Find Legal Information

FIRST DIVISION

DECEMBER 14, 1998

No. 1-97-3857

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Defendant, Ugo DeLuca, was charged with four counts of unlawful sale of a firearm by aliquorlicensee, two counts of unlawful use of a weapon, and one count of theft. The trial court held aSupreme Court Rule 402 conference. 134 Ill. 2d R. 402. As a result of that conference,defendant entered a guilty plea and was found guilty of the crimes charged and was sentenced totwo years' probation and fined $135. The State and defendant had not reached an agreementregarding disposition of the weapons seized from defendant. After attempts to reach anagreement regarding the weapons failed, the trial court ordered the weapons destroyed. Defendant has appealed, alleging that: (1) he was denied due process because the trial courtordered destruction without a hearing; and (2) the weapons seized were improperly confiscatedbecause they were neither contraband per se nor derivativecontraband. We affirm.

On June 9, 1994, the Illinois State Police executed search warrants at defendant's home andbusiness. The police seized 138 handguns, rifles and shotguns. The State has supplemented therecord with copies of the search warrants and supporting affidavits. However, because the trialcourt did not rely on the affidavits to support forfeiture, we need not consider them further.

On January 24, 1995, a plea and sentencing hearing was held before Judge Daniel Weber. Atthehearing, the parties stipulated that, if called, Sal Ladoce would testify he was employed as aChicago police officer. From April through June 1994, he was engaged in an undercoverinvestigation of defendant. On six separate occasions between April 19, 1994, and June 8, 1994,he met with defendant at his place of business, Sir Gas-A-Lot Video Mart/Knight's Antiques, inCook County. Defendant had a license to sell alcohol at that location. During those meetingsOfficer Ladoce purchased handguns, rifles, ammunition and fireworks. One of the handguns, a 9millimeter Baretta semi-automatic, was described by defendant as "hot." Officer Ladocediscovered the 9 millimeter Baretta was reported taken from the South Barrington policedepartment, and defendant had not been given permission to possess or sell that weapon.

The parties also stipulated that, if called, Jack Nowicki would testify that he is a forensicscientistwith the Illinois State Police and had examined items purchased from defendant. He haddisassembled and analyzed six explosive devices commonly called M80s and two sticks ofdynamite. He found each device contained over one-quarter ounce of flash powder.

The State then tendered an order for confiscation and destruction of all weapons seized. Defendant argued that a number of the weapons seized were rare, valuable antiques. JudgeWeber agreed to "hold" the order and granted defendant leave to prepare a list of weapons thatshould be preserved. However, Judge Weber stated "any gun that would be just a regular gun, isnot considered antique, I want it destroyed."

Defendant moved to have the guns turned over to a licensed dealer for auction, and onNovember15, 1995, Judge Weber denied the motion, stating "the law is clear on that, the statute. I can'tgive [the guns] to private persons." The matter was continued several times. On May 15, 1997,the matter came before Judge Frank DeBoni, who approved an agreed order to transfer the gunsto the American Police Museum for educational purposes.

On August 12, 1997, defendant filed a motion to substitute attorneys and a motion to vacatetheMay, 15, 1997, order alleging that his attorney had entered it without his consent. Both motionswere granted. Judge DeBoni further ruled that, because the May 15, 1997, order had beenvacated, there no longer existed any reason to stay destruction of the weapons, and he orderedthat the weapons be destroyed based on Judge Weber's January 1995 ruling.

On September 9, 1997, the case was transferred back to Judge Weber, who entered an orderfordestruction of the weapons. Defendant subsequently filed a motion to modify the judgment andvacate the September 9, 1998, order. The motion was denied.

Defendant first argues that he was denied due process, because the trial court did not hold anevidentiary hearing prior to ordering the guns destroyed.

Minimum due process requires notice and a meaningful opportunity to be heard. Williams v.Illinois State Scholarship Comm'n, 139 Ill. 2d 24, 42 (1990), citing Mathews v.Eldridge, 424U.S. 319, 333, 47 L.Ed 2d 18, 32, 96 S. Ct. 893, 902 (1976). It is not, however, a denial of dueprocess when a party fails to avail himself of that opportunity. See Campbell v. CookCountySheriff's Board, 215 Ill. App. 3d 868, 871 (1991).

Here, defendant chose as part of his guilty plea to stipulate to the evidence that would havebeenpresented at trial. Defendant did not demand a hearing on return of his weapons. He insteadstipulated at the guilty plea proceedings to the evidence, and he argued the law mandated returnof the weapons. Defendant pursued this strategy for more than two years, during which the trialcourt heard several motions regarding destruction of the weapons. Prior to August 1997,defendant never requested an evidentiary hearing. Defendant has not been denied due processsimply because he made the strategic choice to argue the legal merits based on stipulated facts. See People v. Lehman, 5 Ill. 2d 337, 343-44 (1955) (holding a defendant who isrepresented bycounsel cannot complain when the court acts on a stipulation to testimony).

Defendant further argues that confiscation of the weapons deprived his wife of her interest intheweapons. Defendant's wife never appeared before the court. Further, nothing in the recordsuggests defendant's wife asserted a property right in the guns until defendant filed a motion tomodify the judgment more than two years after his conviction. However, assuming defendant'swife has not waived her right to assert an interest in the weapons, the trial court did not depriveher of due process when it ordered the weapons destroyed.

The Supreme Court of the United States recently addressed this issue in the case ofBennis v.Michigan, 516 U.S. 442, 134 L. Ed. 2d 68, 116 S. Ct. 994 (1996). InBennis, the State ofMichigan forfeited as a public nuisance an automobile jointly owned by Tina and John Bennis. Bennis, 516 U.S. at 443, 134 L. Ed. 2d at 73, 116 S. Ct. at 996. John Bennis hadbeen convictedof gross indecency after he committed a sex act with a prostitute in the automobile. Bennis, 516U.S. at 443, 134 L. Ed. 2d at 73, 116 S. Ct. at 996. Tina argued she was denied due processbecause she was unaware and uninvolved in the unlawful activity. Bennis, 516U.S. at 446, 134L. Ed. 2d at 74, 116 S. Ct. at 998. The Supreme Court held the "innocent-owner defense" did notprotect Tina's interest in the car. Bennis, 516 U.S. at 446, 134 L. Ed. 2d at 74, 116S. Ct. at 998. The Court relied on a line of cases beginning with The Palmyra, 25 U.S. 1, 6 L. Ed.531 (1827),which hold that property put to illegal use can be confiscated without regard to the owner'sculpability. Bennis, 516 U.S. at 446, 134 L. Ed. 2d at 75, 116 S. Ct. at 998, citingPalmyra 25U.S. Wheat at 14, 6 L. Ed. at 535 (affirming forfeiture of privateering vessel because the acts ofthe crew bound owner whether innocent or guilty).

Here, defendant asserts only that his wife is being deprived of her property interest as aco-ownerof the weapons. This is the same innocent-owner defense rejected in Bennis. Bennis, 516 U.S. at451, 134 L. Ed. 2d at 77, 116 S. Ct. at 999. In accord with Bennis, we hold that theState isrequired to establish a defendant has used a weapon in a crime, but need not prove that anypossible co-owner was guilty of a criminal act.

Defendant's second allegation of error addresses the question of whether the weapons weresubject to confiscation. Section 24-6(a) of the Criminal Code of 1961 provides in pertinentpart:

"Upon conviction of an offense in which a weapon was used or possessedby the offender,any weapon seized shall be confiscated by the trial court." 720 ILCS 5/24-6(a) (West1994).

The State must prove its right to the contraband by the civil preponderance-of-the-evidencestandard. People v. Braden, 243 Ill. App. 3d 671, 676 (1993). However,forfeitures are notfavored, and the law must be narrowly construed to avoid injustice. People v. Earl,121 Ill. App.3d 254, 257 (1984).

The Supreme Court of Illinois has identified two categories of contraband. People v.Steskal, 55Ill. 2d 157, 159 (1973). Contraband per se is material the mere possession ofwhich constitutes acrime. Steskal, 55 Ill. 2d at 159. Derivative contraband is material that is notinherently illegal,but is used in an illegal manner. Steskal, 55 Ill. 2d at 159. Certain weapons suchas sawed offshotguns and switchblades, are contraband per se because they cannot be legallypossessed. Braden, 243 Ill. App. 3d at 681. A gun that may be legally possessed, however, isderivativecontraband if it is closely connected to illegal activity. Braden, 243 Ill. App. 3d at681.

This distinction was illustrated in People v. Earl, 121 Ill. App. 3d at 257. InEarl, the defendantwas charged with illegal use of a weapon after being arrested while carrying a loaded handgun onthe floor of the passenger compartment of his car. Earl, 121 Ill. App. 3d at 255. The policeseized additional weapons from the trunk of the defendant's car. Earl, 121 Ill. App.3d at 255. The court held that the handgun in the passenger compartment was derivative contrabandbecauseit was transported in an illegal manner. Earl, 121 Ill. App. 3d at 258. The courtheld that theillegal act was transportation of the single weapon in the passenger compartment. The court heldthat the weapons in the trunk were not closely connected to the crime and ordered them returnedto the defendant. Earl, 121 Ill. App. 3d at 258.

Defendant argues that, as in Earl, the weapons seized from his home were notderivativecontraband because they were not closely connected to the crimes for which he was convicted. Defendant claims the weapons seized were a collection of antiques and a valuable asset. Defendant contends that only the weapons that he sold to the undercover officer, which were thesubject of the indictment, should be confiscated. We disagree.

Here, it is undisputed defendant was guilty of illegal arms sales. Defendant stipulated thatOfficer Ladoce would testify that he bought weapons from defendant at a location licensed forthe sale of liquor and that at least one of the weapons had been stolen. Defendant argues that thecache of weapons at his home was a valuable collection of antique guns unconnected to theillegal sales at his place of business. We disagree. The State need only demonstrate by apreponderance of the evidence that the guns were connected to illegal activity. Braden, 243 Ill.App. 3d at 676. Defendant could not engage in the illegal sale of guns without acquiring andstoring somewhere a supply of guns. Cf. Braden, 243 Ill. App. 3d at682 (holding weaponsseized in search for drugs could not be confiscated without evidence that they were used inconnection with drug sales). Defendant's illegal conduct required a supply of weapons. Therefore, the trial court could reasonably infer the weapons stored at defendant's homerepresented the inventory necessary to carry out the illegal sales.

Moreover, accepting defendant's arguments would defeat the purposes of section 24-6. 720ILCS5/24-6 (West 1994). Section 24-6 is intended to remove from our streets those weapons thathavebeen turned to illegal purposes. See People v. Ziomek, 179 Ill. App. 3d 303,309-10 (1989). Ifwe accept defendant's argument, those who deal guns illegally could shield their inventory fromconfiscation through the simple expedient of storing the weapons away from the place of sale. Here, returning the weapons seized from the home would allow defendant to reap the rewards ofhis illegal activities. Although some rare or valuable weapons may be destroyed, this is solely aconsequence of defendant's decision to engage in illegal gun dealing. In Bennis,the SupremeCourt recognized the deterrent values of forfeiture, stating "[f]orfeiture of property preventsillegal uses 'both by preventing further illicit use of the [property] and by imposing an economicpenalty thereby rendering illegal behavior unprofitable.' " Bennis, 516 U.S. at 452,134 L. Ed. 2dat 78, 116 S. Ct. at 1000, quoting Calero-Toledo v. Pearson Yacht Leasing Co., 416U.S. 663,687, 40 L. Ed. 2d 452, 470, 94 S. Ct. 2080, 2094 (1974).

In conclusion, we find that defendant was not denied due process because he was affordedampleopportunity to be heard on the forfeiture issue during the actual guilty plea and in the subsequentproceedings. Further, even if defendant's wife had timely and properly asserted a possessoryinterest in the weapons, confiscation did not unconstitutionally deprive her of that interest. Finally, the evidence as stipulated by defendant was sufficient for the trial court to infer aconnection between the illegal sales and the weapons in defendant's home.

Therefore, the judgment of the circuit court of Cook County is affirmed. As part of thisjudgment, we grant the State's motion and assess defendant $100 as costs for this appeal.

Affirmed.

O'BRIEN, P.J., and GALLAGHER, J., concur.