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. ) CLAIM OF LOUIS E. KATONA, III Now comes Claimant Louis E. Katona, III, and makes claim to each of the defendant firearms sought to be forfeited by the plaintiff, as follows: 1. I am both the beneficial and the registered owner of each of the 33 firearms put in issue by the complaint. 2. Each of the firearms in question was obtained by me through a tax-paid transfer, or tax-paid making, formally approved by the Bureau of Alcohol, Tobacco and Firearms. Each of the firearms in question is registered to me in the National Firearms Registration and Firearms Record maintained by the BATF pursuant to 26 U.S.C. section 5841. 3. The grenade launcher described in the "Thirty-Third Cause of Forfeiture" in the government's complaint was obtained from me by BATF Special Agent Lance L. Kimmel under false pretenses and by the false representation that it would be returned. 4. The remaining 32 firearms described in the government's complaint were seized pursuant to a search warrant and application obtained by BATF Special Agent Lance L. Kimmel falsely alleging that I had forged the signature of Bucyrus, Ohio, Chief of Police Joe Beran to the law enforcement certifications on the BATF transfer and registration forms by which I obtained the firearms. 5. On information and belief, the investigation and raid by Kimmel were vindictive and retaliatory responses to my efforts to obtain the return of the grenade launcher which he had deceived me into lending to the government for use in evidence in a case unrelated to me. 6. I have never forged the signature of Beran, nor knowingly used a form bearing his forged signature. To the best of my knowledge and belief all BATF forms bearing Beran's signature were true when I signed them. 7. On information and belief, any such Beran signatures not, in fact, signed by Beran were signed on his behalf by an authorized delegate or representative. 8. The substantive law enforcement certification on each such BATF form was completely true at the time of the execution of the certifications, completely true at the time of the transfer approvals by BATF, and remains completely true today. That is to say, at no time did any of the transfers of any of the firearms in question place me in violation of the law nor did the certifying official have any information that I would use any of the firearms for other than lawful purposes. I have never used any of the firearms for other than lawful purposes. 9. The government's indictment in Criminal No. 5:93CR275 falsely alleges as a false statement by me a requirement -- signing the applicant certification in the presence of the law enforcement certifier -- which is not a requirement of the law or the regulations, and which is not a crime. The indictment further falsely alleges that I forged Beran's signatures on the BATF forms involved. 10. The indictment is a vindictive and punitive government response to my having legally resisted the attempted administrative forfeiture of my firearms and having brought a tort suit against the federal agents involved in my investigation. The indictment, returned 16 months after the raid on my home, and only after commencement of the civil suit, was drawn by the same Assistant United States Attorney who approved BATF's search warrant for my home. The indictment is legally defective on its face and lacks merit in other legal respects, as reflected by the copy of the motion to dismiss the indictment and memorandum in support, attached to the accompanying motion to hold this case in abeyance. 11. This forfeiture is part and parcel of the government's vindictive prosecution of me and is an abuse of the Court's process. 12. This action is barred by the statute of limitations found in 18 U.S.C. section 924(d)(1). Dismissal of or acquittal in the criminal action will also constitute an absolute bar to the prosecution of this action under 18 U.S.C. section 924(d)(1). ______________________________ LOUIS EDWARD KATONA, III CLAIMANT Subscribed and sworn to before me this 5th day of November, 1993. ______________________________ Notary Public My Commission expires_____________________________. 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. ) MOTION TO HOLD IN ABEYANCE AND MEMORANDUM IN SUPPORT MOTION TO HOLD IN ABEYANCE Now comes Claimant Louis E. Katona, III, by undersigned counsel, and moves to hold this action in abeyance until entry of a final judgment in United States v. Louis Edward Katona, III, Criminal No. 5:93CR275 (USDC N.D. Ohio, E.D.), and for thirty days thereafter, for the following reasons: 1. The disposition of the criminal action will likely either render this action moot or be dispositive of the issues raised in this case. Judicial economy is therefore served by granting the motion. 2. There is no urgency involved in the disposition of this action. The firearms in question are in the sole custody and control of the United States. The pendency of this action prevents their return to the claimant in the criminal action, or otherwise. There is thus no prejudice to the legitimate interests of the United States. 3. The same evidentiary and investigative considerations which impelled the United States to resist discovery and seek an indefinite continuance in the companion civil tort suit are present here, except that the roles of the parties are reversed. MEMORANDUM IN SUPPORT This memorandum is submitted in compliance with Local Rules 2:2.1 and 8:8.1. There are legitimate and serious issues of governmental good faith, or more correctly the lack thereof, which are raised by this case, but which may well be disposed of by the criminal case. Other legal and factual issues present in the criminal case could also be dispositive of those in this case.[FN1] Given the higher burden of proof in criminal actions, the principles of res judicata and collateral estoppel can flow from disposition of the criminal action to this case, but not necessarily flow from this case to the criminal action. Judicial economy (as well as the resources of the parties) is therefore best served by holding this action in abeyance. There is, conversely, no harm to any legitimate governmental interest. The firearms in question are in the government's sole and uncontested possession, which cannot be disturbed while this action is pending without this Court's authorization. Forfeited National Firearms Act firearms cannot be sold except to a governmental entity, 26 U.S.C. section 5872(b), so there is not even the time value of money being lost. Given the fact that it took the United States a year and a half to commence a judicial forfeiture action, it is clear that no urgency is perceived by the government. The same investigative and evidentiary considerations which caused the United States to resist discovery in the companion civil tort suit and to seek to hold that case in abeyance are present in this case, with the roles reversed. The United States should not be permitted to simultaneously hit and hold by prosecuting both actions simultaneously, particularly in circumstances raising such grave issues of governmental misconduct and bad faith. CONCLUSION For all the foregoing reasons the Court should order this matter held in abeyance until a final judgment is entered in Criminal No. 5:93CR275 (USDC N.D. Ohio, E.D.), and for thirty days thereafter. Respectfully submitted, JAMES H. JEFFRIES, III (North Carolina Bar No. 18502) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (919) 282-6024 Counsel for Claimant 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. ) CERTIFICATE OF SERVICE I, James H. Jeffries, III, counsel for the claimant Louis Edward Katona, III, hereby certify that service of the foregoing (1) claim of Louis E. Katona, III; (2) civil case information statement; and (3) motion to hold case in abeyance and memorandum is support has been made upon the United States this 5th day of November, 1993, by mailing true copies, postage prepaid, to James L. Morford, Esquire, Assistant United States Attorney, 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: (919) 282-6024 Counsel for Claimant FOOTNOTES [FN1]. The Court is respectfully requested to take judicial notice of its own records in the related criminal action, No. 5:93CR275 (USDC N.D. Ohio, E.D.). A true copy of the claimant/defendant's motion to dismiss the indictment and memorandum in support is appended hereto and incorporated herein as "Defendant's Exhibit A" to demonstrate to the Court the many serious issues which may be litigated in the criminal action, with potentially dispositive application to this action.