by Andrew Schneider & Mary Pat Flaherty
THE PITTSBURGH PRESS
Copyright 1991 The Pittsburgh Press Co.
Reprinted with permission.
THURSDAY AUGUST 15, 1991 Page A1
By Andrew Schneider and Mary Pat Flaherty
The Pittsburgh Press
A Vermont man was found guilty of growing six marijuana plants. He received a suspended sentence and was ordered to do 50 hours of community work. But there was an added penalty: He and his family nearly lost their 49-acre farm.
In Washington, where the maximum criminal penalty could have been a $10,000 fine, an elderly couple served 60 days for growing 35 marijuana plants -- and lost their $100,000 house.
In Bismarck, N.D., a young couple received suspended sentences after pleading guilty to growing marijuana. The judge who ordered them to forfeit the three-bedroom house where they lived with their three children worried from the bench that he might be throwing them onto the welfare rolls. But he says he had no choice.
All three families are the victims of a federal law that allows the government to take homes, lands, vehicles and other possessions from Americans convicted of possessing drugs or violating a host of other statutes.
The law was intended to penalize major drug dealers and organized crime figures by taking their property, selling it and returning the proceeds to the cops for other investigations. But the dollar return to the cops has been so great that it's now being used for scores of crimes, some no more than misdemeanors by first-time law-breakers.
Because of the law, more and more people are losing their property. For many, the punishment no longer fits the crime.
Community outrage helped Robert Machin and Joann Lidell keep their farm in South Washington, Vt., after the federal government tried to seize it in 1989.
Signs decrying ``Cruel and unusual punishment -- remember the Eighth Amendment'' were posted along local roads. Lawmakers and politicians got involved. Nearly all their neighbors signed petitions.
Machin and Lidell, advocates of the back-to-nature movement, support themselves and their three children off their 49 acres. They boil maple sap into syrup, press apples into cider and educate their children in the rustic, gas-lit rooms of their eight-sided wooden house.
Their trouble began in September 1988, when a teenager busted for a traffic violation traded his way out of a ticket by telling state police he could show them 200 marijuana plants growing on Machin's farm.
Police raided the property and found only six plants, which Machin admitted to growing.
He received a suspended sentence and spent 50 hours doing community service. Tranquility returned to the Machin farm, but the government wasn't through.
On Aug. 12, 1989, U.S. Attorney George Terwilliger III filed action to seize the Machin house and property. Vermont state law does not permit the seizure of a home, so the case was pursued through federal courts.
But the political pressure and the outpouring of concern from the community forced Terwilliger, who also runs the Justice Department's forfeiture fund, to back off.
``The Machin case is one where public scrutiny forced the government to do it right. What about all the others where no one is watching?'' Machin's lawyer, Richard Rubin, asks.
There was little public scrutiny in November 1989 after Robert and Brenda Schmalz pleaded guilty to marijuana charges in Bismarck, N.D., and got probation.
North Dakota state law does not allow the forfeiture of real estate involved in crimes. So, in order to seize the house, prosecutors took the Schmalz case to federal court, says federal Judge Patrick Conmy, who got the case.
Conmy said at the hearing that the couple had grown marijuana in their basement for their own use. Even so, because they used their house in the crime, Conmy says, he had no choice but to order them to forfeit their home.
``I don't really care if somebody loses their Cadillac, or their coin collection, the cash that's with the drugs. That's fine. It's looked on as a hazard of doing business,'' the federal judge says.
``But you get a husband, wife and several children in a three-bedroom home and the husband raises marijuana in the basement with some grow lights, and you take their house for that. That, to me, is different.''
The marijuana Jack Blahnik grew in his yard controlled severe pain from his cluster headaches, he says.
Blahnik completed 68 years of his life without a single brush with the police. But in his 69th year, he and his 61-year-old wife, Patricia, were arrested, convicted and jailed for 60 days for growing 35 marijuana plants.
On March 6, 1990, the state of Washington also seized the couple's three-bedroom home and the five acres it sat on.
Blahnik admits he was growing the dope.
``I showed it to the police, I took them out to the shed in the back yard and told them that I was growing the stuff for my own use, to try to control the pain from these cluster headaches that I have,'' Blahnik says.
Blahnik heard that marijuana helps such headaches, and his doctor confirmed its value.
``My wife was against my growing the stuff, but she went to jail because she copied some growing instructions for me,'' Blahnik says.
The statute under which the Blahnik's house was seized requires the state to provide ``evidence which demonstrates the offender's intent to engage in commercial activity.'' The police never made that link, affidavits show.
The Blahnik's $100,000 property in Woodland, about 130 miles south of Seattle, was their nest egg.
``It was our life savings,'' Blahnik says. ``Everything we had went into that house and land.''
Police charged that drug sales financed the house.
``They knew that wasn't true,'' Mrs. Blahnik says. ``Our bank statements and tax forms show that everything we ever put into buying that house, and everything else we have, came from money that we worked hard 40 years to save.''
The Blahniks' lawyer, Michael McLean, calls the seizure unconstitutional and punitive.
``The maximum fine for this crime in the state of Washington is $10,000. The Blahnik's property was worth 10 times that amount.''
Blahnik does not question that he should be punished for breaking the law. However, he questions the manner in which it was done.
``The prosecuting attorney went on television, putting our mug shots on and claiming they had made the biggest seizure ever made in either Washington or Oregon and we could possibly be connected to a nationwide drug ring,'' Blahnik says.
``They failed to mention that their big seizure was our retirement money,'' Blahnik says.
Sometimes the government's push to seize property drives it to spend far more than it makes. For example, it's estimated that the state of Iowa spent more than $100,000 defending the seizure of a $6,000 fishing boat.
It has been three years since the Iowa Department of Natural Resources agents charged Dickey Kaster with having three illegally caught fish.
The officers stopped Kaster, a 63-year-old retired gas company foreman, leaving Clear Lake. In the back of his truck the fish cops found a silver bass, a northern pike and a muskie, and said they had ``net marks'' on them. Kaster was charged with gill-netting, a misdemeanor in Iowa punishable at the time by up to 30 days in jail and a $100 fine for each fish. Altogether, he paid about $500 in fines.
But the officers also seized Kaster's 16-foot boat, 40-hp motor and trailer -- worth about $6,000.
``No doubt they had net marks on them, but so do 75 percent of the fish in the lake, I caught them with a rod and night crawlers,'' Kaster says.
District Court Judge Stephen Carroll said the seizure was unconstitutional and ordered the boat, motor and trailer returned.
But Cerro Gordo County Attorney Paul Martin appealed to the Iowa Supreme Court, which ruled the property could be seized.
Kaster's saga of the three fish has been on local court dockets four times and before the Iowa Supreme Court twice.
A court clerk in Mason City estimated that ``probably a lot more than $100,000'' was spent in pursuit of justice for those fish.
Kaster says he knows exactly what the ordeal cost him.
``Just about everything I own. I auctioned off the inventory of my bait and tackle shop at about a dime on the dollar and sold my house to pay the legal bills and keep the bank happy,'' he says.
``I didn't get my boat back, but I'm still trying,'' he says. ``You can't let the government ignore the Constitution. I'm fighting this over a boat that shouldn't have been taken, but it really deals with how fair our government is supposed to be.''
And fairness is what is worrying Don and Ruth Churchill, who are fighting to keep their family farm in Indiana.
``Salt of the earth'' and ``good, God-fearing people'' are how some neighbors in the southern Indiana farming community describe the 54-year-old couple.
In 1987, Churchill had found some marijuana plants mixed in with his corn and immediately notified state police.
Farmers in the area were aware that a group called ``the Cornbread Mafia'' was planting marijuana in other people's cornfields throughout nine Midwestern states.
The cops destroyed the crop, and the Churchills thought they were done with marijuana.
But two years later, while they were watching a TV newscast about thousands of marijuana plants being found on farmland, they recognized the land as theirs.
The next morning, the Churchills went to the sheriff to say it was their land. Ten days later, state police arrived at their door to arrest Churchill and his 34-year-old son, David, charging them with numerous felony counts, including possession of and cultivating marijuana.
An informant had reported that he saw Churchill, his son and a third, unidentified man tending marijuana crops on land they own in Harrison County. The informant later reported that dope was also growing on other Churchill land in Crawford County, court affidavits show.
In February, four months before their first criminal trial, the federal government -- prodded by state police who would get the bulk of any forfeiture proceeds -- seized the 149 acres the Churchills own in both counties.
They are awaiting the outcome of the cases.
While the Churchills anguish over the possible loss of their property, they don't dispute that police found thousands of marijuana plants growing on their two tracts.
What Churchill disputes is that he or anyone else in his family grew it.
``I farm part time. We plant in the spring and harvest in the fall and don't mess with the corn in between.'' Before the large cache of marijuana was discovered, ``we hadn't been out there for weeks,'' says Churchill, who leaves for work at 4 a.m. to get to the Ford truck plant 43 miles away in Louisville, where he has worked for 27 years.
Planting of ``no-till'' crops is very common in the area as a way to make extra money.
The farmland, especially valuable because it contains the largest natural spring in Indiana, has been in Mrs. Churchill's family for generations.
Standing on the steps of a wood-frame chapel in the midst of some of the land the government is trying to take, Mrs. Churchill expressed her disillusionment.
``This church is built on my family's land. I was baptized here, and Don and I were married here. This used to be a place of peace and happiness,'' Mrs. Churchill says. ``Now, this place, our community, our lives, our faith in government, everything has changed.
``If they take our land, I'm going to lose faith in everything,'' she says.
Ron Simpson, the state's primary prosecutor of the criminal charges, questions the fairness of the federal government's seizure of the Churchills' land when most of it was inherited from the wife's family.
``Under our system, if someone is punished, they should have been charged with something, and we've brought no charges against Mrs. Churchill. We have no evidence that she knew anything about the marijuana that was growing,'' Simpson says. ``You just have to wonder about how fair this seizure is.''
``We assumed the legal system was fair, that if we were innocent, we had nothing to worry about. Now I'm in one court defending myself and my son against drug charges, and in another court, they're trying to take my land away. I'm worrying about a lot of things now.''
The issues of proportionality and fairness pose challenges for even strong supporters of forfeiture laws, including Gwen Holden, a director of the National Criminal Justice Association in Washington, D.C., a group that represents state law enforcement interests.
``If an individual is clearly a major trafficker and everything he ever bought is dirty, no one has major heartburn. If someone owns 200 acres of land and there's drugs on a corner and the guy never knew it was there, then the rule of reason should kick in,'' Ms. Holden says. ``You shouldn't be taking the whole farm if he didn't know it was there.''
Taking Bradshaw Bowman's whole farm is exactly what the government is trying to do.
The 80-year-old man was arrested for growing marijuana, and the local sheriff has seized his 160-acre ranch in the breathtaking high desert area of southern Utah.
A convicted drug dealer-turned-sheriff's informant blew the whistle on a handful of marijuana plants growing on Bowman's property.
Bowman's ``Calf Creek Ranch'' is 300 miles south of Salt Lake City, at the entrance to a National Scenic Vista area of stunning canyons.
The marijuana was found on a hiking trail far from Bowman's house.
``I've had this property for almost 20 years, and it's absolute heaven. I love this place. My wife's buried here,'' Bowman says. ``I can't believe they're trying to take it away from me, and I didn't even know the stuff was growing there.
``I used to serve on jury duty, but at 70 they make you stop. In all my time sitting in the jury box, I never heard of the Constitution treated this way.''
Garfield County Attorney Wallace Lee, who is prosecuting both the criminal charges and the civil effort to seize Bowman's house, says, ``He's getting his day in court.''
``The fact that he's 80 years old has no bearing on the case at all and certainly not with me,'' Lee says. ``I'm out to prosecute a criminal case here, and it doesn't matter whose house it is.''
Bowman's lawyer, Marcus Taylor, says:
``This is the classic example of the absurdity, injustice and almost immoral nature of forfeiture.
``You could hold that entire bundle of 67 plants in one hand.''
THE PITTSBURGH PRESS
Copyright 1991 The Pittsburgh Press Co.
Reprinted with permission.
THURSDAY AUGUST 15, 1991 Page A6
By Andrew Schneider and Mary Pat Flaherty
The Pittsburgh Press
With more than 9,000 flights under his belt, Billy Munnerlyn has survived lots of choppy air. But it took only one flight into a government forfeiture action to send his small air charter service crashing to the ground.
Munnerlyn and his wife, Karon, both 53, worked for years building their Las Vegas business. Their four planes -- a jet and three props -- flew businessmen, air freight, air ambulance runs and Grand Canyon tours.
``It wasn't a big operation, but it was ours,'' Mrs. Munnerlyn says.
Today, Munnerlyn is making 22 cents a mile trucking watermelons and frozen carrots across the country in an 18-wheeler.
He has filed for bankruptcy. He sold off his three smaller planes and office equipment to pay $80,000 in legal fees. His 1969 Lear Jet -- his pride and joy -- is being held by the federal government at a storage hangar in Texas.
Munnerlyn's life went into a tailspin the afternoon of Oct. 2, 1989, when he flew an old man and four padlocked, blue plastic boxes to the Ontario International Airport, outside Los Angeles.
His passenger was 74-year-old Albert Wright, a convicted cocaine trafficker. The plastic boxes contained $2,795,685 in cash.
But Munnerlyn says he didn't know that until three hours after they landed and Drug Enforcement Administration agents handcuffed him and took him to the Cucamonga County Jail. Munnerlyn was charged with drug trafficking and ordered to pay $1 million bail. Seventy-one hours later, he was released without being charged.
When he went to get his plane, a drug agent told him ``it belongs to the government now'' -- a simple statement that launched a devastating legal battle that continues today.
An informant had told Ontario Airport police that Wright would arrive Oct. 2 with a large amount of currency to purchase narcotics.
Police were waiting when the Lear landed. They watched Wright get off the plane. For the next three hours, agents followed him as he met two other people, picked up a rented van, returned to the airport and unloaded the plastic containers from Munnerlyn's jet.
Police followed the van to a residence about 20 miles away. They surrounded the van and four people nearby. All were identified as being major cocaine traffickers.
A search of the plastic boxes found $2,795,685.
At the airport, agents told Munnerlyn he was in trouble. They searched the jet. No drugs were found, but they seized $8,500 in cash that he had been paid for the charter.
``I guessed they would figure out I had nothing to do with that guy and his drug money, and give me my plane and $8,500 back,'' Munnerlyn says.
He was wrong.
Two weeks later, drug agents showed up at Munnerlyn's Las Vegas home and office and carried off seven boxes of documents and flight logs.
It was just the beginning of the government's efforts to prove he was a drug trafficker and had flown for Wright for years.
Munnerlyn says he didn't even know Wright was the man's name.
Several days before the seizure, Munnerlyn was contacted by a man identifying himself as ``Randy Sullivan,'' a banker, who was willing to discuss financing a new aircraft that Munnerlyn had been telling business contacts he wanted to buy.
Munnerlyn agreed to meet him Oct. 2 at Little Rock Airport. ``We were going to fly back to Las Vegas, where I was going to show him my operation and talk about him financing my purchase of a larger plane.'' Munnerlyn picked up ''Sullivan'' and four boxes of ``financial records.''
``He was a distinguished-looking, very old man dressed in a dark suit. He looked like a banker is supposed to look,'' Munnerlyn says.
They stopped in Oklahoma City to refuel. When they took off 45 minutes later headed to Las Vegas, ``Sullivan'' told Munnerlyn he had made a telephone call and had to go to the Ontario airport instead. They would discuss the loan at a later date, he told the pilot.
While en route, he paid Munnerlyn $8,300, the normal tariff for a jet charter, and gave him a $200 tip.
``I told the DEA that I never saw that man before in my life, and I've never had anything to do with drugs,'' Munnerlyn says. ``All I want is my plane back.''
Assistant U.S. Attorney Alejandro Mayorkas is still fighting to prevent that from happening.
In court documents Mayorkas filed, he acknowledged the government ``will rely in part on circumstantial evidence and otherwise inadmissible hearsay'' to try to justify the forfeiture.
The government ``need not establish a substantial connection to illegal activity, but need only establish probable cause,'' the prosecutor wrote.
Mayorkas says the fact the aircraft flew into Los Angeles, ``an area known as a center of illegal drug activity,'' is probable cause.
The prosecutor faulted Munnerlyn for not knowing what was in the boxes, but government regulations do not require charter pilots to question or examine baggage.
Munnerlyn wanted Wright to testify, but the government said he couldn't.
``He was the only guy other than me who could tell the court that we didn't know each other. But Mayorkas said they couldn't find him,'' Munnerlyn says.
At a three-day trial that began last Oct. 30, Mayorkas sprang a surprise witness. A ramp worker from Detroit's Willow Run Airport testified that he had seen Munnerlyn and Wright at his airport ``in the fall of 1988.''
The witness, Steven Antuna, described Munnerlyn to a T, right down to the full reddish, gray-streaked ``Hemingway-like'' beard he had when he was arrested.
The only problem was that Munnerlyn didn't have a beard until the summer of 1989.
Mrs. Munnerlyn and her 31-year-old son took the stand and refuted the statements about the beard.
The six-member jury ruled that the plane should be returned to the pilot and his wife.
In December, Mayorkas asked for another trial -- and held on to the plane. He said Munnerlyn's family members had lied.
But Munnerlyn submitted 51 affidavits from FAA and Las Vegas officials, U.S. marshals, bank officers, customers and business contacts swearing he did not have a beard in the fall of 1988.
Photos and a TV news tape of Munnerlyn being interviewed after rescuing a couple from Mexico after a hurricane, both taken that fall, showed him beardless.
But the government kept the plane.
Munnerlyn and his wife shuttled between Las Vegas and Los Angeles more than 20 times.
``Each time we went we thought this nightmare would be over, but each time there was some new game that the government wanted to play,'' Mrs. Munnerlyn says.
First, Mayorkas demanded the pilot pay the government $66,000 for his plane.
``We didn't have any money left and we couldn't figure out why we should have to pay the government anything, when a jury said we were innocent,'' Munnerlyn says.
Mayorkas lowered the ``settlement'' to $30,000, still far more then the Munnerlyns could raise.
In April, Munnerlyn went to the U.S. Marshal Service's aircraft storage site in Midland, Texas. He climbed over, under and through his plane, which had been torn apart during the DEA search for drugs.
``The whole thing was a mess,'' he says. ``That plane's going to need about $50,000 worth of work to bring it up to FAA standards again, to make it legal to fly.''
In mid-June, Mayorkas made what he called a ``final offer.''
``We have to pay the government $6,500 to get back my plane, that a jury says shouldn't have been taken in the first place, and they want to keep the $8,500 that I was paid for the flight,'' Munnerlyn says.
Last month, when asked if the settlement request was fair, Mayorkas said:
``If he was innocent, he would have taken reasonable steps to avoid any involvement in illicit drug activity,'' Mayorkas says.
But he wouldn't detail what preventive measures Munnerlyn should have taken.
The Munnerlyns are trying to borrow the money to get their plane back.