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Case 3-1171 U.S. v Mannlicher Carcano


Robert Howard
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I am shocked and stunned at this!

From [http://www-2.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/us_v_mannlicher.txt]

Cite as U.S. v. One 6.5mm Mannlicher-Carcano Military rifle, 250

F.Supp. 410, (N.D.Tx. 1966), reversed, King v. U.S., 364 F.2d

235.

UNITED STATES of America, Libelant,

v.

ONE 6.5 mm. MANNLICHER-CARCANO MILITARY RIFLE, Model 91-38,

Serial No. C2766, with Appurtenances, and One .38 Special S&W

Victory Model Revolver, Serial No.V510210, with Appurtenances,

Respondents.

Civ. A. No. 3-1171.

United States District Court N.D. Texas, Dallas Division.

Feb. 23, 1966.

B. H. Timmins, Jr., Asst. U.S. Atty., James F. Gaulding,

Asst. Regional Counsel, Alcohol and Tobacco Tax Div., Dallas,

Tex., for libelant.

William C. Garrett and Eugene R. Lyerly, Kilgore & Kilgore,

Dallas, Tex., for John J. King; Holmberg & Poulson, James S.

Holmberg, Denver, Colo., of counsel.

ESTES, Chief Judge.

The United States of America brings this proceeding for

forfeiture of respondent military rifle and revolver to the

government because these weapons were involved in violations of

the Federal Firearms Act, 15 U.S.C. sections 901-909. Claimant,

John J. King, denies the right of the government to forfeiture

and claims title to the weapons by purchase from Marina N.

Oswald, individually and as community administratrix of the

estate of Lee Harvey Oswald. It is stipulated for the purpose of

this action only that respondent rifle was used by Lee Harvey

Oswald in the assassination of President Kennedy and the pistol

was used by Lee Harvey Oswald in killing a Dallas police officer.

The case was heard on the "Stipulation of Facts" appended hereto,

briefs and oral argument.

Title 15, United States Code, section 903(d), enacted June

30, 1938, provides:

"Licensed dealers shall maintain such permanent records of *

* * shipment, and * * * disposal of firearms * * * as the

Secretary of the Treasury shall prescribe." (* * * ch. 850,

section 3, 52 Stat. 1251.)

Section 905(a) provides:

"Any person violating any of the provisions of this chapter

or any rules and regulations promulgated hereunder * * *

shall, upon conviction thereof, be * * * (guilty of a felony

offense)."

Section 905(B), enacted February 7, 1950, provides:

"Any firearm * * * involved in any violation of the

provisions of this chapter or any rules or regulations

promulgated thereunder shall be subject to seizure and

forfeiture * * *." (June 30, 1938, ch. 850, section 5, 52

Stat. 1252; Feb. 7, 1950, ch. 2, 64 Stat. 3.)

Section 907 authorizes the Secretary of the Treasury to

prescribe such rules and regulations as he deems necessary to

carry out the provisions of the Federal Firearms Act.

26 Code of Federal Regulations, section 177.51 Firearms

Records, provides:

"Each licensed * * * dealer shall maintain complete and

adequate records. * * * The records will show and include: *

* * © The disposition made of each firearm including the

name and address of the person to whom sold. * * *"

This means, of course, the name by which the purchaser could be

identified, not a fictitious name which would not disclose but

would conceal his identity.

The names A. Hidell and A. J. Hidell were purely fictitious

names willfully, intentionally, deliberately and fraudulently

contrived by Lee Harvey Oswald for the purpose of deceiving the

dealers and concealing Oswald's identity as purchaser of

respondent rifle and revolver.

"* * * Regulations issued by the Secretary of the Treasury,

pursuant to statutory authority, and when (as here)

necessary to make a statute effective * * * (have) the force

of law." United States v. Fisher (5 Cir. 1965), 353 F.2d

396, 398-99, citing Fawcus Machine Co. v. United States, 282

U.S. 375, 51 S.Ct. 144, 75 L.Ed. 397; Commissioner of

Internal Revenue v. South Texas Lumber Co., 333 U.S. 496,

501, 68 S.Ct. 695, 92 L.Ed. 831.

In the history of the Federal Firearms Act (enacted June 30,

1938, 15 U.S.C. ss 901-909, which did not include s 905(B),

enacted February 7, 1950), Senate Report No. 82, 75th Congress,

states:

"The bill under consideration * * * is designed to regulate

* * * the shipment through interstate commerce of all

firearms (and) * * * will go far in the direction we are

seeking and will eliminate the gun from the crooks' hands."

In the history of 15 U.S.C. section 905(B), which provides

for seizure and forfeiture for any violation of the Federal

Firearms Act "or any rules or regulations * * * thereunder,"

Senate Report No. 1207 (January 6, 1950), U.S.Code Cong. Service

1950, p. 1907, shows that the purpose of this legislation is to

give express authority to law enforcement officials "for the

seizure, forfeiture, and disposition of firearms * * * involved

in violations of the Federal Firearms Act. (U.S.C., title 15,

secs. 901-909)."

To constitute a crime, there must be the joint operation of

two essential elements, an act forbidden by law and an intent to

do the act, or there must be the omission of a duty required by

the law and the intent to omit that duty.

In determining a defendant's intention, the law assumes that

every person intends the natural consequences of his voluntary

acts or omissions. Therefore, the intent required to be proven as

an element of the crime is inferred from the defendant's

voluntary commission of the act forbidden by law, or from his

omission of the duty required by law, and it is not necessary to

establish that the defendant knew that his act or omission was a

violation of the law.

Section 2 of Title 18, U.S.C., provides:

"(a) Whoever commits an offense against the United States or

aids, abets, counsels, commands, induces or procures its

commission, is punishable as a principal.

"(B) Whoever willfully causes an act to be done which if

directly performed by him or another would be an offense

against the United States, is punishable as a principal."

An actor who commits an offense can be the "real though

unconscious agent" whose conviction is not a prerequisite to

conviction of the one who causes the offense to be committed.

United States v. Giles (1937), 300 U.S. 41, 48, 57 S.Ct. 340, 81

L.Ed. 493; Walker v. United States (10 Cir., 1951), 192 F.2d 47.

Lee Harvey Oswald violated and caused to be violated the

Federal Firearms Act, 15 U.S.C. section 903(d), and the

regulations promulgated thereunder, 26 C.F.R. 177.51, requiring

"(e)ach licensed * * * dealer * * * (to) maintain complete and

adequate records * * * (which) show * * * the disposition made of

each firearm including the name * * * of the person to whom sold

* * *", in that Lee Harvey Oswald voluntarily, willfully,

intentionally, fraudulently and deliberately caused to fictitious

names A. Hidell and A. J. Hidell to be entered in the firearms

dealers' records as purchaser of the respondent rifle and

revolver, respectively, by placing those fictitious names in his

order for respondent firearms, thereby causing the records to

fail to show the name of the person to whom respondent firearms

were actually sold.

All the circumstances and the fact that Lee Harvey Oswald

did not use his own name in his purchase orders, but instead used

the fictitious names A. Hidell and A. J. Hidell, plainly show

that Oswald intended to mislead and deceive the dealers and to

make it appear that a person separate and apart from Oswald was

the person to whom the firearms were sold, thereby deliberately,

willfully, intentionally and fraudulently producing a record

which failed to show the name of the person to whom the firearms

were sold.

In United States v. Giles (1937), 300 U.S. 41, 57 S.Ct. 340,

the Supreme Court held that to commit the offense of making a

false entry in bank records, a person need not himself make the

false entry if, in fact, he takes

"* * * deliberate action from which a false entry by an

innocent intermediary necessarily follows * * *. To hold

that it (the false entry statute) applies only when the

accused personally writes the false entry or affirmatively

directs another so to do would emasculate the statute--

defeat the very end in view.

* * *

"* * * The false entries * * * were the intended and

necessary result of respondent's deliberate action * * *.

Within the statute he made them." At 48-49, 57 S.Ct. at 344.

Likewise, the failure of the Firearms dealers' records to show

the name of the person to whom the respondent rifle and revolver

were sold was the intended and necessary result of Oswald's

deliberate actions.

The records of the sale of these weapons specifically

referred to and "involved" respondent rifle and revolver. Lee

Harvey Oswald willfully caused the firearms dealers to fail to

keep "complete and adequate" records of the disposition of the

respondent firearms as required by law, by deliberately,

willfully, intentionally and fraudulently producing records which

did not show the name of the firearms purchaser as required by

law. Respondent firearms were "involved in" a violation of the

record-keeping provisions of 15 U.S.C. section 903(d) and 26

C.F.R. section 177.51, and have been forfeited to the United

States under Section 905(B) of Title 15 U.S.C.

Violations of record-keeping laws and regulations thereunder

have been held to exist where sellers required to keep records of

sales were caused by purchasers to make false records of the

address to be entered on records of narcotic sales, Walker v.

United States (10 Cir., 1951), 192 F.2d 47; and entries on bank

records, United States v. Giles (1937), 300 U.S. 41, 57 S.Ct.

340. Liquor, Thacher's Distilled Spirits v. United States (1881),

103 U.S. 679, 26 L.Ed. 535; and automobiles, One 1941 Buick

Sedan, etc. v. United States (10 Cir., 1946), 158 F.2d 445, have

been held subject to forfeiture for failure to keep required

records of liquor sales.

The requirement of the law, 15 U.S.C. section 903(d), and

the regulations, 26 C.F.R. section 177.51, that the dealer keep a

record showing the name of the person to whom a firearm is sold

was enacted for the important purpose of identifying the person

to whom firearms are sold and to "eliminate to gun from the

crooks' hands." If the deliberate production of records with

fictitious names of purchasers of firearms does not violate the

Federal Firearms Act, then every crook in the United States can,

by the simple device of ordering in a fictitious name, obtain

firearms with complete immunity. This would make a shambles of

the Federal Firearms Act.

Claimant King's contentions that forfeiture of respondent

firearms deprives him of property without due process of law and

takes private property for public use without just compensation

is without merit. In Associates Investment Co. v. United States

(5 Cir., 1955), 220 F.2d 885, the Court said in respect to

forfeiture of an automobile used in the transportation of

marihuana:

"* * * It is well settled that such deprivation (forfeiture)

is not a denial of due process of law, or a taking of

private property for public use without fair compensation."

At 888.

Judge Will's discriminating opinion in United States v. One

1962 Ford Thunderbird (N.D.Ill., 1964), 232 F.Supp. 1019, 1022,

states:

"Where Congress, in the implementation of its

constitutional powers, provides for penalties such as

forfeitures, such action is not a taking of property in a

constitutional sense. It is not an instance of eminent

domain, in which property is taken because the use of such

property is beneficial to the public. Rather, the property

interest is infringed because Congress was deemed it

necessary in order to preserve other incidents of the public

welfare. As such, it represents a federal exercise of a

police power to which the constitutional requirement of

compensation is inapplicable. See Hamilton v. Kentucky

Distillers Co., 251 U.S. 146, 156-157, 40 S.Ct. 106, 64

L.Ed. 194 (1919) * * *." [footnote *]

Claimant King is in no sense an innocent purchaser. He knew

when he purchased his claimed interest in these firearms, on

December 31, 1964, and March 25, 1965, that they were not in the

possession of the seller, Marina N. Oswald, individually and as

community administratrix of the Estate of Lee Harvey Oswald, and

that the weapons were in possession of agents of the United

States. The Bill of Sale and Contract covering "all right, title

and interest" of the seller in the weapons expressly recognizes

that the weapons were subject to "adverse claims." A $35,000

additional contingent payment was conditioned upon obtaining

possession "free and clear of all adverse claims."

Forfeiture of respondent weapons occurred and took effect

immediately upon their involvement in the violation of the

Federal Firearms Act in March, 1963, and the right to the

property vested in the United States at that time. Formal

declaration of forfeiture relates back to that time and avoids

all intervening sales, even to innocent purchasers. United States

v. Stowell (1890), 133 U.S. 1, 17, 10 S.Ct. 244, 33 L.Ed. 555;

Thacher's Distilled Spirits v. United States (1881), 103 U.S.

679, 26 L.Ed. 535. The government is entitled to judgment of

forfeiture.

See Public Law 89-318, 79 Stat. 1185 (originally introduced

as H.R. 9545), dealing with the acquisition and preservation of

certain items of evidence before the President's Commission on

the Assassination of President John F. Kennedy, by the exercise

of eminent domain, is not in irreconcilable conflict with, and

was not intended as a repeal of or substitute for, the provisions

of the Federal Firearms Act. The cardinal rule is that repeals by

implication are not favored. Posadas v. National City Bank

(1936), 296 U.S. 497, 503, 56 S.Ct. 349, 80 L.Ed. 351. Nothing in

the Act or its history either mentions or refers to the Federal

Firearms Act. There is no basis in the record for inferring that

Congress had any intent to repeal or affect in any way the

forfeiture provisions of the Federal Firearms Act.

Obviously, neither the Attorney General nor the Congress had

the authority to decide the question before this Court of the

forfeitability of these weapons to the government. All concerned

were determined that these weapons and other items of evidence

designated by the Attorney General would be preserved by the

government of the United States. To make sure this was done,

Public Law 89-318 was passed. If either the Attorney General or

the Congress had any idea that they were repealing, altering or

affecting the forfeiture provisions of the Federal Firearms Act,

they made no mention of it. It must be concluded that they had no

such intention.

Counsel will submit a judgment of forfeiture.

STIPULATION OF FACTS

It is stipulated and agreed for the purpose of the

above-shown action and for no other purpose, even though the

parties thereto may be identical, that the hereinafter outlined

facts may be taken as true. Neither party agrees that any

particular fact hereinafter stipulated is relevant or material to

the issue.

1. The rifle and revolver described in the Libel of

Information are herein respectively called the "Rifle" and the

"Pistol."

2. That on November 22, 1963, Eugene Boone, Deputy Sheriff,

Dallas County, Texas, and Seymour Weitzman, Deputy Constable,

Dallas County, Texas, discovered the rifle with telescopic sight

on the sixth floor of the Texas Book Depository Building, Dallas,

Texas. (President's Commission Report, page 79.)

3. That on November 22, 1963, Lt. J. C. Day, Dallas Police

Department, removed the rifle and telescopic sight from the sixth

floor of the Texas Book Depository Building, Dallas, Texas, and

took such rifle to the Dallas Police Department office as

property taken as evidence in connection with the assassination

of President John F. Kennedy. (PCR, p. 79)

4. That the right palm print of Lee Harvey Oswald was found

on the underside of the barrel of the rifle by Lt. J. C. Day,

Dallas Police Department. (PCR, pp. 122-123.)

5. That on November 22, 1963, in Dallas, Texas, Dallas

police officers took the respondent pistol from Lee Harvey

Oswald. (PCR, pp. 178-179.)

6. That the respondent rifle and respondent pistol were

transferred between various places and persons as follows:

(a) November 22, 1963, the rifle was received by an F.B.I.

agent from the Dallas Police Department.

(B) November 23, 1963, the rifle was taken to the F.B.I.

Laboratory, Washington, D.C., by an F.B.I. Special Agent.

© November 24, 1963, the rifle was returned to the F.B.I.

vault in Dallas, Texas, and later on that date was turned over to

Dallas Police Chief Jesse E. Curry.

(d) November 26, 1963, Dallas Police Department returned the

rifle to F.B.I. Special Agent for return to the F.B.I. vault.

(e) November 27, 1963, rifle was taken to F.B.I. Laboratory,

Washington, D.C., by Special Agent, F.B.I.

(f) February 5, 1964, rifle delivered to President's

Commission on the Assassination of President John F. Kennedy.

(g) February 6, 1964, rifle returned to F.B.I. Laboratory.

(h) February 17, 1964, rifle delivered to President's

Commission.

(i) February 17, 1964, rifle returned to F.B.I. Laboratory.

(j) March 11, 1964, rifle delivered to President's

Commission.

(k) March 11, 1964, rifle returned to F.B.I. Laboratory.

(l) March 17, 1964, rifle delivered to President's

Commission.

(m) March 30, 1964, rifle returned to F.B.I. Laboratory.

(n) March 31, 1964, rifle delivered to President's

Commission.

(o) May 8, 1964, rifle returned to F.B.I. Laboratory.

(p) July 2, 1964, rifle delivered to President's Commission.

(q) July 2, 1964, rifle returned to F.B.I. Laboratory.

® August 13, 1965, rifle shipped from F.B.I. Laboratory,

Washington, D.C., to F.B.I. office, Dallas, Texas, arriving in

Dallas, Texas, on August 16, 1965.

(s) At sometime during the period March 17, 1964 to March

30, 1964, rifle was tested by the Weapons Evaluation Branch,

Department of Army, Aberdeen Proving Ground, Maryland. Also,

during or about March 1964, the rifle was tested at Edgewood

Arsenal, Maryland.

(aa) November 22, 1963, in Dallas, Texas, officers of Dallas

Police Department took the pistol, and on this same date turned

the pistol over to a Special Agent of the F.B.I.

(bb) November 23, 1963, the pistol was taken to the F.B.I.

Laboratory, Washington, D.C., by an F.B.I. agent.

(cc) November 24, 1963, the pistol was returned to the

F.B.I. vault in Dallas, Texas, and later on this date was turned

over to Dallas Police Chief Jesse E. Curry.

(dd) November 26, 1963, the pistol was returned to the

F.B.I. Special Agent by the Dallas Police Department.

(ee) November 27, 1963, the pistol was taken to the F.B.I.

Laboratory, Washington, D.C., by F.B.I. Special Agent.

(ff) February 5, 1964, the pistol was delivered to the

President's Commission on the Assassination of President John F.

Kennedy.

(gg) February 6, 1964, the pistol was returned to the F.B.I.

Laboratory.

(hh) March 25, 1964, the pistol was delivered to the

President's Commission.

(ii) March 30, 1964, the pistol was returned to the F.B.I.

Laboratory.

(jj) April 1, 1964, the pistol was delivered to the

President's Commission.

(kk) May 1, 1964, the pistol was returned to the F.B.I.

Laboratory.

(ll) August 13, 1965, the pistol was shipped from the F.B.I.

Laboratory, Washington, D.C., to F.B.I. office in Dallas, Texas,

arriving in Dallas on August 16, 1965.

7. On November 29, 1963, by Executive Order No. 11130,

President Lyndon B. Johnson created the Commission to investigate

the assassination on November 22, 1963, of John Fitzgerald

Kennedy, the 35th President of the United States. (PCR Foreword.)

8. Attached hereto as Exhibits Nos. 1 and 2 are true and

correct copies of Senate Report #851 and House Report No. 813 on

H.R. 9545 providing for the acquisition and preservation of

certain items of evidence pertaining to the assassination of

President John F. Kennedy.

9. That the rifle was shipped to one A. Hidell, P.O. Box

2915, Dallas, Texas, on March 20, 1963, by Klein's Sporting Goods

Company, Inc., 4540 West Madison Street, Chicago 24, Illinois.

(PCR, pp. 118-119.)

10. That the order for the rifle was on a coupon clipped

from the American Rifleman Magazine; that this order coupon was

signed, in handprinting, A. Hidell, P.O. Box 2915, Dallas, Texas;

and that this printing on the face of the mail order coupon was

in the handprinting of Lee Harvey Oswald. (PCR, p. 119.)

11. Attached hereto as Exhibits 3, 4, 5, and 6 are true and

correct photographic reproductions accurately depicting

information contained on the originals of documents reflecting

the order, invoice for shipment, and payment for the rifle.

12. That at sometime during the period January 27, 1963 and

March 13, 1963, Seaport Traders, Inc., a division of George Rose

and Company, Inc., Los Angeles, California, received an order for

the pistol, which order was signed A. J. Hidell, and the address

was shown as Post Office Box 2915, Dallas, Texas, (PCR, p. 174.)

13. That on March 13, 1963, an invoice was prepared by

Seaport Traders, Inc., Los Angeles, California, covering the sale

of the pistol to A. J. Hidell, Post Office Box 2915, Dallas,

Texas, and this revolver was shipped to the name and address

shown on the invoice on March 20, 1963. (PCR, pp. 174 and 173).

14. Attached hereto as Exhibits 7, 8, 9, 10, and 11 are true

and correct photographic reproductions accurately depicting

information contained on the originals of documents reflecting

the order, invoice for shipment, and shipment for the pistol.

15. That Post Office Box 2915, Dallas, Texas, was rented in

the name of Lee H. Oswald from October 9, 1962 to May 14, 1963.

(PCR, p. 119.)

16. That Post Office Box 2915, Dallas, Texas, was rented by

Lee Harvey Oswald from October 9, 1962 to May 14, 1963. (PCR, pp.

119-120.)

17. Attached hereto as Exhibit 12 is a true and correct

photographic reproduction accurately depicting information

contained on the original document reflecting renting of Post

Office Box 2915, Dallas, Texas, by Lee H. Oswald.

18. That the mail order for the rifle was made by Lee Harvey

Oswald using the name A. Hidell. (PCR, p. 569.)

19. That the mail order for the pistol was made by Lee

Harvey Oswald using the name of A. J. Hidell. (PCR, p. 570.)

20. The individual who mailed the purchase orders, referred

to in stipulations 10 and 11 above, was given the name Lee Harvey

Oswald at birth. (PCR, p. 377.) In the purchase of the rifle in

March 1963, Lee Harvey Oswald used the name "A. Hidell," and in

the purchase of the pistol, Lee Harvey Oswald used the name "A.

J. Hidell." (PCR, pp. 119-121.) The post office box to which the

rifle and pistol were sent was rented in the name of Lee H.

Oswald. (PCR, p. 119) At the time of his arrest on November 22,

1963, Lee Harvey Oswald carried on his person a forged Selective

Service Notice of Classification in the name of "Alek James

Hidell" and a forged United States Marine Corps Certificate of

Service in the name of "Alek James Hidell." (PCR, pp. 571-574.)

He also had on his person a Selective Service Notice of

Classification, a Selective Service Registration Certificate, and

a United States Marine Corps Certificate of Service, all in the

name of Lee Harvey Oswald. (PCR, pp. 571- 574.) Lee Harvey Oswald

rented a room at 1026 N. Beckley Avenue, Dallas, Texas, in the

name of "O. H. Lee" where he lived on November 22, 1963, and his

landlady at this address did not know him as Lee Harvey Oswald.

(PCR, pp. 182, 419.) Among Lee Harvey Oswald's effects at 1026 N.

Beckley Avenue, Dallas, Texas, there was found a vaccination

certificate dated June 8, 1963, showing vaccination of Lee Harvey

Oswald by "Dr. A. J. Hideel," P.O. Box 30016, New Orleans,

Louisiana. The signature of Dr. A. J. Hideel was in the

handwriting of Lee Harvey Oswald. There was no P.O. Box 30016 in

New Orleans; however, Lee Harvey Oswald rented box 30061 in New

Orleans on June 3, 1963, and "A. J. Hidell" was shown as an

additional person entitled to receive mail there. (PCR, pp.

121-122.)

In May 1963, Lee Harvey Oswald, while in New Orleans, joined

a New York organization called Fair Play for Cuba Committee.

(PCR, p. 290) He caused to be printed handbills headed "Hands Off

Cuba" and had membership cards for a local New Orleans FPCC

Chapter. (PCR, p. 291.) Lee Harvey Oswald's membership card for

the New Orleans Chapter of FPCC showed member name as Lee Harvey

Oswald and also showed "A. J. Hidell" as chapter president. (PCR,

p. 292.) Mrs. Marina Oswald helped Lee Harvey Oswald by writing

the name "Hidell" on the membership cards at the insistence of

Lee Harvey Oswald. (PCR, p. 292.) Some of the "Hands Off Cuba"

handbills showed the named and address of "L. H. Oswald, 4907

Magazine Street, New Orleans, Louisiana"; whereas others showed

"A. J. Hidell, P.O. Box 30016, New Orleans, Louisiana." (PCR, p.

409.) Lee Harvey Oswald was the only member of the FPCC Chapter

which he attempted to organize in New Orleans. (PCR, p. 407.) He

was arrested by New Orleans Police on August 9, 1963, for

disturbing the peace because of a street fight in connection with

the distribution of the "Hands Off Cuba" handbills. He was

arrested as Lee Harvey Oswald. (PCR, p. 436.)

Mrs. Marina Oswald first heard of Lee Harvey Oswald's use of

the name "Hidell" in connection with the pro-Castro activity in

New Orleans, which was after May 29, 1963. (PCR, pp. 122, 290).

The name "Alek," however, was a nickname used by Lee Harvey

Oswald in Russia, and he signed "Alek" to some letters written to

Marina Oswald. (PCR, p. 122.)

Lee Harvey Oswald and Marina Oswald were known by the name

Oswald by the Paine family in Irving, Texas, where the family

lived in October and November 1963. (PCR, p. 438.)

21. That during the calendar year 1963 Klein's Sporting

Goods, Inc., 4540 West Madison Street, Chicago 24, Illinois, was

a licensed dealer in firearms and held license No. 36-2601 issued

pursuant to Section 903, Title 15, United States Code, a part of

the Federal Firearms Act.

22. That Klein's Sporting Goods, Inc., Chicago, Illinois,

kept records required by Section 903(d) of Title 15, United

States Code, and as to the respondent rifle these records showed

such firearm as shipped to A. Hidell, P.O. Box 2915, Dallas,

Texas.

23. Attached hereto as Exhibits 13, 14, and 15 are true and

correct copies of records of the sale of the rifle made by

24. That during the calendar year 1963, Seaport Traders,

Inc., 1221 South Grand Avenue, Los Angeles, California, was a

licensed dealer in firearms and held license No. 95-1437 issued

pursuant to Section 903, Title 15, United States Code, a part of

the Federal Firearms Act.

25. That Seaport Traders, Inc., Los Angeles, California,

kept records required by Section 903(d) of Title 15, United

States Code, and as to the respondent pistol these records showed

such firearm as shipped to A. J. Hidell, P.O. Box 2915, Dallas,

Texas.

26. Attached hereto as Exhibits 8, 9, 10, and 11 are true

and correct copies of records of the sale of the pistol made by

Seaport Traders, Inc., a mail order division of George Rose and

Company.

27. The rifle and the pistol shown above as shipped to

Hidell were actually received by the individual generally known

as Lee Harvey Oswald. (PCR, pp. 128, 171.)

28. The rifle was used by Lee Harvey Oswald in the

assassination of President Kennedy and the pistol was used by Lee

Harvey Oswald in killing a Dallas Police Officer. (PCR pp. 19,

20, 129, 176.)

29. On December 31, 1964, Marina N. Oswald, widow of Lee

Harvey Oswald, individually and as community survivor, sold to

John J. King all right, title and interest which she had in and

to the rifle and pistol for and in consideration of Five Thousand

Dollars ($5,000.00) paid by buyer to seller. A true and correct

copy of that Bill of Sale and Contract covering this transaction

is attached hereto as Exhibit 16.

30. That on March 25, 1965, Marina N. Oswald, individually

and as community administratrix of the Estate of Lee Harvey

Oswald, sold to John J. King all right, title, and interest over

which she had power of sale as such administratrix in and to the

rifle and pistol for and in consideration of an additional Five

Thousand Dollars ($5,000.00) that day paid by buyer to seller. A

true and correct copy of that Bill of Sale and Contract covering

this transaction is attached hereto and marked Exhibit 17.

31. At the time of the purchases by John J. King, referred

to in stipulation Nos. 29 and 30 above, John J. King knew that

the rifle and pistol were in the possession of agents of the

United States. At the time of the purchases referred to in

stipulation Nos. 29 and 30, John J. King had no actual notice or

actual knowledge of a claim of title thereto by the United

States.

32. At no time prior to publication of the notice of seizure

of the pistol and rifle and the forfeiture proceedings on or

about August 16, 1965, had the United States or any of its

representatives ever asserted to claimant, John J. King, any

claimed right of forfeiture.

33. On May 24, 1965, John J. King filed an action for the

recovery of the rifle and pistol in the United States District

Court for the District of Colorado. True copies of the Complaint,

Defendant's Motion to Dismiss Plaintiff's Complaint, or

alternatively to stay further proceedings, and the order dated

October 8, 1965, in that action are attached and marked Exhibit

18.

34. On or about June 17, 1965, the Attorney General of the

United States submitted to the Vice President and the Speaker of

the House of Representatives a proposed bill to authorize him to

condemn the rifle and the pistol and other items of evidence

introduced before the President's Commission.

35. That on or about August 4, 1965, the Alcohol and Tobacco

Tax Division of the Internal Revenue Service determined to

commence forfeiture proceedings against the rifle and the pistol.

The forfeitability of these firearms had been considered by the

Department of Justice and the Treasury Department in considering

methods of preserving these firearms for historical purposes. The

Department of Justice filed a memorandum in John J. King's Denver

action stating, in part as follows:

"This forfeiture proceeding had previously been withheld

upon the hope that the prosecution of the present action

could be postponed pending enactment of H.R. 9545. If

plaintiff has any lawful property interest in the firearms,

he could then have been paid just compensation. Plaintiff,

however, has vigorously opposed defendant's efforts to

continue this action and it thereby became necessary for

Internal Revenue to file its proceeding."

36. That at the time of the sale and delivery of the rifle

and of the pistol by the licensed firearms dealers, such dealers

had no knowledge or reason to suspect that the person to whom

such weapons were shipped had any name other than that shown in

the order forms.

37. That since seizure of the rifle and of the pistol on

November 22, 1963, such firearms have continuously remained in

custody of the President's Commission or of units of the Federal

Government or of the City of Dallas, Texas, as shown in

stipulation No. 6 above. These firearms at no time have been

released to anyone for nongovernmental use.

38. In an interview on or about August 15, 1963, Lee Harvey

Oswald falsely informed a Special Agent of the Federal Bureau of

Investigation that, since he had received his membership card in

the New Orleans Chapter of the Fair Play for Cuba Committee, he

had spoken with "Hidell" on several occasions on the telephone.

He also stated that he had never personally met "Hidell."

(Hearing before President's Commission on the Assassination of

President Kennedy, Vol. XVII, Exhibit 826, page 759.)

39. During an interview on or about August 17, 1963, by

William Kirk Stuckey of New Orleans radio station WDSU, Lee

Harvey Oswald falsely stated that he, Oswald, was not president

of the New Orleans Chapter of the Fair Play for Cuba Committee,

but was the secretary and that "this other gentleman, Hidell, was

the president." Lee Harvey Oswald then exhibited his membership

card showing Oswald as secretary and Hidell as president. (PCR,

p. 729, Hearings Vol. XI, page 162.)

40. On November 24, 1963, Lee Harvey Oswald told Captain

Will Fritz, Dallas Police Department, that he, Oswald, did not

know anyone by the name A. J. Hidell, and he, Oswald, falsely

told Captain Will Fritz that he had never used the name "A. J.

Hidell" as an alias. During the course of that interview Lee

Harvey Oswald stated to Captain Will Fritz of the Dallas Police

Department that he did not know anyone by the name "A. J. Hidell"

and he falsely stated that he had never heard of the name before.

(PCR, page 636.)

41. The rifle and pistol were acquired by Lee Harvey Oswald

during his marriage to Marina N. Oswald.

42. The information set forth on pages 741 through 745 of

the President's Commission Report correctly shows the financial

situation of Lee Harvey Oswald during the period covered so far

as can be ascertained.

FOOTNOTES

FN*. See also One 1958 Plymouth Sedan v. Commonwealth of

Pennsylvania,380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965).

I would like to hear Forum members comments, about this.

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I am shocked and stunned at this!

" UNITED STATES of America, Libelant,

v.

ONE 6.5 mm. MANNLICHER-CARCANO MILITARY RIFLE, Model 91-38,

Serial No. C2766, with Appurtenances, and One .38 Special S&W

Victory Model Revolver, Serial No.V510210, with Appurtenances,

Respondents.

Civ. A. No. 3-1171.

United States District Court N.D. Texas, Dallas Division.

Feb. 23, 1966.

ESTES, Chief Judge.

....... Counsel will submit a judgment of forfeiture."

I would like to hear Forum members comments, about this.

Robert, I am not sure why you are so shocked, but it is an interesting case and thank you for posting it. I am throwing out some comments of a purely random nature.

The judge in this case, Joe Ewing Estes, made the news recently when President George W. Bush nominated an Estes protege, Harriet Miers , to the Supreme Court. Maiers' principal claim to judicial fame? She had been a law clerk for Judge Estes in 1971 and 1972. Miers' workload was fairly light since Estes, as Chief Judge, wrote very few opinions during that period.

Judge Estes was born in Commerce, in 1903? within a Texas spit of Abilene and the place where his more famous namesake, Billie Sol Estes, would be born a generation later. I do not know if the judge and the wheeler-dealer were related, but it is likely that, like Billie Sol, Judge Estes was a protege of Senator Lyndon Baines Johnson. Estes was appointed to the Federal bench by President Eisenhower in the early fifties, but it is hard to imagine any major federal appointment in those years that did not receive the Johnson treatment somewhere along the line, and I'm betting that further research (LBJ library, if Dawn Meredith would like to do the honors) will confirm that this was true in the nomination and confirmation of Joe Ewing Estes.

It seems the Federal Government could find no way to justify Federal jurisdiction over the assassination or the murder of JD Tippit, but they still wanted to make the rifle and revolver Federal property. They deliberately chose not to exercise their power of Eminent Domain, and instead they trotted out this obscure statute claiming that, unlike Eminent Domain, it allowed them to confiscate this property for the benefit of posterity without paying so much as a dime in compensation to the estate of Lee Oswald, i.e. his widow and orphans.

It is interesting to note that, although these weapons were undoubtedly evidence in two homicides which were definitely within the juridiction of Texas, the state of Texas apparently made no claim of ownership. Whether this evidence favors the defense or the prosecution is, of course, a matter on which opinions still differ.

Judge Joe Ewing Estes ruled against the widow and orphans and declared that

"All the circumstances and the fact that Lee Harvey Oswald

did not use his own name in his purchase orders, but instead used

the fictitious names A. Hidell and A. J. Hidell, plainly show

that Oswald intended to mislead and deceive the dealers and to

make it appear that a person separate and apart from Oswald was

the person to whom the firearms were sold, thereby deliberately,

willfully, intentionally and fraudulently producing a record

which failed to show the name of the person to whom the firearms

were sold."

Judge Ewing does not answer the question why, if he intended to create a false record of the purchaser's identity, Lee Oswald arranged to have these weapons (with appurtenances?) mailed to a P.O. box registered in his own name, so that when the FBI checked the records of the sellers of these weapons, it would have no trouble identifying the purchaser. Since no one except himself and Marina were authorized to receive mail at this P.O. box, methinks Judge Estes was stretching things just a little when he said "Oswald intended to ..... make it appear that a person separate and apart from Oswald was the person to whom the firearms were sold."

If he really wanted to deceive inquirers surely he could have opened the P.O. box in some other name (he did have fake ID, according to the DPD).b Of course he could have bought the same weapon over-the counter, where the federal statute did not apply.

Judge Estes ordered the property confiscated without Eminent Domain compensation. In 1971 the same Judge Estes got another chance to rob the same widow and the same orphans, and he grabbed it with gusto. (any bets that Harriet Miers had had a hand in drafting this opinion?). This time the property consisted of purely personal items, and what bothered Estes was the fact that, while their intrinsic value was no more than $3000, memorabilia experts estimated that their value to collectors was over $17,000. There was no obscure statute that Estes could rely on this time to deny Marina her meager but rightful inheritance, so now he became a born again convert to taking Oswald property by Eminent Domain. You will see below that this champion of of the underdog awarded Marina $3,000, a fraction of their estimated market value.

If you scroll down even further, however, you will see how "Equity" Estes got his comeuppance.

QUOTE ON

Cite as Porter v. U.S., 335 F.Supp. 498 (N.D.Tx. 1971), reversed,

473 F.2d 1329 (5th Cir. 1973).

Marina N. Oswald PORTER et al.

v.

UNITED STATES of America.

Civ. A. No. 3-2282.

United States District Court, N. D. Texas, Dallas Division.

Dec. 21, 1971.

Lyne, Klein & French, by Erich F. Klein, Jr., Dallas, Tex.,

for plaintiffs.

L. Patrick Gray, III, Asst. Atty. Gen., Irwin Goldbloom,

Atty., Dept. of Justice, Washington, D. C., Eldon B. Mahon, U. S.

Atty., N. D. Tex., Kenneth J. Mighell, Asst. U. S. Atty., N. D.

Tex., Dallas, Tex., for defendant.

MEMORANDUM DECISION

ESTES, Chief Judge.

In this action Marina N. Oswald Porter, widow of Lee Harvey

Oswald, seeks compensation for the taking of certain property by

the United States pursuant to Public Law 89-318, 79 Stat. 1185.

This statute, enacted November 2, 1965, provides for condemnation

by the United States of any item of evidence considered by the

President's Commission on the Assassination of President John F.

Kennedy (hereinafter called the "Warren Commission") after a

determination by the Attorney General of the United States that

preservation of the item is in the national interest. The Warren

Commission concluded that the shots which killed President Kennedy

were fired by Lee Harvey Oswald.

Public Law 89-318 provides:

". . . t is hereby declared that the national interest

requires that the United States acquire all right, title, and

interest, in and to, certain items of evidence, to be

designated by the Attorney General pursuant to section 2 of

this Act, which were considered by the President's Commission

on the Assassination of President Kennedy (hereinafter re-

ferred to as 'items'), and requires that those items be

preserved by the United States.

"Sec. 2. (a) The Attorney General is authorized to

determine, from time to time, which items should, in con-

formity with the declaration contained in the first section of

this Act, be acquired and preserved by the United States.

Each such determination shall be published in the Federal

Register.

"(:news Whenever the Attorney General determines that an

item should be acquired and preserved by the United States,

all right, title, and interest in and to, that item shall be

vested in the United States upon the publication of that

determination in the Federal Register.

"Sec. 3. The United States Court of Claims or the United

States district court for the judicial district wherein the

claimant resides shall have jurisdiction, without regard to

the amount in controversy, to hear, determine, and render

judgment upon any claim for just compensation for any item or

interest therein acquired by the United States pursuant to

section 2 of this Act; and where such claim is filed in the

district court the claimant may request a trial by jury:

Provided, That the claim is filed within one year from the

date of publication in the Federal Register of the

determination by the Attorney General with respect to such

items."

On Tuesday, November 1, 1966, by publication in the Federal

Register Vol. 31, No. 212, pp. 13968-74, of the Attorney General's

determination, the United States ("Government") acquired title to

the items of personal property for which plaintiffs now seek just

compensation. The property consists mainly of the personal effects

of Lee Harvey Oswald in the form of personal letters, a diary,

family photographs, marriage license, the contents of Oswald's

wallet, etc.

The issue to be determined by the Court is what amount of

money just compensation to the plaintiffs for the property taken by

the Government.

On September 16, 1968, pursuant to Rule 53, F.R.Civ.P.,

William B. West, Esquire, was appointed Special Master for the

purpose of hearing evidence and making findings as to the value as

of November 1, 1966, the date of taking of the property here in

controversy. The Court instructed the Special Master that the

property should be valued in its condition on that date and that

any manuscript items which were published in the reports of the

proceedings of the Warren Commission should be valued as published

material.

The Special Master found that the fair market value of the

property involved was, as of November 1, 1966, $17,729.37. A jury

having been waived, the Court approved the Special Master's Report

and adopts the Special Master's findings as to the property's fair

market value on November 1, 1966-but this does not mean plaintiffs

are entitled to recover $17,729.37 as just compensation for the

property.

It has been stipulated that the case should be determined by

the Court on only the evidence before the Master.

The parties stipulated that the "market value of items of

personal property similar in kind to those items which are the

subject of this action . . . is $3,000.00" [Pretrial Order No. 1,

para. 7(e)]. It is apparent, and the Court finds, that the

$17,729.37 valuation as of November 1, 1966, reached by the Special

Master, includes as an element the enhancement of value in the

amount of $14,729.37 resulting from its association with Lee Harvey

Oswald and the assassination of President Kennedy on November 22,

1963.

Plaintiffs cite the decision of the Supreme Court in United

States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943),

stating that "just compensation" is "the full and perfect

equivalent in money of property taken," so that the owner will "be

put in as good position pecuniarily as he would have occupied if

his property had not been taken." But in that decision the Court

did not apply "fair market value" as the measure of "just

compensation," at 373, 63 S.Ct. at 279 and it held that equity

required certain elements of market value to be excluded from an

award of just compensation.

The circumstances of this case require that the elements of

fair market value of the property involved here resulting from

association of the property with the assassination of the President

must be excluded from the measure of just compensation. The nation

and its people should not be required to pay a bounty for items of

evidence upon which the Warren Commission based its report.

There is little doubt that the Commission's investigation was

essential to the security of the nation and was conducted with

deliberate speed. The right of the United States to condemn the

property has not been challenged.

To allow an award above the $3,000.00 stipulated value would

create in a depraved mind contemplating the destruction of the life

of one of this nation's high officials an additional incentive for

the assassination because the crime assuredly would result in the

enrichment of the assassin's spouse or other beneficiary resulting

from the enhanced value of his possessions. Neither the Consti-

tution of the United States nor any law or principle of equity

requires any such result.

QUOTE OFF

I am very happy to report that the 5th Circuit reversed Estes on Appeal, awarding Marina $17,000 and change, the estimated fair market value of the property in question.

http://www.cs.cmu.edu/afs/cs/usr/wbardwel/...orter_v_us2.txt

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