ON LEONG CHINESE MERCHANTS ASSOCIATION BUILDING, ET AL.,
PETITIONERS V. UNITED STATES OF AMERICA

   No. 90-1630

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Seventh Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Questions presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-23a) is reported
at 918 F.2d 1289.  The opinion of the district court granting the
government's motion for summary judgment (App., infra, 1a-4a), and its
order denying petitioner's motion for a continuance (App., infra,
5a-7a), are unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 14,
1990.  On February 7, 1991, Justice Stevens extended the time within
which to file a petition for a writ of certiorari to and including
April 15, 1991, and the petition was filed on that date.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether 18 U.S.C. 1955(d), which provides for the forfeiture of
"any property, including money" used in violation of Section 1955,
authorizes the forfeiture of real property.

   2. Whether the district court abused its discretion in denying
petitioner's motion for a continuance of summary judgment proceedings
under Federal Rule of Civil Procedure 56(f).

                               STATEMENT

   1. In June 1988, the United States brought a federal court action
seeking forfeiture of petitioner, the On Leong Chinese Merchants
Association Building located in Chicago, Illinois.  The complaint
alleged that the building had been used for an illegal gambling
operation, in violation of 18 U.S.C. 1955.  The complaint also sought
forfeiture of $323,427.96 in cash, cashiers checks totalling $2,500,
gambling chips and other gambling paraphernalia, and video equipment.
Pet. App. 4a.

   The affidavit of FBI Special Agent James Whitmer, which was
attached to the complaint, detailed the grounds for forfeiture.  On
September 2, 1984, Chicago police officers entered the building with a
warrant and found several persons playing the gambling game of Fan-Tan
on the second floor.  The officers arrested 16 persons and confiscated
gambling equipment and cash.  Five months later, on February 22, 1985,
police officers again raided the building.  On this occasion, the
officers arrested 11 persons who were playing Fan-Tan on the second
floor, and seized gambling equipment, chips, and cash.  One year
later, police officers returned to the building and discovered a
gambling operation in the building's basement.  On that occasion in
March 1986, the officers arrested 18 persons and seized Fan-Tan
gambling equipment, gambling chips, and cash.  Pet. App. 2a.

   The government learned more about the continued gambling operations
in the building as a result of a visit by an undercover FBI agent.  On
April 19, 1988, the agent entered the second floor of the building
through a door equipped with closed circuit television and an
electronic buzzer.  He saw at least 50 persons playing Fan-Tan and
another game, Pai-Gow, for stakes as high as $4,000;  he counted at
least six persons working at the gambling tables.  The agent purchased
$500 in chips and placed bets.  When the agent won, he received 90% of
his winnings;  the house kept the remaining 10%.  Pet. App. 3a.

   On the following evening, FBI agents executed a warrant to search
the building.  When they entered the building, over 100 persons were
gambling.  The agents seized more than $300,000 in cash, gambling
chips worth $75,000, video equipment, and gambling paraphernalia.
During this raid, the agents saw three corporate officers of the On
Leong Chinese Merchants Association present in the gambling room.
Pet. App. 3a-4a.

   2. In response to the government's action, the On Leong Chinese
Merchants Association filed a claim to the building and initiated
discovery proceedings.  /1/ The government later successfully moved to
stay discovery pending completion of an ongoing criminal
investigation.  In September 1988, the government -- based on the
information outlined above -- filed a motion for summary judgment with
respect to forfeiture of the building and other seized property.
Petitioner then filed a motion for a continuance of summary judgment
proceedings under Federal Rule of Civil Procedure 56(f).  Pet. App.
4a.  /2/

   In May, 1989, the district court denied petitioner's motion to stay
proceedings related to the building.  Pet. App. 4a;  App., infra,
5a-7a.  /3/ The court found that

      the affidavits presented by the government * * * are replete
      with detail concerning the circumstances which the government
      argues constitute probable cause.  (Petitioner) has identified
      no specific testimony that it hopes to gain from deposing the
      affiants;  it rests on general arguments that it may be able to
      establish information concerning the "basis, scope and accuracy
      of their observations" which would make the affidavits less
      credible.

Id. at 6a-7a.  "In light of the detail already presented in the
affidavits," the court concluded, petitioner's request for additional
discovery was unwarranted.  Id. at 7a.  (citing DF Activities Corp v.
Brown, 851 F.2d 920 (7th Cir. 1988)).  Moreover, the court held that
petitioner's alleged inability to obtain information from its own
witnesses because of the pending criminal investigation was not "a
valid basis for interrupting the civil action." App., infra, 7a.  In
the court's view, petitioner's position amounted to an argument that
"it possesses the relevant information but is unwilling or unable to
submit it." Ibid.

   3. In October 1989, the district court granted the government's
motion for summary judgment and ordered the building forfeited.  App.,
infra, 1a-4a.  The court first rejected petitioner's contention that
18 U.S.C. 1955(d), which allows for the forfeiture of "any property"
used in violation of Section 1955, did not authorize the forfeiture of
real property.  App., infra, 2a (citing cases).  /4/ The court next
held that the government had established probable cause to believe
that the building was being used for illegal gambling in violation of
Section 1955.  In particular, the court determined that the government
had shown that the building was used as "an illegal gambling business"
within the meaning of Section 1955(b)(1), i.e., "that the business
have a gross revenue of $2000 in a single day." App., infra, 3a.  The
court pointed to the government's uncontroverted submission that the
undercover FBI agent "witnessed six bettors at one table placing
wagers of as much as $3000 to $4000, and 25 to 30 bettors at another
table placing wagers of as much as $1500 to $2000." Ibid.  /5/

   4. The court of appeals affirmed.  Pet. App. 1a-23a.  It rejected
petitioner's contention that the district court had improperly denied
the motion for a continuance under Fed. R. Civ P. 56(f).  The court of
appeals found that petitioner

      failed to specify any information it could produce by deposing
      either adverse witnesses or witnesses under its control.
      Similarly (petitioner) did not demonstrate that it would
      discover facts sufficient to rebut the government's showing of
      probable cause.

Pet. App. 12a.  "Under these circumstances," the court held, "the
district court did not abuse its discretion in refusing (petitioner's)
Rule 56(f) motion." Ibid.

   The court also rejected petitioner's contention that Section
1955(d) does not authorize the forfeiture of real property.  The court
determined that the language of the statute -- "(a)ny property,
including money, used in violation of the provisions of this section
may be seized and forfeited to the United States" (18 U.S.C. 1955(d))
-- is "unambiguous." Pet. App. 16a.  Moreover, the court reviewed the
pertinent legislative history and concluded that it "furnishes no
reason to depart from the plain meaning of the statutory language."
Id. at 17a.  Finally, the court pointed out that the "purpose of 18
U.S.C. Section 1955(d) is best served by allowing the forfeiture of
real estate as well as personal property." Pet. App. 19a.  /6/

                               ARGUMENT

   1. Petitioner contends (Pet. 9-19) that Section 1955(d) does not
provide for the forfeiture of real property.  Section 1955(d)
authorizes the forfeiture of "any property * * * used in violation" of
Section 1955.  "When used without qualification, the word 'property'
includes both real and personal property within its sweep." United
States v. South Half of Lot 7 & Lot 8, 910 F.2d 488, 489 (8th Cir.
1990) (en banc) (citing Fidelity & Deposit Co. v. Arenz, 290 U.S. 66,
68 (1933)), cert. denied, 111 S. Ct. 1389 (1991).  In addition,
Congress's use of the word "any" to modify "property" shows that it
intended a broad construction of that term.  See United States v.
James, 478 U.S. 597, 605 (1986).  /7/

   Where, as here, the statutory language is unambiguous, "judicial
inquiry is complete except in rare and exceptional circumstances."
Demarest v. Manspeaker, 111 S. Ct. 599, 604 (1991).  In this case,
application of the plain terms of the statute does not produce a
result "demonstrably at odds with the intentions of its drafters."
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982).  There
is therefore no occasion for the Court to accept petitioner's
invitation (Pet. 14-15) to look beyond the plain language of Section
1955, which unambiguously authorizes forfeiture of the property at
issue here.

   In any event, petitioner's invitation amounts to analyzing one
exchange between Senator McClellan, the Chairman of the Senate
subcommittee considering the original version of Section 1955(d), and
the Assistant Attorney General of the Criminal Division of the
Department of Justice.  Senator McClellan suggested to the Assistant
Attorney General that "a forfeiture provision that would cover the
equipment, adding machines, and money used in operating the illegal
(gambling) establishment" would be "helpful" in achieving the purpose
of the statute.  See Pet. 15-16 (quoting Measures Relating to
Organized Crime:  Hearings on S. 30, S. 974, S. 975, S. 976, S. 1623,
S. 1624, S. 1861, S. 2022, S. 2122, and S. 2292 Before the Subcomm. on
Criminal Laws and Procedures of the Senate Comm. on the Judiciary,
91st Cong., 1st Sess. 397 (1969)).  The Assistant Attorney General
agreed, and the Department of Justice later proposed legislation that
became Section 1955(d) This brief exchange, involving one member of
Congress, scarcely shows that Congress intended to exclude real
property from the reach of the statute.

   Finally, both of the other courts of appeals that have considered
this issue have agreed with the court below in construing Section 1955
to reach real property.  See United States v. South Half of Lot 7 &
Lot 8, supra;  United States v. The Premises & Real Property at 614
Portland Ave., 846 F.2d 166, 167 (2d Cir. 1988) (per curiam), aff'g
670 F. Supp. 475 (W.D.N.Y. 1987).  Further review is therefore
unwarranted.  /8/

   2. Petitioner also contends (Pet. 19-29) that the district court
erred in denying its motion for a continuance of summary judgment
proceedings under Federal Rule of Civil Procedure 56(f).  Rule 56(f)
allows the district court to order a continuance of summary judgment
proceedings when the party opposing a motion for summary judgment
"cannot for reasons stated present by affidavit facts essential to
justify (its) opposition." To obtain such a continuance, a party must
identify the information it needs to oppose summary judgment and
explain how that information would create a genuine issue of material
fact sufficient to preclude summary judgment.  See Garrett v. City &
County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987);  Korf v.
Ball State University, 726 F.2d 1222, 1229-1330 (7th Cir. 1984);
Wilmar Poultry Co. v. Morton-Norwich Products, Inc., 520 F.2d 289, 297
(8th Cir. 1975), cert. denied, 424 U.S. 915 (1976).

   In this case, the government's affidavits showed that the building
had been used regularly as a gambling establishment from 1984 until
its seizure in April 1988.  See Pet. App. 2a-4a.  /9/ The government
therefore established ample probable cause to believe that the
building was being used in violation of Section 1955.  /10/ In the
face of this record, petitioner claims (Pet. 24-25) that discovery
might have enabled it to develop equitable reasons why the district
court should not have ordered forfeiture.  /11/ As the court of
appeals pointed out, however, "the statute authorizing mitigation
petitions, 19 U.S.C. Section 1618, vests exclusive jurisdiction over
remission or mitigation of forfeitures * * * in the executive branch."
Pet. App. 13a;  see United States v. One Clipper Bow Ketch Nisku, 548
F.2d 8, 12 (1st Cir. 1977);  United States v. One 1958 Pontiac Coupe,
298 F.2d 421, 423 (7th Cir. 1962).  Thus, the district court could not
have granted petitioner relief even if it had come forward with
equitable reasons supporting a remission of forfeiture.  In any event,
even if the district court had the authority to decline to order the
building forfeited, that decision would depend on factors external to
the government's showing of probable cause, i.e., the nature, history,
and use of the building.  Petitioner did not need discovery to develop
a record regarding these factors.

   Petitioner also contends (Pet. 26-27) that additional discovery
would have allowed it to develop an argument that the building's
forfeiture violated the Excessive Fines Clause of the Eighth
Amendment.  Even if petitioner were correct that the Excessive Fines
Clause applies to civil in rem forfeitures, but see Pet. App. 14a
(citing cases), it is difficult to see how additional discovery would
have allowed petitioner to develop this claim.  Nor does petitioner
explain what information it could have obtained through discovery that
would have been relevant to this claim.  Such a speculative claim does
not warrant a continuance under Rule 56(f).

   Lastly, petitioner argues (Pet. 27-29) that discovery would have
allowed it to develop a defense on the merits of the forfeiture
action.  In particular, petitioner claims that depositions of the
government's affiants would have uncovered facts that would have
created a material issue of fact regarding whether an "illegal
gambling operation" within the meaning of Section 1955 was being held
in the building.  According to petitioner, "(t)here are always
questions about ability to observe and inferences drawn from
observations which should be tested in some manner before summary
judgment is granted." Pet. 28.

   Rule 56(f), as the courts below recognized, does not provide a
vehicle for a party opposing summary judgment to engage in a fishing
expedition in the hope that some evidence adverse to the moving party
will emerge.  Petitioner has pointed to no substantive evidence that
it seeks to obtain that would controvert the government's showing of
probable cause to believe that the building was being used in
violation of Section 1955.  Petitioner merely seeks to depose the
government's affiants with the wish that they will contradict their
affidavits or otherwise provide information adverse to the government.
 The government's evidentiary submissions, however, detailed the
gambling activities at the building.  In fact, petitioner has
abandoned its challenge to the government's probable cause showing.
See note 5, supra.  In these circumstances, the district court
exercised sound discretion in rejecting petitioner's request for a
continuance under Rule 56(f).

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   J. DOUGLAS WILSON

      Attorney

   JUNE 1991

   /1/ We will refer to the Association and the building collectively
as petitioner.

   /2/ Fed. R. Civ. P. 56(f) provides:

         Should it appear from the affidavits of a party opposing the
      motion that the party cannot for reasons stated present by
      affidavit facts essential to justify the party's opposition, the
      court may refuse the application for judgment or may order a
      continuance to permit affidavits to be obtained or depositions
      to be taken or discovery to be had or may make such other order
      as is just.

   /3/ The government agreed with petitioner to stay summary judgment
proceedings with respect to the other seized property.  Pet. App. 4a.

   /4/ Section 1955(d) provides in pertinent part:

         Any property, including money, used in violation of the
      provisions of this section may be seized and forfeited to the
      United States.

   /5/ The court of appeals upheld the district court's probable cause
determination, Pet. App. 5a-10a, and petitioner has not sought further
review of that issue.

   /6/ Judge Cudahy filed a concurring opinion.  In his view,

         (s)eizure of the On Leong building may not be
      disproportionate to the gambling offense here.  It is, however,
      a three-story landmark structure with an unusual cultural
      history and substantial economic value.  A forfeiture of this
      genre and magnitude may be authorized and appropriate, but it
      seems * * * to mark a significant departure in the enforcement
      of 18 U.S.C. Section 1955.

Pet. App. 22a-23a.

   /7/ Petitioner seeks to avoid the straightforward application of
the statutory terms by asserting that real property, such as a
building, "is not actually used 'in violation' of the provisions of
Section 1955(a)." Pet. 13.  That effort falls short the mark where, as
here, the record shows that patrons used the seized building as a
gambling hall for at least several years.

   Petitioner also argues (Pet. 13-14) that Congress's incorporation
into Section 1955(d) of customs law procedures applicable exclusively
to personal property shows that Congress did not intend to allow
forfeiture of real property under Section 1955(d).  That argument
fails, however, because Congress has incorporated these procedures
into several other forfeiture provisions that plainly apply to real
property.  See United States v. South Half of Lot 7 & Lot 8, 910 F.2d
at 491.

   /8/ Petitioner claims (Pet. 9-10) that review is necessary to
resolve a conflict between the three courts of appeals that have held
that Section 1955(d) extends to real property and two district courts
that have come to the opposite conclusion.  Such review would be
premature until a conflict over the issue developed among the courts
of appeals.

   /9/ In addition to Agent Whitmer's affidavit, the government
submitted the affidavit of the undercover agent who visited the
building and participated in illegal gambling the night before the
search.

   /10/ Section 1955(b)(1) defines an illegal gambling establishment
as one operating in violation of state gambling laws, employing five
or more persons, and continuing over 30 days.  See Pet. App. 2a-3a.

   /11/ Petitioner did not raise this contention before the district
court -- a procedural default recognized by the court of appeals.  See
Pet. App. 13a.

   APPENDIX