February, 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 linked in the FEAR-List Bulletins below.
Articles:
Missoula
Independent:
GMANews.TV:
Pretoria News, South Africa:
DEA
News Release:
Sarisota
Herald-Tribune:
Bradenton.com:
Gov't seeks forfeiture of 60% of nine Lucio Tan companies <http://www.gmanews.tv/story/28971/Govt-seeks-forfeiture-of-60-of-nine-Lucio-Tan-companies>
GMA news.tv - Quezon City,Metro Manila,Philippines
The government has moved to forfeit 60 percent of tycoon Lucio Tan’s
nine companies through a petition filed Tuesday by the Presidential
Commission on Good ...
Full story below
From: "Jody Neal-Post" <jodynealpost@sprintmail.com>
To: "Fear" <fear-list@mapinc.org>
Sent: Wednesday, February 07, 2007 11:17 AM
Subject: FEAR: What's at stake in a Montana forfeiture case...
> Proving a negative
<http://www.missoulanews.com/News/News.asp?no=6263>
> Missoula Independent - Missoula,MT,USA
> A Missoula County forfeiture case involving a Cadillac Escalade,
$44360
> and an AR-15 semiautomatic rifle isn't just about cash and flash.
...
>
>
Proving a
negative
by Jessie McQuillan
Can the county take first and ask questions later?
A Missoula County forfeiture case involving a Cadillac Escalade,
$44,360 and an AR-15 semiautomatic rifle isn’t just about cash and
flash. Ask Martin Judnich, the defendant’s attorney, and he’ll say it’s
about government maneuvering that undermines fairness in Montana’s
justice system. Ask Deputy County Attorney Jennifer Clark, and she’ll
say it’s about legitimately seizing illegal proceeds from an alleged
drug dealer. On Feb. 6, both sides will try to convince District Judge
Dusty Deschamps at a forfeiture hearing that will determine whether
Missoula County or former Missoulian Erik Branam gets the goods.
The case began on April 21, 2005, when a Missoula County sheriff’s
deputy investigating a reported assault in East Missoula pulled over a
1999 Cadillac Escalade with 19-year-old Branam at the wheel. When all
of its several occupants—including Branam—fled, the deputy called a
private towing company to haul away the SUV. The next day, a towing
company employee called the sheriff’s department saying he’d found
stacks of cash and a rifle inside, which the deputy promptly seized
along with the SUV. During a drug sniff, a drug dog alerted on the cash
but not the Escalade itself, and a vehicle search yielded no drugs.
Deputies continued their investigation, and on May 10, Missoula County
filed a petition seeking forfeiture of Branam’s vehicle and its
contents. The county’s key information against Branam came from unnamed
informants, who told deputies Branam transported and sold marijuana in
the Escalade, and that he kept large amounts of money on hand for drug
deals. Aside from minor charges relating to Branam’s flight from
officers, no criminal charges were filed against Branam.
In court, Judnich successfully argued the county had gathered evidence
supporting forfeiture only after seizing the vehicle, and that despite
allegations about Branam’s drug-dealing, no criminal charges had ever
been filed. District Judge John Henson dismissed the case. County
officials then appealed to the Montana Supreme Court, which reversed
Henson’s decision and found the deputy had probable cause to seize the
Escalade and further investigate a forfeiture case. Additionally, the
court agreed the county wasn’t required to press criminal drug charges
against Branam to proceed with a civil forfeiture case. When Judnich
argued that a forfeiture law without underlying charges didn’t make
much sense, justices replied that it was a question for the Legislature
to address.
In a criminal case, the county would need to prove “beyond a reasonable
doubt” that Branam was dealing drugs to claim ownership of Branam’s
possessions under criminal forfeiture statutes. But in this case, the
county is using Montana’s civil forfeiture statutes, which
automatically presume that forfeiture is justified once a petition is
filed, but do allow for that presumption to be rebutted. That, both
Judnich and Clark say, means Branam has the burden of proving “by a
preponderance of the evidence” that his car, money and gun are not
linked to drugs. Otherwise the county gets to keep them.
Judnich says he’ll show, through the testimony of Branam and others,
that Branam isn’t the drug dealer the county’s confidential informants
allege.
“I can’t get into too many specifics without really showing our hand,
but what I can tell you is we’ll have a couple of witnesses come
testify who will show [the car and gun] were legitimate purchases and
how my client acquired the money,” Judnich says. “It wasn’t drug money.
He wasn’t involved in any drug stuff, and the confidential informants
they say they have aren’t telling the truth.”
The challenge lies not in explaining the legitimacy of Branam’s
property, Judnich says, but rather being put in the awkward position of
rebutting county claims when the county hasn’t filed any criminal
charges alleging drug-related wrongdoing.
“They went through his house, through his vehicle, and never found any
drugs…There’s nothing to show he is a drug dealer, otherwise they would
have charged him with a drug count,” Judnich says.
Clark says the county had hoped to file criminal drug charges against
Branam but ran short of time and witnesses.
“We had actually thought about it and were going to and I didn’t get
the reports I needed to do it as a criminal case,” Clark says.
She says two informants will testify that they saw Branam dealing drugs
in his Escalade. And she says that though the county doesn’t have the
drugs, it has enough to prevail.
“…It stands to reason that if we have the proceeds, we wouldn’t have
the drugs, because he sold the drugs and got cash and that’s what we’re
left with,” Clark says.
Det. Sgt. Jason Huntsinger, with Missoula’s High Intensity Drug
Trafficking Area (HIDTA) Task Force, which comprises city, county and
state agencies and is funded largely with federal dollars, says in 2006
HIDTA secured about $48,000 and two vehicles through about nine
criminal and civil forfeiture cases. He says when HIDTA wins
forfeitures, it splits the money among partnering agencies to fund
drug-related training or equipment, and vehicles can be used officially
or auctioned. In this case, the investigation was handled solely by the
sheriff’s department, Huntsinger says, so HIDTA wouldn’t get a cut of
the proceeds.
Clark acknowledges that civil forfeiture is usually accompanied by
criminal charges, but says there’s nothing odd about a stand-alone
civil forfeiture case.
But Judnich says the county’s strategy is to circumvent the criminal
justice system’s higher standard of proof to seize valuable personal
property.
Clark unequivocally disagrees, saying the county isn’t out to get
property, but rather to thwart an alleged drug dealer by utilizing a
punishment established in civil statutes “[because] criminal statutes
don’t really slow many people down. It’s when you hit them where it
hurts—money, cars, things like that—when they start to care.”
If that’s the case, Judnich says, then Missoula County should have to
prove its drug-dealing allegations.
“There’s no reason a citizen in this town should have all of his
property taken by the county without having the county prove his guilt
beyond a reasonable doubt,” he says. “To have them take your stuff and
then have to prove your own innocence is the complete opposite of how
the American criminal justice system was founded.”
jmcquillan@missoulanews.com
From: "Jody Neal-Post"
<jodynealpost@sprintmail.com>
To: "'Fear'" <fear-list@mapinc.org>
Sent: Wednesday, February 07, 2007 11:18 AM
Subject: FEAR: Int'l forfeiture
> Gov't
>
<http://www.gmanews.tv/story/28971/Govt-seeks-forfeiture-of-60-of-nine-L
> ucio-Tan-companies> seeks forfeiture of 60% of nine Lucio
Tan companies
> GMA news.tv - Quezon City,Metro Manila,Philippines
> The government has moved to forfeit 60 percent of tycoon Lucio
Tan's
> nine companies through a petition filed Tuesday by the Presidential
> Commission on Good ...
> Central Bank Of
<http://www.allheadlinenews.com/articles/7006304756>
> Bangladesh Orders Forfeiture Of 70 Pct. Of The ...
> All Headline News - USA
> Dhaka, Bangladesh (AHN) - The Bangladesh Bank (BB), the country's
> central bank, has ordered the forfeiture of about 70 percent of the
> Oriental Bank's issued ...
> Yemenis:
>
<http://www.democratandchronicle.com/apps/pbcs.dll/article?AID=/20070204
> /NEWS01/702040353/1002/NEWS> 'We got robbed' by US
> Rochester Democrat and Chronicle - Rochester,NY,USA
> In a letter, Leslie Dillman, a fines, penalty and forfeiture
officer
> with Customs, said authorities were commencing formal forfeiture
> proceedings of the ...
>
>
Gov't
seeks forfeiture of 60% of
nine Lucio Tan companies
02/01/2007 | 07:34 PM
Email this | Email the Editor | Print | Digg this | Add to del.icio.us
The government has moved to forfeit 60 percent of tycoon Lucio Tan’s
nine companies through a petition filed Tuesday by the Presidential
Commission on Good Government (PCGG) at the Sandiganbayan.
The PCGG alleged that Tan’s assets were part of the Marcos ill-gotten
wealth based on the declaration of former First Lady Imelda Marcos that
her husband was the actual owner of 60 percent of companies held in
trust by Tan, his family and business associates.
Tan, a known ally of former President Marcos, has a personal net worth
of US$ 1.5 billion. As of 2006, Tan is the country’s second richest
person and the 451st richest in the world.
The nine companies covered by PCGG’s claim are Fortune Tobacco Corp.,
Asia Brewery, Inc., Allied Banking Corp., Foremost Farms, Himmel
Industries, Inc., Grandspan Development Corp., Silangan Holdings, Inc.,
Dominium Realty and Construction Corp and Shareholdings, Inc.
In the 29-page petition, PCGG said that Mrs. Marcos’ declaration
contained in her "Amended Answer with Counterclaim and Compulsory
Cross-Claim" dated November 19, 2001 was an admission of the basic
allegation in the government’s complaint.
In the said document, Marcos narrated that "sometime in the late
1980s", Tan and her husband agreed to consolidate their assets under
Shareholdings Inc.
After the consolidation, the two allegedly organized three more holding
companies - Basic Holdings Corp., Supreme Holdings Corp., and Falcon
Holdings Corp., - "in the middle of 1984" for the purpose of
segregating their beneficial ownerships.
Tan’s assets were supposedly handled by Basic Holdings while the Marcos
interests were handled by Falcon and Supreme Holdings.
“In express recognition of the beneficial ownership of FM (Ferdinand
Marcos), the incorporators of both Falcon and Supreme executed and
delivered to FM blank Deeds of Assignment," Marcos pointed out in her
Answer.
After her husband’s death in 1989, Marcos said she demanded that
Shareholdings and Tan deliver the 60 percent holdings to her as
surviving spouse and heir but they reportedly ignored her.
Government lawyers argued that based on the ruling of the Supreme Court
in the case of Republic of the Philippines vs. Sandiganbayan (G.R. No.
152154) dated July 15, 2003, the total lawful income of the Marcos
couple from 1965 to 1986 was only P2,319,583.33 ($304,372.43).
Thus, the Marcos interests in Tan’s firms must be declared part of
their ill-gotten wealth.
“In fine, it can be deduced in the averments and admission of defendant
Imelda Marcos that she and defendant Ferdinand Marcos concealed their
beneficial ownership/ interest in the subject corporations through
their dummies, agents, or nominees in the persons of defendant Lucio
Tan and the other defendants," lawyers from the PCGG and the Office of
the Solicitor General pointed out. -GMANews.TV
From: "Jody Neal-Post"
<jodynealpost@sprintmail.com>
To: "Fear" <fear-list@mapinc.org>
Sent: Wednesday, February 07, 2007 11:19 AM
Subject: FEAR: Int'l forfeiture
> Tax man
<http://www.manilastandardtoday.com/?page=politics2_feb5_2007>
> cleared of graft charges
> Manila Standard Today - Manila,Philippines
> The court ruled that the Ombudsman failed to establish substantial
> evidence to warrant the dismissal and forfeiture of the retirement
> benefits of Bernardo, ...
> Accused to
<http://www.pretorianews.co.za/index.php?fArticleId=3663670>
> lose assets
> Pretoria News (subscription) - Pretoria,South Africa
> A second order was granted for the forfeiture of an Isuzu bakkie
> belonging to Russel Jacobs, of Eerste Rivier, which was allegedly
used
> to transport ...
>
ax man
cleared of graft charges
By Rey E. Requejo
The Court of Appeals has exonerated an official of the Bureau of
Internal Revenue from charges he amassed wealth while in office.
In a 32-page decision, the Court’s 14th Division through Associate
Justice Bienvenido Reyes set aside the order of the Ombudsman in April
2004 dismissing lawyer Arnel Bernardo from service for allegedly
acquiring unexplained wealth.
The court ruled that the Ombudsman failed to establish substantial
evidence to warrant the dismissal and forfeiture of the retirement
benefits of Bernardo, a technical assistant in the office of the deputy
commissioner. “Having gone over the records of the case, we find no
compelling reason to veer from the findings of the Ombudsman which we
find are not amply supported by substantial evidence, and therefore,
could not be accorded with finality.”
In a complaint, the Ombudsman alleged that Bernardo is an incorporator
and director of BP Realty Corp., and that his wife, Ma. Lourdes
Bernardo is the owner of Rina’s Boutiques and Gift Shop-Gels Center .
The Ombudsman said Bernardo failed to disclose in his statement of
assets and liabilities and net worth for the years 1993 up to 2001 his
business interest or financial connection, despite the steady increase
of his net worth.
On various dates since he was hired by the bureau in September 1979
until 2001, the Ombudsman claimed that Bernardo purchased parcels of
residential and agricultural land which were out of proportion to his
and his wife’s lawful incomes, allowances, savings or declared assets.
The anti-graft court noted that Bernardo’s family also made several
foreign travels from 1995 to 2002.
On April 24, 2004, the Ombudsman said Bernardo was liable for
dishonesty, in accordance with the provision of Section 8 of Republic
Act 3019 or the Anti-Graft and Corrupt Practices Act.
The Ombudsman endorsed the dismissal of the petitioner as well as the
forfeiture of his retirement benefits, cancelation of eligibility and
perpetual disqualification for re-employment in the government service.
Bernardo appealed before the Court of Appeals. He asserted that the
Ombudsman erred in disregarding documentary evidence on record showing
that his family was lawfully engaged in several businesses.
He added that he has been religiously paying the taxes on income from
his businesses. He said that he indicated his and his wife’s businesses
in his net worth he filed for the period 1993 to 2001.
Bernardo also said that the agricultural land declared in his SALN for
1995 to 2001 appeared to refer only to one parcel, although the
acquisition covered two parcels of land awarded to him under the
Comprehensive Agrarian Reform Program of the government.
He said the reason for this was that he believed that it was sufficient
to declare the two lots as one, with the total cost indicated in his
SALN, since the two parcels were acquired at the same time in 1995.
The CA held that Bernardo managed to explain the acquisition of his
properties.
From: "Judy Osburn"
<openi420@starband.net>
To: <fear-list@mapinc.org>
Subject: FEAR: Montana Legislature Drafts Forfeiture Reform Bill
Date: Wednesday, February 14, 2007 1:02 PM
Montana Legislature Drafts
Forfeiture Reform Bill
by Judy Osburn
In addition to assuring that state courts may only forfeit property
from
owners who have been convicted of a related crime, this important
reform
legislation would curtail the perversion of law enforcement priorities
caused by the lure of agencies keeping the proceeds of seized property,
while preserving the legitimate goal of taking the profit out of crime.
Montana Bill Draft Number LC2225 would revise Montana state forfeiture
laws
to require criminal convictions of property owners before property may
be
forfeited by the state, as well as direct proceeds from state and
federal
forfeitures into state funds instead of the coffers of seizing
agencies.
The draft bill, which went to the legislative legal review committee on
February 13, would also eliminate state civil forfeiture proceedings
that
declare property guilty of crime, providing that all state forfeitures
be
imposed upon conviction of a criminal offense as part of sentencing.
The bill would require sheriffs to immediately return property to
innocent
lien holders who provide proof of a security interest equal to or
greater
than the value of the seized property. Proceeds of forfeited
property sold
at auction would be distributed to innocent owners with a secured
interest
less than the entire value, with the remaining proceeds to be deposited
in a
state fund for distribution to public defender offices. It would
also
prohibit sale of seized property to an officer or employee of a law
enforcement agency.
The revision to Montana forfeiture laws would also create a state civil
action similar to suits against law enforcement officers and agencies
for
civil rights violations similar to the form of action created in
federal law
by 42 U.S.C. 1983. A public official or employee who illegally
seizes,
holds, disposes of, or takes any other unlawful action in regard to
seized
property would be subject to a civil suit by the property owner.
The action
against the public official or employee would be against that person as
a
private individual acting outside of his or her official capacity, and
the
bill would prohibit public funds from being used to pay costs of legal
defense or damages awards against such public official or
employee. A
person who attempts to cover up or obstruct an act that is actionable
under
this bill would become liable for the act giving rise to the civil
rights
suit.
The civil rights suit would not apply to a peace officer who has
probable
cause to make an arrest, a peace officer serving a warrant who has
reasonable cause to believe that the warrant has been properly issued,
a
judicial officer acting in a normal judicial capacity, nor any
circumstance
that includes full compliance with due process of law. A public
official or
employee acting in compliance with the law would be immune from civil
suit
under this bill. Such determination that an employee was acting
lawfully
within the scope of his or her employment would be made by the
government
entity upon application of the employee or by court order. An employee
who
acts legally within the scope of employment would be indemnified by the
government employer for any monetary judgments or legal expenses, and
recovery against the government entity would bar any action against the
individual official or employee.
All too often after state forfeiture reform laws require a criminal
conviction of the owner before property may be forfeited, seizing
agencies
simply turn over civil forfeiture proceedings to federal courts and
continue
to collect up to 80% of the forfeited proceeds. Once enacted, in
addition to
assuring that state courts may only forfeit property from owners who
have
been convicted of a related crime, this important reform legislation
would
curtail the perversion of law enforcement priorities caused by the lure
of
agencies keeping the proceeds of seized property. Once enacted,
this bill
will end police piracy in Montana while preserving forfeiture's
legitimate
goal of taking the profit out of crime.
You can track the progress of this bill by inserting LC2225 in the
"Bill
Draft Number" box at
http://laws.leg.mt.gov/pls/laws07/law0203w$.startup
This DEA website press release shows that
over $18 million in federal forfeiture proceeds were distributed to
police agencies in New York during fiscal year 2006 under the
"equitable sharing" program -- better known as "federal adoption"
program, which allows state and local cops to work with federal agents
or turn over seized property to federal authorities for forfeiture
under the federal statutes. There is a link in the article to an
excel
spreadsheet showing how much each agency got.
If you intend to quote these figures, don't forget that about
half of the federal forfeiture money stream funnels through the
Department of Treasury Forfeiture Fund. You'll have to check the
Treasury Department website for figures for NY before you can
accurately state how much NY cops profited off the federal equitable
sharing program last year.
Over $18 Million In Forfeited Drug Proceeds Distributed To Federal ... <http://www.dea.gov/pubs/states/newsrel/nyc021507.html>
DEA.gov - USA
The Department of Justice asset forfeiture program has three primary
goals: To punish and deter criminal activity by depriving criminals of
property used or ...
DEA
News Release
February 15 2007
Contact: Erin Mulvey
212-337-2906
Over $18 Million In
Forfeited Drug Proceeds Distributed To Federal,
State And Local Law Enforcement In New York In 2006
FEB 15
-- (NEW YORK, NY) John P. Gilbride, Special Agent in Charge of the U.S.
Drug Enforcement Administration in New York, US Attorney for the
Eastern District of New York Roslynn R. Mauskopf and US Attorney for
the Southern District of New York Michael J. Garcia announced that
$18,552,723.74 in forfeited drug funds were distributed to a total of
61 state and local law enforcement agencies and departments during the
2006 fiscal year. The distributed monies come from assets that
were derived from, or were used to facilitate, drug trafficking
activities.
“It pleases me
to take away the one thing drug traffickers cherish most – their
money,” stated SAC Gilbride. “The seizure and redistribution of $18
million of drug proceeds is a slap in the face for drug dealers, we
take away their money and give it back to law enforcement agencies in
order to fund more investigations targeting drug dealers just like
them.” SAC Gilbride added, “The DEA’s success in seizing drug proceeds
is due to the diligent work of our federal, state and local law
enforcement partners.”
"Drug dealers
should be on notice that crime does not pay," said U.S. Attorney
Roslynn R. Mauskopf. "We will continue to use one of the most
powerful tools in our arsenal to strip drug dealers of the money
they crave and use it right back at them by funding new enforcement
initiatives."
Michael J.
Garcia, the United States Attorney for the Southern District of New
York, said, "The Department of Justice Equitable Sharing Program
demonstrates what can be accomplished through cooperation and
coordination among federal, state and local law enforcement agencies.
My Office is proud to have played a part in having drug dealers'
profits go toward further investigations and prosecutions."
Forfeited funds
are transferred to local, state and federal law enforcement through the
Department of Justice’s “Equitable Sharing Program,” which is
administered by the United States Marshals Service. Each agency
that participates in the program is required to use the funds for law
enforcement purposes.
The Department
of Justice asset forfeiture program has three primary goals: To
punish and deter criminal activity by depriving criminals of property
used or acquired through illegal activities, to enhance cooperation
among federal, state and local law enforcement, and to produce revenues
to enhance forfeitures and strengthen law enforcement.
As an example
of the cooperative work between Federal, State and Local counterparts,
in March of 2006, the DEA, New York State Police, Suffolk County Police
Department, the Suffolk County District Attorney’s Office, and the
Nassau County Police Department dismantled a major cocaine distribution
network based in Long Island, New York. The investigation culminated
with three arrests, the execution of 8 search warrants throughout
Suffolk County that resulted in the seizure of 210 kilograms of
cocaine, $5,000,000.00, and three semi-automatic assault rifles. This
was a 3-month long investigation into a high level narcotics
trafficking network. The DEA and the NYSP arrested Billy Green, Norman
Goode and Daniel Green. Norman Goode was employed as a Corrections
Officer with the Suffolk County Sheriffs Department and Daniel Green
was employed as a school teacher in the North Babylon School District
who coached the girls High School Varsity Basketball Team.
The Department
of Justice Equitable Sharing Program is designed to enhance cooperation
among federal, state and local law enforcement through the sharing of
proceeds resulting from federal forfeiture. State and local law
enforcement agencies receive equitable sharing revenues by
participating with federal law enforcement in joint investigations that
lead to the forfeiture of property. The amount that is shared
with state and local law enforcement is usually based on each agency’s
level of participation in the case. Many of the state and local
law enforcement agencies received funds based on their participation on
DEA Task Forces.
The attached
document details how the $18,552,723.74 in forfeited drug proceeds were
distributed.
It's amazing what outrageous claims law enforcement will make to
promote a forfeiture bill.
In this Sacramento Bee editorial advocating passage of a forfeiture
bill against vehicles for street racing, University of Texas
criminologist John Worrall claimed "forfeiture was the most effective
deterrent to street racing -- better even than a murder
prosecution." Better for the police who stand to profit no doubt
-- but what studies have proven it an effective deterrent to teenage
drivers? The article also quotes Worrall making another
outrageous claim: "If you threaten to take some kid's $100,000
racing car away," Worrall said, "it's going to have a more significant
effect than the threat of some more distant punishment."
How many "kids" have $100,000 racing cars? Most "kids" -- who
would be likely to show off their newly acquired drivers' licenses by
revving their engines and burning rubber at a traffic lights -- own
beaters worth a few thousand dollars, or would be driving their
parents' cars. Police wouldn't want the beaters because they
wouldn't break even after the costs of forfeiture proceeding. So
who exactly would this proposed law be punishing, really? The
parents, that's who.
Another ill-thought out forfeiture solution to a problem that needs to
be addressed by policing, not seizing.
Please write your California representatives and urge them to oppose
this bill.
Editorial: Take their cars <http://www.sacbee.com/110/story/124867.html>
Sacramento Bee - Sacramento,CA,USA
Officials there approved ordinances in 2003 that made attendance at
street racing events a misdemeanor and allowed seizure and forfeiture
of cars used for ...
From: "Jody Neal-Post"
<jodynealpost@sprintmail.com>
To: "Fear" <fear-list@mapinc.org>
Subject: FEAR: Judge finds forfeiture program questionable
Date: Tuesday, February 20, 2007 6:50 AM
A question of checks & balances.
Judge
<http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20070213/NEWS/7
02130316> casts doubt on Manatee police forfeiture program
Sarasota Herald-Tribune - Sarasota,FL,USA
But Bradenton leaders may now have to rethink their Contraband
Forfeiture Agreements -- which allow people to sign away their cash and
property -- after a ...
Judge casts doubt on police
forfeiture program
By MICHAEL A. SCARCELLA and ANTHONY CORMIER
STAFF WRITERS
BRADENTON --
For years, this city's police department has quietly seized reputed
drug money through a program that bypasses the courts and funnels
thousands of dollars into department coffers.
But Bradenton leaders may now have to rethink their Contraband
Forfeiture Agreements -- which allow people to sign away their cash and
property -- after a judge rebuked the policy on Monday, calling it a
dubious program that violates "the bedrock principle ... of checks and
balances."
Circuit Judge Peter Dubensky also said the police department must
follow state law -- used in forfeiture cases by other agencies around
Florida -- or return $10,000 to an Orlando man who contested the
seizure.
While Dubensky cast doubt on the constitutionality of the issue, he did
not offer a blanket ruling that outlaws Bradenton's program.
In fact, he focused solely on the case of Delane Johnson, who was
arrested last year and charged with an obscure financial crime after
police found a wad of cash in his pocket.
The criminal charge was later dropped, but police held Johnson in a
booking room and he eventually signed a Contraband Forfeiture Agreement
giving the money to police.
Dubensky imagined a system where the police could stop any citizen "for
any reason and request forfeiture of any item of property" as long as
they signed the document.
"It is not remotely conceivable that the citizenry would countenance
such a state of affairs," he wrote.
Although the decision does not force Bradenton to discontinue its
program, legal experts have said the Johnson case could set a statewide
precedent.
Bradenton attorney Varinia Van Ness said she plans to file another
motion asking the judge to reconsider making "a blanket ruling so this
doesn't happen to other people."
Officials revised the document late last year, giving people more time
to contest the forfeiture.
Police Chief Michael Radzilowski is vacationing in the Caribbean this
week and Mayor Wayne Poston did not return multiple phone calls. Maj.
William Tokajer, who oversees the forfeiture program, said he had not
seen the decision and declined comment.
Maj. William Tokajer, who oversees the forfeiture program, did not
return phone calls on Monday.
It is not immediately clear whether the department was still using the
Contraband Forfeiture Agreements as of Monday.
"It sets a precedent, but people have to know about that precedent in
order to challenge their cases," Van Ness of Dubensky's ruling. "But
that costs money, and it takes time."
The money is held in a special account and generally used for weapons,
gear and police programs. Bradenton has also used the money to fund
midnight basketball programs and a summer camp run by a city councilman.
At least three other agencies in Florida use forfeiture agreements,
although the documents and the instances in which they are used vary
widely.
Last modified: February
13. 2007 12:12PM
BRADENTON -- For
years, this city's police department has quietly seized reputed drug
money through a program that bypasses the courts and funnels thousands
of dollars into department coffers.
From: "Judy Osburn"
<openi420@starband.net>
To: "FEAR-list" <fear-list@mapinc.org>
Sent: Tuesday, February 20, 2007 8:05 AM
Subject: FEAR: Harold Tribune commentary on Bradenton contraband
forfeiture agreement
>
http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20070214/OPINION/702140548/1030
> Seizures are suspect
> Ruling should cause Bradenton police to halt waiver policy
>
> Before they expose taxpayers to further financial risk, Bradenton
police should stop asking suspected criminals to surrender cash and
waive their right to appeal the forfeiture in court.
>
> On Monday, 12th Circuit Court Judge Peter Dubensky rejected the
city of Bradenton's motion to dismiss a legal challenge by 20-year-old
Delane Johnson, who signed a waiver document and handed over $10,200 to
police.
> ...
> full commentary at
>
http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20070214/OPINION/702140548/1030
>
---------------------------------------------------------------------------
Seizures
are suspect
Ruling should cause Bradenton police
to halt waiver policy
Before they expose taxpayers to further financial risk, Bradenton
police should stop asking suspected criminals to surrender cash and
waive their right to appeal the forfeiture in court.
On Monday, 12th Circuit Court Judge Peter Dubensky rejected the city of
Bradenton's motion to dismiss a legal challenge by 20-year-old Delane
Johnson, who signed a waiver document and handed over $10,200 to police.
The police stopped Johnson outside a Bradenton apartment building last
year. Officers suspected Johnson of selling drugs but found none on him.
Instead, Johnson was charged with a misdemeanor for failing to report a
financial transaction exceeding $10,000. The charge was later dropped,
and Johnson is seeking return of the money.
Bradenton police have collected tens of thousands of dollars for
municipal use through these waivers, which sidestep a state law. That
law allows officers to seize cash and property if they can later show
probable cause -- in court -- that the items were gained in criminal
activity.
Although this week's ruling applies to only one case, Dubensky -- a
former state prosecutor and public defender -- made it clear that the
city's waivers circumvent safeguards meant to protect citizens from
unconstitutional seizures.
In Johnson's case, the judge determined that "the contract and the
circumstances surrounding the making of the contract fail to comply
with even the rudimentary elements of due process."
The judge continued with a scathing review of the waiver policy. "Taken
to its logical extreme," Dubensky wrote, the police "could present this
agreement to any citizen stopped for any reason and request forfeiture
of any item of property" in exchange for signing the paper.
"It is not remotely conceivable that the citizenry would countenance
such a state of affairs," the judge wrote.
If the city wants to keep Johnson's cash, Dubensky ruled, the
department must show probable cause in court. His ruling could prompt
others to seek the return of money or property seized by the city.
Mayor Wayne Poston, whose duties include serving as the city's police
commissioner, said no review of the policy is planned until the Johnson
case is completed. "Obviously, we'll do whatever the judge says. If he
says we ought not to do (waivers), that's fine," Poston said.
In a meeting with Herald-Tribune Editorial Board members last month,
Bradenton Police Chief Michael Radzilowski said he had misgivings about
the policy at first. "Initially, I was very torn with it," the chief
said. "I didn't like it."
But a citizens advisory council, attorneys and others urged him to
continue the policy to combat drug-dealing, he said.
"I'm really looking to the judge for guidance," he said, referring to
Johnson's challenge. "I want to do the right thing, and I want to
follow the law."
The judge's guidance arrived in forceful words this week. Now it's time
for Bradenton officials to do the right thing.
Last modified: February 14. 2007 6:39AM
From: "Judy Osburn"
<openi420@starband.net>
To: "FEAR-list" <fear-list@mapinc.org>
Sent: Tuesday, February 20, 2007 8:02 AM
Subject: FEAR: more on Bradenton contraband forfeiture agreement ruling
> http://www.bradenton.com/mld/bradenton/news/local/16693223.htm
> Bradenton PD backs confiscation policy
> Department to keep suspect's property regardless of charge
> REBECCA BLUE
> Herald Staff Writer
> BRADENTON - The Bradenton Police Department said Tuesday it will
continue to follow a policy that allows officers to confiscate items
suspected of being used or obtained during the commission of a crime.
>
> The suspect in the crime must sign the items over to the
department in a civil contract agreement for the policy to be
considered effective. Once the agreement is made, the items, such as
vehicles or money, become property of the department, regardless of
whether the defendant is charged with a crime.
>
> The decision to continue with the heavily debated policy comes
four days after a circuit judge issued an order for the department to
return more than $10,000 it seized from a suspect in July 2006, or
follow the state's forfeiture agreement policy in the suspect's
particular case, instead. ...
>
> ...full story at
>
> http://www.bradenton.com/mld/bradenton/news/local/16693223.htm
>
Bradenton
PD backs confiscation policy
Department to keep suspect's property
regardless of charge
REBECCA BLUE
Herald Staff Writer
BRADENTON - The Bradenton Police Department said Tuesday it will
continue to follow a policy that allows officers to confiscate items
suspected of being used or obtained during the commission of a crime.
The suspect in the crime must sign the items over to the department in
a civil contract agreement for the policy to be considered effective.
Once the agreement is made, the items, such as vehicles or money,
become property of the department, regardless of whether the defendant
is charged with a crime.
The decision to continue with the heavily debated policy comes four
days after a circuit judge issued an order for the department to return
more than $10,000 it seized from a suspect in July 2006, or follow the
state's forfeiture agreement policy in the suspect's particular case,
instead.
The department's unique contraband forfeiture agreement supersedes the
state law, which a majority of Florida law enforcement authorities
follow.
The state law requires the court to decide whether there is sufficient
probable cause for authorities to keep confiscated items. If a charge
is dropped against the defendant, the court also decides the fate of
his or her property.
With the state's law, the items are confiscated at the time of the
arrest, but the suspected criminal is given 10 days to request a
hearing, and the law enforcement agency has 90 days to file an intent
to forfeit.
The city's policy completely bypasses the court system. It states that,
by entering into the agreement, the court costs and delays associated
with the state's policy are avoided as the defendant waives the right
to obtain an attorney and the right for the forfeiture to be reviewed
in court.
The city's alternative policy was brought to light in October 2006,
when Orlando resident Delane Johnson filed a petition requesting the
return of money officers found and confiscated from him in July 2006,
while investigating a robbery.
Johnson was discovered by officers in the vicinity of the crime scene.
He gave officers consent to search him, which is when they found him in
possession of $10,200. He faced a charge of failing to report a
business transaction exceeding $10,000, which was later dropped by the
state attorney's office.
On Feb. 9, Circuit Judge Peter Dubensky denied a motion by the police
department to dismiss Johnson's petition, and ordered the department to
either return the money to Johnson or take the individual case through
the court system, the way the state forfeiture law does, according to
court records.
City attorneys have argued that Johnson consented to signing the
agreement with the department, and knew that he was waiving his rights
for further review.
Calls made to Michael Roper, the attorney representing the city, were
not returned Tuesday.
Attorney Varinia Van Ness, co-counsel for Johnson, questioned the
impact Dubensky's order will have on the police department.
"I would hope they would start obeying the law of the land, so, in the
future, this doesn't happen to other people," she said.
If the department continues to go by its policy versus the state laws,
Van Ness said she will consider filing a motion to reconsider the
future of the department's policy.
"I'm hoping they will no longer use these agreements to take people's
property," Van Ness said.
If the department decides to pursue the state law in Johnson's case,
instead of returning his money, Van Ness believes it wouldn't stand a
chance.
"They only have 90 days to file an intent to forfeit," she said. "It's
long past that due date now."
The deadline for the filing would have been in October 2006.
Bradenton Police Maj. William Tokajer said his agency has not decided
which route it will take in response to the ruling.
"We will review the judge's ruling and consult with our legal counsel
to determine which action we will take," he said Tuesday.
Tokajer also continued to back the policy and gave no indication
whether the department will default to the state forfeiture laws any
time in the future.
"We suspended the policy last year while it was being reviewed by our
attorneys. Minor changes were made and the civil agreement was deemed
legal by our counsel," Tokajer said.
The minor change gives a suspected criminal five days to cancel the
agreement, making it null and void.
Rebecca Blue, criminal justice reporter, can be reached at
rblue@Bradenton.com or at 708-7919.
From: "Judy Osburn"
<openi420@starband.net>
To: "FEAR-list" <fear-list@mapinc.org>
Subject: FEAR: Montana forfeiture reform bill introduced
Date: Tuesday, February 20, 2007 8:17 AM
The draft forfeiture reform bill has now been introduced in the Montana
state legislature, and is now HB 775, which can be found at
http://data.opi.mt.gov/bills/2007/billpdf/HB0775.pdf