Randell L.d. Smith v. United States of America

* 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
R ANDELL L.D. S MITH ,
Plaintiff-Appellant,
v.
U NITED S TATES OF A MERICA ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 00-1122—Michael M. Mihm, Judge.
____________
S UBMITTED A PRIL 22, 2002 * —D ECIDED J UNE 12, 2002
____________
Before F AIRCHILD , R OVNER , and E VANS , Circuit Judges.
E VANS , 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 Bloom-
ington, 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

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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 gov-
ernment 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 de-
cision 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 permis-
sion 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 govern-
ment’s consent.

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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. Rath-
er than have the National Guard demilitarize the tank as
the Army required, Smith and a friend tried to do it them-
selves.
Eventually, the Army discovered that Smith, not the
VFW, had the tank. Alarmed by this news, the Army de-
ployed 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 summa-
ry judgment to the government on Smith’s conversion and
replevin claims. After a bench trial on the remaining tres-
pass and battery claims, the district judge found for the
government. Smith appeals raising a bevy of issues.

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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 re-
viewing 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 allega-
tions. 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 re-
quires 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 prohib-
ited 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 prohib-
ited the VFW from transferring the tank to anyone. There-
fore, Smith presented no evidence of ownership or right
to possession, and the district court properly granted sum-
mary judgment to the government.
Next, Smith argues that the district court should not have
entered judgment for the government on his trespass and

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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 deter-
minations of credibility for clear error. United States v.
Crowley, 285 F.3d 553, 563 (7th Cir. 2002). In order to con-
stitute 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 gov-
ernment 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 agi-
tation, 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 with-
out 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

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6 No. 01-4000
tank had been removed from his farm and locked up
inside the armory. The court’s interpretation of the testi-
mony 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 de-
stroyed 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 dis-
trict 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 engag-
ing in civilian law enforcement, is a criminal statute that
provides no private cause of action. 18 U.S.C. § 1385; Robin-
son v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d
Cir. 1994).
Accordingly, we A FFIRM the judgment of the district court.

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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

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