United States v. Swanner

Filed: September 11, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-1195
(CA-92-93-4-H)

United States of America,

Plaintiff - Appellee,

versus

Asa G. Swanner, Jr., et al,

Claimants - Appellants.

O R D E R

The Court amends its opinion filed August 29, 1997, as

follows:
On page 6, first paragraph of opinion text, line 1 -- the

words "proprietor or" are corrected to read "proprietor of."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

ASA G. SWANNER, JR.; LINDA F.
SWANNER,
Claimants-Appellants,

and

$92,762.34IN UNITED STATES CURRENCY;
VEHICLE VIN #1C2XJ5538LG485466,
1990 CHRYSLER LEBARON CONVERTIBLE
AUTOMOBILE, with all appurtenances and
attachments thereon; VEHICLE VIN
#1G6CD5185H4259884, 1987 CADILLAC
SEDAN DEVILLE AUTOMOBILE, with all
No. 96-1195
appurtenances and attachments thereon;
TRACT 1 PITT COUNTY LAND, Real
property with buildings, appurtenances,
and improvements thereto, being more
particularly described as follows: One
Tract of Real Property, Pactolus
Township, Pitt County, NC, Deed
Recorded at Book 262, Page 170 of the
Pitt County Registry, Being Titled in
the name of A. G. Swanner, Jr., and
wife, Linda F. Swanner; TRACT 2 PITT
COUNTY LAND, One Tract of Real
Property, Pactolus Township, Pitt
County, NC, Deed Recorded at Book
291, Page 134 of the Pitt County
Registry, being Titled in the names of
A. G. Swanner; TRACT 3 BEAUFORT
COUNTY LAND, One Tract of Real
Property, Long Acre Township,
Beaufort Township, NC, Deed Recorded
at Book 843, Page 171 of the Beaufort
County Registry, being titled in the
names of A. G. Swanner and wife,
Linda F. Swanner; TRACT 4 BEAUFORT
COUNTY LAND, One Tract of Real
Property, Long Acre Township,
Beaufort County, NC, Deed Recorded at
Book 860, Page 222 of the Beaufort
County Registry being titled in the
names of A. G. Swanner and wife,
Linda F. Swanner; TRACT 5 BEAUFORT
COUNTY LAND, One Tract of Real
Property, Long Acre Township Beaufort
County, NC, Deed, Recorded at Book
884, Page 294 of Beaufort County
Registry, being titled in the names of A.
G. Swanner and wife, Linda F.
Swanner; TRACT 6 BEAUFORT COUNTY
LAND, One Tract of Real Property in
Richland Township, Beaufort County,
NC, Deed Recorded at Book 885, Page
164 of the Beaufort County Registry,
being titled in the names of Asa G.
Swanner and wife, Linda Swanner;
TRACT 7 BEAUFORT COUNTY LAND, One
Tract of Real Property in the City of
Washington, Beaufort County, NC,
Deed Recorded at Book 922, Page 596

2
of the Beaufort County Registry, Being
Titled in the names of Asa G. Swanner,
Jr. and wife, Linda F. Swanner; CHECK
30016070 HOME FEDERAL SAVINGS AND
LOAN ASSOCIATION OFFICIAL CHECK, in
the amount of $1,796.90 made payable
to the Internal Revenue Service, said
checks representing the proceeds seized
by the IRS/CID in Account Nos.
3020014033, 3020013736, and
3020013728 at Home Federal Savings
and Loan Association; CHECK 30016071
HOME FEDERAL SAVINGS AND LOAN
ASSOCIATION OFFICIAL CHECK, in the
amount of $1,829.25 made payable to
the Internal Revenue Service, said
checks representing the proceeds seized
by the IRS/CID in Account Nos.
3020014033, 3020013736, and
3020013728 at Home Federal Savings
and Loan Association; CHECK 30016069
HOME FEDERAL SAVINGS AND LOAN
ASSOCIATION OFFICIAL CHECK, in the
amount of $575.28 made payable to the
Internal Revenue Service, said checks
representing the proceeds seized by the
IRS/CID in Account Nos. 3020014033,
3020013736 and 3020013728 at Home
Federal Savings and Loan Association;
CHECK 2512-2388 WACHOVIA BANK AND
TRUST OFFICIAL CHECK, in the amount of
$7,553.04 made payable to the Internal
Revenue Service, said check
representing proceeds seized by the

3
IRS/CID in Account Nos. 8228-088225,
8228-6434427, 8227-062414 and 8821-
746532 at Wachovia Bank and Trust;
CHECK 01187601 FIRST CITIZENS BANK
CASHIER'S CHECK, in the amount of
$1,454.53 made payable to the IRS, said
check representing the proceeds seized
by the IRS/CID in Account No. 440-
1122173 at First Citizens Bank; CHECK
26453-51 NATIONS BANK OFFICIAL
CHECK, in the amount of $67,477.69
made payable to the regional
commissioner of the IRS, said check
representing the proceeds seized by the
IRS/CID in Account Nos. 02700-005-
91948-37, 02700-005-9195254, 02700-
005-9410945, 02700-16-4257651,
02700-016-9194586, 02700-016-
9195252, 277275129, 277275137,
273241760 and 273389619 at Nations
Bank, all of the above Certificate of
Deposits and/or bank accounts were
held in the names of Asa G. Swanner,
Jr., Linda Faye Swanner, Asa Renee
Swanner, Heather F. Swanner,
Blackbeard's Restaurant and Lounge
and/or The Rebel Lounge and Tavern;
TRACT 8 BEAUFORT COUNTY LAND, One
Tract of Real Property in the City of
Washington, Beaufort County, NC,
Deed recorded at Book 943, Page 696
of the Beaufort County Registry, being
titled in the Names of Asa G. Swanner,
Jr., and wife, Linda F. Swanner, and
any and all proceeds from the sale of

4
said properties; TRACT 9 BEAUFORT
COUNTY LAND, One Tract of Real
Property in the City of Washington,
Beaufort County, NC, Deed Recorded at
Book 943, Page 696 of the Beaufort
County Registry, being titled in the
names of Asa G. Swanner, Jr., and wife,
Linda F. Swanner, and any and all
proceeds from the sale of said
properties; WACHOVIA BANK OF NORTH
CAROLINA, N.A.,
Defendants,

NATIONSBANK OF NORTH CAROLINA, N.A.;
HEATHER F. SWANNER; ASA RENEE
SWANNER,
Claimants.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
James C. Fox, Chief District Judge.
(CA-92-93-4-H)

Argued: June 2, 1997

Decided: August 29, 1997

Before MURNAGHAN and LUTTIG, Circuit Judges, and
TILLEY, United States District Judge for the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

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COUNSEL

ARGUED: Rudolph Alexander Ashton, III, SUMRELL, SUGG,
CARMICHAEL & ASHTON, P.A., New Bern, North Carolina, for
Appellants. Stephen Aubrey West, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee. ON BRIEF: Christopher L.
Griffith, SUMRELL, SUGG, CARMICHAEL & ASHTON, P.A.,
New Bern, North Carolina, for Appellants. Janice McKenzie Cole,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Asa G. Swanner, Jr. was the proprietor of a five million dollar a
year gambling business. He was criminally charged with conspiracy
to conduct a gambling operation and also had a civil forfeiture action
filed against some of the property owned by him and his wife. The
Swanners, their attorneys, and the government entered into a written
agreement to settle the civil forfeiture action and Mr. Swanner
reached a plea agreement in the criminal action. In one provision of
the civil settlement, the government agreed to

[d]ismiss all civil and criminal forfeiture actions regarding
the remaining defendant properties in this action and the
related criminal action, and to seek no additional civil or
criminal forfeiture against these properties based on the
facts which form the basis for this civil forfeiture proceed-
ing and the related indictment.

A footnote to this provision added:

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 The agreement not to seek additional civil or criminal for-
feitures against the defendant properties that are released,
pursuant to the terms of this agreement, is limited to the
Eastern District of North Carolina, and in no way binds the
actions of other federal agencies in this district or others that
are unrelated to these forfeiture proceedings, to specifically
include the Internal Revenue Service, if any.

When the Internal Revenue Service filed liens against some of the
properties for unpaid taxes, the Swanners filed a motion in the forfei-
ture action alleging a breach of the settlement and plea agreements
and seeking an order preventing the Internal Revenue Service from
pursuing the liens. The district court denied relief on three grounds,
finding: (1) that the Swanners' failure to pay taxes was separate and
distinct from operation of the gambling business, (2) that enforcement
of tax liens is not a criminal forfeiture, and (3) that, additionally, the
Internal Revenue Service had been specifically excluded from the
operative provision of the settlement agreement.

On appeal, the United States raises for the first time the jurisdic-
tional bar of the Anti-Injunction statute, 26 U.S.C. § 7421, which pro-
hibits the maintenance of suits "for the purpose of restraining the
assessment or collection of any tax." While the statute bars a suit
challenging the collection and assessment of taxes, it has been held
not to bar "a suit to remove a lien without questioning the entitlement
of the government to collect the taxes in some other way." Harrell v.
United States, 13 F.3d 232, 233 (7th Cir. 1993) (citing Robinson v.
United States, 920 F.2d 1157, 1159-61 (3d Cir. 1990), and In re
Estate of Johnson, 836 F.2d 940, 948 (5th Cir. 1988)).

Insofar as the relief sought by the Swanner's* may be read to ques-
tion whether they owed unpaid taxes and penalties, the Anti-
Injunction Act applies since the proper remedy would have been to
pay the questioned amount and bring a suit for a refund. Insofar as
the relief may be understood as a simple request to declare the liens
invalid because of agreements in Mr. Swanner's plea agreement and
_________________________________________________________________

* The relief prayed in the motion was to enjoin the government from
any further "forfeiture and seizure" of the Swanners' property and to
"withdraw" any notices of liens filed on the subject property.

7
in the civil forfeiture settlement agreement, we agree with each of the
district court's findings and affirm on the reasoning expressed in that
court's written opinion, United States v. $92,762.34 in U.S. Currency,
No. 92-93-CIV-4-F (E.D.N.C. Jan. 16, 1996).

AFFIRMED

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