Tom v. Twomey

• Decision Date: 13 April 1977
• Docket Number: 75 C 3493-75 C 3495.,No. 75 C 2272,75 C 2272
• Citation: 430 F. Supp. 160
• Parties: Raymond TOM and Carl Johnson, Plaintiffs, v. John J. TWOMEY, U. S. Marshal, Defendant. UNITED STATES of America, Plaintiff, v. ONE 1968 LINCOLN CONTINENTAL, VIN 8Y82A839402, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

430 F. Supp. 160

Raymond TOM and Carl Johnson, Plaintiffs, v.John J. TWOMEY, U. S. Marshal, Defendant.

UNITED STATES of America, Plaintiff, v.ONE 1968 LINCOLN CONTINENTAL, VIN 8Y82A839402, et al., Defendants.

Nos. 75 C 2272, 75 C 3493-75 C 3495.

United States District Court, N. D. Illinois, E. D.

April 13, 1977.

Julius Lucius Echeles, Chicago, Ill., for plaintiffs.

Samuel K. Skinner, U. S. Atty., Chicago, Ill., for defendants.

MEMORANDUM

LEIGHTON, District Judge.

These consolidated cases are before the court on the government's motions for summary judgment, for an order forfeiting a bond filed by the plaintiff Johnson, and for a rule to show cause why he should not be held in contempt of this court.¹The issues presented arise from the following facts.

I.

On March 10, 1975, agents of the Federal Bureau of Investigation seized three automobiles: a 1972 Impala Chevrolet owned by Raymond Tom, a 1973Chevrolet Vega owned by Carl Johnson, and a 1968Lincoln Continental owned by Challe Tsutomu Oda.The seizures were for alleged violations of Title 18 U.S.C. § 1955(a), andIll.Rev.Stat. 1973, ch. 38, §§ 28-1(a)(10), 28-1.1(a), (b), (d), 28-3, federal and state statutes which prohibit any illegal gambling business.Thereafter, Tom and Johnson filed case No. 75 C 2272 to which, by a later amendment, Challe Oda joined as a plaintiff.This was a replevin suit in which plaintiffs, without denying their vehicles were used in illegal gambling, alleged that the United States Marshal was wrongfully detaining their respective automobiles.They alleged that no indictment had been returned against them; and that no forfeiture proceedings had been instituted against the automobiles; therefore, they prayed for issuance of a writ of replevin and for damages.

These allegations were true when they were made; but on September 30, 1975, Tom, Johnson, and Oda were indicted and charged with engaging in an illegal gambling business, it being suggested that the acts leading to these charges were the same which had led to seizure of the automobiles.Later, on October 17, 1975, the government filed the three forfeiture complaints seeking condemnation of the automobiles on the ground that they had been used by their owners for the purpose of an illegal gambling business, in violation of the designated federal and state statutes.No response has been made to these complaints.On the day they were filed, an order was entered directing that if a $250 bond were posted, conditioned on the obligation that they be returned should the government prevail in these actions, the vehicles in question were to be released to their respective owners.Then, on January 30, 1976, and on the government's motions, the forfeiture suits were consolidated with the replevin suit.Tom, Oda, and Johnson later pled guilty to two counts of the indictment in which they had been charged with engaging in an illegal gambling business.

The government has moved for summary judgment on the ground that the guilty pleas entitle it to judgments as a matter of law forfeiting the seized automobiles.It is claimed that the acts by which Tom, Johnson, and Oda used their vehicles in violation of federal and state statutes that prohibit illegal gambling business, were the same as those engaged in when they committed the offenses charged in the counts to which they pled guilty.The motion is supported with a copy of the indictment and the minute orders reflecting the pleas of guilty and the sentences imposed.

In response, Tom, Johnson, and Oda do not deny use of the automobiles for illegal gambling.Instead, they have filed a pleading captioned "Reply to Government's Motion for Summary Judgment" in which they state that although "* * * it is true that they pled guilty to criminal charges contained in the indictment, no evidence or facts were elucidated upon which to predicate any findings, since the government failed to tender the transcript of the proceedings taken at the time of the guilty plea."Therefore, they argue that the record lacks the evidentiary basis to support the entry of a summary judgment in favor of the government with regard to forfeiture of the subject vehicles.

With regard to the motion for a rule to show cause on Johnson, the record referred to by the government discloses that on February 4, 1976 by a stipulation of the parties, a bond was filed for release of Johnson's vehicle to him pending disposition of the litigation and subject to the right of the government to repossession of the vehicle in the event it prevailed in the forfeiture proceedings.The government alleges, and it is not denied, that after Johnson recovered possession of his vehicle by posting a $250 bond, he told a special agent that he no longer owned the 1973Chevrolet Vega because he had sold it for junk to a man named Al Sanders.In response to the government's motion for the rule, Johnson contends that "the subject matter of the rightful ownership or seizure of the Vega automobile is as yet in litigation before this court.No ruling has been made that the United States is entitled to forfeiture of the car in question, in as much as a factual dispute remains unlitigated and undecided.* * * The only liability under the bond is that the government be paid no more than $250."

II.

These pleadings, motion, affidavits, admissions of the parties and their contentions present two issues.1.Whether there is a genuine issue as to any material fact relative to the forfeiture of the automobiles seized by the Federal Bureau of Investigation on March 10, 1975.2.Whether the government has shown it is entitled to a rule on Carl Johnson to show cause why he should not be found guilty of contempt of this court for having sold the 1973Chevrolet Vega after he acquired possession of it subject to the rights of the government if it should prevail in the forfeiture proceedings.

III.

Generally, a plea of guilty admits all material allegations contained in the count of the indictment to which it is directed.Hawley v. Hunter,161 F.2d 825(10th Cir.1947).Evidence of a valid plea of guilty to a criminal charge is admissible in a civil litigation as an admission against interest if the litigation arises out of the facts that produce the criminal charge.Local 167 of International Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers v. United States,291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804(1934);Austin v. United States,125 F.2d 816(7th Cir.1942).Accordingly, it has been held that an owner's plea of guilty to a charge of illegal transportation of intoxicating liquor is competent evidence of the transportation in an action by the government to forfeit the automobile used in committing the crime.SeeInterstate Securities Company v. United States,151 F.2d 224(10 Cir.1945).In this case, the counts of the indictment to which the pleas of guilty were entered do not allege that on March 10, 1975 Tom, Oda, and Johnson were using their vehicles in an illegal gambling business, although there is a specification of the acts claimed by the government to constitute the crime.Therefore, the pleas of guilty did not admit illegal use of the vehicles.As a consequence, if the government's ground for summary judgment were only the pleas of guilty, its motion could not be granted because in such a case, there would be an issue of fact concerning use of the automobiles on March 10, 1975 when they were seized.

However, absence of a genuine issue as to material fact concerning use of the three automobiles clearly appears in the record of these cases.The forfeiture of any property used...