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United States v. Cheeseman

March 2, 2010

UNITED STATES OF AMERICA
v.
JAMES L. CHEESEMAN, APPELLANT



On Appeal from the District Court for the District of Delaware, (No. 09-cr-00124-001), District Judge: Honorable Sue L. Robinson.

The opinion of the court was delivered by: Fuentes, Circuit Judge

PRECEDENTIAL

Argued October 27, 2009

Before: SLOVITER, FUENTES, and HARDIMAN, Circuit Judges.

OPINION

Appellant, James L. Cheeseman, pled guilty to violating 18 U.S.C. § 922(g)(3), which criminalizes possession of firearms and ammunition by an unlawful user or addict of a controlled substance. He appeals from the District Court's judgment directing the forfeiture of over 600 firearms and ammunition enumerated in Count I of the indictment to which he pled guilty. Cheeseman raises two arguments on appeal. He first contends that forfeiture pursuant to 18 U.S.C. § 924(d)(1) was improper because the property was neither "involved in" nor "used in" a knowing violation of 18 U.S.C. § 922(g)(3). Alternatively, Cheeseman argues that forfeiture of his property violates the Excessive Fines Clause of the Eighth Amendment. Because we find that the firearms and ammunition specifically identified in Count I of the indictment were involved in Appellant's § 922(g)(3) violation, and because we conclude that the forfeiture of Cheeseman's property was not grossly disproportionate to the gravity of the § 922(g)(3) offense, we will affirm the District Court's Order of Forfeiture.

I. Background*fn1

From 1994 through August 2007, Cheeseman was the owner and sole proprietor of X-Ring Supply, a sporting goods and firearms store located in Newark, Delaware. The federal firearms license ("FFL") for X-Ring was held in Cheeseman's name. X-Ring maintained an inventory of approximately 600 firearms. The premises included a separate warehouse located next to the store.

Cheeseman's drug abuse began in 2003 after his wife ended their marriage. Between 2005 and 2007, as his crack cocaine addiction worsened, Cheeseman converted X-Ring's warehouse into his home, storing inside it an air mattress, sleeping bag and bedding. The District Court found that fellow crack cocaine abusers occasionally stayed with Cheeseman in the warehouse and that he occasionally turned off X-Ring's security system. Although Cheeseman argues to the contrary, the District Court found that ammunition and gun boxes were stored in the warehouse.

In 2005, Cheeseman completed a renewal application for his FFL, on which he indicated that he did not unlawfully use narcotics. Answering this question falsely subjects an applicant to 18 U.S.C. § 924(d) penalties. Because of Cheeseman's erratic behavior due to his severe drug habit, his sister Nancy Macknatt assumed power of attorney over her brother and began to manage X-Ring's daily operations. Accordingly, Cheeseman's presence in the store was "sporadic and unpredictable." Cheeseman , 593 F. Supp. 2d at 685. Nonetheless, employees found crack pipes on X-Ring's premises on at least three separate occasions.

A.

The incident prompting this case occurred on August 5, 2007, when Delaware police officers observed a woman urinating in the parking lot of a pharmacy. The woman was Cheeseman's companion. After the police officers found drugs on her person, Cheeseman consented to a pat down, during which officers located a crack pipe and crack cocaine. A subsequent search of his vehicle revealed a second crack pipe and additional crack cocaine. Cheeseman told the police officers that he abused drugs and had recently returned from a rehabilitation facility.

Shortly thereafter, federal agents executed a search warrant at X-Ring and seized approximately 609 guns and ammunition; an estimated sixty-seven of the firearms were identified as comprising Cheeseman's personal collection. Some of the seized weapons were antique firearms. In the warehouse, agents recovered a crack pipe, a mirror with cocaine residue, a burnt spoon with cutting residue, an ashtray with white residue, ammunition, a butane torch and a scale with white residue. Consequently, a federal grand jury returned a three-count indictment against Cheeseman with notice of forfeiture, accusing him of: (1) possession of a firearm by an unlawful drug user in violation of 18 U.S.C. § 922(g)(3); (2) possession of more than five grams of crack cocaine in violation of 21 U.S.C. § 844(a); and (3) distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1).

Relevant to this appeal, § 922(g)(3) makes it unlawful for any person "who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act . . .) . . . to . . . possess in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g)(3). Count One of the indictment identified individually the 609 firearms and a quantity of ammunition that Cheeseman was accused of illegally possessing. In December 2007, Cheeseman divested himself of all of his interest in X-Ring, selling it to Macknatt and to his other sister, Pamela Rhoades.*fn2

B.

In February 2008, Cheeseman pled guilty to violating § 922(g)(3). In his plea agreement he admitted that:

[I]f there were a trial, the Government would have to prove three elements of the offense: (1) that from on or about August 5, 2007, through August 14, 2007, the defendant possessed a firearm or ammunition; (2) that the defendant was a regular user of, or addicted to, a controlled substance during a period of time proximate to or contemporaneous with the possession of the firearm or ammunition; and (3) the above-described firearm affected interstate commerce. The defendant knowingly, voluntarily, and intelligently admits for purposes of his guilty plea and sentencing that, from on or about August 5, 2007, through August 14, 2007: (a) he actually and constructively possessed the firearms and ammunition set forth in [Count One] of the indictment; (b) he was a regular unlawful user of, and addicted to, cocaine base; and (c) the firearms and ammunition at issue affected interstate commerce.

Cheeseman , 593 F. Supp. 2d at 683 (internal quotation marks & citation omitted). The District Court delayed sentencing in order to hold a forfeiture hearing to determine whether the firearms and ammunition specifically enumerated in Count One of the indictment were forfeitable pursuant to § 924(d)(1), and if so, whether forfeiture would violate the Excessive Fines Clause of the Eighth Amendment.

Section 924 is the penalty provision of the Gun Control Act of 1968 ("Gun Control Act"). Section 924(d)(1) provides that "any firearm or ammunition involved in or used in any knowing violation of subsection . . . (g) . . . of section 922 . . . shall be subject to seizure and forfeiture." Section 924(d)(2)(c) mandates that "[o]nly those firearms or quantities of ammunition particularly named and individually identified as involved in or used in any violation of the provisions of this chapter . . . shall be subject to seizure, forfeiture, and disposition." Pursuant to 26 U.S.C. § 5872(b), any firearms or ammunition forfeited may be destroyed, sold to a state, or used by the federal government.

C.

Although the District Court did not clearly identify which portion of § 924(d) it found satisfied, i.e., whether Cheeseman "involved" or "used" the firearms in a knowing violation of § 922(g)(3), the District Court, after holding a hearing on the forfeitability of Cheeseman's property, concluded that Cheeseman's guilty plea sufficiently satisfied the statute's forfeiture requirements. The District Court first noted that the Government must prove forfeitability by a preponderance of the evidence and establish a sufficient nexus between the § 922(g)(3) violation and the property sought to be forfeited. See Fed. R. Crim. P. 32.2(b)(1)(A) (providing that when "the government seeks forfeiture of specific property, the court must determine whether the government has established the requisite nexus between the property and the offense"). Next, the District Court rejected Cheeseman's contention that "there [was] no evidence that he ever used or involved a firearm in any manner to facilitate his cocaine addiction." Cheeseman , 593 F. Supp. 2d at 687.

Rather, the District Court made the following findings of fact linking Cheeseman's drug abuse to his § 922(3)(g)(3) violation:

[I]t is clear from the evidence and testimony presented at the evidentiary hearing as well as the uncontested [Pre-Sentencing Report] that: (1) defendant has been using cocaine since 2003; (2) he was living and using crack cocaine at X-Ring; (3) during after[-]business hours, defendant allowed users of crack cocaine to stay with him at X-Ring; (4) drug paraphernalia was found at X-Ring; (5) defendant lied about his addiction on his FFL renewal; (6) after defendant's FFL was renewed-on false pretenses-he continued to operate X-Ring, including purchasing and selling firearms; (7) he compromised the security of X-Ring by turning off the security alarm in order to allow himself and crack addicts into the retail store; (8) he stored his personal gun collection unsecured; and (9) although not actively involved in the day-to-day business of X-Ring, defendant used drugs on the premises and had unfettered access to the inventory of firearms and ammunition.*fn3

Id. Thus, the District Court ruled that the firearms and ammunition specifically identified in Count One of the indictment were ...


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