begun yet. Further, we note that this same excuse was tendered last year when Penny did not appear for her scheduled deposition. At that time, we allowed time for those documents to be reviewed. We are not inclined to do so here, where Penny ignores the procedural steps for obtaining such relief.
Before we can reach the substantive arguments in support of and in opposition to this motion, we must consider another procedural shortcoming by the claimant. The Local Rules of the Northern District of Illinois require the party seeking summary judgment to file a statement of material facts as to which the movant contends there is no genuine issue. Local Rule 12(m). The party opposing summary judgment must respond to the facts set forth in the 12(m) Statement, admitting them or controverting them by specific references to the record. Local Rule 12(n)(1). The party opposing summary judgment must also set forth, with references to the record, any facts that are in dispute and which require the denial of summary judgment. Local Rule 12(n)(2). If the opponent fails to respond as required by Rule 12(n), the facts set forth in the movant's 12(m) Statement are deemed admitted, and summary judgment may be entered for the movant. Here, Penny has not filed a response to the 12(m) Statement; hence, she is deemed to have admitted the facts therein. Summary judgment against her on all claims would be appropriate on these grounds.
However, we will also briefly consider the merits of the arguments raised in her Response Memorandum. That examination will show that summary judgment is also appropriate on the merits.
Once the government has met its burden of showing that probable cause exists, the burden of proof shifts to the property owner to show that the property is not subject to forfeiture. U.S. v. Certain Real Property, 943 F.2d 721, 725 (7th Cir. 1991). The standard of persuasion for the owner is a preponderance of the evidence. Id. Here, the Court found probable cause. Equipment of West Side Building Corp., No. 89C2736, Order at 1 (N.D. Ill. Apr. 4, 1989) (Grady, J.). Penny challenged that finding of probable cause through a motion to dismiss the forfeiture complaint. We denied Penny's motion and refused to disturb Judge Grady's probable cause determination. U.S. v. All Assets & Equipment of West Side Building Corp., 1989 U.S. Dist. LEXIS 8501, No. 89 C 2736, Order at 4 (N.D. Ill. July 14, 1989) (Kocoras, J.). Thus, the government's burden being met, we now evaluate Penny's evidence to determine if she has met her burden.
Penny raised three defenses in her Response Memorandum: lack of knowledge of narcotics activities, acquisition of certain properties before the enactment of the forfeiture statute, and acquisition with legitimate income. The first defense is known as the innocent owner" defense. Section 881(a)(7) states that an owner's interest in real property will not be forfeited if that owner establishes that the illegal conduct occurred without that owner's "knowledge or consent."
Here, Penny did not submit an affidavit claiming that she did not know of or consent to narcotics activities on the defendant properties, nor did she point out any other evidence in the record to support an innocent owner defense. Although Penny did not direct our attention to anything in the record, we examined her Verified Claim of Ownership, which did not reveal any claim that Penny was an innocent owner. For these reasons, Penny has not met her burden on summary judgment of pointing out specific evidence raising a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); compare U.S. v. Lot 9 Block 2 of Donnybrook Place, 919 F.2d 994 (5th Cir. 1990) (reversing grant of summary judgment because affidavit of owner raised a triable issue regarding innocent owner defense).
Penny's second defense, that certain properties were acquired before the effective date of the forfeiture statute, is supported by answers to interrogatories, which indicate the year properties were bought. Penny also alleges that certain properties were purchased or improved with legitimate income. However, although the date or manner of acquisition may be a defense to a charge under section 881(a)(6) that the property was acquired with proceeds of a drug offense, the date or manner of acquisition is irrelevant to a charge under section 881(a)(7) that the properties were being used to facilitate the commission of a felony drug offense. As the government here seeks forfeiture pursuant to 881(a)(7) of the real property listed below,
Penny's second and third defenses are unavailing.
As to the personal property sought under section 881(a)(4), we note that Penny does not introduce any evidence or point to the existence of any documents that might establish that the personal property was not used to facilitate illegal drug activities. As above, she does not provide an affidavit supporting an innocent owner defense. Accordingly, because she has not met her burden to defeat summary judgment, we grant summary judgment as to the personal property sought under section 881(a)(4) as well.
However, as to the property sought exclusively under 881(a)(6) as proceeds of illegal drug activities, the acquisition of the property with legitimate income is a relevant defense, even though it is not relevant to the "facilitation" claims under sections 881(a)(4) and (7). Unlike her lack of response to the other claims, here Penny has submitted answers to interrogatories that could form a skeletal basis for a relevant defense that the properties sought were acquired with legitimate income. We use the word "skeletal" because those answers do not actually reflect the source of funds used to purchase the items. However, we will not consider those answers, because Penny refused to answer the government's deposition questions concerning the same topics. Penny claimed Fifth Amendment protection against self-incrimination when she was deposed as to her involvement in drug trafficking, the use of defendant properties to facilitate drug trafficking, and the use of illegal drug proceeds to acquire, maintain, and improve the defendant property. While a claimant is entitled to invoke the Fifth Amendment, doing so does not relieve her of her burden of proof. U.S. v. 15824 West 143rd Street, Lockport, Illinois, 736 F. Supp. 882, 886 (N.D. Ill. 1990).
It is established that once a witness testifies as to certain facts, she may not invoke the Fifth Amendment to shield that testimony from scrutiny. U.S. v. Parcels of Land, 903 F.2d 36, 43 (1st Cir. 1990). "It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination." McGautha v. California, 402 U.S. 183, 215, 28 L. Ed. 2d 711, 91 S. Ct. 1454 (1971); see also Brown v. United States, 356 U.S. 148, 155-56, 2 L. Ed. 2d 589, 78 S. Ct. 622 (1958). This rule is not limited to trial testimony. Parcels of Land, 903 F.2d at 43. This rule has properly been applied to strike affidavits submitted in response to a summary judgment motion. See id. Applying this rule to the instant case, we find it appropriate to strike the interrogatory answers upon which Penny relies, because she refused to answer the government's deposition questions regarding the same subjects. This leaves Penny's response to the summary judgment without any support in the record. Accordingly, we grant summary judgment with regard to the property sought to be forfeited under 881(a)(6) as well.
Penny also seeks a grant of immunity from prosecution for criminal acts for any testimony she gives regarding the defendant properties. She claims that she is caught in a dilemma between incriminating herself and forfeiting substantial property holdings. This Scylla and Charybdis situation has been addressed in several other cases. See, e.g., U.S. v. Certain Real Property, 986 F.2d 990 (6th Cir. (1993); U.S. v. One 1985 Plymouth Colt Vista, 644 F. Supp. 1546 (N.D. Ill. 1986) and cases cited therein. In One 1985 Plymouth Colt Vista, Judge Shadur observed that granting immunity to a claimant in a civil forfeiture proceeding is "plainly unacceptable," because that would have the effect of allowing a claimant to convert the privilege against self-incrimination "from [a] shield . . . into a sword." 644 F. Supp. at 1553 (quoting U.S. v. Rylander, 460 U.S. 752, 75 L. Ed. 2d 521, 103 S. Ct. 1548 (1983)).
Moreover, because Congress has delegated the authority to grant use immunity to the executive branch of government, U.S. v. Taylor, 728 F.2d 930, 934 (7th Cir. 1984) (citing 18 U.S.C. § 6003), district courts are without power to direct the prosecution to grant use immunity to secure testimony that the defense deems relevant. U.S. v. Smith, 542 F.2d 711, 715 (7th Cir. 1976). Where, as here, the United States has not exercised its discretion to grant immunity, the district court cannot order such an action at the defendant's request.
Finally, we observe that the Sixth Circuit in Certain Real Property affirmed the granting of summary judgment, because the claimant did not develop his "Fifth Amendment Dilemma" argument: he did not explain how the filing of affidavits would prejudice him in a parallel criminal proceeding; he did not indicate what affidavits or depositions would have disclosed; and he did not explain why he could not use the testimony of other persons to substantiate his defense. Certain Real Property, 986 F.2d at 996. Likewise here, Penny has not explained how defending against the forfeiture would prejudice her Fifth Amendment rights. Her assertions on pages 6 and 7 of her Response Memorandum purport to do so, but fail to present any substantive reasons. Thus, for all of the above reasons, we find that immunity is not available to Penny.
As an alternative to immunity, Penny asks us to craft some other method to accommodate her Fifth Amendment interests. The First Circuit in U.S. v. $ 250,000 in Currency, 808 F.2d 895 (1st Cir. 1987), stated that such an undertaking is appropriate. However, as just discussed, Penny does not explain how she could provide information to defeat the forfeiture action or how doing so would impinge upon her Fifth Amendment rights. Secondly, she does not suggest what accommodation might be reasonable. This Court in One Colt Vista rejected a request for accommodation where the claimant did not suggest reasonable means. 644 F. Supp. at 1553. Penny did suggest sealing the records of her testimony. However, that is tantamount to granting immunity.
Lastly, Penny raises a defense that the forfeiture sought by the government is out of' proportion to the crimes committed. Penny properly cites Austin v. U.S., 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993) for the proposition that civil forfeitures are subject to Eighth Amendment limitations on excessive fines. First, we observe that Austin does not require a proportionality analysis for property acquired as proceeds of illegal drug transactions. If an item is a proceed of an illegal drug transaction, its forfeiture is exclusively remedial, as it cannot be considered punishment to take away something the claimant never legitimately owned. See Caplin & Drysdale, Chtd. v. U.S., 491 U.S. 617, 109 S. Ct. 2646, 2652-53, 105 L. Ed. 2d 528, 109 S. Ct. 2667 (1989). A proportionality analysis is not required unless the sanction at issue is at least in part punitive. Austin, 113 S. Ct. at 2806. Austin does apply to property used to facilitate illegal drug activities. However, if we are to perform a proportionality review, we must know the crime committed and balance that against the nature and value of the property sought to be forfeited. As Penny has not provided information as to the former, we cannot perform the proportionality review she seeks.
The summary approval of forfeiture may seem harsh, but we find it is appropriate where, as here, the claimant has not done anything to protect her interests. As discussed above, Penny did not follow the clear rules for seeking a Rule 56(f) continuance, did not support her Response Memorandum with a Rule 12(n) Statement, and did not provide an affidavit or other evidence as required by Rule 56(e) to raise any genuine issue of fact or support her innocent ownership defense. When a party who is represented by counsel fails to take any of these steps, we are not inclined to grant the relief those avenues could have offered.
For the reasons stated above, we grant summary judgment to the government as to property sought to be forfeited pursuant to sections 881(a)(4), (6) and (7) of Title 21. We order forfeiture of all of the defendant property seized by the government in this action.
Charles P. Kocoras
United States District Judge
Dated: November 23, 1993