May v. United States, C-3-79-157

• Decision Date: 30 July 1981
• Docket Number: No. C-3-79-157,C-3-80-023.,C-3-79-157
• Citation: 519 F. Supp. 649
• Parties: Kenneth R. MAY, Plaintiff, v. UNITED STATES of America, et al., Defendants. UNITED STATES of America, Plaintiff, v. ONE 1977 CHEVROLET VAN, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

519 F. Supp. 649

Kenneth R. MAY, Plaintiff, v. UNITED STATES of America, et al., Defendants.

UNITED STATES of America, Plaintiff, v. ONE 1977 CHEVROLET VAN, et al., Defendants.

Nos. C-3-79-157, C-3-80-023.

United States District Court, S. D. Ohio, W. D.

July 30, 1981.

Thomas A. Hansen, Charles A. Johnson, Dayton, Ohio, for May & Chevrolet Van, et al.

Patrick J. Hanley, Asst. U. S. Atty., Cincinnati, Ohio, Robert J. Fogarty, Asst. U. S. Atty., Dayton, Ohio, for United States.

Opinion Concluding That the Government's Twelve Month and Three Day Delay in Filing Its Forfeiture Action, Following Seizure of Property, Constituted an Unlawful Deprivation of the Property Owner's Rights Without Due Process of Law, in That the Government Has Failed to Demonstrate That the Delay Was Reasonable; Property Seized on January 19, 1979, Ordered to be Returned Forthwith to Property Owner, Kenneth R. May; Judgment to Plaintiff Kenneth R. May and Against Defendant in Case No. C-3-79-157; Judgment to Defendants and Against Plaintiff in Case No. C-3-80-023; Entry of Judgment; Termination Entry

RICE, District Judge.

The captioned cause came on to be heard upon the question of the reasonableness of the Government's one year and three day delay in the filing of a forfeiture action, following the seizure of certain property belonging to Kenneth R. May. For the essential background to this opinion, reference must be had to this Court's Decision and Entry of June 3, 1981, 515 F.Supp. 600, which, inter alia, noted that the Government must be given the opportunity to introduce evidence to show the reasonableness of the delay in excess of one year between seizure of property and the initiation of the forfeiture action. The Court indicated that, should the Government not be able to show the reasonableness of the delay, the Court would order the vehicle and money which are the subject of United States of America vs. One 1977 Chevrolet Van, et al., 503 F.Supp. 1027, a 1977 Chevrolet Van and United States currency, returned forthwith to the property owner, Kenneth R. May.

At a hearing held on July 10, 1981, the Government presented, as its sole witness, one William Lyons, the senior attorney with the office of Chief Counsel of the Internal Revenue Service, and, at the time of the operative facts herein, the Staff Assistant to the Regional Counsel for General Legal Services at the Internal Revenue Service Regional Office in Cincinnati, Ohio. His testimony, which was not challenged on cross-examination, revealed the following in support of the Government's claim of reasonableness of the one year and three day delay in initiation of the forfeiture action following the seizure of the property in question, each of which said facts this Court adopts as a finding of fact:

A. Facts

1. In early February, 1979, approximately two weeks after the seizure of the property in question on January 19, 1979, his office received the seized property reports from the Criminal Investigation Division of the Cincinnati Office reference the seizure of the property in question. T-3.

2. In April, 1979, some two and one-half months after the seizure of the property, a civil action was filed (C-3-79-157) by the property owner, Kenneth R. May, seeking a return of the seized property. These papers were referred to his office for the purpose of the preparation of the necessary legal work needed by the United States Attorney. T-3, 4. By early June, 1979 some four and one-half months after the seizure of the property, his office had prepared a litigation report which involved a setting forth of the factual and legal information that would assist the United States Attorney in the litigation of Mr. May's suit seeking return of the seized property. T-4. A Motion to Dismiss Mr. May's lawsuit was prepared, as well, in early June, 1979, and was hand-carried, along with the draft copy of the litigation report, to the United States Attorney who was handling the case. At the same time, Mr. Lyons' office transmitted a copy of the litigation report to the National Legal Services Division of the Office of Chief Counsel, in Washington. It is a requirement that all documents prepared by the Regional Office be sent to the National Office for review, correction and ultimate issuance from that office. Therefore, the copy of the draft report delivered to the United States Attorney's office was to be held until issuance of the final report by the National Office. The official litigation report was issued by the National Office in June, 1979. This litigation report dealt only with Mr. May's suit demanding the return of the seized property. T-4, 5.

3. From May or June, 1979, through September, 1979, a time in which the processing of forfeiture cases by his office was quite new, in that it had not been done before, Mr. Lyons' office was in the process of drafting the necessary documents relating to the seizure of Mr. May's property (the forfeiture suit). These papers included the initial draft of the litigation report. The document was prepared primarily through the part-time assistance of a paralegal. The document involved, as did the litigation report on Mr. May's action to recover his property, a complete discussion of all the underlying facts in connection with the search, the execution of a search warrant, the seizure of the property, the nexus between the property's use and the violation of the wagering tax laws, legal cases supporting the use of the property (sic) and the basis of the forfeiture. T-6.

When Mr. May's forfeiture case came into the office, approximately thirty-five other forfeiture cases were then pending, which had come into the office in the early part of the year as a result of increased wagering investigation by the Criminal Investigation Division. T-5.

The para-legals would do a specific phase of all the paperwork on all thirty-five cases at a particular time, before going on to another phase, rather than complete a particular litigation package involving particular property or a particular property owner and then turn around and begin another. In other words, rather than wrap one case up, in its entirety, the Regional Counsel's office would prepare, in effect, thirty-five litigation reports, then prepare thirty-five pleadings, et cetera. T-5, 6.

During that same period of time, Mr. Lyons' office also prepared the Complaint which would be filed seeking the judicial forfeiture of the property, the warrant for the arrest of the property and an order for a warrant of arrest of the property. In all, there were three pleadings, in addition to the litigation report, that had to be prepared to constitute a judicial forfeiture. His office prepared these documents for forwarding to the U.S. Attorney's Office for use in court. T-7.

4. In October, 1979, Mr. Lyons was personally reviewing the documents, ordering changes, et cetera. T-9. By early November, 1979, his office had completed all the necessary paperwork on the May case. T-10.

5. Rather than forward these documents directly to the United States Attorney's Office for filing in court, the Office of the Regional Counsel (in spite of the fact that by that time almost ten months had elapsed since the seizure of the property) was required to forward same to the National Office for pre-review before issuance. T-8, 10.

6. The review was completed by the National Office in late November, 1979. The National Office issued the litigation report and attached documents and sent them to the United States Attorney's Office in early December, 1979. On January 22, 1980, one year and three days after the seizure of the property in question, the forfeiture complaint and other pleadings were filed with this Court (503 F.Supp. 1027). T-10.

7. In connection with Mr. May's lawsuit seeking return of his property, the Office of Regional Cou...