IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) CIVIL ACTION NO. 5:93CV2306 ) ONE DLO MODEL A/C, 30.06 ) JUDGE DAVID D. DOWD, JR. MACHINE GUN, etc., et al., ) ) Defendants, ) ) v. ) ) LOUIS EDWARD KATONA, III, ) ) Claimant. ) CLAIMANT'S OPPOSITION TO THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT Now comes claimant Louis E. Katona, III, by undersigned counsel, and opposes the government's motion for summary judgment on the grounds that there exist genuine issues of material fact which preclude judgment for the government, and the government is not entitled to judgment as a matter of law. Additionally, the claimant cross moves for summary judgment in his own favor and against the government on the grounds that there are no genuine issues of material fact precluding judgment in his favor and that he is entitled to judgment as a matter of law. A memorandum of law in support of this opposition and cross-motion is submitted in compliance with Local Rules 2:2.1 and 8:8.1. JAMES H. JEFFRIES, III (North Carolina Bar No. 18502) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (910) 282-6024 Counsel for Claimant MEMORANDUM IN OPPOSITION TO THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF CLAIMANT'S CROSS-MOTION FOR SUMMARY JUDGMENT This memorandum is submitted in compliance with Local Rules 2:2.1 and 8:8.1. OPPOSITION TO THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT As reflected by his cross-motion for summary judgment below, the claimant, Louis E. Katona, III, agrees with the government that this matter is susceptible of summary adjudication. However the claimant opposes the government's motion for summary judgment on the grounds that there are genuine issues of material fact precluding judgment in favor of the government, and the government is not entitled to judgment as a matter of law. At the outset we would note some serious logical fallacies in the government's reasoning supporting its motion for summary judgment. The government's brief emphasizes the distinction between the claimant's guilt or innocence and that of the defendant firearms, and then assumes the guilt of the firearms![FN1] In the peculiar circumstances of this case we have difficulty in separating the innocence of the claimant from the innocence of his firearms. Mr. Katona is indisputably innocent of the charges in the indictment (which were exactly tracked by the charges against the firearms in this case). The verdict in favor of the claimant in his criminal case was not "defendant innocent; guns guilty," nor a Scotch verdict of "not proved." The verdict was innocent, period, full-stop, end of case. If the government believed that there was nevertheless a case remaining against the firearms, it could have pursued that verdict in this action. It chose instead to cut and run. The defendant guns at that instant stood untainted, unchallenged and unconvicted. And unless something has happened to the presumption of innocence since this case was dismissed, they remain so. Thus the same lack of probable cause to believe that the claimant violated the law undercuts any contention that there was nevertheless probable cause that the firearms were in violation of law.[FN2] The government now presses for summary judgment here because of its agents' alleged immunity from liability and discovery in the civil tort suit.[FN3] This is a total non sequitur. Being a defendant in a Bivens action confers no testimonial immunity in other actions. By this logic agent Kimmell and his co-defendants would have been immune from testifying in the criminal case, or even in this case had it proceeded to trial. The government brought this action. The government also seeks to derive collateral immunity for its agents in another suit, even after "voluntarily" dismissing this one. It should not be permitted to have its cake and eat it too. The government continues to press the argument that the search warrant issued on May 7, 1992 for the Katona residence was based upon "probable cause" to believe that crimes had been committed and that there was, therefore, "reasonable cause" for the seizure (and attempted forfeiture) of the subject firearms. It further contends that the claimant cannot, in the words of this Court in its Order of March 8, 1995, demonstrate that the agents "failed to maintain an objectively reasonable belief that probable cause for seizure existed." Id. at p. 10. There is credible evidence that by the end of the May 8, 1992, search the BATF agents had powerful reasons to doubt the existence of probable cause for their search, if indeed they ever maintained such a belief. However, May 8, 1992, is not the date on which the government's knowledge[FN4] is to be tested. The May 8, 1992, seizure was an evidentiary seizure which did not purport to, and could not have, divested ownership of the seized firearms from their owner nor invested their ownership in the United States. No title passed on that date; only possession of the firearms changed, and that only for the limited purpose of their use as evidence.[FN5] Given the value of the firearms, the only manner in which the United States could have acquired title was through a judicial forfeiture proceeding. 26 U.S.C. section 7323. The critical date for testing the government's knowledge is, rather, October 28, 1993, the date the United States commenced this forfeiture action by verified complaint in which government counsel swore that "The foregoing Complaint is based upon information officially provided to me and is true as I verily believe." Complaint, Verification.[FN6] In United States v. Parcels of Property, etc., 9 F.3d 1000 (1st Cir. 1993), a drug forfeiture case under 21 U.S.C. section 881, the Court of Appeals emphasized that Section 1615 of Title 19, United States Code, made applicable to drug forfeiture cases, required probable cause to be shown by the government for the institution of the forfeiture suit.[FN7] Despite the fact that valid search warrants had preceded that forfeiture action, the court stated: In other words, under section 1615, the government has a preliminary burden to show that it had probable cause to institute the forfeiture proceeding. See, e.g., United States v. 1988 Oldsmobile Cutlass Supreme, 983 F.2d 670, 675 (5th Cir.1993) (affirming district court's finding that government had "probable cause to institute a forfeiture action") (emphasis supplied); United States v. One Hundred Forty-Nine Thousand Four Hundred Forty-Two and 43/100 Dollars, 965 F.2d 868, 876 (10th Cir.1992) ("In forfeiture proceedings, the government bears the initial burden to show probable cause for the institution of the forfeiture action") (emphasis supplied); United States v. 526 Liscum Drive, 866 F.2d 213, 216 (6th Cir.1989) ("[O]nce the government has met its burden of showing probable cause to institute the forfeiture action, the burden then shifts to the claimant....") (emphasis supplied); United States v. One 1976 Ford F-150 Pick-Up, 769 F.2d 525, 526 (8th Cir. 1985) ("[T]he government has the initial burden of showing probable cause for the institution of the forfeiture suit.") (citations and internal quotations omitted and emphasis supplied). 9 F.3d at 1003-1004 (emphases in original). It is understandable that the government would attempt to deflect the Court's attention to what was known by the government on May 8, 1992, as the test of probable or reasonable cause in this action. Although we think it clear that the government had sufficient knowledge on that date to seriously question its "probable cause," by some sixteen months later, on October 28, 1993 -- the date of instituting this action -- the government had compelling evidence that it lacked reasonable cause to commence a judicial forfeiture action against the firearms. Before the completion of the raid on May 8, 1992, the government agents knew the following: 1. Mr. Katona had no criminal record.[FN8] 2. Mr. Katona was a part-time police officer of the New Washington, Ohio, Police Department and a former auxiliary member of the Bucyrus Police Department, where he had been a subordinate of the government's only informant, Chief Joe Beran.[FN9] 3. Mr. Katona had previously cooperated with BATF and agent Kimmell by loaning the government a firearm for use in evidence in an unrelated proceeding and by providing a sworn statement and documentation pertaining to purchase of the firearm.[FN10] 4. Mr. Katona was gainfully employed in the family real estate business.[FN11] He had a good reputation in the community.[FN12] 5. Mr. Katona was a person of means who owned a very valuable collection of federally-registered National Firearms Act firearms.[FN13] 6. Mr. Katona resided in a new home in an upscale neighborhood and drove an expensive late-model automobile.[FN15] 7. The government's sole informant, Chief Joe Beran, admitted to having previously approved as many as a dozen BATF transfer forms for Mr. Katona.[FN15] Beran also acknowledged that Mr. Katona had later presented him with a stack of additional forms for his signature, although he denied signing them.[FN16] Beran's denial of his signature on the disputed transfer forms was keyed to the dates beside the signatures.[FN17] Mr. Katona, at the time of the raid, informed the agents that Chief Beran had previously signed a stack of transfer forms for him in blank. No forensic test of the signatures on the disputed documents was conducted before seeking the search warrant.[FN18] 8. Mr. Katona had previously resigned from the Bucyrus Police Department auxiliary in a dispute with Chief Beran over an antique badge.[FN19] 9. Chief Beran was known to at least one of his officers, Patrolman Jerry Agee, as a vengeful man who always got even.[FN20] Beran was further considered by Agee to be a felon, a crook, a drunk and a child molester.[FN21] Beran had a dreadful reputation in the community in Agee's opinion.[FN22] Agee was not a friend of Katona at the time and, in fact, did not like him.[FN23] 10. These facts were sufficient to cause one of the BATF agents to state to Patrolman Agee that it appeared that BATF had gotten itself into something it should not be involved in and that the agent felt BATF was being used.[FN24] He was advised by Agee that he was absolutely correct and that BATF was being used by Chief Beran.[FN25] This combination of facts, known to the government on May 8, 1992, before the completion of the raid, raises material questions of fact whether agent Kimmell "knowingly or recklessly falsified information in the [search warrant] affidavit or ... could not have maintained an objectively reasonable belief that probable cause existed for the search and seizure of the firearms." Summary judgment for the government would therefore not be appropriate based on the existence of this genuine issue of material fact. On October 28, 1993, the date this action was filed, and the date on which the government's probable cause to seek forfeiture must be gauged, the government was enormously better informed about the deficiencies in its investigation.[FN26] 1. On October 28, 1993, the government knew it had botched its two earlier attempts at administratively forfeiting the firearms (because of their appraised value and the restrictions imposed by 26 U.S.C. sections 7323 and 7325), and it knew (or was legally charged with knowing) that the statute of limitations on commencing a forfeiture action had expired almost 13 months previously. 18 U.S.C. section 924(d)(1). 2. By that date the government knew that Mrs. Katona had suffered a miscarriage immediately following the May 8, 1992, raid. Katona, et ux. v. Beran, et al., Civil No. 5:93CV00638 (USDC N.D. Ohio, E.D.). 3. By that date the government knew that the Katonas had commenced a Federal Tort Claims Act proceeding against the United States and a Bivens action against the individual BATF agents. Ibid. 4. By that date the government knew that Mr. Katona possessed his own original counterparts of the disputed transfer forms, including several signed-in-blank by Joe Beran, and that they had been produced voluntarily to the United States after extensive testing by Mr. Katona's forensic experts. 5. The government knew that Mr. Katona had retained two preeminent forensic experts, both former FBI laboratory chiefs, as document and fingerprint examiners. 6. The government knew that the defense was aggressively pursuing the question of latent fingerprints on the disputed documents. It knew that it had bungled (or intentionally prevented) any possibility of a successful fingerprint examination of its own documents by neglecting to preserve their forensic sterility, despite numerous demands by the defense that it do so. It refused to produce fingerprint exemplars of Chief Beran to the defense, falsely denying possession of them when, in fact, Beran's fingerprints were on record with the Air Force and the FBI for many years prior to the demand.[FN27] 7. The government knew that both its questioned document examiner and the defendant's document expert agreed that of 81 questioned documents (on all of which Beran swore his signature was forged), there were indications that Beran was the author of 25, and was not the author of the remaining 56. Nor could either expert point to Mr. Katona (or any other person) as the likely author of the remaining 56 signatures. Mr. Katona's expert was prepared to further testify that Katona's attempted simulations of the "Joe Beran" signature bore significant and demonstrable differences from the forgeries. Beran only denied his own signature; he had no information as to who might have signed his name to the forms. In short, the government had no evidence that Louis E. Katona, III, signed any of the forms or that he knew any of them were signed by anyone other than Beran.[FN28] Despite the Keystone Kops nature of its criminal case on October 28, 1993, the government had the unmitigated gall to bring the present action and to continue to urge that there was reasonable cause for it. There was not and the Court should deny the motion for summary judgment. CLAIMANT'S CROSS-MOTION FOR SUMMARY JUDGMENT The government has created a procedural quagmire in this case by coupling an untimely and invalid judicial forfeiture with a failed criminal prosecution and then attempting to avoid the harmful consequences of its actions (the taxing of attorneys' fees and Federal Tort Claims Act and Bivens liability) by non-suiting the forfeiture but seeking refuge in the hold-harmless provision of 28 U.S.C. section 2465. Further complicating the matter before the Court -- and further incentive for the government's ploy -- is the pendency of the related tort suit by the claimant and his wife against the government agents who seized the claimant's firearms and initiated his unsuccessful criminal prosecution. The issues before the Court appear to be: 1. Do the provisions of 18 U.S.C. section 924(d) apply to attempted government forfeitures of National Firearms Act firearms? 2. If so, may an otherwise appropriate award of attorney fees under 18 U.S.C. section 924(d) be precluded by the issuance of a certificate of reasonable cause under 28 U.S.C. section 2465? 3. If not, and in any event, is the government entitled to a certificate of reasonable cause under the circumstances of this case? We believe the Court can approach this procedural Gordian's knot from either of two directions: it can first resolve the question of the availability and propriety of a certificate of reasonable cause vel non and then proceed to the question of the applicability of 18 U.S.C. section 924(d); or it can determine the applicability of 18 U.S.C. section 924(d) and then, if still appropriate, proceed to the reasonable cause certification. We believe the latter rather than the former methodology is the logical course because under the first approach the Court will inevitably have to wrestle with, interpret and reconcile both statutes, whereas under the second course the Court will likely have to interpret only one statute. Put another way, if 18 U.S.C. section 924(d) applies to this case, then the 120-day statute of limitations found in 18 U.S.C. section 924(d)(1) barred this action and the Court would have no jurisdiction to issue a certificate of reasonable cause. It is axiomatic that statutes of limitation are jurisdictional. It would therefore be a complete waste of the Court's time and resources to hack its way through the factual thicket of "reasonable cause" only then to still be faced with the issue of jurisdiction. Conversely, if 18 U.S.C. section 924(d) applies to this action, then no consideration under 28 U.S.C. section 2465 is necessary or possible. Moreover, even if the Court were to first determine that a certificate of reasonable cause should issue in this case, that determination would not resolve the claimant's attorney fee issue. Attorney fees are not "costs" as that term is used in 28 U.S.C. section 2465,[FN29] and are not precluded by issuance of a certificate of reasonable cause. See United States v. Parcels of Real Property, etc., 795 F.Supp. 1225 (Mass. 1992), aff'd on other grounds, 9 F.3d 1000 (1st Cir. 1993). And, even if the term "costs" as used in Section 2465 was determined to have originally included attorney fees, that interpretation was repealed by implication by enactment of 18 U.S.C. section 924(d)(2)(A). It is a fundamental tenet of statutory construction that where two statutes conflict, the later in time prevails. Section 2465 of Title 28 is almost 200 years old. Section 924(d) of Title 18 was enacted as part of the Firearm Owners' Protection Act of 1986 ("FOPA").[FN30] Indeed, FOPA has been held to have repealed other inconsistent federal statutes.[FN31] Thus, even if the Court determined that a certificate of reasonable cause should issue in this case, the mandate of 18 U.S.C. section 924(d)(2)(A) is clear and an award of attorney fees would still be required. SUMMARY The Court should first determine the applicability of 18 U.S.C. section 924(d) to this action. If that section applies, then this action was untimely and a nullity when filed and there is no jurisdiction to issue a certificate of reasonable cause. Claimant would also be entitled to an award of attorney fees. Even if the Court should first resolve the certificate of reasonable cause issue, the government is not entitled to summary judgment on that issue and its motion should be denied. Even if the Court should determine to issue a certificate of reasonable cause, the claimant would nevertheless be entitled to an award of attorney fees pursuant to 18 U.S.C. section 924(d)(2)(A). CONCLUSION For all the foregoing reasons the Court should deny the government's motion for summary judgment and either enter summary judgment for the claimant or proceed to the evidentiary hearing scheduled for May 5, 1995. It should in either event enter judgment for the claimant for an award of attorney fees. Respectfully submitted, JAMES H. JEFFRIES, III (North Carolina Bar No. 18502) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (910) 282-6024 Counsel for Claimant CERTIFICATE OF SERVICE I, James H. Jeffries, III, counsel for the claimant Louis Edward Katona, III, hereby certify that service of the foregoing Claimant's Opposition to the Government's Motion for Summary Judgment and Cross-motion for Summary Judgment and Memorandum in Support has been made upon the United States this 12th day of April, 1995, by mailing true copies, postage prepaid, to James L. Morford, Esquire, and Lynne H. Buck, Esquire, Assistant United States Attorneys, 1800 Bank One Center, 600 Superior Avenue, East, Cleveland, Ohio 44114-2600. JAMES H. JEFFRIES, III (North Carolina Bar No. 18502) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (910) 282-6024 Counsel for Claimant DECLARATION OF JAMES H. JEFFRIES, III 1. I am a lawyer with offices at 3019 Lake Forest Drive, Greensboro, North Carolina 27408, and a member since 1969 of the Bar of this Court. I make this declaration pursuant to 28 U.S.C. section 1746 as defense counsel in claimant's criminal prosecution and in support of claimant's opposition to the government's motion for summary judgment and in support of his cross-motion for summary judgment. 2. On or about August 5, 1992, I was retained by Louis E. Katona, III, of Bucyrus, Ohio, to obtain the return of his firearms collection seized on May 8, 1992, pursuant to a federal search warrant. The sole criminal offense alleged in the affidavit to have been committed by Mr. Katona was the allegation that he had forged the signature of Bucyrus Chief of Police Joe Beran on the law enforcement certification of some 33 BATF firearms registration and transfer forms. The sole source of that allegation was Chief of Police Joe Beran. 3. After Mr. Katona and his wife commenced a civil tort suit against Chief Beran, the United States, and the federal agents, on March 24, 1993, the United States commenced a grand jury investigation of Mr. Katona which was assigned to Assistant United States Attorney Robert Bulford, and which ultimately resulted in Mr. Katona's indictment. 4. In a series of telephone conversations with and letters to Mr. Bulford I attempted to demonstrate that Mr. Katona had no criminal record and was a respected businessman with an impeccable reputation in his community; that Beran had a terrible reputation in the community (and even within the police department); that Beran harbored a grudge against Mr. Katona; and that Beran had, prior to their falling out, supplied Mr. Katona with a number of signed-in-blank transfer forms which he was now denying he signed. I urged Mr. Bulford to preserve the forensic sterility of the government's original documents, particularly with respect to fingerprints since even a single latent Beran print on any of the disputed documents would effectively refute Beran's denial of authorship. I also advised Mr. Bulford of the existence of Mr. Katona's counterpart originals of the questioned documents, including the existence of a number of unused signed-in-blank forms. I arranged to have these documents delivered to the government by our questioned document examiner, a former FBI laboratory chief. I also agreed to submit Mr. Katona (and his wife and father) to government fingerprinting and handwriting examination. I further agreed to share the results of our forensic examinations with the government. 5. I also attempted to demonstrate to Mr. Bulford that failure to follow administrative instructions on the BATF forms, which purported to require the applicant's signature in the presence of the law enforcement certifier, was not something the applicant could control and was not in any event a criminal offense. This failure to follow instructions on the form was subsequently charged as a crime in the government's indictment of Mr. Katona but was ruled non-criminal by Judge Battisti and ordered stricken from the indictment. Judge White, to whom the case was subsequently transferred, also ruled in his order dismissing the indictment that such failure was not a criminal offense. Thus the only allegations before the jury were whether Mr. Katona forged Joe Beran's signature. The government presented no evidence at any time that Mr. Katona forged Joe Beran's signature or even that he knew any of the questioned signatures were not those of Beran. 6. Despite repeated defense demands that the government preserve the fingerprint sterility of its own original documents, the government took no steps to do so and neglected (refused) to test for Beran's fingerprints until the eve of trial. In response to the defendant's discovery demand the government also falsely denied having Beran's fingerprint exemplars although he had been on record with the government since his enlistment in the Air Force Reserve in 1967. Only on the eve of trial did the government acknowledge existence of the Beran exemplars, and without providing a copy to the defense. Agent Kimmell also revealed at trial (and only on cross-examination) that Beran had refused to give fingerprint exemplars to agent Kimmell. (Trial trans., pp. 536-537). Colleen Davis, a BATF national office employee who retrieved the government's original questioned documents from storage at agent Kimmell's request, was given no instructions to preserve their forensic sterility and handled and shipped them without any safeguards. (Trial trans., pp. 374, 379-380). Mr. Bulford advised at the defendant's arraignment that no fingerprint examination of its own original documents was conducted because the government did not consider it likely to be productive (i.e., because it could not prove the defendant's guilt, but only his innocence). 7. Both the government's handwriting examiner and the defendant's expert concluded well before trial that Beran could have signed at least 25 of the 81 disputed documents. Neither could identify Mr. Katona, or anyone else as the author of the remaining documents. Mr. Katona's expert determined that there were significant and demonstrable differences between the questioned signatures and Mr. Katona's attempts to simulate Beran's signature. In summary, there was not one iota of evidence -- direct or circumstantial, scientific or lay -- that Mr. Katona signed the questioned documents and substantial evidence that Beran signed many of them, contrary to his sworn denial. Beran's secretary testified at trial that she signed a simulated Beran signature to many documents with Beran's authorization and that her "Joe Beran" signature was better than the Chief's. (Trial trans., pp. 270-271). Two Bucyrus Police officers called as government witnesses testified that the secretary's blackboard simulation of Beran's signature (done out of their presence and after Beran's appearance in the courtroom) resembled the Chief's. (Trial trans., pp. 315, 316-317, 323). 8. Exhibit 7-A attached hereto is a true copy of my letter of April 14, 1993, to Assistant United States Attorney Bulford (without enclosures). 9. Exhibit 7-B attached hereto is a true copy of my letter of April 24, 1993, to Assistant United States Attorney Bulford (without enclosures). 10. Exhibit 7-C attached hereto is a true copy of my letter of October 11, 1993, to Assistant United States Attorney Bulford. 11. Exhibit 7-D attached hereto is a true copy of the government's response to discovery request of October 11, 1993, by Assistant United States Attorney Bulford in which the government denies possession by "the United States Government" of Beran's fingerprint exemplars. 12. Exhibit 7-E attached hereto is a true copy of defendant's claim and cost bond filed with BATF on September 9, 1992, to prevent the illegal administrative forfeiture of his firearms. The document demanded that BATF preserve the forensic sterility of the disputed documents. A second, nearly identical claim was filed on July 10, 1993, containing the same demand to preserve evidence. 13. Exhibit 7-F is a true copy of the defense document examiner's report of April 19, 1993. 14. Exhibit 7-G is a true copy of the defense document examiner's report of May 26, 1993. 15. Exhibit 7-H is a true copy of the defense document examiner's report of March 11, 1994. 16. Exhibit 7-I is a true copy of the defense fingerprint examiner's report of December 14, 1992. 17. Exhibit 7-J is a true copy of the government document examiner's report of August 17, 1993, "supersed[ing] all previous Document Reports" (p. 6). 18. Exhibit 7-K is a true copy of the government fingerprint examiner's report of March 2, 1994, belatedly revealing the existence of Beran's fingerprint exemplars in the possession of "the United States Government" since 1967. 19. Exhibit 7-L is a recapitulation of the defendant's efforts to preserve and obtain exculpatory fingerprint evidence and the government's responses thereto. I declare under penalty of perjury that the foregoing is true and correct. Executed on April 12, 1995. JAMES H. JEFFRIES, III (North Carolina Bar No. 18502) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (910) 282-6024 Counsel for Claimant [FN1]. "In civil forfeiture actions, the 'guilt' issue to be determined is whether the seized property is connected with the illegal activity." Gov't Memorandum, p. 3. [FN2]. What the government has never been able or willing to grasp in any of these related cases is that its sole informant and principal witness is an unmitigated liar who signed at least a third of the disputed forms and had his secretary sign the remainder. There were never any forged transfer forms except to the extent of a secretary's signing her boss' authorized signature. [FN3]. Gov't Memorandum, p. 10. [FN4]. The government's motion for summary judgment is somewhat schizophrenic in its proposed test of which doubt-creating information was available to the government and when it was available. The government's brief seeks to confine the test of knowledge to agent Kimmell alone, disregarding those facts which were known to other members of the raiding party or chargeable to other government officials. Under this theory, agents Wells and St. Pierre could have known to a moral certainty that Chief Beran was a convicted perjurer who had sworn publicly to destroy Mr. Katona and, by keeping Kimmell in ignorance of these facts, preserved his probable cause for the search and seizure. [FN5]. There has never been any contention that the firearms were the fruits of a crime, were stolen, or were contraband per se. They were, by the government's own thesis, the officially registered property of the claimant, bought and paid for by him, transferred to him by formal, written authorization of BATF, and officially registered to him in the National Firearms Registration and Transfer Record. 26 U.S.C. section 5941. Nothing in a search warrant issued pursuant to Rule 41 of the Federal Rules of Criminal Procedure could alter those facts or affect the ownership of the weapons. Indeed, Rule 41 explicitly provides for the return of property to its owner. Rule 41(e), F.R.Crim.P. [FN6]. Manifestly, such meaningless, all-encompassing "lawyer's swearing" cannot constitute probable or reasonable cause for anything other than proof of the proposition that attorneys will take any shortcut to avoid extra work. [FN7]. It is unclear whether 19 U.S.C. section 1615 applies to firearms forfeitures under the Internal Revenue Code, although Section 7327 of Title 26 suggests that it does. So does the government's decision to proceed here by verified complaint -- unnecessary under the Federal Rules of Civil Procedure, but necessary to arrest the firearms and establish this Court's in personam jurisdiction had they not already been in government custody. See also 18 U.S.C. section 981(d) ("For purposes of this section, the provisions of the customs law relating to the seizure, summary and judicial forfeiture, condemnation of property for violation of the customs laws, the disposition of such property or the proceeds from the sale of this section [sic], the remission or mitigation of such forfeitures, and the compromise of claims (19 U.S.C. 1602 et seq.), insofar as they are applicable and not inconsistent with the provisions of this section, shall apply to seizures and forfeitures incurred, or alleged to have been incurred under this section...."). [FN8]. Kimmell Deposition, pp. 24, 25, Exhibit 4, infra. Federal agents routinely check a suspect's criminal history in the National Crime Information Computer (NCIC) or the Treasury Enforcement Computer System (TECS) before seeking a search warrant, probably on the theory that a felony conviction will add some quantum of weight to their allegations of probable cause. Apparently the reverse of that proposition does not appeal to law enforcement logic -- that a clean record might detract to the exact same degree from the likelihood that the citizen has committed a serious crime justifying a search warrant. [FN9]. Exhibit 4, p. 24; Katona sworn statement given to agent Kimmell on April 26, 1991, Exhibit 1, attached hereto and incorporated herein by reference. [FN10]. Exhibit 4, pp. 4-7; Katona Statement, Exhibit 1, infra. [FN11]. Exhibit 4, p. 25; Kimmell affidavit of November 23, 1993, attached hereto as Exhibit 2 and incorporated herein by reference; Agee Deposition, p. 17, Exhibit 5, infra. [FN12]. Exhibit 5, p. 17. [FN13]. Kimmell affidavit of May 7, 1992, in support of search warrant, pages 3-5, attached hereto as Exhibit 3 and incorporated herein by reference. [FN14]. Ibid. We do not mean to suggest that the well-off do not commit crimes. Conversely the picture of a well-to-do businessman and part-time policeman with no criminal record committing forgery which engendered no economic gain to himself and placed assets worth more than $100,000 at risk of seizure should present certain cautionary signals to a prudent investigator. [FN15]. Kimmell affidavit of May 7, 1992, in support of search warrant, Exhibit 3; Beran Deposition, p. 44, Exhibit 6, infra. [FN16]. Exhibit 4, pp. 20-21. [FN17]. It apparently never occurred to agent Kimmell that if Beran had indeed signed transfer forms in blank, the dates beside his signatures might well be entered as of the date the particular form was used, rather than the date Beran signed it in blank. [FN18]. Exhibit 4, pp. 38, 62. [FN19]. Exhibit 5, pp. 27, 42, 50, 85; Exhibit 4, p. 55. [FN20]. Exhibit 5, p. 27. [FN21]. Exhibit 5, pp. 16, 26, 41, 78-80. [FN22]. Exhibit 5, pp. 73, 77-86. [FN23]. Exhibit 5, pp. 66, 77. [FN24]. Exhibit 5, pp. 13-14. [FN25]. Exhibit 5, p. 14. [FN26]. The following factual statements are verified by undersigned counsel's declaration, Exhibit 7, below, and the supporting exhibits attached to that declaration. [FN27]. Astonishingly, it was revealed at trial that Chief of Police Beran, the government's critical witness, had refused to give his own fingerprint exemplars to agent Kimmell. Trial trans., pp. 536-537. Even this incredible development did not seem to have shaken the government's faith in the credibility of its principal witness. [FN28]. The seeming mystery of the "forged" signatures is not as perplexing as this short rendition might make it appear. Beran's secretary testified at trial that she frequently signed the Chief's signature, using a simulated signature (which, left on a blackboard in the courtroom, successfully fooled two Bucyrus Police Officer witnesses). She admitted that it was said around the police station that her "Joe Beran" signature was better than Joe's -- according to her because she had better handwriting (Trial trans., pp. 270-271) but, according to a statement she made to Patrolman Agee, because she was sober and Joe usually wasn't (Agee Deposition, p. 41). Mr. Katona was prepared to testify at trial that in the late summer of 1988 he left a stack of unsigned forms with Beran, who began signing them, but become involved in other matters and told Louis to pick them up later. Mrs. Katona would have testified that later that day she was called by the Chief's secretary who left word for Louis to come get the signed forms. Katona's wife, father and mother were all present at the Katona real estate office when Louis returned with the signed forms which he showed to them, and they would all have so testified. [FN29]. Or in 28 U.S.C. sections 1920 and 2412 for that matter. [FN30]. Public Law No. 99-308, 100 Stat. 449-461 (May 19, 1986) (99th Congress, 2d Session). [FN31]. See United States v. Dalton, 960 F.2d 121 (10th Cir. 1992); United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D. Ill. 1991), gov't appeal dismissed on gov't motion, No. 91-2595, 1991 WL 224268 (7th Cir. Aug. 13, 1991).