May v. United States

• Decision Date: 03 June 1981
• Docket Number: No. C-3-79-157.,C-3-79-157.
• Citation: 515 F. Supp. 600
• Parties: Kenneth R. MAY, Plaintiff, v. UNITED STATES of America et al., Defendant.
• Court: U.S. District Court — Southern District of Ohio

515 F. Supp. 600

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

No. C-3-79-157.

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

June 3, 1981.

Charles Johnson, Thomas A. Hansen, Dayton, Ohio, for plaintiff.

James A. Wilson, Patrick J. Hanley, Asst. U. S. Attys., Cincinnati, Ohio, for defendant.

DECISION AND ENTRY ORDERING CONSOLIDATION OF CAPTIONED CAUSE WITH CASE NO. C-3-80-023 (AN ACTION SEEKING FORFEITURE OF PLAINTIFF'S PROPERTY); NO RULING MADE ON MATTERS INCIDENT TO POSSIBLE CRIMINAL PROSECUTION (REQUEST FOR SUPPRESSION OF EVIDENCE, SELF-INCRIMINATION AND FOURTH AMENDMENT DEFENSES); NO RULING MADE ON DEFENDANT'S MOTION TO DISMISS ON JURISDICTIONAL GROUNDS; CONFERENCE CALL SET TO FIX HEARING DATE TO DETERMINE REASONABLENESS IN DUE PROCESS SENSE OF GOVERNMENT'S TWELVE-MONTH DELAY IN COMMENCING FORFEITURE ACTION FOLLOWING SEIZURE OF PROPERTY

I. INTRODUCTION

RICE, District Judge.

This matter is before the Court on the Motion of the Defendant, United States of America, seeking an Order of the Court dismissing the Complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. In the Memorandum attached to its Motion, Defendant has maintained that, as the present suit is in essence being brought against the United States, the action must be barred under principles of sovereign immunity. In addition, Defendant has argued that Plaintiff's assertion of a self-incrimination privilege fails to state a claim because the legal principles upon which that defense is premised have been rendered inapplicable by intervening changes in the law. In response, Plaintiff has filed a Memorandum Contra to Defendant's Motion to Dismiss, in which he has alleged that the Court has jurisdiction under 18 U.S.C. § 3231, because the substance of the within action is in reality criminal. Further, Plaintiff has asserted 28 U.S.C. § 1346(a)(2) as a jurisdictional ground, in light of Defendant's alleged constitutionally unlawful seizure and detention of Plaintiff's property. Plaintiff has also argued that, in any event, a forfeiture action, United States of America v. One 1977 Chevy Van, et al., No. C-3-80-023, which is currently pending in this Court, provides the Court with the ability to dispose of all issues relating to the property in question.

Also pending before the Court at this time, in Case No. C-3-79-157, is Plaintiff Kenneth May's Motion for Return of Property, for suppression of all seized evidence in the event of a forthcoming criminal indictment, and for an Injunction preventing the Government from presenting the seized property as evidence before the Federal Grand Jury. Basically, Plaintiff's position is that his prosecution for violation of the Federal Wagering Tax provisions is forbidden by the Fifth Amendment prohibition of self-incrimination. Additionally, Plaintiff has claimed the same privilege as a defense to any attempt to declare his property forfeit. Finally, Plaintiff has raised, in his Memorandum Contra Defendant's Motion to Dismiss, the argument that his property must be returned because the original seizure and continued retention of the property are constitutionally void.

Before addressing the substantive matters raised by the parties, a few comments would be appropriate in order to clarify the points of analysis which are herein deemed pertinent. Although the Court's research has indicated that subject matter jurisdiction in May v. United States, Case No. C-3-79-157, would properly lie under 28 U.S.C. § 1346(a)(2), States Marine Lines, Inc. v. Shultz, 498 F.2d 1146 (4th Cir. 1974), a detailed analysis of Defendant's jurisdictional arguments will not be required. Assuming that Defendant is correct in contending that the Court does not have jurisdiction to consider the legality of a seizure, prior to the institution of forfeiture proceedings by the Government, an analysis of the authorities cited by Defendant indicates that the Court does have the ability even in such cases, to determine whether the Government has unreasonably delayed in filing its forfeiture action. Castleberry v. Alcohol, Tobacco and Firearms Div., 530 F.2d 672 (5th Cir. 1976). Moreover, as the Court has determined that the present action should be consolidated with the other related case which is pending (Case No. C-3-80-023, the forfeiture action, The United States of America v. One 1977 Chevy Van, et al.), the issue of jurisdiction has been rendered moot, since the Court will be considering the merits of the forfeiture action along with the question of the legality of the seizure raised in May v. United States of America, Case No. C-3-79-157. As a further matter, the Court has determined that Plaintiff's property may well have to be returned because the Government's twelve month delay in filing the forfeiture action might constitute a violation of Plaintiff's right to due process before final deprivation of his property. As such a conclusion would dispose of both pending cases, there would be no need to address the self-incrimination defenses presented by Plaintiff.

Finally, as there are no criminal proceedings currently pending against Plaintiff May (no Grand Jury Indictment has been reported), the Court declines to consider his requests for suppression of evidence and for an injunction against presentation of evidence to the Grand Jury. This decision does not, in any manner, undermine Plaintiff's ability to challenge the use of such evidence in the event of a future criminal prosecution, but rather defers those issues until such time as they may be ripe for disposition. Thus, the issues before the Court are reduced to consideration of: 1) the appropriateness of consolidation, and 2) whether the untimely filing of the Government's forfeiture action may have constituted a deprivation of Plaintiff May's rights under the Due Process Clause of the Fifth Amendment. Having thus refined the matters pertinent to resolution of the within cases, the Court now turns initially to a discussion of the propriety of consolidating May v. United States of America, No. C-3-79-157 (the case challenging the legality of the seizure) with United States of America v. One 1977 Chevy Van, et al., No. C-3-80-023 (the forfeiture action).

II. CONSOLIDATION

Fed.R. of Civ.Pro. 42(a) provides that: When actions involving a common question of law or fact are pending before the Court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning the proceedings therein as may tend to avoid unnecessary costs or delay.

Courts which have discussed the issue of consolidation have stressed that the purpose of joining actions is to promote convenience and judicial economy. Johnson v. Manhattan Railway Co., 289 U.S. 479, 496, 53 S.Ct. 721, 727, 77 L.Ed. 1331 (1933); Katz v. Realty Equities Corp. of New York, 521 F.2d 1354, 1358 (2d Cir. 1975). Further, the grant of authority given to courts under Fed.R. of Civ.Pro. 42 has been construed liberally and has been interpreted as allocating to a trial court strong managerial powers in matters of consolidation. In re Air Crash at Florida Everglades on Dec. 29, 1972, 549 F.2d 1006, 1013 (5th Cir. 1977). However, in ruling upon consolidation, "the trial judge should be most cautious not to abuse his judicial discretion and to make sure that the rights of the parties are not prejudiced by the order of consolidation under the facts and circumstances of the particular case." DuPont v. Southern Pacific Co., 366 F.2d 193, 196 (5th Cir. 1966), cert. denied, 386 U.S. 958, 87 S.Ct. 1027, 18 L.Ed.2d 106 (1967).

An application of the above standards to the circumstances of the present case indicates that consolidation would be appropriate. Initially, the Court notes that both this action and the forfeiture action, United States of America v. One 1977 Chevy Van, et al., No. C-3-80-023, stem from the same set of operative facts, namely, the confiscation of a 1977 Chevy Van and currency belonging to Plaintiff. The seizure, which involved property on the person and from the home of Plaintiff Kenneth May, occurred pursuant to search warrants issued on January 19, 1979, for suspected violations of 26 U.S.C. §§ 4401, 4411, and 4412 (which provide for excise and occupational taxes on wagering, and direct that all persons required to pay such taxes must register with the Internal Revenue Service).

After the property was seized in January, 1979, Plaintiff then instituted the within action on April 4, 1979, requesting that the Court order the return of the property which had been taken. Additionally, as previously noted, Plaintiff urged the suppression of all seized property in any forthcoming criminal indictment, and further asked for an injunction preventing the United States from presenting the seized property as evidence before the Federal Grand Jury. In regard to all matters asserted, Plaintiff claimed the Fifth Amendment prohibition of self-incrimination as a defense. Then, in his Memorandum Contra Defendant's Motion to Dismiss, Plaintiff implicitly alleged violations of the due process clause of the Fifth Amendment, by claiming that his property was being unlawfully withheld. Finally, on January 22, 1980, the United States filed a forfeiture action, United States v. One 1977 Chevy Van, et al., Case No. C-3-80-023, in which the Government requested that Kenneth May's seized property be declared forfeit. In the Government's Complaint, the allegation was made that the property had been used in furtherance of an illegal wagering operation, and that forfeiture would be proper because May had failed to comply with various provisions of the Internal Revenue Code governing wagering activities.

The preceding discussion illustrates beyond doubt that the factual bases of the two cases under consideration are essentially similar. Consolidating these...