September 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. 


U.S. 11th Circuit Court of Appeals:
US v. Fleet, No. 06-12454
Federal Criminal forfeiture statute preempts the homestead exemption contained in the Florida Constitution and the state's
tenancy by the entireties law

U.S. 2nd Circuit Court of Appeals:
US v. Capoccia, No. 06-0669
Very thoughtful decision on the required nexus between the crime of conviction and the conduct of conviction.

Athens NEWS - Ohio:
Village opposes county prosecutor's interference in drug money forfeiture

Pegasusnews.com:
No money to fix jail, but Dallas Sheriff says she can afford new SWAT team

Inquirer.net - Philippines:
Puno: Estrada could get to keep P1B of ill-gotten assets

Drug War Chronicle - Washington, DC:
Asset Forfeiture in Drug Cases is Hurting Investment in the Inner Cities



From:    owner-fear-list@mapinc.org on behalf of Judy Osburn [openi420@starband.net]
Sent:    Monday, September 10, 2007 8:43 AM
To:    FEAR-list
Subject:    FEAR: 11th Cir.: US v. Fleet, fed criminal forfeiture statute preempts FL homestead exemption & tennancy by entireties law

Forwarded From: Jody Neal-Post [mailto:jodynealpost@gmail.com]
Sent: Monday, September 10, 2007 8:13 AM

U.S. 11th Circuit Court of Appeals, September 05, 2007
 <http://caselaw.lp.findlaw.com/data2/circs/11th/0612454p.pdf>
US v. Fleet, No. 06-12454
Order of forfeiture against defendant, stemming from his role in a
fraudulent landswap arrangement that bilked two unwitting investors out of
more than $11 million, is affirmed as, where the forfeiture of substitute
property is concerned, the federal criminal forfeiture statute preempts the
homestead exemption contained in the Florida Constitution and the state's
tenancy by the entireties law. Read more...
<http://caselaw.lp.findlaw.com/data2/circs/11th/0612454p.pdf>

 

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From:    owner-fear-list@mapinc.org on behalf of Brenda Grantland [bgrantland1@comcast.net]
Sent:    Wednesday, September 12, 2007 7:27 PM
To:    fear-list@mapinc.org
Subject:    FEAR: AK:  Pro se litigant John Collette wins his appeal after 10 years of litigation

Alaska forfeiture victim John Collette had his property seized in 1992
when he was arrested for a marijuana offense.  While he was in prison,
the government administratively forfeited the property, without Collete
actually receiving notice.  Inspired by fellow prisoner Gary Marolf's
success in pursuing his Rule 41(g) motion for return of property,
Collete filed a motion for return of property.  After 10 years of
litigation -- without an attorney -- last week the 9th Circuit ruled in
his favor on 16 out of 21 seized items, holding that the government had
failed to make reasonable efforts to give him notice and the right to be
heard.

In his phone call announcing his victory, John thanked FEAR for all of
the help and support he has gotten over the years.  He joined FEAR a
number of years ago and has contributed some of his pro se pleadings to
the brief bank.

Congratulations, John!

To read the unpublished opinion, go to

http://www.fear.org/opinions/Collette_9thCir05-36110.pdf

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From:    Jody Neal-Post [jodynealpost@gmail.com]
Sent:    Saturday, September 22, 2007 4:13 PM
To:    'Judy Osburn'
Subject:    Pls post on fear list

Very thoughtful decision on the required nexus between the crime of
conviction and the conduct of conviction…[--Jody]

U.S. 2nd Circuit Court of Appeals, September 19, 2007
U.S. v. Capoccia, No. 06-0669
<http://caselaw.lp.findlaw.com/data2/circs/2nd/060669p.pdf>
Preliminary Order of Forfeiture ordering forfeited the contents of
several bank accounts and other items in connection with defendant's
conviction of, among other crimes, interstate transportation of stolen
property is vacated to the extent the district court erred in ordering
forfeited those assets that were obtained through uncharged violations
of 18 U.S.C. section 2314 and did not bear an adequate statutory nexus
to the violations of which defendant was convicted. Read more...
<http://caselaw.lp.findlaw.com/data2/circs/2nd/060669p.pdf>

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From:    Jody Neal-Post [jodynealpost@gmail.com]
Sent:    Monday, September 24, 2007 5:29 PM
To:    'Judy Osburn'
Subject:    Fear-list stuff: binches this week

Conrad Black: Prosecutors 'Overreaching' On Forfeiture Demands
<http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_co
ntent_id=1003642229>
Editor & Publisher - USA
"This case presents another example of the government pushing the
forfeiture envelope," the lawyers wrote. "It seeks forfeiture based on
portions of the ...

Village opposes county prosecutor's interference in drug money ...
<http://www.athensnews.com/issue/article.php3?story_id=29348>
The Athens News - Athens,OH,USA
Shostak contended that the village worked out a legally legitimate plea
bargain with Post, which included his voluntary forfeiture of the $3050.
...

Village opposes county prosecutor's interference in drug money forfeiture 

2007-09-24
By Jim Phillips
Athens NEWS Senior Writer
 

The attorney for the village of Chauncey has challenged the authority of the Athens County Prosecutor to confiscate money that village police took by forfeiture from a drug suspect.

In a legal motion filed last week, village Solicitor Robert Shostak suggested that if Prosecutor C. David Warren prevails in the case, it may encourage Warren to usurp more of the powers of village officials in the future.

Shostak's motion asked Athens County Common Pleas Judge Michael Ward to throw out a civil complaint filed by Warren, in which the prosecutor sought to seize $3,050 from the village.

In May, then-Chauncey Police Chief Donnie Smith took the money from a man named Michael G. Post, after stopping him for a traffic violation. Post reportedly admitted the money had come from drug sales, but Chauncey authorities did not press felony charges against him.

Instead, they allowed Post to plead in Chauncey Mayor's Court to a misdemeanor charge of possessing drug paraphernalia and forfeit the cash, which was put into the village general fund. Village officials have said they plan to spend the money toward a new police cruiser.

Smith has since resigned as police chief.

Warren filed a civil action to get the money, arguing among other points that the outcome of Post's case in mayor's court is legally void, since a mayor's court has no jurisdiction to hear felony cases.

Clearly, according to Warren, Post's confession about the source of the money would support a felony charge, and he considers the $3,050 evidence in a felony case.

Shostak's motion argued that the Common Pleas Court has no jurisdiction to hear Warren's complaint, because "the village and its officials enjoy immunity from civil liability for any action taken in the exercise of judicial authority."

In addition, he maintained, Ward's court "has no subject-matter jurisdiction to reverse the exercise of prosecutorial discretion by the village police or by the village solicitor when applicable. Nor does this court have subject-matter jurisdiction to review and reverse the decision of the magistrate judge of the village mayor's court."

According to Ohio law, Shostak argued, a mayor's court operation is a judicial function, and can't be subject to civil liability. Therefore, he maintained, Warren's civil action doesn't raise any legal issue that can be heard by the Common Pleas Court.

Shostak contended that the village worked out a legally legitimate plea bargain with Post, which included his voluntary forfeiture of the $3,050. While Warren may believe Post should have been charged with a felony, Shostak's motion added, even if that's true, "no statutory authority gives the county prosecutor power to second-guess and reverse the exercise of prosecutorial discretion by the village police or by the village solicitor."

And while Warren claims he needs the money as evidence for a felony case, the motion stated, no such charge is currently pending, and therefore the county prosecutor has no claim to the cash.

"The only person other than the village who had any possessory interest in that money is Michael G. Post," the motion declared.

Shostak suggested that allowing Warren to butt into mayor's court criminal cases could open a "slippery slope," leading to the county's taking over more control of village business.

"No statute confers upon the county prosecutor the right to 'second-guess' the village police or solicitor in the exercise of their prosecutorial discretion," he wrote. "To judicially extend such a right... would destroy the very concept of village sovereignty granted under the Ohio Constitution. Next thing you know, the county prosecutor will be deciding which nuisance cases or flood-plain issues should be charged or brought by the village police or solicitor."

Warren said Sunday that Ohio courts take a very dim view of municipalities using their criminal courts as fund-raising entities - an approach he said Chauncey officials have essentially admitted to taking in the Post case.

By blatantly doing so, he added, Chauncey risks becoming "the poster child for the elimination of mayor's courts in Ohio."

He added that whatever the outcome of the civil dispute between his office and Chauncey over the money, he intends to pursue a possible felony case against Post. Warren said he does not believe that Post's plea to a misdemeanor court raises

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No money to fix jail, but Dallas Sheriff says she can afford new ...
<http://www.pegasusnews.com/news/2007/sep/24/no-money-fix-jail-dallas-sh
eriff-says-she-can-affo/>
Pegasus News - Dallas,TX,USA
Through the magic of asset forfeiture. Just swell. The Dallas County
Sheriff's Department can't run a jail -- heck, apparently, they can't
figure out how to ...

No money to fix jail, but Dallas Sheriff says she can afford new SWAT team

By Scott Henson

If Dallas County Sheriff Lupe Valdez can't afford to hire or train enough guards or provide adequate medical care at the jail, how does she have money to finance her own shiny new SWAT team? Trey Garrison summed up my thoughts on the matter at Frontburner:

Great. Just what Dallas County needs. Another SWAT team. And how will they fund it? Through the magic of asset forfeiture. Just swell. The Dallas County Sheriff's Department can't run a jail — heck, apparently, they can't figure out how to transfer a vehicle title over the course of four years — but they want deputies to gear up and play soldier. What could possibly go wrong?

Personally, I think she's just jealous and wants her own TV show. The Sheriff doesn't need her own SWAT team. There's too big a risk it'd be as poorly managed as the Dallas jail crisis (which she inherited, but has not fixed). Sheriff Valdez needs to focus on performing the job she's already got in front of her a little better before seeking out new, high-risk tasks to screw up.

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South Africa: Forfeiture Unit Has 'Clearer Guidelines' On ...
<http://allafrica.com/stories/200709200364.html>
AllAfrica.com - Washington,USA
THE Asset Forfeiture Unit had litigated extensively to develop the
jurisprudence of asset forfeiture since it was established in 1999 and
there was much ...


Black's lawyers oppose $17M forfeiture request, say US 'overreaching'
<http://canadianpress.google.com/article/ALeqM5huCdW829c45_05fkVHov0DR8s
ErA>
The Canadian Press - TORONTO
"In recent times, the government's use of forfeiture power has been
criticized," Black's lawyers said in documents filed with the US
District Court in ...
See all stories on this topic
<http://news.google.com/news?hl=en&ncl=http://canadianpress.google.com/a
rticle/ALeqM5huCdW829c45_05fkVHov0DR8sErA>  

Puno: Estrada could get to keep P1B of ill-gotten assets
<http://newsinfo.inquirer.net/breakingnews/nation/view_article.php?artic
le_id=90456>
Inquirer.net - Philippines
I think the penalties are vacated," Puno said when asked about the
Sandiganbayan's forfeiture order on Estrada's assets. "I do not know ha?
...
See all stories on this topic
<http://news.google.com/news?hl=en&ncl=http://newsinfo.inquirer.net/brea
kingnews/nation/view_article.php%3Farticle_id%3D90456>  

 

From:    owner-fear-list@mapinc.org on behalf of Judy Osburn [openi420@starband.net]
Sent:    Tuesday, September 25, 2007 7:38 AM
To:    FEAR-list
Subject:    FEAR: Conrad Black: Prosecutors 'Overreaching' On Forfeiture Demands

Conrad Black: Prosecutors 'Overreaching' On Forfeiture Demands

By E&P Staff

Published: September 18, 2007 9:50 AM ET

.

"This case presents another example of the government pushing the forfeiture
envelope," the lawyers wrote. "It seeks forfeiture based on portions of the
alleged fraudulent scheme as to which the jury acquitted the defendants; it
seeks to forfeit alleged proceeds more than once; and it inaccurately
designates alleged proceeds."

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From:    owner-fear-list@mapinc.org on behalf of Judy Osburn [openi420@starband.net]
Sent:    Tuesday, September 25, 2007 8:04 AM
To:    FEAR-list
Subject:    FEAR: Philippines: Puno: Estrada could get to keep P1B of ill-gotten assets

Philippines

http://newsinfo.inquirer.net/breakingnews/nation/view_article.php?article_id
=90456

Puno: Estrada could get to keep P1B of ill-gotten assets

By Dona Pazzibugan, Jocelyn Uy
Inquirer
Last updated 11:53pm (Mla time) 09/24/2007

 <javascript:toggleLayer('mostreadlist');> Most Read

Other Most Read Stories  <javascript:toggleLayer('mostreadlist');> x

AN ABSOLUTE pardon means the government will no longer confiscate P1 billion
in ill-gained assets that deposed President Joseph Estrada had allegedly
acquired and that the Sandiganbayan wants forfeited in favor of the state.

This was how Interior Secretary Ronaldo Puno interpreted the proposed
unconditional pardon that he and Estrada are expected to discuss when they
meet over lunch Tuesday at the latter's rest house in Tanay, Rizal.

The alleged ill-gotten assets would include the notorious "Boracay Mansion"
in Quezon City.

The Tanay meeting between Estrada and his own former interior secretary is
taking place amid sharp opposition from some legal luminaries, who said an
unconditional pardon would be blow to the justice system.

Some said Estrada should be given an absolute pardon only if he expresses
remorse for his sins and surrenders his supposedly ill-gotten assets.

"Absolute pardon is absolute pardon. I think the penalties are vacated,"
Puno said when asked about the Sandiganbayan's forfeiture order on Estrada's
assets.

ABSOLUTE PARDON PLAN
Puno: Estrada could get to keep P1B of ill-gotten assets
By Dona Pazzibugan, Jocelyn Uy
Inquirer
Last updated 11:53pm (Mla time) 09/24/2007


AN ABSOLUTE pardon means the government will no longer confiscate P1 billion in ill-gained assets that deposed President Joseph Estrada had allegedly acquired and that the Sandiganbayan wants forfeited in favor of the state.

This was how Interior Secretary Ronaldo Puno interpreted the proposed unconditional pardon that he and Estrada are expected to discuss when they meet over lunch Tuesday at the latter's rest house in Tanay, Rizal.

The alleged ill-gotten assets would include the notorious "Boracay Mansion" in Quezon City.

The Tanay meeting between Estrada and his own former interior secretary is taking place amid sharp opposition from some legal luminaries, who said an unconditional pardon would be blow to the justice system.

Some said Estrada should be given an absolute pardon only if he expresses remorse for his sins and surrenders his supposedly ill-gotten assets.

"Absolute pardon is absolute pardon. I think the penalties are vacated," Puno said when asked about the Sandiganbayan's forfeiture order on Estrada's assets.

"I do not know ha? I'm not the one who will determine the implications of the deal. But absolute pardon iyon [that is absolute pardon]," Puno said in a chance interview after attending a budget hearing at the Senate.

Two parameters
Puno said he was authorized by President Gloria Macapagal-Arroyo to negotiate a pardon with Estrada but that she set down two parameters.

"One, it has to be brought to her official attention and, second, that a pardon [should] be validly based and issued," he said. "The President is determined to follow the pulse of the people on this matter."

Puno stressed that "everything is subject to the decisions" of Ms Arroyo and Estrada.

"I think our final recommendation will be coming very soon," he said.

The Sandiganbayan on Sept. 12 convicted Estrada of plunder and ordered the forfeiture to the government of cash representing Estrada's "jueteng" payoffs amounting to P545.29 million with interest, including the P200 million deposited in the name of the Erap Muslim Youth Foundation; the P189-million commission from the purchase of Belle Corp. shares that ended up in the so-called Jose Velarde account, and the 5, 192.88 sq.m. "Boracay Mansion" in New Manila, Quezon City.

No waiver
Puno said past discussions with Estrada had been "very positive."

"I hope by next week we can have lunch at Polk Street [Estrada's residence]," he said.

Estrada's son, Senate President Pro Tempore Jinggoy Estrada, is attending Tuesday's meeting.

Special Prosecutor Dennis Villa-Ignacio said his office would strongly oppose a pardon for Estrada if it would involve a waiver on his liability for his "plundered" wealth.

"That is not a subject of negotiation. His civil liability is a nonnegotiable matter. It has to be settled," Villa-Ignacio told the Philippine Daily Inquirer, parent company of INQUIRER.net.

"There is a rule that even if it's an absolute pardon granted to the convict, the civil liability [remains]. Otherwise the message the [government] is trying to tell future public officials is that they could amass billions of pesos, get away with it and enjoy the fruits of their 'labor,'" he said.

Show of remorse
Villa-Ignacio also said Malacañang could not grant an absolute pardon that would totally disregard Estrada's guilt because the court had already pronounced judgment.

"[Estrada] can always say that he is innocent, but it will not change records of the case finding him guilty," he said.

Villa-Ignacio added: "Let's not discuss a pardon at the moment. Maybe some other time when there is already an expression of repentance and willingness to give back to the government his illegally acquired assets."

Former Ombudsman Simeon Marcelo said he was actually open early on to Estrada being pardoned but would now oppose it if it would be Estrada who would set the conditions for his release.

Marcelo said pardoning Estrada according to the latter's terms "would erase everything we [in the prosecution] worked hard for over the last six years."

"It will be a step backward," he said.

"It's the government that should be imposing terms for pardon, not him," Marcelo said.

"There should be an admission of guilt, an expression of contrition, full restitution (recovery of Estrada's assets) and conditions on good behavior," said Marcelo, who once headed the public prosecution panel in Estrada's trial but who has returned to private law practice.

The pardon Malacañang is reportedly preparing to give Estrada has emboldened Edsa II forces in their demand to also make Arroyo account for what they call "far worse cases of plunder."

PlunderWatch, the group that helped initiate the plunder case against Estrada, condemned the pardon offer.

Fr. Joe Dizon, the group's spokesperson, and fellow PlunderWatch convenor Carol Araullo said Arroyo was seeking to pardon Estrada to prepare for her own future.

What absolute pardon means
"In the eyes of most people, she's next," Dizon told the Inquirer, citing the corruption scandals under the Arroyo administration.

Acting Justice Secretary Agnes Devanadera does not see how granting absolute pardon to Estrada could involve no admission of guilt in his plunder case, which is what he wants.

According to Devanadera, absolute pardon means the restoration of a convicted man's civil and political rights.

Asked about Estrada's insistence on no admission of guilt, Devanadera said in Filipino: "How will that happen? He's already convicted."

She also said an absolute pardon would not erase a convict's record.

"Absolute pardon is the restoration of civil and political rights," she said.

With reports from Volt Contreras, Christian V. Esguerra, Michael Lim Ubac and Leila S. Salaverria 


Copyright 2007 Inquirer. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
 

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From:    owner-fear-list@mapinc.org on behalf of Brenda Grantland [bgrantland1@comcast.net]
Sent:    Tuesday, September 25, 2007 9:53 PM
To:    fear-list@mapinc.org
Subject:    FEAR: US: Asset Forfeiture is Depressing Property Values in Inner Cities

Asset Forfeiture in Drug Cases is Hurting Investment in the Inner ...
<http://stopthedrugwar.org/chronicle_blog/2007/sep/25/asset_forfeiture_in_drug_cases_i>
Drug War Chronicle - Washington,DC,USA
One of our readers sent in the following observations about asset
forfeiture and its impact on investing (and consequently economic
development) in ...


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Asset Forfeiture in Drug Cases is Hurting Investment in the Inner Cities

Posted in Chronicle Blog by David Borden on Tue, 09/25/2007 - 2:41pm

One of our readers sent in the following observations about asset forfeiture and its impact on investing (and consequently economic development) in neighborhoods that are perceived to have illegal drug problems. (Forfeiture is not solely limited to drug cases, but drugs are the mainstay.)

I am in the real estate investment business. Increasingly I find investors staying away from investing in rental properties and neighborhoods perceived to have illegal drug problems. Investors more frequently state police can too easily forfeit their real estate because of one tenant's illegal activity at a rental property, e.g., selling drugs, even when it is unknown to the owner. Consequently investors' fears of forfeiture are depressing property values in certain neighborhoods and cities, driving downward the property tax base needed for tax revenues to support the infrastructure of the community.

Consider: As governments more and more force landlords to act as attorney generals policing the lives of their tenants, and hold landlords accountable to police for not stopping their tenants from committing unknown or foreseen illegal acts, more investors say, "who needs this!"

Constant police raids in certain neighborhoods may actually result in a financial net loss to a community where investors retreat, causing assessed property values and property taxes to decline. There is little incentive for investors to spend money upgrading rental property in neighborhoods where drug problems exist if the police are targeting rental property for asset forfeiture.

I think that pretty much speaks for itself. But it would be a shame to stop there. So, a few links:

Read our asset forfeiture reporting on an ongoing basis here, or subscribe to it by RSS here. And of course, check out the organization Forfeiture Endangers American Rights (FEAR).


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