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.

ORDER

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UNPUBLISHED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.

_________________________________________________________________

 5
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 proceeding and the related indictment.

A footnote to this provision added:

 6
 The agreement not to seek additional civil or criminal forfeitures 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 forfeiture 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 jurisdictional bar of the Anti-Injunction statute, 26 U.S.C. § 7421, which prohibits 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 question whether they owed unpaid taxes and penalties, the AntiInjunction 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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