been different had Webster Bivens been complaining of an unconstitutional seizure as opposed to an unconstitutional search. Nor do we believe the result would have differed had he sought some alternative remedy to his injury than damages. 13. The importance of these cases is that they all hold United States District Courts to have an independent "equitable," "anomalous" or "supervisory" jurisdiction to order the return of property seized by the United States and its officers, agents and instrumentalities which is not created by or reliant upon Rule 41(e) of the Federal Rules of Criminal Procedure for its existence. Indeed, an examination of the legislative history of Rule 41 demonstrates that the 1989 amendment to 41(e) which explicitly enunciated the replevin type jurisdiction there described was simply a legislative recognition of an equitable power already being asserted by the courts. See, e.g., United States v. Wilson, 540 F.2d 1100 (D.C. Cir. 1976).