US v. ONE DLO MODEL A/C, 30.06 MACH. GUN

• Decision Date: 01 August 1995
• Docket Number: No. 5:93 CV 2306.,5:93 CV 2306.
• Citation: 904 F. Supp. 622
• Parties: UNITED STATES of America, Plaintiff, v. ONE DLO MODEL A/C, 30.06 MACHINE GUN, SERIAL NUMBER 86-70056, et. al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

904 F. Supp. 622

UNITED STATES of America, Plaintiff, v. ONE DLO MODEL A/C, 30.06 MACHINE GUN, SERIAL NUMBER 86-70056, et. al., Defendants.

No. 5:93 CV 2306.

United States District Court, N.D. Ohio, Eastern Division.

August 1, 1995.

Lynne H. Buck, James L. Morford, Office Of The U.S. Attorney, Cleveland, OH, for plaintiff.

Craig A. Marvinney, Reminger & Reminger, Cleveland, OH, pro se.

Timothy A. Shimko, Sr., Shimko & Associates, Cleveland, OH, James H. Jeffries, III, Greenboro, NC, for claimant.

MEMORANDUM OPINION

DOWD, District Judge.

I. Introduction

The Court has before it the motion of Plaintiff, the United States of America, (Docket No. 18) for issuance of a certificate of reasonable cause in connection with its failed seizure of 32 firearms from the residence of the successful claimant Louis E. Katona, III ("Mr. Katona"), and the competing motion of the claimant for an award of attorney fees and costs (Docket No. 36). A review of the procedural setting surrounding these competing motions is appropriate.

Three cases arose from the seizure of 32 firearms from the home of Louis E. Katona on May 8, 1992. On March 24, 1993, Mr. Katona filed a federal civil rights action, Case No. 5:93 CV 0638 ("civil action"), against Joseph Beran, the Chief of Police of the City of Bucyrus, Ohio, and three special agents of the Bureau of Alcohol, Tobacco, and Firearms ("BATF"), Lance Kimmell, Stephen St. Pierre and Stephen Wells. The three special agents sought the search warrant which they later used to seize the firearms (Claimant's Mot. to Hold in Abeyance and Memo. in Support, Docket No. 8, October 25, 1993, Affidavit of Mr. Katona, ¶ 15). This civil action is currently pending before this Court.

On September 14, 1993, almost six months after Mr. Katona initiated his civil action, he was indicted by a federal grand jury for having submitted forged signatures of Chief Beran in support of his applications to transfer ownership of the 32 seized firearms (Compl. ¶ 7), (Case No. 5:93 CR 0275, N.D.Ohio). Then, on October 28, 1993, the government initiated this forfeiture action as to the 32 seized firearms.

The criminal prosecution ended in Mr. Katona's favor on April 25, 1994, when Judge George White directed a verdict for Mr. Katona (Claimant's Mot. for Summary Judgment, Docket No. 15, Transcript of April 25, 1994, proceedings before Judge White). Subsequently, on June 3, 1994, the government moved to dismiss the forfeiture action (Docket No. 19) and contemporaneously moved for the issuance of a certificate of reasonable cause as to the seizure of the firearms pursuant to 28 U.S.C. § 2465 (Docket No. 18). This Court granted the motion to dismiss (Docket No. 33), but deferred a ruling on the motion for the issuance of a certificate of reasonable cause so as to consider it in relation to the claimant's motion for an award of attorney fees. When the Court granted the government's motion to dismiss the forfeiture action, it called for the return of the firearms (Docket No. 33); but delayed any ruling on the issues of fees and the issuance of a certificate of reasonable cause until Mr. Katona had the opportunity to depose the three BATF agents (Docket No. 32), and until the Court had given the parties the opportunity to supplement their respective positions on attorney fees and the certificate. Having received those responses, the Court now rules on the motions before it.

II. Background Facts

Louis E. Katona is a 34-year old resident of Bucyrus, Crawford County, Ohio (Oct. 25, 1993, Katona Aff., ¶ 1). He is married and he and his wife have two children (Oct. 25, 1993, Katona Aff., ¶ 2). Mr. Katona has no criminal record and had never been arrested or charged with any crime until the present indictment (Oct. 25, 1993, Katona Aff., ¶ 4). Mr. Katona is a licensed Realtor and an NRA-certified firearms instructor (Oct. 25, 1993, Katona Aff., ¶ 3). Mr. Katona served as a firearms instructor and an auxiliary member of the Bucyrus Police Department from April 1983 until September 14, 1988 (Oct. 25, 1993, Katona Aff., ¶ 3, ¶ 7). On May 9, 1988, Mr. Katona graduated from the Ohio Peace Officer Basic Training Program conducted by the Office of the Attorney General of Ohio, and has worked as a part-time officer of the New Washington, Ohio, Police Department since March 10, 1989 (Oct. 25, 1993, Katona Aff., ¶ 3).

Mr. Katona has had a lifelong interest in firearms and has been a competitive shooter, hunter and collector since he was young (Oct. 25, 1993, Katona Aff., ¶ 5). After he turned 21, Mr. Katona began to collect National Firearms Act firearms ("NFA firearms") (Oct. 25, 1993, Katona Aff., ¶ 5). NFA firearms are weapons such as machine guns, silencers, grenade launchers, land mines and tanks, which fall under the National Firearms Act ("NFA"), and are defined under Title 26 U.S.C. § 5845 (Plaintiff Attachs. to Memo. in Support of Mot. to Dismiss and/or for Summary Judgment, Docket No. 56, Transcript of proceedings before Judge George W. White, Case No. 5:93 CR 0275 ("Ct.Tr."), 73; Plaintiff Response to Claimant's Mot. for Summary Judgment, Docket No. 17, May 1992 Kimmell Aff., 1). Between 1982 and 1991, Mr. Katona acquired or made, and in a few instances sold, approximately 50 NFA firearms (Oct., 25, 1993, Katona Aff., ¶ 5). Mr. Katona contends that every NFA firearm that he has ever possessed was by a tax-paid transfer (Oct. 25, 1993, Katona Aff., ¶ 5). Mr. Katona's collection of NFA firearms has been appraised at more than $100,000 (Compl. ¶ 5). Mr. Katona states that he has used some of his NFA firearms to teach firearms safety and marksmanship to officers of the Bucyrus Police Department and to personnel of the Ohio Military Reserve (Oct. 25, 1993, Katona Aff., ¶ 5).

The BATF requires that in order to lawfully register NFA weapons defined under Title 26 U.S.C. § 5845, the applicant ("transferee") must complete and forward an application form to the BATF for approval prior to the transfer (May 1992 Kimmell Aff., 1). If the transferee is not a Federal firearms licensee (an authorized manufacturer of NFA firearms), then the transferee must obtain the approval and signature on the application form of a chief law enforcement officer having jurisdiction in the area of residence of the transferee (May 1992 Kimmell Aff., 1).¹ This form states that "the transferee must sign the Applicant Certification ... in the presence of the law enforcement officer signing ... below" (Ct.Tr., Exs.). By his signature, the chief law enforcement officer declares that he has "no information indicating that the transferee will use the firearm or device described on this application for other than lawful purposes" (Ct.Tr., Exs.)

Mr. Katona testified that between 1982 and September of 1986, he acquired at least ten NFA firearms (Oct. 25, 1993, Katona Aff., ¶ 6). When Mr. Katona bought his first NFA firearm in 1982, Sheriff Ron J. Shawber, Sheriff of Crawford County, Ohio, signed the application form for him (Oct. 25, 1993, Katona Aff., ¶ 6; Ct.Tr., 52). After Mr. Katona became an auxiliary policeman on the Bucyrus Police Department in April of 1982, he submitted his BATF forms to the Chief of Police for whom he was working (Oct. 25, 1993, Katona Aff., ¶ 6). At first this was Chief Charles D. McDonald, and from 1986 onward it was Chief Joseph Beran (Oct. 25, 1993, Katona Aff., ¶ 6). At the criminal trial before Judge White, Case No. 5:93 CR 275, Chief Beran testified that prior to Mr. Katona's resignation from the Bucyrus police force in September of 1988, Chief Beran signed between six and eight forms for Mr. Katona (Ct.Tr., 97).

At the end of the summer of 1988, Mr. Katona and Chief Beran had a disagreement that eventually led to Mr. Katona's resignation from the Bucyrus auxiliary police force in September of 1988. At the end of July or the beginning of August of 1988, Mr. Katona's father, Louis E. Katona Jr. ("Mr. Katona Jr."), attended a gun show in Mansfield, Ohio, where he bought for Louis Katona an antique gold-plated badge inscribed "Chief — Bucyrus Police" (Oct. 25, 1993, Katona Aff., ¶ 7). Mr. Katona learned that it had belonged to the first police chief of Bucyrus (Oct. 25, 1993, Katona Aff., ¶ 7). When Chief Beran saw the badge, he said that "it would make a good wallet badge" (Ct.Tr., 208-209; Oct. 25, 1993, Katona Aff., ¶ 7). Mr. Katona offered to make a historical display of the badge with the photograph of the first chief and present it to the city of Bucyrus (Oct. 25, 1993, Katona Aff., ¶ 7). Chief Beran subsequently stated that he had discovered that the badge had been reported stolen and that Mr. Katona should return it to the family (Ct.Tr., 207-208; Oct. 25, 1993, Katona Aff., ¶ 7). Mr. Katona testified that he believed that Chief Beran wanted the badge for himself, and that the tension between himself and the Chief over the matter became so bad that Mr. Katona decided to resign as an auxiliary policeman on September 14, 1988 (Oct. 25, 1993, Katona Aff., ¶ 7).

Several years later, in March of 1991, Sheriff Ron Shawber called the BATF and spoke to Agent Tom Scoufis (Ct.Tr., 53-54). Sheriff Shawber testified that he called because he discovered that there was an automatic weapon and possibly a silencer in Crawford County and was concerned about who signed the NFA transfer forms for the weapons (Ct.Tr., 54-55). Sheriff Shawber explained that sometime prior to 1984, he and the other chiefs within Crawford County (which includes the city of Bucyrus) had agreed that they would not sign any more of the forms, so he wondered if someone without authority had signed the forms for the two weapons that had appeared (Ct.Tr., 55). Agent Scoufis testified that Sheriff Shawber also expressed his general concern involving the X-Ring Custom Shop, a store owned by Louis E. Katona Jr., who at the time was a federally-licensed firearms dealer (Ct.Tr., 70-71; Plaintiff Ex.Index, Docket No. 57, March 14, 1994, Declaration of Louis E. Katona...