UNITED STATES v. ONE ASSORTMENT OF 89 FIREARMS

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ORAL ARGUMENT OF RICHARD G. WILKINS, ESQ., ON BEHALF OF PETITIONER

Chief Justice Warren E. Burger: Mr. Wilkins, I think you may proceed whenever you are ready.

Richard G. Wilkins: Mr. Chief Justice, and may it please the Court:

On March 31, 1977 the United States commenced a civil in rem forfeiture action in the United States District Court for the District of South Carolina seeking forfeiture to the United States of an assortment of firearms seized on January 20, 1977 by special agents by the Bureau of Alcohol, Tobacco and Firearms.

The forfeiture complaint alleged that Patrick Mulcahey had used and intended to use the firearms in violation of the laws of the United States while engaged as a dealer in firearms without a license.

The forfeiture was sought pursuant to the provisions of 18 U.S.C. Section 924 (d).

Mr. Mulcahey filed a claim for the return of the firearms and also sought to raise his prior acquittal on a related criminal firearms charge to bar the civil forfeiture action.

The District Court on motion of the government dismissed Mr. Mulcahey's collateral estoppel and res judicata defenses noting that the criminal acquittal did not preclude a subsequent civil action.

The parties thereafter submitted by stipulation the transcript of the criminal trial to the court, and the court thereupon found that the government had shown by preponderance of the evidence that the firearms were indeed subject to forfeiture.

That evidence which is not in dispute here show that during the period when Mr. Mulcahey was not indeed licensed he nevertheless bought and sold numerous firearms including making 16 offers to sell various firearms.

On appeal a divided panel of the Fourth Circuit reversed finding that this Court's decision in Coffey v. United States precluded the section action.

Chief Judge Winter of that court dissented reasoning that while a criminal penalty following a criminal acquittal was barred by the Coffey case that case did not preclude the imposition of subsequent civil penalties.

On rehearing en banc the Court of Appeals adhered to the panel decision by a 5-4 vote.

The majority again relied on Coffey and rejected the government's argument that it was not applicable on the facts of this case.

The court also noted that even if the government's interpretation in Coffey were correct this forfeiture action would nevertheless be precluded because

"there is nothing remedial about forfeiture under Section 924(d). "

Judge Winter joined by three others again dissented relying principally upon his dissent at the panel stage although he also added that while the criminal provisions of the Firearms Act reach only completed violations, the forfeiture provision at issue here reaches firearms that are merely intended to be used in violation of the law.

This he said evidences Congress' intent to provide a broad remedial sanction.

The question in this case, therefore, is whether an acquittal on criminal gun control charges precludes a subsequent civil in rem forfeiture action against those weapons.

This question can best be analyzed by dividing it up into two interrelated inquiries.

First, assuming for the moment that forfeiture is indeed civil is there any basis for the Court of Appeals' conclusion that the penalty action is precluded.

This question is readily answered by established decisions of this Court in the negative.

Therefore, the second question necessarily becomes whether or not Section 924(d) is properly classified as a civil sanction.

This question is one of statutory construction and is also easily answered because Congress has clearly indicated its intent to provide a civil sanction.

The Court of Appeals concluded that this Court's decision in Coffey mandated preclusion here because the civil action arose out of the same facts that were involved in a prior criminal prosecution.

While there is indeed some language in Coffey which would lend support to this broad rule of preclusion the subsequent decisions of this Court have given Coffey a significantly narrower reading.

In Helvering v. Mitchell the government brought a civil penalty action to recover a $364,000 fine for the fraudulent avoidance of income tax following the taxpayer's acquittal on criminal charges of willfully evading the income tax.

The taxpayer, of course, faced with this large fine raised his prior criminal acquittal to bar the civil penalty action.

The Court of Appeals relying on Coffey reversed, but this Court in an opinion by Justice Brande is reversed.

The Helvering court first dispatched the argument that res judicata barred the subsequent penalty action.

The Court noted reversing the position taken in the Coffey court that the difference in the burden of proof in criminal and civil cases precludes application of the doctrine of res judicata.

This Court quite recently in the One Lot Emerald Cut Stones case used the exact same rationale to dispense with the argument that a criminal acquittal collaterally estopped a subsequent civil forfeiture action.

The Helvering court also dismissed the contention that double jeopardy barred the subsequent action noting that Congress has the authority to impose both civil and criminal penalties for the same conduct.

Finally, it dispensed with the Coffey objection noting simply that the rule in the Coffey case does not apply when there has been a criminal acquittal followed by a subsequent civil action requiring a different degree of proof.

Therefore, the crucial question here is not--

Unidentified Justice: In the Coffey case, Mr. Wilkins, was the proceeding civil or criminal?

Richard G. Wilkins: --The forfeiture action?

It was an in rem civil forfeiture action, and the Court said that this was nominally a civil in rem forfeiture action.

The crucial question here, therefore, is not whether Coffey mandates preclusion but rather whether Section 924(d) is properly classified as a civil sanction.

This Court's decisions clearly indicate that this is a question of statutory construction that proceeds on two levels.

First, the Court seeks to determine whether Congress either expressly or impliedly has indicated its intent to apply one label or the other; and second, when Congress has indicated its intent to apply a civil label the court examines the particular sanction involved to see whether that sanction is so punitive in purpose or effect as to negate that intention.

That analysis shows that this sanction here is civil.

Perhaps the clearest indication that this sanction is indeed civil is the fact that Congress provided civil procedures for its enforcement.

Section 924(d) incorporates the provisions of the Internal Revenue Code which among other things provide for notice by publication and administrative forfeiture if the goods seized are valued at less than $2500.

Unidentified Justice: Was that necessarily a very persuasive argument, Mr. Wilkins?

Supposing that the forfeiture provision were extremely stringent, say, you forfeiture $100,000 to the government if you are found with these sort of weapons on you and the government says

"Well, to show it is civil we will simply have all civil procedures. "

"There will be no right to counsel and nothing else that would go with a criminal trial. "

That would not really move the ball much would it?

Richard G. Wilkins: Well, Justice Brandeis in Helvering said that Congress may not provide civil procedures for the enforcement of punitive sanctions.

In a case that you posit where it was rather clearly quite a confiscatory sort of forfeiture and for rather obviously punitive motives perhaps the court would say, no you could not provide that sort of--

Unidentified Justice: The fact that civil procedures had been provided would not advance the argument that it was a civil rather than a criminal penalty.

Richard G. Wilkins: --Well, it does to the extent the question here is congressional intent if you are looking at what Congress thought they were doing when they provided this forfeiture statute.

The fact that they provided civil procedures they certainly thought they were providing a civil--

Unidentified Justice: What exactly is the intent of Congress that we are talking about?

Richard G. Wilkins: --The intent to call a particular sanction.

Is this a civil sanction or is this a criminal sanction?

Unidentified Justice: You mean Congress simply by intending to make this civil can make civil what otherwise would not be?

Richard G. Wilkins: Well, no.

Of course, as we said in the opinion in Ward there is a two step inquiry.

First you look to see whether Congress has intended it to be civil or criminal and second you ask, well, is it so punitive in purpose or effect as to negate that intention.

So there is a second level of inquiry, of course.

The remedial structure of the Act also indicates that this is a broadly... that this is a civil sanction.

Forfeiture cannot be ordered as part of the criminal punishment for a criminal violation of the gun control law.

Forfeiture can be obtained if at all only by bringing a subsequent civil forfeiture action against the firearms.

Therefore, if this Court were to conclude that forfeiture is somehow criminal it would do quite a bit of violence to the remedial structure of the Act.

The government would be forced to choose between forfeiture or criminal prosecution.

It couldn't have both.

Unidentified Justice: Sometimes, Mr. Wilkins, we see the term "quasi-criminal" apply to these forfeiture proceedings.

Does that have any relevance?

Richard G. Wilkins: That term has had some limited relevance as it applies to certain discrete constitutional rights.

Unidentified Justice: For instance, would the Fourth and Fifth Amendments apply perhaps in this situation?

Richard G. Wilkins: Yes.

The Court's rather established with Boyd and continuing threw Coin and Currency quite recently would establish that, but--

Unidentified Justice: This statute is one of those that might be characterized as quasi?

Richard G. Wilkins: --Exactly.

Unidentified Justice: But not double jeopardy?

Richard G. Wilkins: Right.

In fact in other decisions this Court has refused to apply the quasi-criminal sort of analysis to apply Sixth Amendment confrontation rights, the Fifth Amendment double jeopardy clause, for example, any due process requirement of proof beyond a reasonable doubt.

All of these sorts of constitutional rights have been denied.

Unidentified Justice: If the statute in a given forfeiture statute were characterized as criminal as being punitive in nature and not remedial would double jeopardy apply to all elements even though some of the elements of the civil offense... the forfeiture offense were different from the criminal?

Richard G. Wilkins: If the Court were to conclude that it was so punitive in nature and effect as to be properly called a criminal sanction I would assume that it would apply to the entire action, but you noted one very important point here.

There is a difference in the elements between the forfeiture actions here and the criminal action, and we believe that that is another strong indication that Congress intended this as a civil sanction because it reaches weapons that are merely intended to be used in violation of the law whereas the criminal sanction only applies to completed actions.

Finally, although the court below said there was nothing remedial about forfeiture we believe that this simply ignores that broad prophylactic goals of the gun control legislation that this Court has repeatedly noted.

This legislation was enacted to enable the states to control firearms traffic within their borders, and elimination of unregulated firearms that have been set apart or intended for use in unregulated commerce furthers that remedial purpose.

Therefore, six Courts of Appeals have taken the position that forfeiture under this provision is civil and remedial in nature, and the court below stands alone in its characterization.

Therefore, the Court is required to take the second step adverted to by Justice Rehnquist, that is, to determine whether or not this sanction is so punitive in purpose or effect as to negate that clear intention that Congress indicated to provide a civil sanction here.

This question is rather difficult because the standards to be applied in making it are somewhat vague an ambiguous.

The fact that a statute has a severe subjective impact upon an individual cannot by itself suffice to make a statute punitive and criminal.

The taxpayer in Helvering faced with a $364,000 fine certainly felt punished, yet that was not enough to label that statute criminal nor is it enough that the particular sanction depends on criminally proscribed conduct because this Court has repeatedly noted that Congress has the authority to impose civil and criminal sanctions for the same conduct.

Therefore, the Court has properly noted the government believes that only the clearest of proof would suffice to establish the unconstitutionality of a statute on this second ground.

There is no clear proof here.

To show that we would use some of the factors that the Court indicated in the Mendoza-Martinez case.

Initially the declaration of a forfeiture poses no affirmative disability or restraint upon a property owner.

The declaration of the forfeiture does not render him criminal.

Indeed Mr. Mulcahey could go out and purchase more firearms.

He is not subject to the ownership restrictions.

Unidentified Justice: Well, he is restrained from using his property.

Richard G. Wilkins: Well, he is restrained from using his property, but he is not stigmatized as a criminal.

He is not thrown in jail.

His liberty in many traditional senses is--

Unidentified Justice: His property is being taken from him only because he's been using it to transport drugs.

Richard G. Wilkins: --This case does not involve drugs.

There are other--

Unidentified Justice: Well, I know but others do.

Richard G. Wilkins: --Yes.

Unidentified Justice: And you would be making the same argument.

Richard G. Wilkins: Yes.

Also the second Mendoza-Martinez factor unquestionably indicates the civil nature of this sanction.

In rem forfeiture is a traditional civil sanction.

Indeed the Helvering court noted that forfeiture has been considered civil since the original revenue law of 1789 and has been upheld repeatedly against the contention that it is essentially criminal.

The other factors I do not know whether it is necessary to go into them at any great length but they all indicate to some degree or other that this is a civil sanction.

It has a remedial purpose.

It does not require a showing of scienter.

Indeed the only factor that indicates at all that this is a criminal sanction is the fact that it is based on some conduct that is criminalized or that is already a crime, but as the Court noted in Ward just three years ago this indication does not carry substantial weight because Congress can indeed criminalize conduct and also impose a civil penalty for the same conduct.

In any event in this case forfeiture can be ordered for conduct that is not indeed in violation of any criminal provision.

The United States believes that the--

Unidentified Justice: May I ask just one question?

Richard G. Wilkins: --Yes.

Unidentified Justice: Supposing we agree with everything you say, but we are still troubled by the fact that we may find ourselves confronting Coffey and feel we have to overrule Coffey explicitly to decide in your favor how strong are the stare decicis interests in this particular case?

Richard G. Wilkins: We do not think you have to do anything to Coffey that has not already been done to it?

Unidentified Justice: You take the position it has already been overruled?

Richard G. Wilkins: It has already been done.

Unidentified Justice: We should just say so.

Richard G. Wilkins: We should just say so.

Justice Brandeis did it in Helvering.

Thank you.

Chief Justice Warren E. Burger: Mr. Louthain.

ORAL ARGUMENT OF HERBERT W. LOUTHIAN, ESQ., ON BEHALF OF RESPONDENT

Herbert W. Louthian: Mr. Chief Justice, and may it please the Court:

I think it is important to note that the criminal action alleged in the indictment the identical elements which were alleged in the forfeiture case, hence, the same issues were raised in both cases.

The same facts were present.

The government had its day in court.

Unidentified Justice: The same burden of proof present?

Herbert W. Louthian: No, sir, and different burden of proof, and I will get to that a little later.

But Coffey says and I content that Coffey has not been overruled that where the same facts, the same acts, the same elements have been put at issue and resolved against the government in a criminal case the government cannot later adopt a label, call it a civil case, put the same facts in evidence and issue and have its second bite at the apple.

I think that is the clear out issue here.

Coffey I say I believe has a very narrow preclusion doctrine.

I do not think it is a broad doctrine at all.

I do not think it encompasses Helvering.

I do not think it encompasses Ward.

I do not think it is included in the One Lot Emerald Cut Stones case, and I think each of these can be distinguished.

A careful analysis of Coffey I believe establishes the reasoning of that Court being not res judicata and not even double jeopardy but collateral estoppel.

The same issues cannot be determined twice after having been determined once.

It does not apply to a civil action after a conviction.

Of course, that is an entirely different case.

Certainly after conviction of a violation of the Fireams Act in this case the government could have forfeited the firearms.

It does not... Coffey does not apply to a subsequent civil action where the issues are different.

But Mulcahey was charged with engaging in the business of dealing in firearms without a license in the criminal case.

He was put to trial and acquitted.

In the forfeiture case the firearms were charged with being used or having been intended for use by Mulcahey because he did not have a license to deal in firearms, identical issues.

The government has in its brief relied a great deal on Stone as saying that this can be allowed because in Stone there was a criminal acquittal and a later civil action, but in Stone the civil action was brought by the government as the owner of the properties.

Some timber was cut by Stone on government land.

He was charged with feloniously cutting the timber, and he was acquitted.

In the criminal case... Excuse me, in the civil case then the government as owner of the property brought an action to recover the value of the timber.

Hence, there is a vast difference between the status of the government in both cases.

The Helvering case on which the government relies is vastly different from Coffey.

Helvering did not involve a forfeiture.

Helvering involved a civil penalty, a 50 percent tax penalty, and the Court was very careful to say... It distinguished Coffey... it was very careful to say this is a civil administrative remedial sanction.

Now we contend that there is nothing civil or administrative and certainly not remedial about taking firearms.

In the One Lot Emerald Cut Stones case the individual on trial in the criminal case was charged with willfully, intentionally, knowingly smuggling into the United States certain contraband items, stones and a ring.

Later forfeiture of the contraband smuggled goods was allowed after the individual was acquitted, but the reason for it and the Court was very careful in discussing Coffey and Boyd and all of the other cases that went on and which had not been overruled.

The reason was that intent was not an element in the forfeiture of the contraband items.

Intent was an element in the criminal case.

I think we need to pause here for a moment and think about the nature of the goods forfeited in Mulcahey's case, in this case.

None of these firearms were contraband.

None of these firearms were illegal per se.

There was not an illegal automatic weapon.

There was not a sawed off shotgun.

There was nothing illegal about the guns.

The only contention that the government had in either case was that they were being used by an individual who they claim was engaged in the business of dealing in firearms without a license in both cases.

Unidentified Justice: Well, accused in the criminal case selling firearms without a license.

Herbert W. Louthian: Yes, ma'am.

Unidentified Justice: He was not found guilty of that.

Herbert W. Louthian: That's correct.

Unidentified Justice: But the evidence apparently according to the government is sufficient to establish that he intended to do it.

His defense in the criminal case was entrapment, right?

Herbert W. Louthian: Yes.

That was one of the defenses.

Unidentified Justice: So what came out was he intended to sell them all right without a license.

Why is it not remedial to say that the guns can be forfeited?

Herbert W. Louthian: I think that can be answered on two grounds.

One is in United States v. United States Coin and Currency which is cited in the amicus brief.

That issue was addressed, and if you recall in that case some gambling proceeds were taken and the Court said that you cannot take things simply because they are intended or there is some suggestion that they are intended to be used in violation of the law.

Now the statute does allow that here.

But I contend that that furthers our argument that this 924(d) is punitive.

It expands the punitive nature of the statute.

For example, a firearm used in a criminal act... 924(d) refers to the Gun Control Act or any other criminal sanction, criminal law of the United States.

A typical case would be a person committing a felony with a firearm.

Certainly the firearm can be forfeited, but you expand the punitive aspect of it when you say that any gun intended to be used.

That weakens the government's argument that this is not punitive.

If you sell one gun without a license it is forfeited.

If you sell one gun without a license and you have 50 guns in your garage or your basement or your shop then the government can say since these guns were here they were intended to be used so we'll take all of them.

Unidentified Justice: But they would have to prove intent to the satisfaction of the trier of fact.

Herbert W. Louthian: No, sir.

In either case they do not have to approve intent.

Intent is not an element of the criminal case in this particular statute either.

Unidentified Justice: Well, then why did you refer to the requirement that they be intended to be used?

Herbert W. Louthian: It was in response to Justice O'Connor's question.

The Court affirmed Coffey in One Lot case and it discussed Coffey explicitly.

It said that collateral estoppel in One Lot Emerald Cut Stones would bar a forfeiture if in the earlier criminal proceeding the elements of the forfeiture had been resolved against the government.

That is exactly what happened in Mulcahey's case.

The elements were resolved against the government.

Coffey did address the burden of proof issue specifically and answered it.

It says that the government urges that the difference in the burden of proof in civil versus criminal cases should be something to distinguish the two cases, and the Court went on to say nevertheless the fact or act has been at issue and determined against the United States and all that is imposed by the statute as a consequence of guilt is a punishment.

There could be no new trial of the criminal prosecution after the acquittal.

That is what the Fourth Circuit held in this case.

The Fourth Circuit said in the majority opinion that everything in 924(d) is punitive.

It provides for imprisonment of up to five years, a fine of up to $5000 or both, and a forfeiture of firearms used in violation of that law or any other law of the United States.

So I believe what you have is the government making a choice.

Trying the criminal case, if they win it the defendant goes to jail.

He pays a fine.

He loses his firearms.

If they lose it under the position of the government he does not go to jail.

He does not pay a fine, but in a separate case they can still take his firearms for the same reason, the same acts, the same elements that they failed to prove the first time.

Unidentified Justice: May I just ask if there is a criminal case and a conviction is there then a separate forfeiture proceeding?

Herbert W. Louthian: The mechanics are separate, but it is automatic.

It says that upon--

Unidentified Justice: They have to file a separate complaint?

Herbert W. Louthian: --Yes, sir.

Unidentified Justice: Well, why could you not if you take the position that that is also a criminal proceeding why could you not say that he had been punished once for the crime and it is the same crime so you do not have to forfeit?

Herbert W. Louthian: Because I think the careful reading of the statute specifically allows the government to do that.

I do not think there is any question--

Unidentified Justice: Is that statute constitutional if they are both criminal proceedings?

Could you have a statute saying if you commit a murder you should be tried and convicted and should be sentenced to so many years in jail and if the government elects to come back in and try you all over again and have a second sentence?

Herbert W. Louthian: --No, sir.

I do not think they can do that?

Unidentified Justice: Well, is that not what you are saying this is?

Herbert W. Louthian: No, sir.

I am saying that under 924(d) the government can take the firearms after a conviction.

I am saying that under 924(d) conceivably the government could bring a civil forfeiture with no preceding criminal case, but once having elected in the beginning to assert the criminal statute... Now remember this is a little different criminal statute.

This is not the ordinary statute of smuggling or dealing in drugs or carrying contraband around.

This statute just charges a man with no intent requirement of dealing in firearms without a license.

That is all.

They have done it twice.

As a second part of our argument we contend that if the Court decides that Coffey is overruled then we urge the Court to consider that 924(d) is definitely punitive for the following reasons.

Boyd stated that even though a case may be civil in form it may be criminal in effect or punitive in effect, and the nature of it could be criminal.

Now much has been said by the government about the fact that the Internal Revenue Service procedures are set up for the mechanics of the forfeiture.

Well, Boyd says that does not make any difference.

The mechanics are not important.

It is the result.

It is the effect.

The effect is that a person is having his property taken from him, and then the question is is that punishment.

Unidentified Justice: Do you put any reliance on the fact that the forfeiture is in a criminal statute?

Herbert W. Louthian: Yes, sir.

Yes, sir.

All of it is in Section 924.

Unidentified Justice: It is in the criminal statute?

Herbert W. Louthian: Yes, sir.

I think that is very important to show congressional intent that it is labeled penalty.

This particular section is labeled penalty.

That can to me only mean punitives, what it says.

It was all enacted at one time.

It was not added later as the case was in Ward where some 70 years later the civil sanction--

Unidentified Justice: Had the government originally gone after the forfeiture and not the criminal you would not be here?

Herbert W. Louthian: --Exactly.

We think that this case insofar as a measure of the punitive aspects of a forfeiture does fit the requirements of Kennedy v. Mendoza-Martinez.

We think that it is an effective affirmative disability or restraint.

The individual who owned these guns will not have them any longer.

It is a taking of his property.

We think it does stigmatize his reputation.

He went to trial in criminal court and came out acquitted.

He goes back and the government takes his firearms.

We think that is a stigma.

We believe that this sanction has been historically regarded as punishment, another one of the tests of Mendoza-Martinez.

It is clearly to further the deterrent and punitive purposes and to impose an economic penalty.

When you take a man's lifelong gun collection from him... This man had been collecting these firearms since he was, I think, 14 years old--

Unidentified Justice: Does the record show the value of these firearms?

Herbert W. Louthian: --The value is in dispute.

The government alleged in the forfeiture complaint a little over $5000.

Our answer alleged approximately $15,000.

I do not think that became terribly important if they took all of them, but we contend that at the time... That was back in 1977... they were worth $15,000 and assuming they have been taken care of would be worth substantially more today.

We think that the sanction does further retribution and deterrence and certainly this forfeiture arose out of an underlying criminal act so the act alleged was already a crime.

Can an alternative purpose be assigned to this sanction?

I have answered that.

The firearms were a collection of a lifetime.

The congressional findings and intent I think is important, too, and is recited in our brief.

It states that the purpose of all the Gun Control Act was not to interfere with the right of law abiding citizens to use and enjoy firearms.

It was very clear to enunciate that, and we believe that taking a person who has been adjudged in effect a law abiding citizen by a jury of 12 people, take his firearms certainly takes care of that requirement.

Then the excessiveness of the sanction.

I think we have already answered that by asking about the value.

The maximum fine he could have been assessed had he been found guilty would have been $5000.

Having failed in that he now faces a forfeiture of even by the government's own allegation of a value of more than $5000.

Unidentified Justice: He might have had both, of course, is that not so?

Herbert W. Louthian: Yes, sir.

I think the case has serious public policy ramifications.

The case of Partman Corporation v. Paramount Pictures talked about collateral estoppel by by a judgment and said this doctrine was established as a procedure for carrying out the public policy of avoiding a repetitious litigation.

Well, if the government prevails here I think we are going to open the door to repetitious litigation by having happen to other citizens what has happened to Mulcahey, having been tried, acquitted and then having to face the civil forfeiture based on the same charge.

We contend that the holding in Coffey is still good law; that 924(d) is punitive; that the government had its one bite at the apple; they should be precluded from bringing this action and that the Court of Appeals should be affirmed.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Wilkins?

Richard G. Wilkins: Just one or two responses, Justice Burger.

To respond to any contention that perhaps we are doing something wrong in having two bites at the apple or taking an undue choice, any choice that was given the government was given by Congress.

As Justice Frankfurter in his concurring opinion in United States ex rel. Marcus v. Hess case stated the short of it is that when two such proceedings merely carry out remedies which Congress has provided in advance for a wrong they do not twice put a man in jeopardy for the same offense.

Congress thereby merely allows the comprehensive penalties which it has imposed to be enforced in separate suits instead of in a single proceeding.

Moreover, responding to Justice Marshall's inquiry as whether or not the fact that this was in Title XVIII had any significance.

The gun control law in 1968--

ORAL ARGUMENT OF RICHARD G. WILLIAMS, ESQ., ON BEHALF OF PETITIONER

Unidentified Justice: I did not say Title XVIII.

I said the act of Congress.

Richard G. Wilkins: --The act of Congress--

Unidentified Justice: Thank you.

Richard G. Wilkins: --the fact that this act was codified in Title XVIII which is the criminal title of the United States Code.

The Gun Control Act of 1968 replaced an act that had been previously codified in Title XV.

The Act itself has many regulatory procedures such as 923 which is purely a regulatory licensing sort of a provision.

The fact that there are also criminal segments of this statute we do not feel has any particular relevance, and as to the fact that why did we not seek forfeiture first and would that not solve the problem, there are significant reasons why we should not and we could not seek forfeiture first.

For example, we might indeed unduly impinge upon a property owner's Fifth Amendment rights.

If he took the stand to defend his right to keep his property in the prior forfeiture action, that evidence could be used against him in the criminal proceeding.

Those sorts of reasons are why we do not seek the forfeiture action first.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until Monday next, the 5th of December at 10:00.