Thomas Wagner, a Branchville, New Jersey accountant, pled guilty April 8th to helping former Somerset County Prosecutor Nicholas L. Bissell, Jr. and his wife evade income taxes. The plea, entered before U.S. District Judge Alfred Lechner, Jr. caps Wagner's maximum prison term to five years. He may avoid jail altogether if he testifies against the Bissells at their trial. Wagner, a former business partner of Bissell's, is the accountant Bissell hired in 1987 to audit Somerset County's forfeiture fund. He conducted the audits from 1987 to 1994. The county's forfeiture account, controlled by Bissell, took in over $5 million during this seven year period.

Wagner was removed as auditor in 1994 after the state attorney general's office ruled that Wagner didn't have the proper credentials to audit the fund. The April 15th New Jersey Law Journal (144 N.J.L.J. 246) credits F.E.A.R.'s New Jersey chapter 33 with "launching a successful challenge against Wagner's credentials for the post." And, evidence is mounting that the forfeiture money wasn't properly accounted for during the period of Wagner's audits. According to a sworn statement filed by IRS Agent Joseph LaRose last year, Wagner's records "contained material omissions in that they failed to properly report assets seized by the prosecutor's office. Nobody knows how much of the forfeiture money is missing or otherwise unaccounted for.

Search & Seizure ruling
(posted by Larry Gamm, FEAR-List bulletin 3/31/96)

I thought the following might be interesting to the members of FEAR-List and hopefully its in keeping with the policies of the list and that I understand the use of the term "forfeiture" correctly...

Last week I was traveling in the State of Wisc. and stopped for coffee and picked up the local paper and from that I'm quoting as follows:

 WISCONSIN STATE JOURNAL
Tuesday, March 26, 1996 Page 3B.
ONALASKA (City in Wisc.)

" A police officers suspicions of underage drinking at a private residence, in violation of local ordinances, aren't sufficient cause to issue a search warrant a municipal Judge has ruled.

Municipal Judge John Brinckman's decision suppressed evidence in a case involving serveral teen-agers who were arrested last summer for underage drinking and possession of marijuana.

Dismissing charges against the teens, Brinckman said the warrant was invalid because it was based soley upon probable cause that a civil forfeiture-ordinance violation was occuring.

City Attorney Peder Arneson appealed the ruling to La Crosse County Circuit Court last week, contending a search was justified because a forfeiture action is a quasi-criminal proceeding."

Kansas double jeopardy ruling- U.S. v. Gainer
posted by John Paff (FEAR-List bulletin 2/8/96)

"The court does not take lightly either the dismissal of criminal charges against a defendant or the significant efforts undertaken by the Government to reduce drug abuse in this country. However, the protections of the Constitution apply to all citizens, and the Constitution must never be made a casualty in the Government's war on drugs." United States v. Brophil United States District Court, District of Vermont 899 F.Supp. 1257, 1266 (D.Vt. 1995) quoted in Gainer v. U.S.

On November 8, 1995, the United States District Court for the District of Kansas decided the case of Richard Gainer v. United States of America (904 F.Supp 1234). In this opinion, Senior Judge Saffels vacated Gainer's prison sentence since he had already been punished by a prior DEA administrative forfeiture.

Gainer was arrested on June 4, 1990 for marijuana offenses. At the time of his arrest, two vehicles and $85,310 were seized. The DEA initiated an administrative forfeiture action against the cash and vehicles. Gainer did not respond to his notice of the action, so the cash and property were administratively forfeited September 5, 1990. On August 13, 1990, Gainer pled guilty to "conspiracy to possess with intent to distribute marijuana" and on October 17, 1990 was sentenced to 5 years in prison, followed by 5 years of supervised release.

The court noted that the Third, Seventh and Ninth Circuits have held that jeopardy does not attach if the claimant does not contest, and thus participate in, the forfeiture. (U.S. v.ÏBaird, 663F.3d 1213 (CA 3,1995), U.S. v. Torres, 28 F.3d 1463 (CA 7, 7788 1994), U.S. v. Cretacci, 62 F.3d 307 (CA 9, 1995). Saffels, however, found that one of the forfeited vehicles was titled in Gainer's name and held. The character of the act of forfeiture is without question punishment whether or not a defendant appears as part of the proceeding. This is especially true when there is no doubt about the owner of the property seized. (Gainer, at 1237)

Accordingly, Judge Saffels granted Gainer's motion to set aside his criminal sentence. Gainer represented himself in this proceeding.

U

nfavorable NJ Decision: No right to jury trial in civil forfeiture cases
by John Paff (FEAR-List bulletin 1/26/96)

FREEHOLD NJ - A Monmouth County Superior Court judge ruled today that a New Jersey statute depriving a property owner of a jury trial in a civil forfeiture action does not violate the state constitution. In his ruling, Judge James A. Kennedy upheld N.J.S. 2C:64-3(f), which allows forfeiture cases to be heard in a summary fashion by a single judge.

Elizabeth Macron, attorney for claimant Lois McDermott, plans to appeal Kennedy's decision. The case is State v. One 1990 Honda Accord, Docket MON-L-003804-95.

Double jeopardy ruling regarding drivers licenses
posted by King Cutcomp (FEAR-List bulletin 1/18/96)

The AP wire reported today that the Iowa Supreme Court just ruled that a state law taking away driver's licenses for possesion of a controlled substance unconstitutionally punishes people twice for the same crime.

Iowan Richard A. Dressler pleaded guilty to possession of a controlled substance and paid a fine. Afterwards, state transportation officials notified him his driver's license had been suspended for six months.