* After an examination of the briefs and the record, we have

concluded that oral argument is unnecessary. Thus, the appeal

is submitted on the briefs and the record. See Fed. R. App. P.

34(a)(2).

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-4000

RANDELL L.D. SMITH,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 00-1122—Michael M. Mihm, Judge.

____________

SUBMITTED APRIL 22, 2002*—DECIDED JUNE 12, 2002

____________

Before FAIRCHILD, ROVNER, and EVANS, Circuit Judges.

EVANS, Circuit Judge. Perched atop an M60-A3 tank

parked on his farm, Randell L.D. Smith struck a proud pose

as a newspaper reporter snapped his picture. At the age of

76, Smith was a bit of a fixture in the local news in Bloomington, Illinois. After he acquired the tank from the U.S.

Army—one that once roared across the hot desert sands of

Iraq during the Persian Gulf War—the Bloomington paper
2 No. 01-4000

published several articles (with pictures), reporting that

Smith had refurbished the tank for display on his farm.

Passersby could see it from the street. In Bloomington it

seemed that everyone knew about Smith and his tank. But

the Army had no idea what was going on—it thought the

local V.F.W. post had the tank. When the Army eventually

discovered that Smith had the tank (a year after the

Bloomington paper reported as much), government agents

and the Illinois National Guard promptly repossessed it.

Unhappy with this turn of events, Smith sued the government under the Federal Tort Claims Act, 28 U.S.C.

§ 1346(b), seeking a return of the tank plus damages for

personal injuries he said he suffered when the agents

roughed him up during the repossession. The district court

granted partial summary judgment to the government and

later, after a bench trial, ruled for the government on the

remaining claims. Smith attacked the district court’s decision as “corrupt” and launched this appeal.

Smith is a World War II veteran and member of the

Bloomington, Illinois chapter of the VFW. In 1995 he set his

sights on getting a World War II tank for the VFW post.

The VFW hoped to display the tank in a city park as a

memorial to veterans of the Second World War. Smith sent

numerous letters on VFW letterhead to various groups,

identifying himself as working on behalf of the VFW and

asking where he could get a tank. He discovered that

WWII-era tanks are scarce, so he accepted the Army’s offer

to donate a modern tank, one that was used in the Desert

Storm phase of the Persian Gulf war. But the Army does

not give tanks to just anyone, and so its donation to the

VFW was conditional: the VFW had to get written permission from its national headquarters and the post needed

a written agreement from the Illinois National Guard to

“demilitarize” (render inoperable) the tank. The VFW also

had to agree to not transfer the tank without the government’s consent.
No. 01-4000 3

After Smith obtained the written approvals the Army

required, he appeared before the Bloomington city council

seeking permission to display the tank in a city park. But

the council shot down his request because it did not want

a Desert Storm tank as a memorial to WWII veterans. With

this turn of events, the VFW decided it no longer wanted

the tank.

Undeterred, Smith decided to create his own memorial.

He drafted a letter on VFW letterhead allowing him to

“seek other appropriate use” for the tank, and got the post

commander to sign it. He set aside three acres of his farm

where he planned to build the memorial. He then hired a

towing company, with his own money, to retrieve the tank

from Ft. McCoy, Wisconsin and deliver it to his farm. Rather than have the National Guard demilitarize the tank as

the Army required, Smith and a friend tried to do it themselves.

Eventually, the Army discovered that Smith, not the

VFW, had the tank. Alarmed by this news, the Army deployed two agents to Smith’s farm. The agents found that

the tank remained partially operational, and, importantly,

was within firing range of the Central Illinois Regional

Airport. The agents notified members of the National

Guard, who came to Smith’s farm and towed the tank.

Smith claims that when he objected, the agents restrained

him and, at one point, threw him to the ground. The Army

subsequently destroyed the tank during target practice.

Smith brought his suit against the government pro se,

alleging that it had no right to seize the tank. He sought its

return and a modest $23 million in damages for injuries

he said he sustained. The district court granted summary judgment to the government on Smith’s conversion and

replevin claims. After a bench trial on the remaining trespass and battery claims, the district judge found for the

government. Smith appeals raising a bevy of issues.
4 No. 01-4000

Smith argues first that the trial court should not have

granted summary judgment on his conversion and replevin

claims because he presented evidence that a nonprofit

corporation he created, the McLean County WWII Veterans

Memorial, Inc. (“McLean County Memorial”), owned the

tank. We review the trial court’s decision to grant summary

judgment de novo. Fed. R. Civ. P. 56(c); Lesch v. Crown

Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002). In reviewing these claims, we apply the laws of Illinois, the state

where the alleged torts occurred. Del Raso v. United States,

244 F.3d 567, 570 (7th Cir. 2001).

We note at the outset that the McLean County Memorial

is not a party to this case and Smith may not pursue the

claims of a nonparty, so whether or not McLean County

Memorial owned the tank is irrelevant to Smith’s allegations. Perry v. Globe Auto Recycling, Inc., 227 F.3d 950, 954

(7th Cir. 2000). Therefore, Smith can survive summary

judgment only by submitting evidence that he owned or

had a right to its possession. Cirrincione v. Johnson, 703

N.E.2d 67, 70 (Ill. 1998) (trover and conversion claim requires proof of ownership); Union Bank of E. St. Louis v.

Mattingly, 576 N.E.2d 941, 942 (Ill. App. Ct. 1991) (replevin

claim requires proof of ownership or right to possession).

This he did not do. In fact, he admitted that he “does not

claim, he himself, had legal title or possession of the tank.”

Furthermore, the Army conditionally donated the tank

to the VFW, not to Smith—in fact, the Army is prohibited from donating a tank to a private citizen. 10 U.S.C.

§ 2572(a). Finally, the letter Smith drafted purportedly

giving him the tank was invalid because the Army prohibited the VFW from transferring the tank to anyone. Therefore, Smith presented no evidence of ownership or right

to possession, and the district court properly granted summary judgment to the government.

Next, Smith argues that the district court should not have

entered judgment for the government on his trespass and
No. 01-4000 5

battery claims because its witnesses were not credible.

Smith claims the government’s witnesses were not credible

because the agents described Smith as cooperative when

they removed the tank, while the National Guard members

said he was agitated. We review the district court’s determinations of credibility for clear error. United States v.

Crowley, 285 F.3d 553, 563 (7th Cir. 2002). In order to constitute clear error, the district court’s findings must be

implausible. Bowles v. Quantum Chem. Co., 266 F.3d 622,

630 (7th Cir. 2001).

The district court was entitled to credit the testimony

of the agents and National Guard members over Smith’s.

The court found that the government’s witnesses were

more credible than Smith because Smith’s testimony at

trial contradicted his allegation that he ordered the government off his property. As the court noted, Smith not only

led the agents to the tank, but he also left them alone with

it when he rushed off to a business meeting. Smith’s agitation, the court believed, arose from his concern that the

tow truck would trample his garden. The court concluded

that Smith consented to the government’s presence, and

that interpretation of the testimony is plausible. Therefore,

the court did not err when it entered judgment against

Smith on his trespass claim. Burns Philp Food, Inc. v.

Cavalea Cont’l Freight, Inc., 135 F.3d 526, 529 (7th Cir.

1998) (under Illinois law, trespass is entry onto land without owner’s consent).

The court was also entitled to reject Smith’s testimony

that the agents assaulted him. Smith claimed that the

agents grabbed and restrained him at the farm and even

threw him to the ground at the National Guard armory

in Bloomington. Yet Smith mentioned neither incident in

a lengthy claim for damages he filed with the Army prior

to suit. Moreover, the National Guard members testified

that they never saw or heard any assault. The court was

also skeptical that the agents would tackle Smith after the
6 No. 01-4000

tank had been removed from his farm and locked up

inside the armory. The court’s interpretation of the testimony on this point is also plausible, and therefore we find

no clear error.

Smith’s remaining arguments also miss their mark. First,

Smith claims the Army has “unclean hands” because it destroyed the tank during target practice, and therefore the

district court should have found in his favor on all counts.

The unclean hands doctrine provides that a party to a

lawsuit may not obtain the relief it seeks if it has engaged

in wrongful conduct. Eichmann v. Nat’l Hosp. & Health

Care Servs., Inc., 719 N.E.2d 1141, 1145 (Ill. App. Ct. 1999).

But the government seeks no relief against Smith and

therefore the doctrine does not apply.

Second, Smith claims the Army’s destruction of the tank

constitutes spoliation of evidence, another reason the district court should have found in his favor. Spoliation of

evidence occurs when one party destroys evidence relevant

to an issue in the case. Crabtree v. Nat’l Steel Corp., 261

F.3d 715, 721 (7th Cir. 2001). Spoliation of evidence does

not apply in this case because the tank itself shed no light

on Smith’s claims that he owned it, protested its removal,

or was assaulted.

Finally, we need not consider Smith’s argument regarding

the Posse Comitatus Act because he failed to argue the

issue to the district court. Schoenfeld v. Apfel, 237 F.3d 788,

793 (7th Cir. 2001). In any event, the Posse Comitatus Act,

which prohibits Army and Air Force personnel from engaging in civilian law enforcement, is a criminal statute that

provides no private cause of action. 18 U.S.C. § 1385; Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d

Cir. 1994).

Accordingly, we AFFIRM the judgment of the district court.
No. 01-4000 7

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-97-C-006—6-12-02