Kaufmann v. Saari, 93-C-482.
| Decision Date | 06 June 1995 |
| Docket Number | No. 93-C-482.,93-C-482. |
| Citation | 889 F. Supp. 1105 |
| Parties | Harry C. KAUFMANN; Eileen M. Kaufmann; Harry Kaufmann Motor Cars, Inc.; and Kaufmann-Campbell Leasing, Inc., Plaintiffs, v. Neil SAARI, personally, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Peterson, Johnson & Murray by Michael P. Crooks, Madison, WI, Milwaukee, WI, for plaintiffs.
Charles Guadagnino, Asst. U.S. Atty., Milwaukee, WI, for defendant.
DECISION AND ORDER
The plaintiffs commenced this action on May 13, 1993, with the filing of a complaint asserting claims against the United States and twelve individual defendants. The defendants filed motions to dismiss the plaintiffs' complaint. In a decision and order dated December 22, 1993, I dismissed numerous counts of the plaintiffs' complaint. Kaufmann v. United States, 840 F.Supp. 641, 659-660 (E.D.Wis.1993).
In an attempt to correct the deficiencies of their original complaint the plaintiffs filed an amended complaint asserting 31 counts against the United States and two individual defendants. The remaining defendants filed a motion to dismiss the plaintiffs' amended complaint. In a decision and order dated January 3, 1995, I dismissed all of the claims of the plaintiffs' amended complaint with the exception of four Fourth Amendment claims, actionable under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Kaufmann v. United States, 876 F.Supp. 1044, 1054 (E.D.Wis. 1995). The plaintiffs' Fourth Amendment claims are asserted against defendant Neil Saari personally, on behalf of each of the plaintiffs.
Presently before the court are two motions filed by Mr. Saari. He has filed a motion to amend his answer to include an affirmative defense based upon a release signed by three of the plaintiffs in 1991. The defendant has also filed a motion for summary judgment based upon his assertion that he is qualifiedly immune from the remaining claims of the plaintiffs' amended complaint.
On September 11, 1990, Mr. Kaufmann was indicted by a federal grand jury on four counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B), and one count of attempted money laundering, in violation of 18 U.S.C. § 1956(a)(3)(B). The indictment also called for the forfeiture of all property traceable to the offense, pursuant to 18 U.S.C. § 982(a). Magistrate Judge Aaron Goodstein issued search and seizure warrants for the Harry Kaufmann Motor Cars, Inc. "KMC" premises on September 12, 1990. On September 13, 1990, federal agents executed the search warrants and seized all assets of KMC, including 99 automobiles.
A jury found Mr. Kaufmann guilty on count five of the indictment. Mr. Kaufmann pursued an unsuccessful appeal of his conviction. See United States v. Kaufmann, 985 F.2d 884 (7th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 2350, 124 L.Ed.2d 259 (1993).
This action was filed on behalf of Mr. Kaufmann, his wife Eileen M. Kaufmann, KMC and Kaufmann-Campbell Leasing "Kaufmann-Campbell". Mrs. Kaufmann claimed a fifty percent interest in all of Mr. Kaufmann's assets. The four remaining claims of the plaintiffs' amended complaint assert that Mr. Saari violated the plaintiffs' Fourth Amendment rights, actionable under Bivens. Specifically, in counts I, VIII, XV, and XXII of their amended complaint, the plaintiffs allege that the search and seizure warrants issued by Magistrate Judge Goodstein were issued based in part upon "an invalid indictment, and in part upon misrepresentations knowingly or recklessly contained within Saari's affidavit in support of the issuance of the warrant." Amended Complaint at ¶¶ 28, 58, 90 and 121. The plaintiffs allege that paragraphs 13, 23, and 38 of Mr. Saari's affidavit, "among others, contain untrue information which could have been discovered with reasonable diligence."
In his brief in support of his motion for summary judgment, the defendant contends that the plaintiffs' Fourth Amendment claims fail to provide factual support for their conclusion that Mr. Saari's affidavit contained misrepresented or untrue information. The defendant also maintains that the plaintiffs' Fourth Amendment claims fail specifically to allege or to provide factual support to show that Mr. Saari, while performing discretionary functions, violated clearly established law regarding the Fourth Amendment. As such, Mr. Saari asserts that he is entitled to qualified immunity regarding the plaintiffs' remaining claims.
Rule 56(c), Federal Rules of Civil Procedure. Material facts are those that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "Summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id.
The movant bears the initial burden of establishing that there is no dispute of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The adverse party must then set forth specific facts to show that there is a genuine issue for trial. Id.; Rule 56(e), Federal Rules of Civil Procedure. The adverse party cannot rely on conclusory allegations to defeat the motion. Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, 931 (7th Cir.1995). In considering a motion for summary judgment, the court must draw all reasonable inferences in favor of the non-moving party. Id. At the summary judgment stage, the court cannot weigh the evidence to determine the truth of the matter. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11.
There is no genuine material issue as to any finding of fact proposed by the defendant to which no response has been set forth. See Local Rule 6.05(d). The following are the undisputed facts pertinent to the defendant's motion for summary judgment. At all times relevant to this action, Neil Saari was employed as a special agent for the Criminal Investigation Division of the Internal Revenue Service, United States Department of the Treasury. Defendant's Proposed Findings of Fact "DPFF" at ¶ 1; Saari aff. at ¶ 1. At all times relevant to this action, Mr. Saari was assigned to the Multi-Agency Organized Drug Enforcement Task Force. DPFF at ¶ 2; Saari aff. at ¶ 2. In his capacity as a special agent, Mr. Saari is responsible for the investigation of criminal conduct in the eastern district of Wisconsin and elsewhere, with special emphasis upon investigation of violations of federal, state, and local narcotics, tax, and money laundering laws. DPFF at ¶ 3; Saari aff. at ¶ 3.
As a special agent, Mr. Saari participated in a criminal investigation of Mr. Kaufmann. DPFF at ¶ 4; Saari aff. at ¶¶ 6, 10-21. On September 11, 1990, as a result of that investigation, a grand jury sitting in the eastern district of Wisconsin returned an indictment against Mr. Kaufmann; it charged him with four counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B), and one count of attempted money laundering, in violation of 18 U.S.C. § 1956(a)(3)(B). DPFF at ¶ 5. On September 12, 1990, Mr. Saari prepared an affidavit in support of an application for a warrant for a search of the premises of KMC, located at 5858 North Green Bay Avenue, Glendale, Wisconsin, and for the seizure of certain real and personal property at that site. DPFF at ¶ 6; Saari aff. at ¶ 6.
Paragraphs 13, 23, and 38 of Mr. Saari's search warrant affidavit recount information provided to Mr. Saari, and others assigned to the investigation of Mr. Kaufmann, by certain cooperating witnesses regarding their automobile transactions with Mr. Kaufmann. DPFF at ¶ 9; Saari aff. at ¶ 8; Search warrant aff. at ¶¶ 10 and 38. Among those cooperating witnesses were Jerome Mann, Billy Cannon, James Verser, Jr., and a confidential informant. Id.
Jerome Mann provided information under a court-ordered grant of immunity. DPFF at ¶ 10; Saari aff. at ¶ 9; Search warrant aff. at ¶ 10. Billy Cannon and James Verser, Jr. provided information pursuant to agreements with the federal government whereby they received consideration in the disposition of criminal charges filed against them involving the illegal trafficking of controlled substances. Id. Jerome Mann, Billy Cannon, and James Verser, Jr. had previously provided Mr. Saari and other law enforcement officers, in the context of other criminal investigations, with information that proved reliable, based upon independent supporting and corroborating evidence gathered in those investigations. DPFF at ¶ 11; Saari aff. at ¶ 10; Search warrant aff. at ¶ 10.
Paragraph 13 of the search warrant affidavit reads as follows:
Once Jerome Mann decided to purchase the Mercedes Benz from Harry Kaufmann, he asked Kaufmann about $10,000.00 cash reports since he planned to pay in cash. Kaufmann advised Mann that he should make partial payments under $10,000.00 each until the vehicle was paid for. Kaufmann told Mann that he was going to keep all of the money until all of the payments were made, then he (Kaufmann) was going to deposit all of the money at one time. Mann brought in multiple payments of approximately $8,000.00 each over a period of approximately one month until the car was paid for. On one occasion Mann had $16,000.00 with him and wanted to give Kaufmann the total amount. Kaufmann did not want to accept $16,000.00 and took only $8,000.00 and instructed Mann to come back with the rest in a few days. Although Mann did all the...
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