On October 4, 1994, the United States Supreme Court denied a petition of certiorari in the case of Etim v. U.S, leaving stand the 2nd Circuit's ruling in U.S. v. U.S. Currency in the Amount of $145,139, 18 F.3d 73, 63 USLW 3073.

The $145,139 was seized at a border crossing because Etim failed to declare it to customs officials. Civil forfeiture of the seized cash was ordered after the Etim was convicted of a federal criminal charge based on the same act. Etim was fined $5,000 and put on probation for three years.

The questions the appellant presented to the court were:

1. Did the forfeiture decree in this case violate petitioner's rights under the Double Jeopardy Clause, in view of claim that forfeiture was punitive in nature, and fact that petitioner already had been punished by incarceration and imposition or probation and fine in prior criminal action?

2. Did forfeiture decree violate petitioner's rights under the Eighth Amendment's Cruel and Unusual Punishment and Excessive Fines Clauses, in view of argument that forfeiture was grossly disproportionate to crime for which petitioner was prosecuted and convicted?

This look liked the perfect opportunity for the Supremes to rule on the double jeopardy issue. Isn't it unusual for them to deny certification in case where there is a division in the circuits? As of the date of the denial-- October 4, 1994--the 7th and 9th circuit rulings had been written. Also, Circuit Judge Kearse filed a dissent in the 2nd Circuit ruling, asserting that double jeopardy had been violated.

This cert denial confuses me. What inferences, if any, can we draw from it?

Denial of certiorari in Etim v. U.S.
by Brenda Grantland (FEAR-List bulletin 12/10/94)

John Paff's post about the Supreme Court denying certiorari in Etim v. U.S. asked why the Supreme Court would do such a thing, with a division in the circuits over whether double jeopardy applies to forfeiture.

The volume of cases petitioning for certiorari every year number in the thousands. The Supreme Court can only hear a very small percentage of them (I have heard the odds are around 1 in 2000 of their taking a particular case.)

It appears from the Kurth Ranch decision this summer, where they mentioned forfeiture all the way through an opinion dealing with whether a marijuana tax triggered double jeopardy, that the Supreme Court is interested in this issue. But that doesn't mean that they will take up the first case that gets presented to them. This is a hot issue -- and FEAR has helped fan the flames a bit with the Double Jeopardy book -- so there will be plenty of cases to choose from.

The Supreme Court will hand pick the case they use to decide this issue, choosing one that has the facts and issues raised in the way that best suits their purposes. For example, they might be considering using the Tilley case instead, since it includes an argument that forfeiture of alleged proceeds isn't punishment. That includes an issue that the Etim case does not include. Or they may be waiting for one that raises other issues that they can use to create exceptions to the rule, or one that will give them the opportunity to decide how retroactive the remedy is. Or they may be waiting to see what the Ninth Circuit does with the petition for rehearing in U.S. v. $405,089.23.

Pennsylvania Commonwealth Court Holds Right to Counsel Applies to Forfeiture
by Brenda Grantland (FEAR-List bulletin 12/06/94)

A Pennsylvania inmate and "jailhouse lawyer," Allan S. Ewing, recently sent FEAR a copy of a case he helped a claimant win -- Commonwealth of Pennsylvania v. $9,847, 637 A.2d 736 (Commonwealth Ct. of Pa., March 22, 1994), which held that a forfeiture claimant has the right to court appointed counsel to represent him in his forfeiture case, even though the forfeiture does not implicate a liberty interest.

As recently as mid-November, when I spoke at the Drug Policy Foundation conference and someone asked me if there is a right to court appointed counsel in forfeiture cases, I said no. I thought this would be a hard thing to achieve because of the Supreme Court's limitation of the right to counsel to cases involving liberty interests. In Argersinger v. Hamlin, 407 U.S. 25 (1972), the Supreme Court held that a person has a right to a court appointed attorney at the government's expense only if the judgment could result in the loss of liberty. And in Scott v. Illinois, 440 U.S. 374 (1979), the Court held that convictions can be reversed on denial of counsel grounds only if the judgment results in a sentence of imprisonment. It seemed that we would have to overturn those two cases to get any progress on that ground.

But, luckily, I was wrong. The Commonwealth Court of Pennsylvania, in the $9,847 case, noted that the Supreme Court backed away somewhat from the draconian approach of Argersinger and Scott in Lassiter v. Department of Social Services, 452 U.S. 18 (1981), which held that there is merely a presumption that the right to counsel only applies to cases involving liberty interests. The Supreme Court held in Lassiter that the presumption against the right to counsel must be balanced against the due process factors enunciated in Matthews v. Eldridge, 424 U.S. 319 (1976): (1) the private interested affected by the governmental action, (2) the risk of erroneous deprivation if the procedural safeguard is not provided and the probable value of the procedural safeguard, and (3) the governmental interest involved, including additional burdens on the government from the procedural safeguard.

Applying these factors, the Pennsylvania court concluded -- apparently for the first time in a reported decision -- that Due Process requires the appointment of counsel. The court noted, first, that the government is seeking to impose an additional penalty upon the property owner. Secondly, it found a high degree of likelihood of an erroneous deprivation if the court denied court appointed counsel, noting that the government normally expects to meet only pro se litigants struggling through the forfeiture process. "It is quite likely that in most, if not all forfeiture cases, the appointment of counsel would substantially aid a claimant in negotiating the arcane forfeiture procedures." $9,847, quoting United States v. 1604 Oceola, 803 F.Supp. 1194, 1196 (N.D. Tex. 1992). The court in Oceola concluded that the appointmentof counsel was not required in that case, because the propertyowners had pleaded guilty to the offense which would trigger forfeiture, and the court felt the property owner would not have any defense under the current law.

The Pennsylvania court stated that the Oceola case -- the only other case they were able to find addressing the issue of the right to counsel in forfeiture cases -- might have been correctly decided at the time, but the court believed it would have been decided differently after Austin v. United States, 113 S.Ct. 2801 (1993) held that forfeiture is punishment.

Furthermore, it is well settled that in a criminal proceeding, the accused, if indigent, is entitled to have counsel appointed at each critical stage of the proceeding because of the Sixth and Fourteenth Amendments.... Austin makes clear that forfeiture proceedings are punishment in addition to any sentence of imprisonment imposed. Accordingly, we believe that if an indigent is entitled to have counsel appointed for the imposition of sentence, that defendant is also entitled to have counsel appointed in further proceedings where the government is attempting to exact additional punishment for the criminal conduct, despite the fact that those later proceedings are classified as "civil." $9,847, 637 A.2d at 744.

Another Victory In the Ninth Circuit: Federal Appeals Court Holds Drug-Dog Sniff Not Enough to Forfeit Cash
by Brenda Grantland (FEAR-List bulletin 12/03/94)

On November 8, 1994, the U.S. Court of Appeals for the Ninth Circuit again took the lead in asset forfeiture reform by putting dog alert evidence into its proper perspective.

For the past ten years, the lure of asset forfeiture revenue has prompted law enforcement officers to use dog sniffs as witch- hunting tools to seize cash -- any amount of cash -- without any other evidence of criminal behavior. So called "drug-sniffing dogs" are supposedly trained to alert to the smell of drugs on money, and their noses, police claim, are so sensitive that they can detect miniscule amounts of drugs. When dogs "alert" to cash, the officers claim that proves that the money has come into contact with drugs, therefore, the money is drug proceeds, and the person whose money was seized is a drug courier. FEAR has long pointed out the falacy of this argument -- the dog's alert may prove there is drug residue on some of the cash, but that proves nothing about the person from whom the money was seized.

In United States v. $30,060, the Ninth Circuit held that a drug dog alert has little probative value in showing that cash was connected to drug trafficking.

The court recognized the fact that "cocaine can be easily transferred simply by shaking hands with someone who has handled the drug: a pharmacist, toxicologist, police officer, or drug trafficker" (quoting Andrew Schneider & Mary Pat Flaherty's Presumed Guilty series for the Pittsburgh Press, August 1991.) A dollar bill used to snort cocaine goes back into circulation, contaminating all the other bills it comes into contact with -- in wallets and cash drawers, the court explained.

The court's opinion cited reports showing that 75% to 90% of all circulated currency in Los Angeles (the city where the seizure occurred) is contaminated with cocaine residue. The court stated:

If greater than seventy-five percent of all circulated currency in Los Angeles is contaminated with drug residue, it is extremely likely a narcotics detection dog will positively alert when presented with a large sum of currency from that area. Given this high degree of certainty, the probative value of a positive dog alert in currency forfeiture cases in Los Angeles is significantly diminished and "the continued reliance of courts and law enforcement officers on [such an alert] to separate `legitimate' currency from `drug-connected' currency is logically indefensible." U.S. v. $30,060, quoting Jones v. Drug Enforcement Administration, 819 F.Supp. 698, 721 (M.D. Tenn. 1993).

This case is too recent to have a citation in F.3d, and apparently Westlaw hasn't yet reported it. But in the meantime it can be cited under the California Daily Opinion Service (C.D.O.S.) citation, United States v. $30,060, 94 C.D.O.S. 8532, (U.S. Ct. of App. for 9th Cir. # 92-55919, filed Nov. 8, 1994).