US v. Premises located at 207 W. Washington St., Civ. A. No. 89-AR-5451-NW.

• Decision Date: 12 March 1990
• Docket Number: Civ. A. No. 89-AR-5451-NW.
• Citation: 732 F. Supp. 1128
• Parties: UNITED STATES of America, Plaintiff, v. PREMISES LOCATED AT 207 WEST WASHINGTON STREET, ATHENS ALABAMA, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

732 F. Supp. 1128

UNITED STATES of America, Plaintiff, v. PREMISES LOCATED AT 207 WEST WASHINGTON STREET, ATHENS ALABAMA, et al., Defendants.

Civ. A. No. 89-AR-5451-NW.

United States District Court, N.D. Alabama, Northwestern Division.

March 12, 1990.

Frank W. Donaldson, James D. Ingram, Office of the U.S. Atty., Birmingham, Ala., for plaintiff.

Louie Lee Sims, Jr., Oliver & Sims, Alexander City, Ala., William K. Hewlett, Hewlett Black & Marks, Tuscumbia, Ala., J. Stephen Salter, Birmingham, Ala., Harvey B. Morris, Morris Smith Siniard Cloud & Fees, P.C., Huntsville, Ala., John E. Higginbotham, Higginbotham & Whitten, Florence, Ala., J. Paul Lowery, Montgomery, Ala., H. Thomas Heflin, Jr., Munsey Ford & Heflin, Tuscumbia, Ala., for defendants and claimants.

Gerald B. Hooper, Muscle Shoals, Ala., pro se.

Betty Jo Hooper, Muscle Shoals, Ala., pro se.

MEMORANDUM OPINION

ACKER, District Judge.

This is a civil forfeiture proceeding filed by the United States of America on September 25, 1989, pursuant to 18 U.S.C. § 1955(d). The complaint described four separate parcels of real property situated within the Northern District of Alabama and alleged to have been used to conduct or to facilitate a gambling business. The initial complaint was verified by the affidavit of Stephan F. Weishaupt, special agent, Federal Bureau of Investigation, based on information which largely, if not entirely, constituted hearsay. Nevertheless, it was sufficient to furnish the basis for an order entered by this court on October 4, 1989, finding the existence of probable cause to believe that the defendant properties "are subject to forfeiture." (emphasis supplied). This finding did not purport to constitute a final adjudication of "probable cause." Pursuant to this court's order of October 4, 1989, the properties were thereupon arrested or seized by the government and appropriate notices were then given to the potential claimants to the parcels.

On October 19, 1989, two weeks after entry of the order of October 4, 1989, the United States amended its complaint and altered the legal descriptions of Parcel 3 and Parcel 4. The United States at that time neither sought nor obtained another or an amended order from this court or another or an amended arrest warrant from the Clerk. The amendment of October 19, 1989, was verified only by an Assistant United States Attorney, based totally upon hearsay.

The four parcels and the persons claiming to own them filed answers and claims. Inter alia, those answers expressly denied the complaint's averment that the United States had "probable cause" for instituting the forfeiture proceeding. This automatically placed the burden of proving "probable cause" on the United States as to each separate parcel, after which, if the United States is successful in passing the "probable cause" threshold, the burden of proving innocence or lack of knowledge will be upon the various claimants.

On October 27, 1989, this court entered the scheduling order mandated by Rule 16(b), F.R.Civ.P., in all civil cases. Inter alia, the said order required that discovery be completed "on or before March 30, 1990." It further required that any party who had any objection to the order must notify the court of the objection or suggested modification within fourteen (14) days. No party filed any objection to or suggested modification of the Rule 16(b) schedule within the said 14-day period, nor has any party moved for a modification since that time.

On January 4, 1990, this court entered an order requiring the United States to show cause by January 19, 1990, if it could do so, why the title issue as to each of the four separate parcels should not be tried separately pursuant to the jury demands filed by the several claimants, that is, "after the United States has put on its evidence at a non-jury trial proving the existence of `probable cause.'" The same order required the United States to show cause on or before January 19, 1990, if it could do so, why it should not release to claimants, Thomas B. Smith and/or Andy Smith, the large sum of cash and securities which the Smiths had claimed the United States seized at the time of the seizure of Parcel 4. Lastly, the same order set the case for a pre-trial conference on January 19, 1990, and set the "probable cause" hearing for March 30, 1990.

On January 18, 1990, the United States moved to continue the pre-trial conference of January 19, 1990, on the ground that the United States anticipated dismissing one or two of the parcels and anticipated consolidating the forfeiture of Parcel 4 "with another forfeiture action against certain monies involving the same claimants in the same gambling business" (ostensibly, the monies previously claimed by the Smiths). This motion of January 18, 1990, did not request a continuance of the "probable cause" hearing of March 30, 1990, and did not seek a stay of the entire proceeding.

On January 18, 1990, the United States also responded to this court's show cause order by saying that it had no objection to separate trials for the separate parcels and that it already had, on January 12, 1990, filed a separate forfeiture proceeding in this court against the large sum of cash and securities seized from the Smiths. The said case was referred to by number, CV 90-HM-5018-NW.

Since January 18, 1990, the United States has, despite its voiced anticipation, not sought the consolidation of CV 90-HM-5018-NW with this case. Instead, on February 20, 1990, the United States again moved for a continuance of the pre-trial conference which had already been rescheduled for February 21, 1990. This court granted the motion in view of the contemporaneous dismissal by the United States of Parcel 3, thus narrowing the scope of the issues and eliminating a claimant. That dismissal was based on the allegation that "this forfeiture action against this parcel is no longer in the best interests of the United States."

Meanwhile, on January 22, 1990, the Smiths filed their first request to the United States for production of documents and things. Within the 30-day period for responding or objecting provided by Rule 34(b), F.R.Civ.P., the United States neither filed objections to this discovery request nor any objection nor any motion for a protective order. After the United States failed timely to respond, the Smiths filed a motion to compel on February 22, 1990.

On February 20, 1990, not only did the United States dismiss Parcel 3 and move for a continuance of the pre-trial conference then scheduled for February 21, 1990, but for the first time moved to stay the entire proceeding, including the "probable cause" hearing scheduled for March 30, 1990, on the grounds (1) that "the related criminal investigation into the alleged illegal gambling business that serves as the basis for the present forfeiture action is still ongoing", (2) that "the evidence that serves as probable cause in this action is presently being analyzed at FBI headquarters, Washington, D.C., and is unavailable to plaintiff's co...