May 2007, FEAR
bulletins with associated articles
Because most news
media links are short lived, for educational purposes we have attached
the full text of each
article over two weeks old linked in the FEAR-List Bulletins
below.
The
Province, Vancover, Canada:
www.fear.org:
U.S. 3rd Circuit Court of Appeals, May 04, 2007:
http://www.moneynetnews.com:
NACDL:
www.fear.org:
U.S. 1st Circuit Court of Appeals, May 18, 2007:
U.S. 5th Circuit Court of Appeals, May 22, 2007:
From: owner-fear-list@mapinc.org on behalf of Jody
Neal-Post [jodynealpost@sprintmail.com]
Sent: Tuesday, May 01, 2007 6:35 AM
To: Fear
Subject: FEAR: Canada uses 6 yr old forfeiture laws
More
<http://www.canada.com/theprovince/news/story.html?id=c923de53-4a8e-42cb-b2f0-f2e99b01de1e>
grow-op homes now facing forfeiture
Vancouver Province (subscription) - Vancouver,British Columbia,Canada
The Appeal Court upheld the forfeiture under federal drug laws. At the
same time, the Appeal Court ordered the seizure of a small Lonsdale home
owned by ...
<http://news.google.com/news?hl=en&ncl=http://www.canada.com/theprovince
/news/story.html%3Fid%3Dc923de53-4a8e-42cb-b2f0-f2e99b01de1e> See all
stories on this topic
Susan Lazaruk, The Province
Published: Thursday, April 26, 2007
A dual ruling by the B.C. Court of Appeal ordering or upholding the
seizure of two homeowner-run grow-ops will set a precedent for other
trials, lawyers say.
"There are nine to 10 other forfeitures that are now going to be
heard, based on the precedent set by these cases," said defence lawyer
Jay Solomon yesterday.
His clients, Khai Thoi Huynh and Muoi Suu Ta, lost their
4,000-square-foot Abbotsford home after police busted a grow-op in the
basement that was grossing the couple up to $250,000 a year.
The husband and wife were raising three children
along with the plants.
The Appeal Court upheld the forfeiture under federal drug laws.
At the same time, the Appeal Court ordered the seizure of a small
Lonsdale home owned by Judy Ann Craig, a gardener who grew clematis
outside and marijuana inside the 1,000-square-foot home.
The forfeitures were made under the six-year-old Canada Drug and
Substance Act.
"I thought it was overly harsh and excessive for first-time
offenders," said Solomon. "And we're dealing with pot, not meth or
cocaine," he said.
"But the Court of Appeal strongly disagreed."
Federal prosecutor Ray Leong said the precedent-setting case gives
the police another tool to deal with the drug trade and is significant
because the houses were not seized as proceeds of crime, but were
"offence-related," in that they were instruments of crime.
"It certainly sends out a message that courts are not going to shy
away from taking away houses used in crime," he said.
Solomon said his clients haven't decided whether to seek leave to
appeal to the Supreme Court of Canada, the next and final step. Such an
appeal is costly and time-consuming.
All parties have 30 days in which to file an appeal.
slazaruk@png.canwest.com
© The Vancouver Province 2007
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From: owner-fear-list@mapinc.org on behalf of Judy
Osburn [openi420@starband.net]
Sent: Tuesday, May 01, 2007 3:26 PM
To: FEAR-list
Subject: FEAR: more on NM appeals court rules police
cannot use federal court to avoid state forfeiture reform
The article below can be read with complete formatting at www.fear.org
New Mexico Court of appeals rules
that police cannot use federal courts to bypass state forfeiture reforms
by Judy Osburn
In George Albin versus Bakas, Taylor, Danko, Maldandado, Hooper and
O’Leary
(New Mexico State Troopers and their superiors), Case number 26,134
filed
April 26, 2007) the Court of Appeals for the State of New Mexico
examined
whether state police officers who seize cash under the authority of the
New
Mexico’s Controlled Substances Act are required to comply with the
requirements of the state Forfeiture Act, or whether they may instead
transfer the cash to the federal government to bring a forfeiture action
under federal law, then receive from the federal government a portion
of the
proceeds.
The appeals held that "Just because the officers subsequently decided to
transfer the cash to the federal government for the purpose of bringing
a
federal forfeiture action did not entitle them to ignore New Mexico
law.”
Agencies in various states that have passed forfeiture reform
legislation
often use his type of federal “adoption” of forfeiture cases to avoid
the
requirements state reforms. The Albin court held that New Mexico State
Police officers seizing currency under state law are subject to the
procedures set forth in the New Mexico Forfeiture Act, and in this
case, the
officers violated that Act. Therefore the court reversed the summary
judgment for Defendant state police by the District Court of Santa Fe
County, and remanded for further proceedings.
When New Mexico State Senator Duncan Scott (R-Albuquerque) introduced
legislation in 1994 to "overhaul New Mexico's criminal asset forfeiture
law," he said the major change requires that forfeited funds or
property go
to the state general fund rather than allow agencies to keep what they
seize. The law existing at that time “perverts law enforcement
incentives,"
Scott said. "Police become more interested in chasing Mercedes rather
than
chasing violent criminals because they get to keep the flashy car. Our
Founding Fathers wisely envisioned three separate branches of
government,
and the existing forfeiture law allows law enforcement agencies to
become
both the tax collector and legislature for themselves."
New Mexico forfeiture law now requires: 1) a criminal conviction of the
owner before property may be forfeited; 2) the value of the property to
be
forfeited must not unreasonably exceed the financial gain derived from,
or
loss caused by, the related crime; and 3) that proceeds of forfeited
property beyond costs of storage and restitution to victims be
deposited in
the general fund to be used for drug treatment, education and substance
abuse prevention.
However, under federal law police agencies that transfer seized
property for
“adoption” by federal courts have continued to enjoy up to 80% of the
proceeds returned directly to the seizing agencies. The court of
appeals
held in Albin that procedural requirements of New Mexico’s Forfeiture
Act
are mandatory, stating:
We acknowledge that the use of “adoptive seizures” is apparently
wide-spread
and follows a long history of forfeiture collaboration between state and
federal agencies. We do not address whether, to what extent, or how an
“adoptive seizure” to allow a federal forfeiture to proceed may be
accomplished under the Forfeiture Act. Our holding in this case is
limited:
when property is seized by state police officers for forfeiture,
compliance
with the Forfeiture Act is required even if the state intends to
transfer
the property to the federal government to pursue a federal forfeiture
action
pursuant to an “adoptive seizure.” In this case, Defendants violated the
Forfeiture Act.
The case began in during a traffic stop in October 2002 that resulted
in the
passenger, John Albin, consenting to a search that resulted in the
seizure
of small amounts of marijuana, psylosibin mushrooms, marijuana
paraphernalia, 18 Xanax pills, a knife and $23,100 in cash. Passenger
Albin
pleaded no contest to one misdemeanor count of possession of a
controlled
substance, and received a deferred sentence of 364 days in jail. (Under
New
Mexico law once the period of deferment expires without further criminal
activity all charges are dropped with no actual jail time served.)
New Mexico State Police transferred the seized currency to the United
State’s Marshal Service during November 2002 in the form of a cashier’s
check showing the state police as “remitter” of the $23,100. On
May 7,
2003, while the criminal charges against John Albin were still pending,
the
United States filed a complaint in the United States District Court for
the
District of New Mexico, naming the cash as the defendant and Passenger
Albin
as a claimant, seeking forfeiture of the cash to the United States
pursuant
to federal law. John Albin subsequently died, and the
forfeiture action
continued against the currency as the defendant and the deceased
passenger’s
personal representative, George Albin, as the claimant of the currency.
The
United States District Court ultimately entered a judgment forfeiting
the
interest of Passenger’s estate in the $23,100 to the United
States.
George Albin sued the state police officers for illegally transferring
the
seized currency to the U.S. Marshals, but the District Court of Santa Fe
dismissed his complaint in a summary judgment for the state police
officers.
The New Mexico court of appeals reversed that summary judgment, holding
that
defendant state police were not entitled to avoid all requirements of
the
state’s forfeiture laws merely because they intended to transfer the
property to the federal government.
The appeals court in Albin agreed with the Maryland Court of Appeals
that a
state police agency “is not free to circumvent State law altogether
when it
decides to forgo State forfeiture proceedings in favor of federal
forfeiture
proceedings.” New Mexico’s Forfeiture Act directs that: “Seized
currency
alleged to be subject to forfeiture shall be deposited with the clerk
of the
district court in an interest-bearing account.” The New Mexico
Court of
Appeals held that:
Depositing the cash with the district court clerk as directed by the
statute
brings it under the direct jurisdiction and supervision of the district
court. The clerk deposits the money into a trust fund checking account,
which holds all money that belongs to litigants or might be refunded to
litigants. NMSA 1978, § 34-6-36 (1968). The clerk is only
authorized to pay
money out of this account in accordance with a written order of the
district
court filed with the clerk. Id.
Forfeitures are in rem proceedings under New Mexico law. [Citations
omitted.] The effect of the legislative directive to deposit currency
alleged to be subject to forfeiture into an account subject to the
direct
jurisdiction and supervision of the district court is that the district
court acquires jurisdiction over the currency and maintains it to the
exclusion of any other court, be it a state court or federal court.
Since
1935, when the United States Supreme Court decided Penn General
Casualty Co.
v. Pennsylvania, ex rel. Schnader, 294 U.S. 189 (1935), it has been well
settled that the court that first acquires control of the res subject to
forfeiture retains exclusive jurisdiction over it to the exclusion of
any
other court. Id. at 195. In keeping with this precedent, we reject the
suggestion made by Defendants that federal forfeiture statutes preempt
[New
Mexico’s] Forfeiture Act. Therefore, the federal court could not obtain
jurisdiction over the cash unless, and until, the state district court
relinquished its own jurisdiction and control of the cash. See, e.g.,
United
States v. One 1987 Mercedes Benz, 2 F.3d 241, 244 (7th Cir. 1993)
(finding
that even though no state forfeiture proceeding had commenced, the
federal
government had to comply with state law requiring a turnover order from
the
district court before the federal government could obtain jurisdiction
over
seized property subject to adoptive forfeiture); Scarabin v. Drug
Enforcement Admin., 966 F.2d 989, 995 (5th Cir. 1992) (requiring the
DEA to
“first seek a turn over order from the state court, or wait until that
court
relinquishes control over the res” before proceeding with a federal
forfeiture complaint); United States v. One 1979 Chevrolet C-20 Van, 924
F.2d 120, 122-23 (7th Cir. 1991) (requiring that the federal government
seek
a turnover order from the state court before seizing the property in
question because “[a] local police department may not take seized
property
and just pass it on as it pleases to the FBI in flagrant disregard of
state
laws mandating judicial authority for such turnovers”), superseded by
statute as stated in United States v. Sixty-Two Thousand Six Hundred
Dollars, 899 F. Supp. 378 (N.D. Ill. 1995).
Instead of complying with his duty to deposit the cash with the clerk
of the
district court, Agent Carr immediately made the decision to contact the
DEA
“to pursue seizure of the currency,” and placed the cash “in evidence
for
safekeeping” until a decision was made on what procedure to
follow.<>
A second material requirement of [New Mexico’s] Forfeiture Act was
subsequently violated. The Act directs: “Within thirty days of making a
seizure, the state shall file a complaint of forfeiture or return the
property to the person from whom it was seized.” [Citation omitted.]
Instead
of filing a forfeiture complaint against the cash within thirty days,
the
State Police kept it in its personal custody from the time it was
seized on
October 20, 2002, until December 3, 2002, when the cashier’s check was
delivered to the United States Marshal Service. The State Police
officers
circumvented this additional requirement of the Forfeiture Act. If the
cash
had been deposited with the clerk of the district court, it would have
been
under the exclusive jurisdiction of the district court, with the
consequence
that with no state forfeiture complaint being filed with thirty days,
Passenger could have petitioned the district court to order the cash
returned to him. The Forfeiture Act clearly contemplates that the
authority
and jurisdiction to determine the status of the cash lies with the
district
court and not the State Police acting independently of statutory
requirements.
Finally, we note that by its conduct, the State Police circumvented
what our
Supreme Court requires in Nunez: if the State wanted to seek forfeiture
of
the cash, it was required to do so in Passenger’s criminal case.
“[H]enceforth, all forfeiture complaints and criminal charges for
violations
of the Controlled Substances Act may both be brought only in a single,
bifurcated proceeding.”
Therefore the Albin court concluded that the summary judgment record
established that New Mexico’s Forfeiture Act was violated. The
Defendants
contended (and the District Court of Santa Fe had apparently agreed)
that
they were not required to comply with state law when turning cash over
to
the federal government to pursue an “adoptive seizure” as described in
Johnson v. Johnson, 849 P.2d 1361, 1363 (Alaska 1993) :
Through informal arrangements, local police departments agree to notify
the
DEA when they seize property which may be subject to forfeiture
pursuant to
federal narcotics laws. Upon a DEA request, the local police department
will
transfer the property to the DEA, which will treat the property as if
it had
been seized by federal authorities. That is, the DEA will “adopt” the
seizure. The DEA will then institute federal forfeiture proceedings
against
the property. Once the forfeiture is complete, the DEA is authorized to
“split the pot” with the cooperating local police department.
The Albin court rejected Defendant state police’ argument that no
language
in the New Mexico statutes renders the state Forfeiture Act the
exclusive
law under which a forfeiture action may be commenced, stating:
This argument overlooks the plain, unambiguous requirement of the
Forfeiture
Act … that seized currency that is alleged to be subject to forfeiture
“shall be deposited with the clerk of the district court in an
interest-bearing account.” Clearly and unambiguously, the statute
requires
deposit of the cash with the clerk of the district court to provide for
its
safekeeping under the exclusive jurisdiction of the district court.
The appeals court noted that authority to stop, detain and arrest the
driver
and passenger were derived exclusively under New Mexico law, and there
“was
no federal involvement in stopping the vehicle, in detaining,
questioning
and arresting Driver and Passenger, in searching the vehicle, or in
seizing
and detaining the cash. … Just because the officers subsequently
decided to
transfer the cash to the federal government for the purpose of bringing
a
federal forfeiture action did not entitle them to ignore New Mexico
law.”
The Albin court remanded for further proceedings to determine issues of
fact
about whether Defendant police converted the $23,100 “By unilaterally
transferring the property without authority and in contravention of
state
statutes, the [c]ity committed a conversion.”[iii] “Conversion is
the
unlawful exercise of dominion and control over property belonging to
another
in defiance of the owner’s rights, or acts constituting an unauthorized
and
injurious use of another’s property, or a wrongful detention after
demand
has been made.” Additionally, the appeals court remanded for
examination of
whether the Tort Claims Act waives immunity for Plaintiff’s claims and
other
procedural issues.
Upon sharing the news of this appellate court holding that New Mexico
State
Police officers are now subject to the procedures set forth in the New
Mexico Forfeiture Act, Albuquerque forfeiture defense attorney Jody
Neal-Post exclaimed: “BEAUTIFUL, BEAUTIFUL! State law must be
followed and
currency turned over to state district court NOT feds.”
i. Citing DeSantis v. State, 866 A.2d 143, 147-48 (Md. 2005).
ii. The Albin court continued:
Similar descriptions of an “adoptive seizure” from various sources are
collected in Cavaliere v. Town of North Beach, 646 A.2d 1058, 1060 (Md.
Ct.
Spec. App. 1994) (noting that although not expressly authorized in the
federal statutes or regulations, the United States Attorney General has
permitted the DEA to “adopt” seizures made by local officials and to use
federal forfeiture procedures with respect to that property as part of a
cooperative effort with state and local officials to fight drugs). See
21
U.S.C. § 873(a)(2) (2000) (authorizing the Attorney General of the
United
States to cooperate with local and state agencies concerning traffic of
controlled substances “in the institution and prosecution of cases in
the
courts of the United States”); 21 U.S.C. § 881(e)(1)(A) (2000)
(authorizing
the Attorney General of the United States to “transfer” property
forfeited
in a federal action “to any State or local law enforcement agency which
participated directly in the seizure or forfeiture of the property”);
Internal Revenue Service Manual, 9.7.2.7.3 (07-15-2002), available at
http://www.irs.gov/irm/part9/ch07s02.html (stating that the state police
often opt to turn over the currency to the federal government when state
forfeiture law prohibits forfeiture or when it would be more
advantageous to
proceed under federal law).
ii. Citing Johnson, 849 P.2d at 1365; and Sec. Pac. Fin. Servs. v.
Signfilled Corp., 1998-NMCA-046, ¶ 15, 125 N.M. 38, 956 P.2d 837.
******************************************************
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From: owner-fear-list@mapinc.org on behalf of Jody
Neal-Post [jodynealpost@sprintmail.com]
Sent: Saturday, May 05, 2007 4:42 PM
To: Fear
Subject: FEAR: New 3rd Cir law on forfeiture procedure
U.S. 3rd Circuit Court of Appeals, May 04, 2007
<http://caselaw.lp.findlaw.com/data2/circs/3rd/063138p.pdf>
US v. $487,825.00
in US Currency, No. 06-3138
In a forfeiture proceeding involving nearly half a million dollars in
currency, a default judgment for the government is affirmed where
claimant did not comply with the procedural strictures of Rule C(6)(a)
and 18 U.S.C. section 983(a)(4)(A) because he did not file a verified
statement of interest, and thus lacked statutory standing to intervene
in the forfeiture proceeding. Read
<http://caselaw.lp.findlaw.com/data2/circs/3rd/063138p.pdf>
more...
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Attachment: http://mapinc.org/temp/12Q0GLP1a6NTw.html
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From: owner-fear-list@mapinc.org on behalf of Jody
Neal-Post [jodynealpost@sprintmail.com]
Sent: Saturday, May 05, 2007 5:11 PM
To: 'Fear'
Subject: FEAR: 10thCir: factors supporting currency
forfeiture
U.S. 10th Circuit Court of Appeals, April 30, 2007
<http://laws.lp.findlaw.com/10th/063164.html>
US v. $252,300.00
in US Currency, No. 06-3164
In a civil in rem forfeiture action brought by the government pursuant
to 21 U.S.C. section 881(a)(6) seeking forfeiture of $252,300, a
judgment forfeiting the currency to the government is affirmed over
claims that: 1) the district court's findings of fact were insufficient
to establish that the currency at issue was traceable to drugs for
purposes of section 881(a)(6); and 2) the government failed to prove a
case for forfeiture under 18 U.S.C. section 981. Read more...
<http://laws.lp.findlaw.com/10th/063164.html>
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From: owner-fear-list@mapinc.org on behalf of Brenda
Grantland [bgrantland1@comcast.net]
Sent: Saturday, May 12, 2007 4:51 PM
To: fear-list@mapinc.org
Subject: FEAR: US Government Forces E-gold
Redemptions - Seizes Gold
<http://www.moneynetnews.com/articles/54/1/US-Government-Forces-E-gold-Redemptions---Seizes-Gold/US-Government-Forces-E-gold-Redemptions---Seizes-Gold.html>http://www.moneynetnews.com/articles/54/1/US-Government-Forces-E-gold-Redemptions---Seizes-Gold/US-Government-Forces-E-gold-Redemptions---Seizes-Gold.html
US Government
Forces E-gold Redemptions - Seizes Gold
This article is Copyright 2007. You may re-publish for free it if left
intact and only if you give credit with weblink back to
http://www.moneynetnews.com
===
In an unprecedented move on or just before Wednesday May 9th,
2007, the
United States of America has forced Omnipay et al E-gold to redeem all
the gold backing the 58 previously frozen accounts owned by e-gold,
1mdc, icegold and a handful of other exchangers and customers to
be
liquidated effective immediately to a us dollar account owned by the
federal government.
According to the reduction in the gold bar list, the bar count
has dropped by 48 bars of approximately 400 oz each between May 3, and
May 9.
This redemption totals USD $11.357 Million.
Date Gold Grams
($ Value)
03-05-07 3,489,436
77.015 Million
09-05-07 2,974,871
65.668 Milllion
Gold Bars value Sold: USD 11.357 Million
MoneyNetNews has learned from a reliable source that e-gold has been
ordered
to hand over a fresh copy of the customer database when the redemption
is completed.
MoneyNetNews cannot confirm if all of the 48 bars redeemed account for
the forfeiture action of the United States. It is possible that a part
of this activity can be accounted for by increased volatility in
e-gold's
general market.
Not only was E-gold / Omnipay ordered to convert gold (and silver)
holdings
in the seized accounts into US Dollars, but that included their own
(Omnipay's, and E-gold's) frozen (seized) accounts. This will ultimately
result is great losses of value over time even if the victims of the
seizures
are found to be innocent due to the in progress bull market in gold and
bear
market in US Dollars.
The seizure order appears to be unrelated to the criminal case in
progress
against E-gold and OmniPay in that the seizure of the accounts by the
government
was done under a (separate) civil case, for which the Government has
yet
to file
anything.
By doing so, the government was able to seize accounts without having
to reveal anything to the owners of the accounts themselves. By law,
the government has 30, and possibly up to 90 days to file a complaint.
Until the government civil filing is done, none of the victims of the
seizures
can possibly do anything to defend themselves, not even obtain
information as
to why their accounts have been seized, or what they would have done
wrong.
None of the victims of the account seizures have been advised of
anything
officially at this time.
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From: owner-fear-list@mapinc.org on behalf of Judy
Osburn [openi420@starband.net]
Sent: Tuesday, May 15, 2007 1:28 PM
To: FEAR-list
Subject: FEAR: House amendment would rein in domestic
spying; Senate to consider gutting FISA privacy protections
Victory in the
House, more work needed in Senate: Call your Senator today to oppose
FISA Modernization Bill!
The following announcement from the National Association of Criminal
Defense Lawyers about a victory in the US House that would rein in
unlimited domestic surveillance and Senate consideration of the
Administration's current attempt to further expand its spying on
Americans without a warrant may be considered slightly off-topic for
this list. However, considering the expansion of forfeiture actions
contained in the USA PATRIOT Act (cited by the super-secret FISA Court
of Review in expanding government powers to spy on Americans without a
warrant) and the Fourth Amendment issues involved, the NACDL
announcement below is important for FEAR List members, as well as for
every person concerned with the preservation of privacy and a
constitutional form of government. See Expansion of Forfeiture Powers
Under the USA PATRIOT Act, FEAR Foundation Journal, Fall 2003 at:
http://www.fear.org/ffjournal/PatriotExcrpt.html
Background: In 2002, for the first time in the quarter century of spy
court history the secret U.S. Foreign Intelligence Surveillance (FISA)
Court denied a government request for expanded powers, sharply
criticizing Department of Justice abuse of wiretaps and other
surveillance of suspected spies and terrorists. The government
appealed, and the first ever ruling by the super-secret FISA Court of
Review cited the USA PATRIOT Act in granting the government even
greater powers to spy on US citizens. See Secret Tribunal Expands
Surveillance Powers Under the USA Patriot Act, FEAR Foundation Journal,
Fall 2003 at:
http://www.fear.org/ffjournal/FISAcourt.html
Today the NACDL announced a legislative victory passed by the US House
of Representatives last Friday, while asking everyone concerned with
American civil liberties to urge their Senators to oppose the
Administration's "FISA Modernization Bill" scheduled to be considered
at a closed meeting of a Senate committee this week. See below and at:
http://capwiz.com/cj/callalert/index.tt?alertid=9753841&queueid=[capwiz:queue_id
For more information on the "Facts v. Fiction: The Justice Department’s
'New' Re-Write of FISA" see: http://www.nacdl.org/public.nsf/legislation/nsa_attachments/$FILE/TPs.pdf
--Judy Osburn
From Calli Schiller at NACDL:
Victory in the House, more work needed in the Senate
====================================================
Call your Senator
today to oppose FISA Modernization Bill
Take Action! Visit this page:
http://capwiz.com/cj/utr/1/LRJAHDNMJJ/IRKBHDNNAW/1193662766]
Last Friday, the House passed legislation intended
to rein in the NSA's domestic spying program and ensure that the
President obeys the law. Adopted as an amendment to an intelligence
spending bill, the measure would reaffirm that the Foreign Intelligence
Surveillance Act (FISA, PL 95-511) should govern any domestic
electronic surveillance used to collect foreign intelligence. This
language is taken from a larger a bill (The NSA Oversight Act) that
NACDL and its members have urged Congress to pass since it was first
introduced in March 2006. The 245-178 vote to adopt the amendment,
which was offered by Reps. Adam Schiff (D-CA) and Jeff Flake (R-AZ),
was an important victory for NACDL and its members -- and for the rule
of law! But eternal vigilance is the price of liberty, and we must
continue to guard against ongoing efforts by the Administration to
expand surveillance authority beyond FISA's current boundaries.
Undaunted, the Administration is proposing radical changes that would
gut privacy protections and make it easier for the government to spy on
your communications without a warrant. The proposed legislation would
permit the government to acquire millions of Americans' international
phone calls and e-mails without a warrant, so long as it vacuumed up
the contents of these communications en masse, rather than targeting
for acquisition the calls of a particular individual in the United
States. The proposals also threaten to let government agents and big
telecom companies off the hook for breaking the law.
A Senate committee will have the opportunity to consider the
Administration's bill during a closed meeting this week. NACDL is
working to ensure that these dangerous measures do not gain any
traction.
One of your Senators is on the key committee that can stop these
dangerous proposals. Call Your Senator Now and Block the
Administration's Power Grab.
For more information about the Administration's bill, click here (or
paste into your browser):
http://www.nacdl.org/public.nsf/legislation/NSA?OpenDocument
"Spying on the Home Front" will be broadcast nationally on FRONTLINE
tonight, Tuesday, May 15. Click here (or paste into your browser)
for more information:
http://www.pbs.org/wgbh/pages/frontline/homefront/
The program sheds additional light on the story of NSA eavesdropping at
home and includes former intelligence officials on camera, including a
former post 9/11 FBI counter-intelligence chief as warning about the
threat to the privacy of American citizens from the Administration's
counter-terrorism programs within the US.
******************************************************
******************************************************
From: owner-fear-list@mapinc.org on behalf of Brenda
Grantland [bgrantland1@comcast.net]
Sent: Thursday, May 17, 2007 1:02 PM
To: fear-list@mapinc.org
Subject: FEAR:
NC: Cal.
residents win venue change to California from North Carolina
To: FEAR-List
From: Brenda Grantland
Yesterday, in my case in North Carolina, we won a change of venue to
California in both the criminal case and the civil forfeiture case
against my clients!
Here are the links to the Orders for change of venue in
US v. $19,985.90 in U.S.
Currency and U.S. v.
Djeredjian:
http://www.fear.org/opinions/Djeredjian_Order_Venue_Civil.pdf
(this is
the civil forfeiture case order)
http://www.fear.org/opinions/Djeredjian_Order_Granting_Venue_Here.pdf
(this is the criminal case order)
These rulings are a really big deal.
The government swooped in on my clients, a Southern California couple,
and seized virtually all their assets including their home and bank
accounts, as well as their mother/mother-in-law's assets. The
government went after these assets in two civil forfeiture cases -- the
first one filed in Virginia, and years later, when the assets were
released there by settlement, instead of releasing them, the US went
after the same assets in North Carolina. We've been litigating in
North
Carolina for about 16 months. A few months after we started contesting
the civil forfeiture case, the U.S. indicted my client (the husband)
under the cigarette distribution laws, and when he didn't agree to
plead
guilty and forfeit assets, they followed through on their threat to
indict his wife (also my client).
More recently the US Attorneys Office in North Carolina sent a
threatening letter to me - and to my two co-counsel - suggesting
they
would be investigating the defense lawyers for money laudering and
other
crimes for accepting money for representing these defendants/claimants,
and that we could be prosecuted for advising defendants to spend assets
that the government might be able to seize and forfeit. We
notified the
judge about the threatening letter. At the last hearing, the N.C.
forfeiture prosecutor reportedly claimed that the letter he sent us was
routinely sent out by the Justice Department. Have any of you
ever
received such a routine letter?
The ruthless prosecution and government misconduct we've documented in
this case - though not unusual in today's Justice Dept. - seems way
overblown for the offense charged here. This entire case is about
alleged cigarette distribution violations by Djeredjian, a tobacco
distributor licensed by the state of California at the time of all the
alleged violations. The alleged victim is the California agency
that
taxes cigarettes.
From the start -- in my opinion -- the U.S. Attorneys Office in
Raleigh
North Carolina has pursued this case overly aggressively -- either
because my clients are an ethnic minority or because that's how they do
things in that U.S. Attorney's Office in Raleigh, N.C.. There are
numerous incidents of dishonesty in court filings and prosecutorial
misconduct which we have repeatedly pointed out to the court.
Fortunately, the case was assigned to Judge Flanaghan, the Chief Judge
of the Eastern District of North Carolina, and she has proven to be a
very smart and strong defender of our Constitution and the rule of law.
Her rulings yesterday are excellent!
This change of venue should vastly improve our chances on our pending
motion for release of assets to pay attorneys fees to fund the criminal
defense. The government had argued that the court shouldn't
change
venue to California because the law of the 9th Circuit didn't allow the
pretrial restraint of substitute assets, and that was the theory the
government relied on to successfully oppose our motion to release
assets
for attorneys fees (which is still pending on appeal from the
magistrate
judge). The judge didn't buy the government's arguments about
preserving their forum shopping advantage, and transferred both cases
to
the Central District of California, along with the pending appeal from
the magistrate judge's ruling on our motion for release of assets to
pay
attorneys fees.
Clearly, the government should not be allowed to prevent defendants
from
retaining qualified counsel of their choice by using such forum
shopping
and asset grabbing tactics. This is a bandwagon every criminal
defense
lawyer needs to jump on.
FEAR Brief Bank Subscribers: I already donated a number of the
motions
and pleadings from this case to the FEAR Brief Bank. Judy will be
adding our motions on this issue to Brief Bank II soon, so check back
in
a few days if you can't find them immediately. Please send
us any
motions and briefs you file on this and similar issues.
Brenda Grantland
******************************************************
******************************************************
From: owner-fear-list@mapinc.org on behalf of Jody
Neal-Post [jodynealpost@sprintmail.com]
Sent: Saturday, May 19, 2007 6:36 AM
To: Fear
Subject: FEAR: Banking forfeitures
U.S. 1st Circuit Court of Appeals, May 18, 2007
<http://laws.lp.findlaw.com/1st/061187.html>
US v. Bank of New York,
No. 06-1187, 06-1423, 06-1444
In a case involving the proper construction of a civil forfeiture
provision concerned with interbank accounts of foreign banks, 18 U.S.C.
section 981(k), summary judgment for the U.S. is affirmed over the
holding bank's argument that the discharge of its obligations should
have been measured against its ability to obtain recourse from its
depositors under banking law, but reversed where "obligations" include
amounts in any account held at the time of the seizure by anyone who was
an owner of the funds at the time they were deposited. Read more...
<http://laws.lp.findlaw.com/1st/061187.html>
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******************************************************
******************************************************
From: owner-fear-list@mapinc.org on behalf of Judy
Osburn [openi420@starband.net]
Sent: Sunday, May 20, 2007 5:55 PM
To: FEAR-list
Subject: FEAR: BriefBank II update re: Cal. residents
win venue change to California from North Carolina
ATTENTION FEAR Brief Bank subscribers!
re: Brenda's North Carolina transfer of venue case (see her message
below):
Forty-three claimant and government motions, briefs, memorandums and
court
orders from Brenda's case US v. $19,985.90, plus two government motions
and
one court order in the related case U.S. v. Djeredjian, are now
available in
FEAR's BriefBank II.
The 43 pleadings and orders in US v. $19,985.90 include 20 court
documents
under the topic "ATTORNEY, RELEASE OF FUNDS FOR" in FEAR's BriefBankII -
issue index.
-Judy Osburn
-----Original Message-----
From: owner-fear-list@mapinc.org [mailto:owner-fear-list@mapinc.org] On
Behalf Of Brenda Grantland
Sent: Thursday, May 17, 2007 1:02 PM
To: fear-list@mapinc.org
Subject: FEAR: NC: Cal. residents win venue change to California from
North
Carolina
To: FEAR-List
From: Brenda Grantland
Yesterday, in my case in North Carolina, we won a change of venue to
California in both the criminal case and the civil forfeiture case
against my clients!
Here are the links to the Orders for change of venue in
US v. $19,985.90 in U.S. Currency and U.S. v. Djeredjian:
http://www.fear.org/opinions/Djeredjian_Order_Venue_Civil.pdf
(this is
the civil forfeiture case order)
http://www.fear.org/opinions/Djeredjian_Order_Granting_Venue_Here.pdf
(this is the criminal case order)
These rulings are a really big deal.
The government swooped in on my clients, a Southern California couple,
and seized virtually all their assets including their home and bank
accounts, as well as their mother/mother-in-law's assets. The
government went after these assets in two civil forfeiture cases -- the
first one filed in Virginia, and years later, when the assets were
released there by settlement, instead of releasing them, the US went
after the same assets in North Carolina. We've been litigating in
North
Carolina for about 16 months. A few months after we started contesting
the civil forfeiture case, the U.S. indicted my client (the husband)
under the cigarette distribution laws, and when he didn't agree to
plead
guilty and forfeit assets, they followed through on their threat to
indict his wife (also my client).
More recently the US Attorneys Office in North Carolina sent a
threatening letter to me - and to my two co-counsel - suggesting
they
would be investigating the defense lawyers for money laudering and
other
crimes for accepting money for representing these defendants/claimants,
and that we could be prosecuted for advising defendants to spend assets
that the government might be able to seize and forfeit. We
notified the
judge about the threatening letter. At the last hearing, the N.C.
forfeiture prosecutor reportedly claimed that the letter he sent us was
routinely sent out by the Justice Department. Have any of you
ever
received such a routine letter?
The ruthless prosecution and government misconduct we've documented in
this case - though not unusual in today's Justice Dept. - seems way
overblown for the offense charged here. This entire case is about
alleged cigarette distribution violations by Djeredjian, a tobacco
distributor licensed by the state of California at the time of all the
alleged violations. The alleged victim is the California agency
that
taxes cigarettes.
From the start -- in my opinion -- the U.S. Attorneys Office in
Raleigh
North Carolina has pursued this case overly aggressively -- either
because my clients are an ethnic minority or because that's how they do
things in that U.S. Attorney's Office in Raleigh, N.C.. There are
numerous incidents of dishonesty in court filings and prosecutorial
misconduct which we have repeatedly pointed out to the court.
Fortunately, the case was assigned to Judge Flanaghan, the Chief Judge
of the Eastern District of North Carolina, and she has proven to be a
very smart and strong defender of our Constitution and the rule of law.
Her rulings yesterday are excellent!
This change of venue should vastly improve our chances on our pending
motion for release of assets to pay attorneys fees to fund the criminal
defense. The government had argued that the court shouldn't
change
venue to California because the law of the 9th Circuit didn't allow the
pretrial restraint of substitute assets, and that was the theory the
government relied on to successfully oppose our motion to release
assets
for attorneys fees (which is still pending on appeal from the
magistrate
judge). The judge didn't buy the government's arguments about
preserving their forum shopping advantage, and transferred both cases
to
the Central District of California, along with the pending appeal from
the magistrate judge's ruling on our motion for release of assets to
pay
attorneys fees.
Clearly, the government should not be allowed to prevent defendants
from
retaining qualified counsel of their choice by using such forum
shopping
and asset grabbing tactics. This is a bandwagon every criminal
defense
lawyer needs to jump on.
FEAR Brief Bank Subscribers: I already donated a number of the
motions
and pleadings from this case to the FEAR Brief Bank. Judy will be
adding our motions on this issue to Brief Bank II soon, so check back
in
a few days if you can't find them immediately. Please send
us any
motions and briefs you file on this and similar issues.
Brenda Grantland
******************************************************
******************************************************
From: owner-fear-list@mapinc.org on behalf of Jody
Neal-Post [jodynealpost@sprintmail.com]
Sent: Sunday, May 27, 2007 2:58 PM
To: Fear
Subject: FEAR: Bankruptcy, forfeiture judgments &
sov immunity
U.S. 5th Circuit Court of Appeals, May 22, 2007
<http://caselaw.lp.findlaw.com/data2/circs/5th/0520501cv0p.pdf>
State of Texas
v. Soileau, No. 05-20501
In a Chapter 7 bankruptcy case involving the potential discharge of a
state's forfeiture judgments against licensed bail bondsman, who served
as absconded defendants' surety on bail bonds, denial of Texas's motion
to dismiss the bankruptcy petition on the basis of sovereign immunity is
affirmed as Supreme Court precedent has established that the discharge
of a debt like petitioner's is not barred by such immunity.
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Attachment: http://mapinc.org/temp/48QfkWIBmhais.html
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