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U.S. v. SIXTY FIREARMS AND VARIOUS ROUNDS OF AMMUNITION

February 14, 2002

UNITED STATES OF AMERICA PLAINTIFF
V.
SIXTY FIREARMS AND VARIOUS ROUNDS OF AMMUNITION, DEFENDANTS V. THERESA LAMPLUGH, CLAIMANT.



The opinion of the court was delivered by: Thomas I. Vanaskie, Chief United States District Judge.

MEMORANDUM

This civil forfeiture action is before the Court on the Claimant's motion to dismiss. Claimant, Theresa Lamplugh, contends that this action was filed beyond the 120 day statute of limitations prescribed by 18 U.S.C. § 924(d)(1). The government asserts that the institution of an administrative forfeiture proceeding within the prescribed time limit satisfied the requirement of § 924(d)(1). Because the government's filing of an administrative forfeiture proceeding within 120 days of seizure of the property in question is sufficient to satisfy the statute, Claimant's motion to dismiss will be denied.

BACKGROUND

This is a civil action in rem brought to enforce the provisions of 18 U.S.C. § 924(d)(1) and 26 U.S.C. § 5872. (Complaint, ¶ 1.) Venue is proper pursuant to 28 U.S.C. § 1395 and 18 U.S.C. § 924. (Id., ¶ 2.) This Court has jurisdiction pursuant to 28 U.S.C. § 1395 and 18 U.S.C. § 924. (Id., ¶ 3.)

This action has its origins in an investigation of the late Harry C. Lamplugh, who had been engaged in the business of promoting and conducting gun shows under the name of Borderline Gun Collectors Association. His wife, Theresa Lamplugh, the Claimant in this action, had obtained a federal firearms license to buy and sell firearms after Harry Lamplugh had been advised that he was ineligible to possess a federal firearms license based on a prior felony conviction.*fn1 Suspecting that Harry Lamplugh was in possession of and dealing in firearms, the government conducted searches of his residence and his son's residence on May 25, 1994. As a result of this search, various firearms and ammunition were seized. The firearms and ammunition ("defendant property") were appraised to have a value of $15,061.

Section 924(d)(1) of title 18 U.S.C. authorizes the forfeiture of any firearm or ammunition involved in or used in any knowing violation of the statute prohibiting possession of a weapon by a convicted felon. On or about June 30, 1994, the government commenced an administrative forfeiture proceeding with respect to the 60 firearms and ammunition at issue in this litigation. The administrative forfeiture proceeding was duly advertised in a newspaper. On or about August 1, 1994, Theresa Lamplugh filed her claim to the property in question as well as a bond in the amount of $2500. No further action on the forfeiture of the property was apparently taken by the government until August 16, 2000, when this judicial action was commenced.*fn2

DISCUSSION

Presently pending before the Court is Claimant Theresa Lamplugh's motion to dismiss pursuant to Fed.R.C.P. 12(b)(1), in which she claims, "this forfeiture action was untimely filed and, consequently, this Court has neither subject matter nor in rem jurisdiction over this matter." (Claimant's Br. in Supp. of Motion to Dismiss, p. 3.) When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff bears the burden of persuasion. NMCHomecare, Inc. v. Shalala, 970 F. Supp. 377, 382 (M.D. Pa. 1997). In reviewing such a motion, the court can consider not only the pleadings, but any additional evidence made available to the court. Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1987). Unlike a Rule 12(b)(6) motion, under a 12(b)(1) motion to dismiss, "'no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material fact will not preclude the trial court from evaluating for itself the merits of the jurisdictional claim.'" Robinson, 107 F.3d at 1021 (citing Mortensen v. First Federal Savings and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). A complaint may be dismissed for lack of subject matter jurisdiction on a 12( b)(1) motion only if it appears to a certainty that a colorable claim cannot be asserted. Smith v. Social Security Administration, Civ. A. No. 97-CV-3406, 1999 U.S. Dist. LEXIS 9677, at *3 (E.D. Pa. June 29, 1999.)

Claimant, in support of her motion, asserts that the government's "Verified Complaint of Forfeiture, in rem" was filed outside the 120 day limitations period prescribed by 18 U.S.C. § 924(d)(1). Section 924(d)(1), in pertinent part, states, "[a]ny action or proceeding for the forfeiture of firearms or ammunition shall be commenced within one hundred and twenty days of such seizure." Section 924(d)(1) further provides that "all provisions of the Internal Revenue Code of 1986 relating to the seizure, forfeiture and disposition of firearms . . . shall, so far as applicable, extend to seizures and forfeitures under [§ 924(d)]." Significantly, the Internal Revenue Code mandates that administrative proceedings be commenced where, as here, the value of the property subject to forfeiture is no more than $100,000.*fn3 Thus, there are two types of "actions or proceedings" pertinent to forfeiture of firearms and ammunition under § 924(d)(1) — — administrative and judicial.

In the case at bar, there is no dispute surrounding the administrative forfeiture proceedings. The defendant property has an appraised total value of $15,061. (Complaint, ¶ 5.) As noted above, the property was seized on May 25, 1994. The administrative forfeiture was commenced around June 30, 1994, at which time Harry Lamplugh was advised of the proceedings by letter. (Id., ¶ 21.) The action was advertised in USA Today on July 14, 21, and 28, 1994. (Id., ¶ 22.) On August 1, 1994, Theresa Lamplugh timely filed her claim and cost bond in the amount of $2,500. (Id., ¶ 23.)

The dispute here surrounds the judicial forfeiture. The United States filed its Verified Complaint of Forfeiture on August 16, 2000. Claimant argues that this action should be dismissed for lack of subject matter jurisdiction because the judicial forfeiture was untimely, having been commenced "six years, two months and twenty-two days after the seizure." (Claimant's Mot. to Dismiss, ¶ 6.)

The issue presented by the Claimant requires the interpretation of the final sentence of § 924(d)(1), which reads: "[a]ny action or proceeding for the forfeiture of firearms or ammunition shall be commenced within one hundred and twenty days of such seizure." By using the phrase "[a]ny action or proceeding," did Congress mean "every action or proceeding," or "either action or proceeding?" In other words, in order to satisfy the requirements of the statute, is it necessary for the government to initiate both administrative forfeiture and judicial forfeiture within one hundred and twenty days of the seizure, or is it sufficient to bring only the administrative forfeiture action within the required time limit, thus tolling the statute for the purposes of a later action in court?


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