US v. WHITE 1981 RACE CORVETTE, Civ. No. S 87-747.

• Decision Date: 26 January 1989
• Docket Number: Civ. No. S 87-747.
• Citation: 704 F. Supp. 872
• Parties: UNITED STATES of America, Plaintiff, v. WHITE 1981 RACE CORVETTE WITH NO PUBLIC OR CONFIDENTIAL VEHICLE IDENTIFICATION NUMBERS ("VIN"); Burned 1978 Corvette with no Public Vin; Burned 1985 GMC Safari Van with no Public Vin; 1982 Datsun Truck Frame and Running Gear (No Body), with no Vin; Two (2) Black Quarter Body Panels from a Late Model Chevrolet Blazer or Ford Bronco no Identifying Numbers; Late Model Red Ford Mustang Parts, no Identifying Numbers; General Motors Corporation Eight (8) Cylinder Engine (Year Unknown) with Factory Serial Numbers Ground Off; 1984 Black and Silver GMC Pickup Truck with a Chevrolet Cab (Year Unknown) Displaying Public Vin 1GTGK24J6EF711505; and Jeep Scrambler (Year Unknown) with no Public Vin, Body Tag Identification Number From a 1977 Jeep J7F93AA080932 and a Confidential Frame Number BT005059, Defendants.
• Court: U.S. District Court — Northern District of Indiana

704 F. Supp. 872

UNITED STATES of America, Plaintiff, v. WHITE 1981 RACE CORVETTE WITH NO PUBLIC OR CONFIDENTIAL VEHICLE IDENTIFICATION NUMBERS ("VIN"); Burned 1978 Corvette with no Public Vin; Burned 1985 GMC Safari Van with no Public Vin; 1982 Datsun Truck Frame and Running Gear (No Body), with no Vin; Two (2) Black Quarter Body Panels from a Late Model Chevrolet Blazer or Ford Bronco no Identifying Numbers; Late Model Red Ford Mustang Parts, no Identifying Numbers; General Motors Corporation Eight (8) Cylinder Engine (Year Unknown) with Factory Serial Numbers Ground Off; 1984 Black and Silver GMC Pickup Truck with a Chevrolet Cab (Year Unknown) Displaying Public Vin 1GTGK24J6EF711505; and Jeep Scrambler (Year Unknown) with no Public Vin, Body Tag Identification Number From a 1977 Jeep J7F93AA080932 and a Confidential Frame Number BT005059, Defendants.

Civ. No. S 87-747.

United States District Court, N.D. Indiana, South Bend Division.

January 26, 1989.

Thomas Plouff, Asst. U.S. Atty., South Bend, Ind., for plaintiff.

Robert M. Edwards, Jr., South Bend, Ind., for Hamilton Body Shop.

Tom Potter, South Bend, Ind., pro se claimant.

Dennis Podell, Leavenworth, Kan., pro se claimant.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

Plaintiff United States has motioned for partial summary judgment in its favor against claimants Tom Potter and Dennis Podell. This action involves a civil forfeiture proceeding pursuant to 18 U.S.C. § 512.¹ This court's jurisdiction is based on 28 U.S.C. §§ 1345 and 1355.² For reasons set forth below, plaintiff's motion for partial summary judgment is GRANTED.

I.

A verified "Complaint for Forfeiture" was filed by plaintiff with this court on December 22, 1987. Five summonses were issued via certified mail, including one to Tom Potter, one to Hamilton Body Shop, Inc., and one to Dennis Podell, which notified parties named therein of their obligation to file with the Clerk of this court a verified claim within ten (10) days of service of the summons and to file an answer to the complaint within twenty (20) days thereafter. The summonses also stated that failure to do so would result in a default judgment in favor of plaintiff. The summonses were returned to this court executed as to Dennis Podell on December 28, 1987, as to Tom Potter sometime before December 24, 1987, and as to Hamilton Body Shop, Inc. on December 24, 1987. "A Warrant of Arrest in rem" was issued by this court on January 11, 1988, which ordered the United States Marshal for the Northern District of Indiana to take into custody the defendant property described in the complaint. Claims were filed with this court by Hamilton Body Shop, Inc. on January 4, 1988, by Dennis Podell on January 13, 1988 and by Tom Potter on January 14, 1988. Answers were filed by Hamilton Body Shop on January 13, 1988 and by Dennis Podell on January 13, 1988. Tom Potter never filed an answer. The claim of Hamilton Body Shop was properly verified as required by Supplemental Rule C(6), Fed.R.Civ.P.³ The claim of Tom Potter was not verified. Dennis Podell attempted to properly verify his claim but plaintiff challenged said verification. Podell later filed an amended claim with proper verification. Notice of the forfeiture proceeding was published in the South Bend Tribune as required by law for three (3) consecutive weeks starting January 19, 1988.

Plaintiff's initial motion for partial summary judgment was filed on June 23, 1988. Plaintiff at that time alleged that this court should grant said motion against claimants Podell and Potter because they had failed to follow the procedure outlined in Supplemental Rule C(6) of the Federal Rules of Civil Procedure (Fed.R.Civ.P.). On July 8, 1988, plaintiff moved this court to defer ruling on its motion for partial summary judgment because it had discovered that the United States Marshal had never executed the warrants of arrest in rem. The warrants were soon executed and the legal notice procedure was repeated by means of newspaper publication for three (3) consecutive weeks beginning July 22, 1988. Plaintiff filed its second motion for partial summary judgment on August 23, 1988. Plaintiff's contention in this second motion was first, that it was entitled to summary judgment as against Tom Potter because Potter failed to meet the procedural requirements of Supp. Rule C(6), Fed.R. Civ.P. and second, that it was entitled to summary judgment as against Dennis Podell on the merits. Plaintiff conceded that Podell had met the procedural requirements of Rule C(6). Podell has filed a response to the partial motion for summary judgment and plaintiff submitted its reply on November 1, 1988. On January 10, 1989, plaintiff moved this court to rule on its motion for partial summary judgment as soon as possible because the government is incurring bills of approximately $558.00 per month for storage of defendant property. This court agrees that the matter should be ruled upon at this time.

II.

Because 18 U.S.C. § 512 is a relatively new statute (1984) with virtually no case law interpretation, this court will first discuss the statute as it relates to judicial forfeiture in general. Judge Flaum provided an excellent summary of a judicial forfeiture proceeding in United States v. United States Currency in the Amount of $2,857.00, 754 F.2d 208 (7th Cir.1985), which is set forth below:

A judicial forfeiture proceeding is a civil action in rem. The United States attorney for the district where the seizure occurred commences a judicial forfeiture proceeding by filing a complaint as described in Supplemental Rule C(2). The complaint must describe with reasonable particularity the property that is the subject of the action, must state the place of seizure, and must contain any allegations required by the statute pursuant to which the action is brought. See Fed.R.Civ.P., Supp. Rule C(2).

Upon the filing of a complaint, the clerk of the district court issues a warrant for the arrest of the property that is the subject of the action. See Fed.R. Civ.P., Supp. Rule C(3). By order of the court, the plaintiff then must publish notice of the action and arrest in a newspaper of general circulation in the district. The notice must specify the time within which an answer is to be filed as provided by Rule C(6). See Fed.R.Civ.P., Supp. Rule C(4).

Any claimant of property that is the subject of a judicial condemnation proceeding must file a claim within ten days after process has been executed or within such additional time as may be allowed by the court, and must file an answer within twenty days after the filing of the claim. See Fed.R.Civ.P., Supp. Rule C(6). The claim "shall be verified on oath or solemn affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action." Id. Once the procedural requirements of Rule C(6) are met, a claimant has standing to defend the forfeiture.

Id. at 212-213. The Supplemental Rules for Certain Admiralty and Maritime Claims specifically apply to "the procedure in statutory condemnation proceedings analogous to maritime actions in rem, whether within the admiralty and maritime jurisdiction or not." Supp. Rule A, Fed.R. Civ.P. See United States v. U.S. Currency in the Amount of $103,387.27, 863 F.2d 555, 558 n. 4 (7th Cir.1988) citing United States v. U.S. Currency in the Amount of $2,857.00, 754 F.2d 208, 210 n. 2 (7th Cir. 1985); United States v. $5,372.85 U.S. Coin and Currency, 283 F.Supp. 904, 905-06 (S.D.N.Y.1968) (discussing historical connection between actions in forfeiture and admiralty law). Therefore, the procedural requirements of Supp. Rule C(6), Fed. R.Civ.P., must be met by potential claimants in a § 512 forfeiture proceeding.

This court is aware of only one published opinion which has attempted an interpretation of Title 18 U.S.C. § 512, the statute on which plaintiff has based its cause of action. The case is United States v. One 1978 Mack Glider Kit Tractor, 653 F.Supp. 964 (D.Conn.1987), written by Judge Dorsey. He noted that the case was one of first impression and proceeded to write:

Title 18 U.S.C. §§ 511 and 512 were passed to deter and punish those who steal cars in order to resell them whole or disassemble them and sell the component parts ("chop shop operations").

Section 511(a) provides that "whoever knowingly removes, obliterates, tampers with, or alters an identification number for a motor vehicle, or motor vehicle part, shall be fined not more than $10,000 or imprisoned not more than five years, or both." Clearly, § 511 was intended to be applied only to those who knowingly violated the Act. See Motor Vehicle Theft Law Enforcement Act of 1984, House Report No. 98-1087, reprinted in 1984 U.S. Code Cong. & Adm. News 4628, 4649-50. The legislative history, however, does not shed any light on the interpretations of § 512 except to note that that section was considered and passed along with § 511.

"The basic nature of a forfeiture proceeding is in rem, reflecting the legal fiction that the property ... is guilty of facilitating the crime or itself the fruit of the criminal enterprise." United States v. One Mercedes-Benz 380, 604 F.Supp. 1307, 1312 (S.D.N.Y.1974), aff'd without opinion, 762 F.2d 991 (2d Cir. 1985). Section 512 is closely analogous to 21 U.S.C. § 881(a)(4). Courts which have interpreted the latter statute uniformly hold that, once the Act has been shown to have been violated, "it is the claimant's burden to prove that the forfeiture does not fall properly within the Act." United States v. One 1976 Buick Skylark, 453 F.Supp. 639, 642 (D.Colo. 1978); One Mercedes-Benz 380, 604 F.Supp. at 1311-12 (construing 21 U.S.C. § 881(a)(4); "Once the Government has established probable cause for seizure of the vehicle, the burden falls upon the claimant to show that the vehicle should be absolved from culpability, or establish that forfeiture is not properly within the

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