United States v. Miscellaneous Firearms, Explosives, Destructive Devices & Ammunition

355 F. App'x 32
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 24, 2009
DocketNo. 08-4063
StatusPublished

This text of 355 F. App'x 32 (United States v. Miscellaneous Firearms, Explosives, Destructive Devices & Ammunition) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Miscellaneous Firearms, Explosives, Destructive Devices & Ammunition, 355 F. App'x 32 (7th Cir. 2009).

Opinion

ORDER

This case arose when Donna Flieschli asked the government to return a number of items that had been seized in conjunction with a prosecution against her husband, Joseph. She sought sanctions against the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) after it failed to do so, but the district court refused to take that step. Flieschli did not appeal from that order; instead, she filed a motion to reconsider, which the district court also denied. The latter ruling is the only one now before us. Flieschli has suggested no reason, however, why the district court abused its discretion by standing firm; instead, she has attempted belatedly to raise arguments that she could have presented had she filed a timely appeal from the underlying order. We therefore affirm.

I

For years, Flieschli has struggled with federal authorities to recover an arsenal of firearms. In 1998, agents from the Bureau seized numerous firearms, explosives, destructive devices, and ammunition from the home she shared with her husband, Joseph Flieschli, and from Joseph’s business. As a convicted felon, Joseph was prohibited from possessing firearms. See 18 U.S.C. § 922(g)(1).

After Joseph’s conviction for possession of a bevy of firearms in 2003, see United States v. Fleischli, 305 F.3d 643 (7th Cir.2002), cert. denied, 538 U.S. 1001, 123 S.Ct. 1923, 155 L.Ed.2d 828 (2003), the Bureau filed a civil complaint seeking forfeiture of various firearms, explosives, and ammunition. Donna Flieschli, proceeding pro se, answered the Bureau’s complaint and opposed forfeiture. Ruling on the Bureau’s complaint in December 2003, the district court entered a forfeiture order specifying 33 items forfeited to the United States and 29 items that were not forfeited. Flieschli claims that the nonforfeited items had a value of $76,000. Of the 29 nonforfeited items, only six remained in the Bureau’s possession at the time of the court’s order. The Bureau says that it had destroyed 23 items without notifying the court, although we are noi told when the destruction occurred.

Unaware at the time of the forfeiture order that the Bureau had destroyed most of the nonforfeited property listed in the district court’s order, Flieschli embarked on a three-year quest to recover everything. Flieschli first appealed the forfeiture order to this court; the order was affirmed. United States v. Miscellaneous Firearms, Explosives, Destructive Devices, & Ammunition, 376 F.3d 709 (7th Cir.2004), cert. denied, 544 U.S. 1019, 125 S.Ct. 1999, 161 L.Ed.2d 859 (2005). Then [34]*34Flieschli moved the district court to set aside the judgment of forfeiture for lack of subject matter jurisdiction, but the district court denied that motion. United States v. Miscellaneous Firearms, Explosives, Destructive Devices & Ammunition, 399 F.Supp.2d 881, 882 (C.D.Ill.2005).

Next, Flieschli wrote to the Bureau demanding the return of the nonforfeited items. Without informing Flieschli that it had already destroyed some nonforfeited items, the Bureau directed a field officer to return all her nonforfeited property. More than a year later, the Bureau returned one item (an ammo drum). Six months later, the Bureau returned five more items. At that time, it included a notation on a receipt disclosing that six identified items in the nonforfeited group had been destroyed. The notation did not say anything about the other 17 nonforfeited items.

Nearly three years later, in 2008, Flieschli asked the district court to find the Bureau in contempt and to sanction it for failing to return her nonforfeited property in accordance with the court’s order. Flieschli also sought compensation for the fair-market value of property that the Bureau was unable to return. The Bureau offered two reasons why sanctions were inappropriate. First, it maintained that it had lawfully destroyed any unreturned property because that property was unsafe to move or store. See 18 U.S.C. § 844(c)(2) (permitting the government to destroy explosive material subject to forfeiture before a “credible witness” if it is impracticable or unsafe to remove or store the items). To substantiate this argument, the Bureau submitted the receipt containing the notation that the Bureau had destroyed six items for safety or storage reasons, but it submitted nothing to authenticate that notation, nor did it offer any evidence about the other 17 unaccounted-for items. Second, the Bureau argued that Flieschli had a statutory remedy available to compensate her for the destroyed property. See 18 U.S.C. § 844(c)(3) (stating that any person having an interest may apply to the Attorney General for reimbursement within 60 days after any destruction under 18 U.S.C. § 844(c)(2)).

In light of the Bureau’s revelation that it had already destroyed all the unreturned property, Flieschli asked for leave to file a reply brief. In her proposed reply, Flieschli contends that sanctions were appropriate as compensation for the considerable time and effort that she has expended in what appears to be a futile effort to recover property that has already been destroyed. The district court denied leave to file a reply and denied her request for sanctions against the Bureau. It ruled that the Bureau had lawfully destroyed all of the unreturned, nonforfeited items, and that sanctions were inappropriate because Flieschli had not pursued an available statutory remedy.

At this point, Flieschli made a critical mistake. Rather than appeal the district court’s ruling, Flieschli did nothing for a month and then filed a motion to reconsider. In that motion, she argued that the district court erroneously had concluded that the property was destroyed and that sanctions were inappropriate. Flieschli also demanded compensation for the time and expense that the Bureau could have spared her had it timely notified her of the property’s destruction. The district court denied her motion on October 1, 2008. On November 25, 2008, within 60 days of the ruling on the motion to reconsider but nearly four months after the sanctions ruling, Flieschli appealed the district court’s denial of her motion to reconsider.

II

Flieschli’s motion to reconsider was filed more than ten days after entry of the [35]*35district court’s order denying sanctions. Therefore, we treat the motion under Federal Rule of Civil Procedure 60(b). Fed. R.App. P. 4(a)(4)(vi); Tolano v. Nw. Med. Faculty Found., Inc., 273 F.3d 757, 762 (7th Cir.2001). We lack jurisdiction to review the underlying sanctions decision because Flieschli filed no timely appeal from that decision. Easley v. Kirmsee,

Related

Cephus Bell v. Eastman Kodak Company
214 F.3d 798 (Seventh Circuit, 2000)
Donald McCormick v. City of Chicago
230 F.3d 319 (Seventh Circuit, 2000)
United States v. Joseph H. Fleischli
305 F.3d 643 (Seventh Circuit, 2002)
Marvin D. Gleash, Sr. v. Michael Yuswak
308 F.3d 758 (Seventh Circuit, 2002)
Bailey v. Roob
567 F.3d 930 (Seventh Circuit, 2009)
Eskridge v. Cook County
577 F.3d 806 (Seventh Circuit, 2009)
Stoller v. Pure Fishing Inc.
528 F.3d 478 (Seventh Circuit, 2008)
Delay v. Gordon
475 F.3d 1039 (Ninth Circuit, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
355 F. App'x 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-miscellaneous-firearms-explosives-destructive-devices-ca7-2009.