Forfeiture Endangers American Rights Foundation is a 501(c)(3) charitable organization. Donations are tax deductible. 20 Sunnyside Suite A-419, Mill Valley, CA 94941     Phone: 415-389-8551  or toll-free  888-FEAR-001

Forfeiture 101 is here! Announcing the release of the first in a series of  FEAR's clear, concise and informative DVD courses on substantive forfeiture law and procedure.

Forfeiture 101 is a Continuing Legal Education DVD course that enables defense attorneys to effectively expand their practices to meet the needs of the vastly increasing number of victims of the government's ever-broadening overreach for assets and money judgments.

Lawyers taking on their first forfeiture case suddenly find that law school never prepared them for the maze of complex proceedings that strictly adhere to Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, further complicated by CAFRA reforms that apply to some forfeiture proceedings and not to others. Forfeiture victims will find this DVD to be a  godsend – especially those forced to represent themselves because they can't afford counsel. This entertaining and informative two-hour DVD serves as a crash (or refresher) course in forfeiture law, as well as an interactive computer research tool.  Pop the DVD in your computer and click the menu for the chapter you need to research. As you listen to a narrative overview of the issues, you can pause at any time and note the case and statute citations that appear on the screen accompanying the narration. Forfeiture 101 is the first in a series of  FEAR's clear, concise and informative DVD courses on substantive forfeiture law and procedure. FEAR's Forfeiture 101: Chapter 1: Dangerous Misconceptions About Forfeiture Chapter 2: Historical Origins of Forfeiture's Quirky Procedures Chapter 3: The Ever-Growing Number of Forfeiture Laws Chapter 4: Defenses Against Forfeiture Chapter 5: Which Track: Civil or Criminal Forfeiture? Chapter 6: Civil Forfeiture: A Torturous, Treacherous Trail Chapter 7: A Fork in the Path:  CAFRA or Customs Procedures? Chapter 8: An Alternate Route: Criminal Forfeiture   © 2009

Purchase Forfeiture 101 before July 4 for only $100 plus $8 shipping! Or save even more with FEAR's special introductory forfeiture package deal: Forfeiture 101 DVD with Asset Forfeiture Defense Manual, plus a one-year subscription to FEAR's Brief Bank for only $300 plus $12 shipping. (Applicable sales tax will be added to California orders).

The Sheriff of Nottingham Syndrome    by Judy Osburn

• educating judges, court clerks, and criminal defense attorneys about forfeiture claimants' statutory right to counsel;

• andproviding research materials and the nation's only fofeiture training program for criminal defense attorneys and pro-se lititgants which will be made available at low cost to participants.

Nearly eight years after CAFRA's right to counsel provisions took effect, Attorney John Balazs and his clients Rollie and Scharlynn Trout blaze the first trail establishing an appointment of counsel process for owners whose primary residence has been seized.

FEAR's Gideon Project update: exciting new Continuing Legal Education (CLE)

Former U.S. Representative Henry J. Hyde (R., Ill.), died in his sleep at age 83 in the early morning Thursday, November 29, at Rush University Medical Center in Chicago.  We at FEAR will dearly miss this courageous, powerful man who made clear exactly "what is at stake in the issues surrounding civil forfeiture law: no less than the most fundamental rights American citizens have always cherished, but too often taken for granted.”  Henry Hyde retired from Congress in January after spending three decades as a moving force on Capital Hill.  Representative Hyde sponsored our nation’s only federal forfeiture law reform, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA).  The powerful chairman of the House Judiciary Committee, waged "a war of attrition with the Department of Justice and local law-enforcement authorities" to get CAFRA enacted –  the culmination of his seven-year crusade. Representative Hyde's well-documented 1995 book, Forfeiting Our Property Rights, revealed the “the hoary doctrines of Anglo-American civil asset forfeiture law that have been resurrected like some jurisprudential Frankenstein monster, from the dark recesses of past centuries.”  His introductory chapter continues: “In my view, a drug ‘war’ has been perverted too often into a series of frontal attacks on basic American constitutional guarantees – including due process, the presumption of innocence, and…unrelenting government assaults on property rights, fueled by a dangerous and emotional vigilante mentality that sanctions shredding the U.S. Constitution into meaningless confetti.” Although most known for the Hyde Amendment that banned federal funds for abortions in 1976, former Representative Henry Hyde also introduced another so-called “Hyde Amendment,” enacted in late 1997 as an important safeguard against abusive prosecution.  This Hyde Amendment has been hailed as a victory for defendants’ rights, and a timely response to abusive acts of government officials.  The House overwhelmingly passed Rep. Hyde’s rider to the final 1997 Department of Justice appropriations bill, now codified as 18 U.S.C. § 3006A. The 1997 Hyde Amendment brought “a measure of sunshine” and “a measure of judicial oversight,” into a courtroom forum “far removed from the catacombs of DOJ’s internal review processes,” where issues of abusive prosecution had “heretofore been confined, and many would say, swept under the rug.”1 The 1997 Hyde Amendment allows federal courts to award attorneys’ fees and costs to criminal defendants (who were not represented by assigned counsel paid for by the public) "where the court finds that the position of the United States was vexatious,  frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust." Fees and other expenses awarded under this provision must be paid by the offending agency (most likely the U.S. Attorney’s Office) through the established procedures of the Equal Access to Justice Act (EAJA), which provides similar awards against the government in civil suits. Hyde’s original wording followed other EAJA provisions that apply to civil litigants who “substantially prevail,” but cries of “the sky is falling” from the DOJ resulted in the “vexatious, frivolous, or in bad faith” limitations in the final law.2  Click here to read more about the 1997 Hyde Amendment. Thank-you, Henry Hyde, for your own “willingness to do the difficult things necessary to persuade Congress to act,” as well as for your work with FEAR in awakening America to the reality that “our treasured liberties are at stake,” and the "grave extent to which our constitutional protections have been violated and diminished in recent years."

Even if you're a law-abiding citizen who's never been convicted of a crime, local police are allowed to confiscate your property and money and keep up to 80 percent of it for themselves, with the legal stipulation that this windfall be spent only on programs likely to result in additional confiscations where the police can keep up to 80 percent of the booty for themselves.

That's addressed to you. And it's no joke.

Continue reading this article at Hartford Advocate.

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

According to this opinion the government may avoid paying attorney fees incurred by an innocent owner simply by seizing property owned by multiple innocent owners.

On August 10, 2007, the Second U.S. Circuit Court of Appeals ruled that CAFRA (Civil Asset Forfeiture Reform Act of 2000) exempts the government from liability for fees when seized currency is subject to “competing claims” of multiple innocent claimants who substantially prevail in a forfeiture case.  The appeals panel also held that CAFRA now provides the exclusive means of awarding fees to forfeiture defense attorneys, and therefore fees incurred defending a forfeiture case can no longer be awarded under EAJA (Equal Access to Justice Act).  While “mindful” that defense attorneys in U.S. v. $293,316 in United States Currency, 05-6522-cv, invested considerable time in helping nearly eighty innocent claimants recover their money, the panel nonetheless ruled that “under CAFRA those facts cannot justify the imposition of another burden on the public fisc.” 

Nearly eighty Pakistanis wished to transfer several thousand dollars from New York to Pakistan and entrusted their funds to three couriers on what they believed would be an overnight flight. The three couriers were also carrying some of their own money when they were apprehended as they were about to board a flight to Pakistan in September 2002, and were subsequently convicted under the bulk cash smuggling provision of the USA PATRIOT Act.

The Pakistanis who had entrusted their funds to the three couriers had violated no law. The appeals court recognized that “that many aliens use couriers to deliver money to friends and relatives because the couriers speak their language, charge no fees, and serve areas remote from the nearest Western Union branch.”  

After three years of litigation the government returned the seized funds to the innocent claimants.  The US District Court of the Eastern District of New York also concluded that only 50% of the funds owned by the convicted couriers could be forfeited to the government without violating the Excessive Fines Clause of the Eighth Amendment. 

Attorneys David B. Smith and John P. Donohue represented many of the innocent claimants as well as two of the three convicted couriers.  The two attorneys sought fees in an amount of $157,888 for their work representing claimants during the three years it took to recover the funds. However, the district court denied the attorney fee request because it determined there were "competing claims" to the same property within the meaning of CAFRA’s 28 U.S.C. § 2465(b)(2)(ii).  The district judge also denied an alternative award of fees under the Equal Access to Justice Act.  

Arguing that it should be allowed to renege on its settlement agreement, the government had contended that it should not have to comply with the law and rules where it alleges threats to “national security.”²  Claimant Sami Khalil’s attorney, Steven Kessler, opened his summary argument to the Second Circuit:

With Old Glory waving behind it, appellant [Government] asserts, in the very first paragraph of its Preliminary Statement, that this is a terrorism case. Appellant uses appropriate catchwords and attempts to paint a picture of fear around appellee and the defendant funds. However, once the arguments begin and the facts of the settlement and the court’s decisions below unfold, appellant’s arguments for reversal of the district court’s orders have little, if anything, to do with terrorism.

Kessler’s client, claimant Sami Khalil, had never been charged with any crime related to the civil forfeiture proceeding. The only charges filed against anyone in relation to the seized currency were for failure to report currency carried while attempting to board a commercial flight to Egypt–not terrorism.  ... (Continued)

In George Albin versus Bakas, Taylor, Danko, Maldandado, Hooper and O’Leary (New Mexico state police 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 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.  

In a tremendous victory for compelling police agencies to abide by state forfeiture reform laws, the appeals court ruled: "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.”  Plaintiff George Albin is represented by Joseph P. Kennedy of the law firm Kennedy & Oliver, P.C., Albequerue.  Joseph Kennedy is also amember of FEAR and contributes pleadings to FEAR's Brief Bank II.

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 ...(continued)

Abstract:
Despite its failure to achieve its desired objectives, the War on Drugs continues on into a fourth decade with disastrous effects and extensive collateral damage. The current article explores civil asset forfeiture as one motivation that keeps the current drug policy intact. Specifically, it advances the premise that the current state of civil asset forfeiture law creates goal displacement that motivates law enforcement agencies to implement drug enforcement strategies that aggressively pursue civil asset forfeitures as a means of supplementing their budgets rather than as a legitimate tool for decreasing the supply of illicit drugs. The article explores how this goal displacement not only negatively impacts the progress of the War on Drugs, but also how it leads to disregard for individual due process rights, sometimes with tragic and life-altering consequences for innocent individuals. A brief discussion of the necessary reforms to civil asset forfeiture law is included.

In one case an agency instructed the researcher to observe the suspect's daily transactions reselling a large shipment of cocaine so that officers could postpone making the bust until after the majority of the drug shipment was converted to cash. This case was only one of many in which the goal was profit rather than reducing the supply of drugs reaching the street. 

Thirteen additional years of policing for profit have now entrenched agencies in a dependency on forfeiture revenue that continues to subordinate the pursuit ot justice to the pursuit of profit.

Microsoft donates Office Ultimate 2007 to FEAR

Twenty-year-old Delane Johnson was not arrested when he consented to a search outside his apartment in July, 2006, and police coerced him into handing over $10,200 and signing Bradenton's Contraband Confiscation Agreement.  On February 9, 2007, state Circuit Judge Peter Dubensky rejected the city of Bradenton's motion to dismiss Johnson's legal challenge of the waiver agreement, and ordered police to either return Johnson's cash or file suit for forfeiture against the money in state court.  The court determined that the contract signed by Johnson "and the circumstances surrounding the making of the contract fail to comply with even the rudimentary elements of due process."

Though his ruling applies only to Johnson's case, the judge wrote a scathing criticism of Bradenton's waiver agreement 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 document. The judge continued, "It is not remotely conceivable that the citizenry would countenance such a state of affairs."

Bradenton police spokesman stated the his department had not yet decided whether to return Johnson's money to him or file suit for forfeiture.  However, the department stands little chance of prevailing in a state forfeiture proceeding, as the statutory deadline for filing a notice of intent to forfeit under Florida law passed last October.

Attorney Varinia Van Ness, co-counsel for Johnson, questioned the impact Dubensky's favorable ruling will have on the police department, stating, "I'm hoping they will no longer use these agreements to take people's property." But if the department continues to go by its policy rather than state laws she may file a motion to reconsider the future of the department's policy. "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.

Continued: "Judge's ruling regarding these contracts has had little effect, if any, on the manner in which the Bradenton Police Department takes people's property and twists the law!" 

Paul Lemke commented on his victory:

Congratulations, Paul!

For nearly six years since Oregon voters approved a major forfeiture reform initiative, police pirates who were suddenly cut off from their addiction to keeping seized assets for their own use have been filing legal challenges to the popular voter reform. On November 7, 2000 Oregon voters  restricted civil courts from forfeiting assets that are not tied to a criminal conviction of the property owner, and directed proceeds of forfeitures into the state general fund rather than coffers of the seizing agencies and prosecutors.

On October 19, 2006, Oregon’s highest court upheld the voters’ mandate for reform.  The Lincoln Interagency Narcotics team had challenged Oregon’s “Measure 3” in 2001, claiming that it violated a constitutional ban prohibiting too many unrelated changes contained in a single measure. A divided Oregon court of appeals struck down the initiative in 2003.  

The 4-3 decision by the Oregon Supreme Court reversed the appellate court, and holds that by restricting forfeitures and redirecting the proceeds, Oregon’s reform initiative did not violate the ban on unrelated issues.  Justice Michael Gillette wrote for the court: "Not only do the people wish to be assured that forfeitures are reined in, they shall encourage it by removing the carrot which otherwise would tempt the two political branches of government to treat the criminal law as a revenue-raising source.”  

The decision effectively nullifies much of a compromise bill passed by the Oregon legislature in 2005, which retained a requirement of a criminal conviction related to the forfeiture, but gave police access to some of the plunder they seize.  Portions of that compromise legislation may remain intact, such as a provision expanding Oregon criminal forfeitures, as such forfeitures are essentially part of the sentencing process after a criminal conviction.  However, as Geoff Sugerman of Silverton, a political consultant who worked on the 2000 campaign, states: "This case was all about where the money goes." 

March 14, 2006: FEAR's newly expanded Brief Bank now contains 166 motions, pleadings and briefs, plus six complete Department of Justice manuals on asset forfeiture statutes and policies. The Asset Forfeiture Policy Manual, published in January 2006, is a treasure trove of information.  Forfeiture-savvy journalists will have a field day with this!   Defense lawyers will love it too.  Although the U.S. Supreme Court held in United States v. Caceres, 440 U.S. 741 (1979) that the government's "official policies" are not enforceable in court in suits brought by private parties, the government's policies are valuable to defense lawyers and pro se litigants, enabling them to make  intelligent decisions in settlement discussions and other matters.  Also, when the forfeiture prosecutor takes an unreasonable stance in court or in negotiations, it certainly helps to quote the official policy manuals of the DOJ!   

Sign up now for a subscription of FEAR's fully indexed and cross referenced Brief Bank II & Private Collection.

Congratulations to FEAR President Brenda Grantland, who won an important due process victory in the First Circuit Court of Appeals on August 16, 2006. In U.S. v. One Star Class Sloop Sailboat Built in 1930 Named Flash II, the federal appeals court limited the extent to which the government can seize and forfeit property without endeavoring to find all of the owners and give them actual notice and the opportunity to be heard in the forfeiture case.

When the federal government obtained a judgment of forfeiture against a prized sailboat once owned by the late John F. Kennedy without bothering to notify the vessel owners of the forfeiture proceeding, the U.S. District Court of Massachusetts obliterated the shared ownership interest of Kerry Lane M.D.  The forfeiture judgment was obtained from the district court by default judgments against some of the co-owners of the boat, but other co-owners, including Dr Lane, were never served with process. 

The judgment was entered by default based on published notice, and without the court inquiring into what efforts, if any, the government took to locate the other co-owners and notify them of the forfeiture proceedings.  Therefore Dr. Kerry had not responded in time to obtain an opportunity to show the district court that he was an innocent owner.  When he found out about the proceedings being conducted in his absence, he immediately tried to intervene, but the court had already entered default judgment (only 8 days earlier) and didn't want to disturb it “[b]ecause claimant admittedly knew of the seizure and deliberately declined to disclose his interest” prior to the government’s initiation of the forfeiture action.  Brenda Grantland appealed the forfeiture of Dr. Lane’s ownership interest in the sailboat.

On Wednesday, August 16, 2006, the First Circuit Court of Appeals vacated the forfeiture order—a mere two weeks after hearing oral arguments.  The appellate court held that the district court abused its discretion by denying the Rule 60(b) motion to vacate the default judgment because it had not adequately considered whether the government provided constitutionally sufficient notice of the forfeiture proceedings to Dr. Lane.  

In vacating the default judgment against Dr. Lane’s ownership interest, the First Circuit explained that in a case such as this where the government does not know the name of a potential claimant, even though “it need not take heroic measures to identify him, …when the claimant’s identity may be easily ascertained through minimal effort, the government cannot eschew these efforts.” If “the government has easy access to a lead that it knows (or reasonably should know) is potentially fruitful, it has some duty to elicit the available information and take reasonable action in response to it.” 

The appellate court remanded the case for proceedings to determine whether the government’s attempt to find all of the owners and give them actual notice and the opportunity to be heard in the forfeiture case was sufficient under the Due Process Clause of the Constitution. The First Circuit noted that the district court had made no inquiries or findings with respect to what the government knew about the names of the various co-owners, nor

 The appeals court listed two examples of ways the government could have easily ascertained potential co-owners through minimal effort: either by simply asking one of the co-owners with whom they were in contact, or by inquiring at the marina where the sloop was stored and Dr. Lane and his association with the sailboat were well-known.  

“Given the fact-specific nature of the question and the opacity of the record,” the appeals court vacated the order denying Dr. Lane’s Rule 60(b) motion and remanded for further proceedings “to determine whether plainly indicated and easily accomplished efforts, undertaken with reasonable diligence during the relevant time frame, would have led the government directly to Lane.”  The appeals court further instructed that if the district court “finds that Lane had no notice in fact of the forfeiture action, that the government’s efforts to identify him were nonexistent or otherwise insufficient under the circumstances, and that Lane has satisfied the other prerequisites for Rule 60(b) relief, Lane’s motion would have to be granted and the forfeiture judgment, as it pertains to his interest in the FLASH II, would have to be set aside.

• Civil and Criminal Forfeiture Procedure (2004)
• Selected Criminal Forfeiture Forms (2004)
• Asset Forfeiture Policy Manual (2006)
• Selected Federal Asset Forfeiture Statutes... (2006)
  
• Money Laundering Statutes and Related Materials... (2006)
• Policy Regarding Disclosure of Exculpatory and Impeachment Information [New Section] USAM (2006) 

• Civil Asset Forfeiture Reform Act of 2000 (CAFRA), Pub. L. No. 106-185, 114 Stat. 202 (August, 2000).  This publication is made up entirely of the text of statutes amended by CAFRA or provisions added by CAFRA, with strike-through fonts used to delineate omitted language.  It comes in handy when you need to compare the language of a section before and after it was amended by CAFRA.

• Selected Federal Asset Forfeiture Statutes, including statutes amended by the Criminal Law Technical Amendments Act of 2002, the Homeland Security Act of 2002, the USA Patriot Act of 2001 and CAFRA (January 2004).  This publication is made up of the text of forfeiture statutes and court rules applicable to forfeiture. It is useful because it puts all the forfeiture statutes and rules together in a concise format you can print out and put in a notebook to keep on your desk. This document is in three parts because of its size.  To download, click here:  [DOJ_SelectPt1]    [DOJ_SelectPt2]    [DOJ_SelectPt3]

Forfeiture victims and forfeiture defense lawyers need this book!  It's big -- 500 pages in 8-1/2 X 11" format, in 11 point type, with  2,629 footnotes.   Even though it was published in January 2002, the law is still up to date.  It's comprehensive. And "it's readable!" -- said Jody Neal-Post.  Forfeiture victims trying to represent themselves pro se need this book -- particularly inmates, who don't have access to adequate research tools. 

Profits from the sale of the FEAR Manual helps keep FEAR afloat -- so you're helping the cause while you help yourself!

The official annual reports for the federal Forfeiture Funds are online.  For the Department of Justice's fund see  DOJ's website Reports to Congress. The Treasury Department's reports are online at   http://www.eoaf.treas.gov/AnnualReports-text.asp.