United States of America, Government v. Donald McMullin, Defendant

2014 DNH 213

• Court: District Court, D. New Hampshire
• Decided: October 3, 2014
• Docket: 05-CR-142-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America, Government

v. Case No. 05-cr-142-1-SM Opinion No. 2014 DNH 213 Donald McMullin, Defendant

O R D E R

Defendant has repeatedly failed to fulfill his obligation

under the terms of his plea agreement to identify an acceptable

third party agent to take custody of and sell a number of seized

firearms that defendant is now prohibited from possessing (due to

his felony conviction). Somewhat stymied by defendant’s

intransigence, the government now seeks a court order authorizing

it to destroy those firearms. Defendant has filed no response.

The government identifies some twelve (12) firearms to be

destroyed. It would seem that the collection has more than de

minimus economic value, and it is clear that it remains

defendant’s property. And, merely noting that defendant cannot

lawfully possess the firearms is, of course, a long way from

concluding that he does not retain a legal and equitable interest

in the property. See e.g., United States v. Seifuddin, 820 F.2d

1074 (9th Cir. 1987) (convicted felons retain a non-possessory

interest in seized firearms). Moreover, the government’s proposed destruction of

defendant’s property does not include any offer of just

compensation, so probably raises serious Takings Clause issues.

I doubt the government’s right to simply confiscate and destroy

non-forfeited property without first affording due process and

payment of just compensation.

Several years ago, Senior Judge Longstaff offered a

pragmatic and effective solution to the problem the government

describes: the court, exercising its equitable powers, may order

the transfer of title to the firearms lawfully owned by a person

later convicted of a felony (which are not subject to forfeiture

or confiscation as contraband) for the felon-owner’s benefit.

United States v. Approximately 627 Firearms, 589 F. Supp. 2d

1129, 1140 (S.D. Iowa 2008). See also Cooper v. City of

Greenwood, 904 F.2d 302, 306 (5th Cir. 1990). (“We see no reason

that a court . . . could not order a sale for the account of a

claimant who . . . legally could not possess firearms, were

forfeiture to be denied for any reason.”) Since defendant has

shown no interest in protecting his own property rights, has

failed to respond to the government’s entreaties to comply with

his plea agreement obligations (which are in his own best

interests), and has shown no interest even in responding to the

government’s motion seeking authorization to destroy the

property, it would serve no useful purpose to afford him yet

2 another opportunity to identify an acceptable transfer agent.

Instead, the court will authorize the government to arrange a

commercially reasonable sale of the property for defendant’s

benefit.

Conclusion

The government’s Motion for an Order Authorizing the

Destruction of Certain Firearms (document no. 174) is denied.

Nevertheless, the government is hereby authorized to arrange for

a commercially reasonable sale, in its discretion and at its

convenience, of the firearms identified in that motion, and to

remit the net proceeds of the sale to defendant, after deducting

reasonable costs associated with the sale (preparation,

advertising, fees, etc.).

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

October 3, 2014

cc: Sven D. Wiberg, Esq. Debra M. Walsh, AUSA U.S. Marshal U.S. Probation