US v. $47,409.00 IN US CURRENCY

• Decision Date: 15 January 1993
• Docket Number: No. 1:92 CV 742.,1:92 CV 742.
• Citation: 810 F. Supp. 919
• Parties: UNITED STATES of America, Plaintiff, v. $47,409.00 IN UNITED STATES CURRENCY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

810 F. Supp. 919

UNITED STATES of America, Plaintiff, v. $47,409.00 IN UNITED STATES CURRENCY, Defendant.

No. 1:92 CV 742.

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

January 15, 1993.

Kathleen L. Midian, Office Of The U.S. Atty., Cleveland, OH, for plaintiff.

Joseph A. Dubyak, Cleveland, OH, for defendant and claimant.

ORDER

SAM H. BELL, District Judge.

On the 14th of April, 1992, the plaintiff United States of America filed its complaint alleging that the defendant $47,409.00 in U.S. currency is subject to forfeiture to the United States pursuant to 18 U.S.C. § 1955(d) in that it is money used in an illegal gambling business in violation of that same section of Title 18, United States Code. In June of this year, an answer and verified claim were filed on behalf of William Siko, Jr. Currently before the court are two motions for summary judgment. (Docket ## 18 and 20) The first, filed on behalf of the claimant William Siko Jr., is premised upon two grounds: 1) that the claimant is entitled to judgment as a matter of law because any forfeiture action the Government may have had was abated by William Siko Sr.'s death, and 2) the government has not shown probable cause to connect the defendant currency to illegal gambling activity. (Docket # 18) The second, filed on behalf of the United States, requests summary judgment in the Government's favor on the issue of probable cause. (Docket # 20). Because the issue of probable cause is rendered moot by a determination that the cause of action has abated by the death of the Senior Siko, the court has chosen to address the matter of abatement first.

Standard of Review

In reviewing a motion for summary judgment, a court must consider the pleadings, related documents, evidence, and all reasonable inferences in a manner most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979). Rule 56 provides, in relevant part, as follows:

(c) ...

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

. . . . .

(e) ...

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Three Supreme Court cases have provided guidance as to the nature of the respective burdens allocated under Rule 56. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The ultimate burden lies with the non-moving party to show the existence of a genuine issue of material fact. "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts ... In the language of the Rule, the non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.' Fed.Rule Civ.Proc. 56(e)." Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356 (emphasis supplied). "In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The court in Anderson held that "the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff had had a full opportunity to conduct discovery." Anderson, 477 U.S. at 257, 106 S.Ct. at 2514.

On the other hand, the moving party's burden under Rule 56 is lighter.

Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. On the contrary, Rule 56(c) ... suggests the absence of such a requirement.

Celotex, supra, 477 U.S. at 323, 106 S.Ct. at 2553 (emphasis supplied).

The Sixth Circuit Court of Appeals, in Street v. J.C. Bradford and Co., 886 F.2d 1472 (6th Cir.1989) recently reviewed court decisions and commentary regarding the impact of Anderson, Celotex, and Matsushita on summary judgment practice. The court concluded that a "new era" in summary judgment practice has opened in the court system as a result of these opinions.

Scholars and courts are in agreement that a "new era" in summary judgments dawned by virtue of the Court's opinions in these cases ... On the whole, these decisions reflect a salutary return to the original purpose of summary judgments. Over the years, decisions requiring denial of summary judgment if there was even a suggestion of an issue of fact and tended to emasculate summary judgment as an effective procedural device.

Street, supra, at 1476.

The court enunciated the following "new era" principles, among others: as on federal directed verdict motions, the "scintilla" rule applies, i.e., the respondent must adduce more than a scintilla of evidence to overcome the motion; the respondent cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must "present affirmative evidence in order to defeat a properly supported motion for summary judgment"; the trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact. Id. at 1479-80 (footnotes and citations omitted).

Law and Analysis

The facts relevant to determine abatement of this action are undisputed. William Siko, Sr., the person who allegedly used the defendant currency as his illegal gambling "bank", shot his wife, one of his two sons and himself in July of 1991 at these persons' residence. The police investigating the crime scene found the defendant currency, seized it and a federal seizure warrant for the currency was issued by U.S. Magistrate Judge Streepy in September of 1991. The claimant in the instant matter is the surviving son of William Siko Sr., William Siko Jr.. Inasmuch as these fundamental facts are indisputable and that the challenged forfeiture is one provided for by federal law, the abatement of this cause is a pure question of federal common law. Baltimore & Ohio Ry. Co. v. Joy, 173 U.S. 226, 230, 19 S.Ct. 387, 389, 43 L.Ed. 677 (1899); Martin's Administrator v. Baltimore & Ohio Ry. Co., 151 U.S. 673, 14 S.Ct. 533, 38 L.Ed. 311 (1894); County of Oakland by Kuhn v. City of Detroit, 784 F.Supp. 1275, 1284-85 (E.D.Mich.1992).

As noted above, the claimant asserts on summary judgment that the forfeiture action afforded by Section 1955(d), Title 18, United States Code abated upon the death of the alleged wrongdoer, William Siko, Sr. This issue of one of first impression not only within this judicial district, but also, as the parties' and this court's research indicates, nationwide. Section 1955 provides, in pertinent part, as follows:

(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.

. . . . .

(d) Any property, including money, used in violation of the provisions of this section may be seized and forfeited to the United States....

28 U.S.C. § 1955 (emphasis added). The question here is whether this forfeiture provision abates upon the death of the alleged wrongdoer.

Whether a cause of action survives the death of the alleged wrongdoer hinges upon a determination that the cause is remedial or punitive in nature. The former causes survive, the latter do not. See, e.g., County of Oakland by Kuhn v. City of Detroit, 784 F.Supp. 1275, 1285 (E.D.Mich.1992). This principal was most forthrightly pronounced in the modern era in the Supreme Court case of Schreiber v. Sharpless, 110 U.S. 76, 3 S.Ct. 423, 28 L.Ed. 65 (1884). In that case, the Schreibers sued Mr. Sharpless "to recover certain penalties and forfeitures .. for the infringement of a copyright." Mr. Sharpless died after the filing of the complaint and the executrix opposed a motion to have her substituted as the named defendant. The district court denied the motion on the grounds of abatement. The Supreme Court agreed with that judgment, ruling:

The suit was not for the damages the plaintiffs had sustained by the infringement, but for the penalties and forfeitures recoverable under the Act of Congress for a violation of the copyright law. The personal representative of a deceased party to a suit cannot prosecute or defend the suit after his death, unless the cause of action, on account of which the suit was brought, is one that survives by law. At common law, actions on penal statutes do not survive and there is no Act of Congress which establishes any other rule in respect to actions on the penal statutes of

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