UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA, 

Plaintiff,

Case No. 2:12-cv-740

v. JUDGE GREGORY L. FROST

Magistrate Judge Norah McCann King

SIXTY-SEVEN THOUSAND SEVEN 

HUNDRED THIRTY-SEVEN AND 

00/100 DOLLARS ($67,737.00) IN 

UNITED STATES CURRENCY, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of a motion for summary judgment filed

by Plaintiff (ECF No. 30), a memorandum in opposition filed by claimant the Estate of Robert F.

Kelly IV (ECF No. 33), and a reply memorandum filed by Plaintiff (ECF No. 34). For the

reasons that follow, this Court finds the motion well taken. 

I. Background

In 1996 to 1997, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”)

conducted an investigation involving Robert F. Kelly IV. This investigation involved the

execution of search warrants of two residences that Kelly had, which resulted in the recovery of

marijuana and various stolen items. A consequent criminal case involved the filing of charges

against Kelly, who entered into a plea agreement under which he pled guilty to one count of

possession of two machine guns and one count of possession with intent to distribute marihuana. 

As part of the sentence he received, Kelly could not subsequently possess a firearm or

destructive device.

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In 2009, ATF agents received information from various individuals that Kelly was again

involved in selling narcotics and that he was in possession of firearms. The related ATF

investigation resulted in the November 2010 execution of a search warrant at Kelly’s residence

at 11589 Darby Creek Road in Orient, Ohio. ATF agents seized numerous firearms and assorted

ammunition, in addition to marijuana and currency. As a result of this investigation criminal

charges were filed against David Shope, an individual who lived in an apartment at the Darby

Creek address. Shope entered into a plea agreement under which he pled guilty to conspiracy to

distribute 100 kilograms or more of marihuana and possession of a firearm in furtherance of a

drug trafficking crime. Notably, the Indictment against Shope also contained two forfeiture

allegations, and as part of his plea agreement, Shope agreed to the forfeiture of $115,000.00 in

U.S. Currency and 56 firearms and ammunition. A preliminary order of forfeiture was entered

on May 18, 2012.

In July 2012, however, Robert F. Kelly III filed a petition contesting the preliminary

order of forfeiture. He was acting as administrator for the estate of Robert F. Kelly IV, who had

died on October 22, 2011. Plaintiff thereafter filed the instant action in August 2012. Excluding

currency and property in which Shope advised he had an interest, Plaintiff asserts that

$67,737.00, 52 firearms, and ammunition seized during the execution of the November 2010

search warrant are subject to forfeiture under 21 U.S.C. § 881(a)(6) and 18 U.S.C. § 924(d)(1). 

The Estate of Robert F. Kelly IV (“the Estate”) claims an interest in this currency and property. 

Plaintiff has filed a motion for summary judgment. (ECF No. 30.) The parties have completed

briefing on the motion, which is ripe for disposition.

II. Discussion 

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A. Standard involved

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may therefore grant a motion

for summary judgment if the nonmoving party who has the burden of proof at trial fails to make

a showing sufficient to establish the existence of an element that is essential to that party’s case. 

See Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 

In viewing the evidence, the Court must draw all reasonable inferences in favor of the

nonmoving party, which must set forth specific facts showing that there is a genuine issue of

material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234 (6th Cir. 2003). A

genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is “ ‘whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.’ ” Hamad, 328 F.3d at 234-35 (quoting Anderson,

477 U.S. at 251-52).

B. Analysis 

As a threshold matter, the Court notes that there is no dispute over the underlying facts

supporting today’s forfeiture. These facts, as summarized in Plaintiff’s memorandum in support

of its motion for summary judgment and supported by the summary judgment evidence Plaintiff

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offered in connection with that motion, establish that the $67,737.00 is currency that constitutes

money furnished or intended to be furnished in exchange for a controlled substance, that

represents the proceeds of trafficking in a controlled substance, or that was currency used or

intended to be used to facilitate qualifying criminal violations. Similarly, these facts establish

that convicted felon Robert F. Kelly IV possessed the 52 firearms and ammunition. Plaintiff has

therefore met its burden under 18 U.S.C. § 983(c)(1) of proving by a preponderance of the

evidence that the property involved in this case is subject to forfeiture. Given the lack of a

factual disagreement, this Court need not and will not repeat those facts here but will instead turn

to what is in dispute. 

This case turns on whether a forfeiture is even possible and on whether the Estate is an

innocent owner under 18 U.S.C. § 983. That statute provides in relevant part that “[a]n innocent

owner’s interest in property shall not be forfeited under any civil forfeiture statute.” 18 U.S.C. §

983(d)(1). The statute defines an “innocent owner” in relation to a property interest in existence

at the time the illegal conduct took place as “an owner who . . . did not know of the conduct

giving rise to the forfeiture” or who “upon learning of the conduct giving rise to the forfeiture,

did all that reasonably could be expected under the circumstances to terminate such use of the

property.” 18 U.S.C. § 983(d)(2)(A)(i)-(ii). The statute then defines an “innocent owner” in

relation to a property interest acquired after the time the illegal conduct took place as “a person

who, at the time that person acquired the interest in the property . . . was a bona fide purchaser or

seller for value . . . and . . . did not know and was reasonably without cause to believe that the

property was subject to forfeiture.” 18 U.S.C. § 983(d)(3)(A)(i)-(ii). A claimant asserting

innocent owner status bears the burden of proving that defense by a preponderance of the

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evidence. 18 U.S.C. § 983(d)(1). 

The Estate first argues that no forfeiture is possible because a forfeiture in this action

would be penal in nature and therefore within the rule of nonsurvivability. In other words, the

Estate argues that because this forfeiture action does not survive the death of Robert F. Kelly IV,

the Estate cannot be penalized and the property cannot be forfeited. The Estate concludes that

because it cannot be held liable for any illegal activity by Robert F. Kelly IV, it thus qualifies as

an innocent owner.

As Plaintiff correctly notes in its reply memorandum, the Estate’s analysis tracks the

reasoning of United States v. $47,409.00 in U.S. Currency, 810 F. Supp. 919 (N.D. Ohio 1993),

but that rationale has been recognized as abrogated by Supreme Court precedent. See United

States v. Land, Winston Cnty., 221 F.3d 1194 (11th Cir. 2000). The Estate thus overlooks

authority establishing that a § 881(a) civil forfeiture action is generally remedial in nature. See

United States v. Ursery, 518 U.S. 267, 278, 288-92 (1996) (analyzing congressional intent and

the nature of § 881 forfeitures for double jeopardy purposes); United States v. Chambers, 121

F.3d 710, 1997 WL 441801, at *6 (6th Cir. 1997) (unpublished table decision) (“a true in rem

civil forfeiture is not an additional penalty for the commission of a criminal act, but rather is a

separate civil sanction, remedial in nature”). See also United States v. Certain Real Prop. 566

Hendrickson Blvd., Clawson, Oakland Cnty., Mich., 986 F.2d 990, 998-99 (6th Cir. 1993). More

specifically, the § 881(a)(6) forfeiture of currency constituting drug-trafficking proceeds has

been held to be remedial in nature. United States v. $129,727.00 U.S. Currency, 129 F.3d 486,

493 (9th Cir. 1997). Similarly, the forfeiture of firearms that were illegally possessed has also

been recognized as remedial in nature. United States v. Boles, 1 F. App’x 182, 183 (4th Cir.

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2001) (citing United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364 (1984)).

Moreover, a remedial civil forfeiture does not abate with death. See United States v.

Land, Winston Cnty., 221 F.3d at 1199. Rather, “[t]he claim of an administrator of a claimant’s

estate derives from the deceased claimant, and the administrator can only assert defenses that

would have been available to the deceased claimant.” United States v. 133 Firearms with 36

Rounds of Ammunition, No. 2:08-cv-1084, 2012 WL 511287, at *8 (S.D. Ohio Feb. 15, 2012)

(citing United States v. Real Prop. Located at 265 Falcon Rd., Civil NO. 08–700–JPG, 2009 WL

1940457 at *6 (S.D. Ill. July 7, 2009); Hopper v. Nicholas, 106 Ohio St. 292, 302, 140 N.E. 186,

189 (1922); Kelley v. Buckley, 193 Ohio App. 3d 11, 33, 950 N.E.2d 997, 1013 (Ohio App. 8th

Dist. 2011)). Also important is that “the estate cannot raise defenses which might be available

for individuals who stand to inherit from the estate.” Id. (citing United States v. 164 Pieces of

Jewelry, 785 F. Supp. 885, 889 (D. Or. 1991).

The Estate also argues that, even if the forfeiture is survivable, the Estate qualifies as an

innocent owner under 18 U.S.C. § 983(d)(3)(A) in regard to the $67,737.00. The Estate posits

that neither Robert F. Kelly III nor the heirs of Robert F. Kelly IV had any knowledge of any

illegal activity related to the currency. The Estate argues that this money in fact transferred upon

the death of Robert F. Kelly IV, predating any forfeiture of estate assets.

Plaintiff points out in its reply memorandum that the Estate has again relied on outdated

law. Two cases upon which the Estate primarily relies upon in making its argument involved the

federal forfeiture statutory scheme prior to the 2000 amendments that repealed various

provisions and created § 983(d). Proceeding under the applicable statutory scheme, the Estate

cannot prevail under § 983(d)(2) because there was no interest in the property at the time the

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illegal conduct giving rise to the forfeiture took place. Robert F. Kelly, IV, was still alive at that

time, and no one is the heir of a living person. United States v. 133 Firearms with 36 Rounds of

Ammunition, 2012 WL 511287, at *8 n.2 (citing Slaughter v. Fitzgerald, 66 Ohio App. 53, 67,

31 N.E.2d 744, 750(1939)); see also United States v. 477 Firearms, 698 F. Supp. 2d 894, 900-01

(E.D. Mich. 2010). Nor can the Estate or the heirs prevail under § 983(d)(3) because there is no

bona fide purchaser for value for the property. United States v. 133 Firearms with 36 Rounds of

Ammunition, 2012 WL 511287, at *8 & n.2.

In summary, Plaintiff has met its burden by presenting undisputed evidence establishing a

right to the forfeiture of the currency and other property involved in this case, while the Estate

has failed to meet its consequent burden of establishing qualification as an innocent owner under

the defenses provided in § 983. Plaintiff is therefore entitled to summary judgment. 

III. Conclusion

This Court GRANTS Plaintiff’s motion for summary judgment. (ECF No. 30.) The

$67,737.00, 52 firearms, and ammunition shall be forfeited to Plaintiff. Plaintiff shall submit a

proposed order on or before December 30, 2013, that identifies the property to be forfeited and

effectuates the forfeiture. 

IT IS SO ORDERED.

 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

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