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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
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What's
new at FEAR
Updated May 18, 2008
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
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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). |
A
fresh look at an old story, with highlights from across America of
history repeating itself:
Whether the legends of Robin Hood
come to us as a composite of popular English heroes, or the character
who fights oppression and injustice arises from pure myth, the central
villains of Robin Hood fame existed in real life, and their infamy
changed the course of history.
The sinister Prince John of Robin Hood legend became King John in
1199. His reign became so oppressive that his kingdom nearly
erupted into full scale civil war. In 1215 the barons of England
forced King John to put his seal on the Magna Carta—the first time
history that an English king became subject to the laws of his
kingdom.
However, early stories of Robin Hood refer to the principal villain not
by name, but simply as “the Sheriff of Nottingham.” The sheriff's
office and his position as corrupt local authority are central to the
Robin Hood legend. The Sheriff of Nottingham is likely a
composite of many accounts of abusive sheriffs of the period. ...
The Sheriff's word was
law across Nottinghamshire
during the legendary time of Robin Hood. Sheriffs throughout England
were
appointed, but not paid, by the king. The annual fee that each sheriff
had to
pay the king to keep his office was called the "farm" of the
county. The sheriffs usually made far more than the crown asked
for by collecting
taxes and seizing property from anybody who they cared to label
“outlaw.”
In 1204, King John said the
sheriffs weren't
expected to keep any of the county's revenue. That mattered little
because the
sheriffs didn't report all of their income, especially from such
sources as
being bribed to look the other way, arranging false arrests, roadside
search
and seizures, and so on. ... Robin Hood historians say that
perhaps tales of many corrupt sheriffs combined to make the nameless
adversary of Robin Hood. ...
... The Sherriff of Nottingham's system of policing for profit was open
to much abuse. Likewise, modern accounts of corruptoin fueled by police
agencies'
ever increasing dependence on forfeiture revenue abound accross the
nation. ...
... Like the Sheriff of Nottingham, the word of police became law
across Bradenton, Florida. ...
... Just as the sheriffs of old England, in Indiana the Muncie-Delaware
County Drug Task Force didn't report all of their income from assets
funneled through confidential agreements. ...
... almost $66,000 was discovered secreted in the former headquarters
of
the Western Area Narcotics Task Force (WANT) in Paducah, Kentucky. An
inquiry followed to determine where the money came from and figure out
what to do with it. Investigators learned that the task force had
seized large amounts of money which it then used for whatever purposes
it wished, unconstrained by audits, reporting requirements or its
mission. This problem is endemic to forfeiture beneficiaries, from the
Justice Department on down. ... Both seizures and expenditures
were largely lawless. Like other task forces, WANT made asset seizures
a priority, and mandated expected forfeiture growth rates. But WANT met
its quotas with much more zeal than care. ...
...
Police pirates’ ever-increasing reliance on seizing plunder for their
agencies results in a perversion of law enforcement priorities. ... The
North Central Texas Narcotics Task Force struck deals with ...
criminals [who] each
received sentences of probation in exchange for not contesting the
forfeiture of assets used to fund the task force. Denver McCarty, a
former task force prosecutor, said he offered the deals to a half-dozen
defendants during the last two years because the task force needed the
money to stay in business. "If we don't have enough money by the end of
the grant year, we're all
out of a job," he said. "You kind of knew what kind of forfeiture money
you needed to have, or everybody's going home." ...
Full
article at www.fear.org/police.html
Also see Austin-based writer Jan Reid's “Highway Robbery—One man's painful journey
through South Texas' addiction to asset forfeiture,” a
detailed account of “agreed judgments, ” by which South Texas
police, “working the traffic on U.S. 281 and finding reasons to search
cars and trucks, ” intimidate travelers into forfeiting all rights to
contest the seizure of any currency they have with them. (May 16,
2008 edition of the Texas Observer.)
New tri-fold brochure: FEAR's Gideon Project
FEAR's Gideon Project seeks to afford
owners of seized property a fair chance in court by:
-
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.
Click here to save or print FEAR's tri-fold Gideon Project brochure (PDF file).
At long last, we now have a process for
appointing counsel to represent homeowners who can't afford an attorney!
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.
Congress responded to numerous horror stories of abusive forfeiture
actions across the nation by enacting our nation’s first and only
federal forfeiture reform, the Civil Asset Forfeiture Reform Act of
2000 (CAFRA). One of CAFRA’s key provisions requires courts to appoint
counsel to represent owners of seized homes who cannot afford a lawyer
– upon request of the forfeiture victim. But sadly, in the eight
years since Congress enacted CAFRA only a small handful –
out of tens of thousands of forfeiture cases – have received
court-appointed counsel now required by law. (For more information,
pluss how we are working to save CAFRA's right to counsel
provisions, see FEAR's Gideon
Project, and download our tri-fold pdf
Gideon Project brochure.)
Congress charged the Legal Services Corporation with the job of
providing attorneys for homeowners whose property has been seized and
cannot afford a lawyer, and estimated that it would reimburse LSC $5
million for representation of eligible property owners over the
2001-2005 period. However, LSC reported to Congress that LSC
received only “one request from court personnel” for representation
mandated by CAFRA prior to 2003, plus “several additional requests for
cases in Washington DC and California” during the year ending March,
2004. Then, during their 2004-2005 reporting period, “LSC
obtained representation for a claimant in California.”1 And in
February 2008, LSC said that appointments for claimants defending their
residences “are approaching one a month” – nationwide.
Until now, even on the rare occasion
when someone in the courtroom knew to request appointment of counsel,
no process existed by which to do so.
On July 29, 2008, United
States District Court Judge Garland E. Burrell,
Jr. granted pro se Claimants Rollie and Scharlynn Trout's Application
for Appointment of Counsel and Order, appointing Sacramento
attorney John Balazs to represent the Garden Valley, California couple.
Mr. Balazs sought appointment to represent the Trouts pursuant to 18
U.S.C. § 983 (b)(2)(A), which provides that, upon request by an
owner who "is financially unable to obtain representation," and whose
primary residence has been seized, "the court shall insure that the
person is represented by an attorney for the Legal Services
Corporation." The Trouts supported the Application with financial
affidavits (CJA
financial affidavit form here), and attorney Balazs additionally
attached a letter from Legal
Services Corporation consenting to his appointment under the statute.
LSC Vice President and General Counsel Victor Fortuno pointed out that
payment for the Trouts' counsel will come from the government's asset
forfeiture fund:
"... Payment for counsel is handled through court order at CJA
[Criminal Justice Act] rates regardless of the outcome of the case.
After the Court issues an order for fees, the U.S. Attorney's office
submits that order to the Department of Treasury for payment from the
forfeiture fund. ... "
LSC also provided a sample order for appointment of counsel for
homeowners (MS Word or
Rich Text Format).
Upon request of the forfeiture victim CAFRA requires judges to appoint counsel
to represent owners of seized homes who cannot afford a lawyer.2 Also upon request,
CAFRA allows appointment of
counsel in civil forfeiture cases that do not involve a primary
residence whenever the claimant has appointed counsel in a related
criminal case.3
Endnotes:
| 1. Legal Services Corporation
Semiannual Report to the Congress
for the Period October 1, 2003 – March 31, 2004, page 11; and LSC
Semi-Annual Report to Congress for the Period October 1, 2004 – March
31, 2005, page 17. |
2. 18
U.S.C. § 983(b)(2).
3. 18
U.S.C. § 983(b)(1).
|
Florida
court of appeals overturns
order for police to return money
seized through Bradenton’s “Contraband Forfeiture Agreement,” remands
case to allow forfeiture victim to seek alternative avenues for relief.
On June 20, 2008, nearly two years after Bradenton Police seized
$10,020 from Delane Johnson, Florida’s Second District Court of Appeal
overturned a judge's order that would have required the City’s
police to return the money to Mr. Johnson.
Hardly the “complete victory” claimed by Bradenton’s police chief, the
appeals court held that Johnson had used an improper legal avenue in
seeking relief, and remanded the case back to the trial court with
instructions to give Johnson an opportunity to seek further relief by
filing an amended pleading.
In preserving Johnson’s continuing case against the City of Bradenton,
the court acknowledged: “Although Johnson may have incorrectly sought
relief via mandamus, as the trial court correctly recognized, his
petition did set forth sufficient facts to demonstrate that he may have
a viable claim against the City.”
Mr. Johnson had been in front of his apartment in July, 2006 when
officers investigating a neighborhood robbery approached him. Once
police discovered the twenty-three year old’s roll of cash, which
Johnson told the officers came from his mother’s business, they
arrested Johnson for violating a Florida statute that requires persons
engaged in a trade or businesses to report receipt of more than $10,000
in currency received in a single business transaction or two related
transactions.
Police took Johnson to the county jail, where they presented him with a
document titled "Bradenton City Police Department, Bradenton, Florida,
Contraband Forfeiture Agreement." The so-called “agreement” stated that
"[i]n consideration of the department forgoing its right to file an
action under the Florida Contraband Forfeiture Act and to avoid the
costs, delay and uncertainty of litigation to all parties," Johnson
would surrender the money to the department and release the department
from any damages, suits or claims related to the seizure of the
property. It further required Johnson to acknowledge that he
voluntarily agreed to enter into the agreement without benefit of
counsel, waived the right to review of the agreement by a court,
mediator or arbitrator, and waived the right to a jury trial.
Johnson signed the agreement surrendering the money to the City. He was
never charged with any crime.
Johnson later filed a petition for a writ of mandamus seeking to stop
the Bradenton Police Department from entering into forfeiture contracts
with arrestees and to require the City to file a civil action for
forfeiture of the $10,020. In February 2007 Circuit Judge Peter
Dubensky sharply criticized the Bradenton Police Department’s
forfeiture agreement policy, finding, among other things, that the
contract was invalid for lack of consideration. He ordered the City to
either properly pursue a forfeiture proceeding to obtain the money or
to return the money to Johnson.
The appeals court reversed Judge Dubensky’s order for police to return
the money, ruling that Johnson incorrectly sought relief via mandamus,
“a common law remedy to enforce an established legal right.” The
appellate court held that, although Johnson set forth legal facts that
may warrant relief, he may not “use mandamus to determine whether the
City had a right to use forfeiture contracts generally, whether his due
process rights were violated, whether the agreement he entered into
with the City was valid,” or “whether he had a right to return of the
money.”
In remanding the case to the lower court “without prejudice,” the
appellate court cleared the way for Johnson to continue this battle for
justice and due process. "We are deciding what our options are," said
Johnson's attorney, Varinia Van Ness. "We will not stop pursuing this
until my client is made whole and his property is returned." One
option, Van Ness said, is filing a civil law suit.
Upon the June 2008 appeals court remand for further proceedings in the
case Bradenton City police immediately claimed victory. “This is a
complete win for the city,” Police Chief Michael Radzilowski said. "The
city was denied due process. That was our complaint all along."
Bradenton police Major William Tokajer said BPD has followed
Dubensky's order since 2006. “Although our actions have been proven
through the courts to be legal in the methods we were using previously,
we are still going to review them and utilize the formal forfeiture
process while in the review stages of our old process,” he said.
However, in a letter regarding the order signed by Judge Dubensky to
the Bradenton Herald
published February 21, 2007, attorney Van Ness wrote that Judge
Dubensky’s February 9, 2007 ruling regarding the forfeiture agreement
contracts “has had little effect, if any, on the manner in which the
Bradenton Police Department takes people’s property and twists the
law!” Van Ness wrote that Detective Mike Skoumal of the Bradenton
Police Department had testified at a deposition, unrelated to the
Johnson case, that he used the "contract" to take someone's property
during the prior week..
Tokajer had also responded to Judge Dubensky's ruling in 2007 – at that
time by continuing to back the forfeiture agreement. He gave no
indication as to whether the department would default to the state
forfeiture laws any time in the future: "We will review the judge's
ruling and consult with our legal counsel to determine which action we
will take. ...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. Those
“minor changes” gave victims of Bradenton police piracy policy five
days to cancel the agreement, still completely bypassing the court
system and even the rudimentary elements of due process.
Bradenton’s Herald-Tribune
examined the forfeiture agreement program and “found cases in which
police took money from people who were arrested on crimes other than
drug charges, or who were not arrested at all. Several people said they
did not know what they were signing.”
Police chief Radzilowski said the department has no intention of
returning to using the contracts since Judge Dubensky questioned their
use in his rebuke in February 2007. Now, he says, Bradenton police use
the courts to review forfeiture requests.
As attorney Van Ness said, her client’s case against the police has not
ended. Police have not returned Johnson's money. "I disagree with the
court's ruling, but I respect it," Van Ness said. "If we have to pursue
another course of action, we will."
Forfeiture law
CLE project update: FEAR has now begun stage one of the
Gideon Project: producing a basic forfeiture lawyer training video
(DVD) which will qualify for CLE credit in those states that require
CLE. Preproduction work is well underway on the first CLE video,
which FEAR hopes to publish in late spring 2008. Our panel of
speakers excitedly
prepare for the filming portion soon to come. February
2008 update
Special 15% discount for FEAR Brief Bank II &
Private Collection subscribers:
Asset Forfeiture
Law in the United States, by
Stefan
Cassella,
Deputy Chief,
Asset
Forfeiture and Money Laundering Section,
U.S. Department of Justice,
hardcover, 950 pages + CD-Rom. ISBN-13:
978-1-929446-99-5 / ISBN-10: 1-929446-993
List price: $150.
Available at Juris
Publishing
for $142.50.
FEAR's Brief
Bank
subscribers receive a 15%
discount from the $150 list price!
Asset Forfeiture Law in
the United States,
collects in one place all of the law on administrative, civil and
criminal forfeiture procedure - including the changes made in 2006.
This handy one volume treatise serves as resource to anyone needing a
comprehensive discussion of any of the recurring and evolving
forfeiture issues that arise daily in federal practice.
About the Author: Stefan D. Cassella is one of the
federal Government’s leading experts on asset forfeiture law. As a
federal prosecutor, he has been litigating asset forfeiture cases since
the late 1980's and is now the Deputy Chief of the Justice Department’s
Asset Forfeiture and Money Laundering Section. Mr. Cassella was the
principal author of much of the federal forfeiture legislation, and
contributed to the Civil Asset Forfeiture Reform Act of 2000 (CAFRA),
and the applicable sections of the Federal Rules of Civil and Criminal
Procedure, and is the author of numerous law review articles on asset
forfeiture and money laundering. He teaches asset forfeiture procedure
at the Federal National Advocacy Center at the University of South
Carolina, and has given numerous presentations on the subject at
Cambridge University and other institutions. In the 1980s, Mr. Cassella
was Senior Counsel to the U.S. Senate Judiciary Committee. He has a
J.D. from Georgetown University and a Bachelor of Science degree in
Applied Physics from Cornell University.
FEAR's
Gideon
Project update: exciting new Continuing Legal
Education (CLE)
The team
that produced FEAR's Asset Forfeiture
Defense Manual
has assembled additional creative minds to develop the first in a
series of DVD asset forfeiture law training Continuing Legal Education
(CLE) programs.
The federal government spends vast sums of money
prosecuting
forfeiture cases. Their prosecuting forfeiture attorneys are well
trained, yet the forfeiture victim is often forced to defend his case
without a lawyer. Judges don’t always know they can (or in
some cases must) appoint
counsel to defend owners of seized property. Even when they do, there
is a shortage of experienced forfeiture counsel
willing to accept the court appointments.
One of the key provisions of the federal Civil Asset Forfeiture Act of
2000 (CAFRA), for which FEAR lobbied for eight years, requires courts
to appoint counsel to represent owners of seized homes who cannot
afford a lawyer, upon request of the forfeiture victim. But what
happens if no one at the court tells the victim about his rights under
this statute?
Can you imagine trying to defend against summary judgment pro se, when
the well trained federal prosecutor argues such things as collateral
estoppel, the relation back doctrine, standing, or that the forfeiture
is remedial and therefore the Excessive Fines clause does not
apply?
Forfeiture has a difficult
learning curve, even for attorneys. Blunders by well-meaning, but
untrained, lawyers handling their first forfeiture cases often cause
irreparable damage. Successful litigation requires knowledge of civil
and criminal procedure, substantive criminal law, property law, and
constitutional law – in addition to forfeiture law.
An Internet search for forfeiture law courses revealed only one CLE
course on the subject offered anywhere in the
United States (a three-unit "overview" of asset forfeiture law); plus
many dozens of extensive forfeiture training
courses currently being offered by government agencies exclusively to
prosecutors and law enforcement officers.
Without well-trained attorneys,
forfeiture victims are helpless to
defend
themselves. In the seven years since FEAR won the battle for
federal legislation
requiring courts to appoint counsel to certain classes of victims who
cannot afford a lawyer, only a small handful—out of thousands of
forfeiture cases—have received court-appointed counsel now required by
law. Even in the rare instances where judges appoint counsel to
represent owners of seized property, Criminal Justice Act panel
attorneys and Federal Public Defenders often don't know how to defend
civil forfeiture cases.
FEAR's exciting new DVD program will qualify
for CLE credit for lawyers in the 43 states that require continuing
legal education, and will vastly increase the number of qualified
forfeiture attorneys available nationwide, and assist lawyers handling
their first forfeiture cases.
Our anecdotal evidence suggests
that many victims entitled to counsel
are not being told of that right—even now, seven years after the CAFRA
reforms that we successfully lobbied for took effect on August 23,
2000. By now, there should be thousands of cases where
counsel was
appointed under CAFRA provisions. CAFRA assigned the Legal
Services
Corporation (LSC), in Washington, D.C., the responsibility of providing
counsel to claimants whose homes were seized. LSC admitted that
only $4,000 to $5,000 in attorneys fees had actually
been paid out under that provision during the first five years after
CAFRA took
effect! The Congressional Budget Office projected that
enforcement of
the right to counsel provisions would cost the federal government $1
million per year.
FEAR did not lobby Congress for eight
years for forfeiture reform only to have CAFRA's key provisions ignored!
With your help, FEAR's new forfeiture defense CLE program will expand
the pool of qualified forfeiture lawyers nationwide.
“The right to be heard would be,
in many cases, of little avail if it did not comprehend the right to be
heard by counsel. Even the intelligent and educated layman…lacks both
the skill and knowledge to adequately prepare his defense, even though
he have a perfect one. He requires the guiding hand of counsel at every
step in the proceedings against him. ”
–
Gideon vs. Wainwright (US Supreme Court, 1963)
Please consider making a charitable
donation to help fund
FEAR's new forfeiture defense training CLE program. FEAR
Foundation is a
501(c)(3) charitable organization. All donations to this project
are fully tax-deductible. FEAR's federal tax ID number is
52-1847763.
February 2008 update
tri-fold Gideon Project brochure (pdf)
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."
|
Drug
Money?
Welcome to the world
of
civil asset forfeiture: enriching the local police at your expense
by
Jennifer Abel
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.
Congratulations to FEAR president
Brenda Grantland for another victory in United
States versus One Star Class Sloop
Named Flash II. On October 1, 2007, the U.S. District Court
of
Massachusetts ruled that her client’s sloop Flash II (formerly owned by
the late President John F. Kennedy) is not subject to forfeiture at all.
Court
rules sailboat formerly owned by President J. F. Kennedy not subject to
forfeiture:
Government had no right to sell the
sloop, nor does it have any right to pocket proceeds from that sale.
by
Judy Osburn
First the government obtained a forfeiture judgment against the Star
Class sloop “Flash II” without bothering to notify Dr. Kerry Lane, a
successful anesthesiologist and principle owner of the prized sailboat.
The Flash II was formerly owned by the young future president J.F.
Kennedy when he triumphed by an unprecedented four and a half minute
margin in the 1936 Atlantic Coast Championships.
Attorney Brenda Grantland achieved Dr. Lane’s first victory in this
case in August 2006, when the First Circuit Court of Appeals vacated the default judgment that had
been obtained in Dr. Lane’s absence. The appeals court held that due
process requires the government to at least attempt to locate innocent
owners with an interest in seized property. The First Circuit
remanded U.S.
v. One Star
Class Sloop Sailbot Built in 1930 Named Flash II to the district court in
Massachusetts for further proceedings in which Dr. Lane had an
opportunity to be heard. In the meantime, however, the government
sold the sailboat at auction
without a minimum reserve, causing the boat to
be sold at only about one tenth of it’s appraised value.
At trial the government conceded that Dr. Lane was totally innocent of
any wrongdoing or negligence. Nevertheless, the government argued that
Flash II was subject to forfeiture as proceeds traceable to drug money
pursuant to 18U.S.C. § 981(a)(1). Boat restorer Ole Anderson
had
organized the consortium of investors who provided funding to purchase
and restore the Flash II. The government attempted to support its
theory that drug money could be traced to the Flash II through its
cooperating witness, Gary Milo, who had pleaded guilty to trafficking
11,000 pounds of marijuana, for which he received a mere 18 days’
imprisonment due to his cooperation in building a forfeiture case
against the Flash II. Milo testified that during the
course of his lengthy illegal career he had hired Ole Anderson on a
couple of occasions and that he paid him $16,000.
Ms. Grantland argued that the government offered no more than mere
suspicion that any of the funds used by Ole Anderson to pay for
maintenance of the Flash II included any portion whatsoever of Gary
Milo’s $16,000 in tainted currency. If Gary Milo’s drug proceeds
became commingled with Ole Anderson’s untainted funds, “whether in a
bank account or in a tattered suitcase,” argued Grantland, “the
government's burden of showing that money in the account or an item
purchased with cash withdrawn therefrom is ‘traceable to’ illegal
activity will be difficult, if not impossible, to satisfy.”1 The
forfeiture statute’s term
“traceable to” means exactly what it says, Grantland continued in a
post-trial memorandum, and the government's theory of forfeitability
fades away without a trace once Gary Milo's drug money is transferred
to Ole Anderson.
On October 1, 2007, the district court ruled
that, although the
government’s contention that some of the funds used to refurbish the
Flash II are traceable to the drug proceeds of the government’s
cooperating witness Gary Milo is “theoretically possible,” the
government failed to carry its burden of proof under the Civil Asset
Forfeiture Reform Act of 2000 (CAFRA).
Not only was Dr. Lane a completely innocent owner, but no portion
whatsoever of the sailboat seized and sold by the government had been
subject to forfeiture. “Accordingly,” District Judge William G. Young
ruled, “the sloop was not forfeitable. Because the sloop was not
forfeitable, the government had no interest in the sloop and therefore
no right to dispose of the sloop.”
Click
here to continue.
(Pleadings
from this case available to FEAR's Brief Bank II
subscribers.)
Asset
Forfeiture in Drug Cases is Hurting Investment in the Inner Cities
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.
Continued at StoptheDrugWar.org/Chronicle
Blog
Congratulations
to attorney Jody
Neal-Post on this important victory in which the Tenth Circuit Court of
Appeals joins five other Circuits holding that government may not
restrain “substitute assets” prior to a criminal conviction and order
of forfeiture! Jody serves as Secretary on FEAR’s Board of
Directors, and frequently contributes to FEAR-List Bulletins, as well
as FEAR’s Brief Bank II.
10th
Circuit rules “substitute assets” are not subject to pre-trial
restraint:
Government may not use lis pendens statute for pre-trial
restraint of property that neither comprises the fruits of, nor is
connected to, the defendant’s alleged crime.
by
Judy Osburn
The indictment accusing Dana Jarvis and twenty other co-defendants of
conspiracy to distribute 1000 kilograms of marijuana and related money
laundering and continuing criminal enterprise charges also contained a
criminal forfeiture allegation stating that, upon conviction of one or
more of the offenses, all defendants would be jointly and severally
liable for a money judgment of $158.4 million.
The indictment listed bank accounts, several parcels of real property,
vehicles, seized currency and a liquor license as “forfeitable
property” connected to the defendants’ criminal conduct. The indictment
also listed two pieces of real property (purchased by Mr. Jarvis before
the alleged conspiracy ever took place) among the “substitute assets”
to be forfeited in the event other property connected to, or derived
from, the alleged drug crimes could not be located.1
While 21 U.S.C. § 853(e) allows the United States to seek a
restraining order or injunction to preserve the availability of
property the government alleges to be subject to criminal forfeiture in
the event of a conviction, the section does not explicitly provide for
pre-trial restraint of § 853(p) substitute property. Rather than
attempting to use the criminal forfeiture statute to seek a federal
protective order on Jarvis’ two properties, the United States recorded
notices of lis pendens – a
common practice to notify potential buyers or lenders about pending
litigation contesting title to real property.
The notices of lis pendens
included the language, “the property located in Mora County, New
Mexico, was criminally indicted in this case and the United States is
seeking the forfeiture of all that lot or parcel of land, together with
its buildings, appurtenances, improvements, fixtures, attachments, and
easements thereon.”
In January 2006 Jarvis moved the district court to release the two Mora
County properties, contending that no legal basis existed for the
restraint of substitute assets without a conviction and forfeiture
order. The United States’ restraint of the two properties (neither of
which had any connection to criminal activity) prevented Jarvis from
hiring the counsel of his choice and deprived him of his Sixth
Amendment right. Therefore, Jarvis argued, a due process hearing was
required before the United States could effectively freeze these assets.
The government responded by arguing that “a lis pendens is not a legal
restraint, but merely functions as constructive notice to prospective
purchasers,” and that even if a lis
pendens were a restraint, the United States may restrain
substitute assets that have no connection with an alleged crime “in
light of the guidance in § 853(o) that the criminal forfeiture
statute be liberally construed to effect its objectives.”
The district court bought into the governments’ arguments, concluding
that filing a lis pendens
does not constitute a restraint of property within the meaning of
§ 853. Defying the logical consequences of a public notice
that title to real property is pending litigation and the owner may be
in the process of losing his right to own, sell or borrow against that
property, the lower court determined that a lis pendens did not interfere with
any legal incidents of property ownership such as “the right of sale”
and unrestricted use and enjoyment.
Therefore, the lower court held that a lis pendens “did not constitute a
property deprivation triggering due process concerns.” It also rejected
Jarvis’ argument that substitute assets, which by nature never had any
connection with, nor could be traceable to criminal activity, are not
subject to restraint prior to a criminal conviction and order of
forfeiture.
Jarvis moved the court to reconsider, pointing out the distinction
between forfeitable property under § 853(a), which may be
restrained pending criminal trial, and substitute property under §
853(p), for which Congress did not specify pre-trial restraint powers
for the government. He further argued that New Mexico law specifically
classifies a lis pendens as a
restraint, which cannot apply to substitute property until a court has
issued an order of forfeiture and the government is unable to satisfy
the order with property forfeitable under § 853(a).
After an August 2006 evidentiary hearing, which included testimony by a
realtor on the ill-effect of a lis
pendens notice on a seller’s practical ability to sell or borrow
against his land, the lower court rejected the motion for
reconsideration with a single sentence, concluding that Jarvis had not
presented any new arguments for release of his funds.
On September 1, 2006, the court appointed Jody Neal-Post as Jarvis’
forfeiture counsel. On interlocutory appeal Ms. Neal-Post raised the
argument that government may not use a notice of lis pendens to restrain property in
an in personam criminal
forfeiture action where the real property itself is not the subject of
litigation. Because the issue before the appellate court was “purely
legal in nature and the relevant statutory language and case law
dictate a certain result,” the appeals panel determined this is one of
the unusual cases in which it is proper for the appeals court to decide
an issue that had not been presented to the lower court.
After both parties fully briefed and argued this issue to the appeals
court, the panel determined that existing case law provided a certainty
of proper resolution. The Tenth Circuit concluded in a published
opinion, filed August 28, that to be eligible to file a lis pendens notice, “the party
recording the notice must assert a present claim to the property’s
title or have some other present interest in the subject property.”
Circuit Judge Murphy wrote for the panel that a lis pendens notice is intended to
preserve property rights in existence at the time litigation commences,
but does not create new or additional property rights. Additionally,
under New Mexico law, a lis pendens
cannot be filed in “anticipation of a money judgment.”
Assets “constituting, or derived from,
any proceeds” of the defendant’s criminal action and property “used, or
intended to be used” in the commission of facilitation of the
defendant’s criminal action “shall” be forfeited upon conviction. By
virtue of the statute’s relation-back provision, the United States
obtains a vested “right, title, and interest” in such tainted §
853(a) property superior to that of third parties “upon the commissions
of the act giving rise to forfeiture.” The government, furthermore, has
the ability to seek a protective order to restrain tainted assets prior
to trial in order to ensure the availability of the tainted property in
the event of the defendant’s conviction.
In contrast, the statute treats the
United States’ interest in substitute property – property that neither
comprises the fruits of nor is connected to the defendant’s alleged
crime–differently than it treats the government’s interest in §
853(a) tainted property. Pursuant to § 853(p), the forfeiture of
substitute property cannot occur until after the defendant’s conviction
and a determination by the trial court that the defendant’s act or
omission resulted in the court’s inability to reach § 853(a)
assets. Both the relation-back and protective order provisions of
§ 853 are silent as to § 853(p) substitute property. Unlike
the pre-conviction interest the government may claim in tainted §
853(a) property, § 853(c) thus does not explicitly authorize the
United States to claim any pre-conviction right, title, or interest in
§ 853(p) substitute property.
2
Furthermore, all but one federal court of appeals to address the issue
has determined the legislative silence regarding substitute property in
§ 853(e) precludes pre-conviction restraint of substitute property.
3
The statute, therefore, imposes specific preconditions on the
government’s ability to claim title to the defendant’s substitute
property, preconditions which can only be satisfied once the defendant
has been convicted.
4
The Tenth Circuit Court of Appeals joins the Second, Third, Fifth,
Eighth and Ninth Circuits in holding that substitute assets are not
subject to pre-trial restraint. The Fourth Circuit is the only federal
court of appeals to conclude that § 853 permits pre-trial
restraint of substitute assets.
(Click here to read Endnotes.)
2nd
Circuit denies fees for
attorneys who recovered money seized from multiple innocent claimants
under USA
PATRIOT Act
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.
The Second Circuit
affirmed, (click
here to continue)
DEA threatens 150 Los
Angeles landlords with forfeiture and prison
The U.S. Drug Enforcement Administration
sent letters warning about 150 Los Angeles landlords that they risk
arrest
and the loss of their properties if they continue renting to cannabis
dispensaries. A July 17 article in the Los Angeles Times, “DEA
targets landlords of pot outlets,” details the latest escalation in
the federal war against state sanctioned medical marijuana.
Timothy J. Landrum, DEA special agent in charge of the Los Angeles
office, sent the two-page letter
to
landlords last week. These letters “are definitely meant to serve as a
notice” said DEA spokeswoman Sarah Pullen. “What might happen as to the
continuing investigations, we’ll just have to see.” The letters were
sent on the eve of a proposed city ordinance that would regulate and
place a cap on the number of cannabis outlets in the City of Los
Angeles, which, according to the LA
Times, now total more than 400.
The federal government has discouraged such regulation in other cities
in the greater Los Angeles area, leaving most cannabis dispensaries to
operate without any local regulation or oversight. In 2001 the feds
shut down the Los Angeles Cannabis Resource Center in West Hollywood
and
filed a civil forfeiture complaint against the LACRC building that had
been financed in part by the City of West Hollywood. The City lost its
hard-fought forfeiture battle when the Ninth Circuit Court of Appeals
affirmed a summary judgment forfeiting the City’s $300,000 investment
in the LACRC building.
More than 30 cannabis dispensaries soon sprung up in the local
vicinity,
replacing the former LACRC that had operated in what Los Angeles
Sherif Leroy Baca described as “a cooperative partnership” with the Los
Angeles Sheriff’s Department. Having been punished for its
oversight of the LACRC, the City of West Hollywood declined to involve
itself or its law enforcement agencies in regulating the growing number
of dispensaries.
As Dale Gieringer of the National Organization for Reform of Marijuana
Laws says, the recent DEA crackdown will likely result in widespread
evictions and shutdowns, but won’t stop patients’ use of marijuana.
Rather, patients who presently rely on the threatened dispensaries will
be forced to find cannabis on the illegal market, with all its
associated risks.
The DEA’s unwarranted attack on medical marijuana also comes just as
Congress is about to vote on a measure to deny federal funding for
federal medical marijuana raids, namely the Hinchey-Rohrabacher
amendment. In the meantime however, as the DEA letters state: “It
is not a defense…that the facility operating on the property is
providing ‘medical marijuana’ under California law including the
provisions of California Prop. 215. Violation of this law is a felony
crime, and carries with it a penalty of up to 20 years in prison” as
well as property forfeiture.
There is no legal defense to federal forfeiture laws for landlords who
have been put on notice that tenets are violating federal law. As the
City of West Hollywood discovered, civil forfeiture laws bypass even
the slightest chance of prevailing at trial – civil forfeiture
proceedings in
which owners cannot claim a lack of knowledge of the federal violations
occurring on their property end in summary judgment without recourse to
trial by jury.
Riverside County's Press-Enterprise
reported on July 19 that building
owners in other counties may be targeted next, according to Special
Agent Sarah Pullen, of the DEA's Los Angeles office, which
oversees Riverside and San Bernardino counties. The DEA is aware of at
least 300 marijuana dispensaries
in the seven central and Southern California counties that it covers,
Pullen
said. According to Thom Mrozek, spokesman for the U.S. attorney's
office in Los
Angeles, the only reason that more marijuana dispensaries have not been
shut down is that federal officials don't have the resources to
investigate every
violation.
Congratulations to attorney Steven Kessler,
for this appeals court victory!
Steven frequently contributes pleadings to
FEAR's Brief Bank II,
where his Brief
to the Second Circuit in U.S. v. $660,200 is available along with the Government’s
Brief .
Second
Circuit
orders government to honor settlement
agreement.
by Judy Osburn
Assistant U.S. Attorney
Tracey Knuckles resigned in the midst of arranging for return of fifty
percent of $660,200 in seized currency pursuant to an in-court
settlement agreement. At the
same time the government suddenly attempted to renege on its settlement
agreement, painting a
picture of fear with unsubstantiated assertions that claimants intended
to use the money to fund
terrorism. The government also claimed that AUSA Knuckles had no
authority to enter
the government into a binding settlement agreement – at least not where
the government later
cries “terrorism case!”
“Settlement agreements are contracts” stated the Second
Circuit Court of Appeals on July
2, 2007, affirming
the district court’s order enforcing the settlement agreement in United
States v. $660,200. The appellate court agreed with the district
court’s finding that Assistant U.S.
Attorney Tracey Knuckles and her supervisor (who was transferred on or
about the same time
that Ms. Knuckles resigned) had actual and apparent authority to enter
into the in-court
settlement.1
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)
Congratulations to plaintiff's attorney
and FEAR member Joseph P. Kennedy on this important victory!
New
Mexico Court of appeals rules that police cannot use federal courts
to bypass
state forfeiture reforms
by Judy Osburn
In George Albin versus Bakas,
Taylor, Danko, Maldandado, Hooper and O’Leary
(New Mexico state 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.
Agencies in various states that
have passed forfeiture reform legislation often use his type of federal
“adoption”
of forfeiture cases to avoid the requirements of state reforms. The Albin court held that New Mexico State
Police officers seizing currency under state law are subject to the
procedures
set forth in New Mexico's Forfeiture Act, and in this case, the
officers
violated that Act. Therefore the court reversed the summary judgment
for
Defendant state police by the District Court of Santa Fe County, and
remanded
for further proceedings.
When New Mexico State
Senator Duncan Scott (R-Albuquerque)
introduced legislation in 1994 to "overhaul New Mexico's criminal asset
forfeiture law," he said the major change requires that forfeited funds
or
property go to the state general fund rather than allow agencies to
keep what
they seize. The law existing at that
time “perverts law enforcement incentives," Scott said. "Police
become more interested in chasing Mercedes rather than chasing violent
criminals because they get to keep the flashy car. Our Founding Fathers
wisely
envisioned three separate branches of government, and the existing
forfeiture
law allows law enforcement agencies to become both the tax collector
and
legislature for themselves."
New Mexico forfeiture law now requires: 1) a criminal
conviction of the owner before property may be forfeited; 2) the value
of the
property to be forfeited must not unreasonably exceed the financial
gain
derived from, or loss caused by, the related crime; and 3) that
proceeds of
forfeited property beyond costs of storage and restitution to victims
be
deposited in the general fund to be used for drug treatment, education
and
substance abuse prevention.
However, under federal law police agencies that transfer seized
property for “adoption” by federal courts have continued to enjoy up to
80% of the
proceeds returned directly to the seizing agencies. The
court of appeals held in Albin that procedural
requirements of New
Mexico’s Forfeiture
Act are mandatory, stating:
We
acknowledge that the use of “adoptive seizures” is apparently
wide-spread and follows
a long history of forfeiture collaboration between state and federal
agencies.
We do not address whether, to what extent, or how an “adoptive seizure”
to
allow a federal forfeiture to proceed may be accomplished under the
Forfeiture
Act. Our holding in this case is limited: when property is seized by
state
police officers for forfeiture, compliance with the Forfeiture Act is
required
even if the state intends to transfer the property to the federal
government to
pursue a federal forfeiture action pursuant to an “adoptive seizure.”
In this
case, Defendants violated the Forfeiture Act.
The case began in during a
traffic stop ...(continued)
The Spring 2007 edition of Justice
Policy Journal features a 31 page treatise by Jared
Shoemaker titled:
Civil
Asset Forfeiture: Why Law
Enforcement Has Changed
its Motto from "To Serve and Protect" to "Show Me the
Money"
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.
Click
here to read Civil Asset Forfeiture: Why Law Enforcement
Has
Changed its Motto from "To Serve and Protect" to "Show Me the
Money"
by Jared
Shoemaker
The perversion of law enforcement priorities described by Mr. Shoemaker
as
"goal displacement" was also the subject of an empirical study
published thirteen years ago. Sociologists
Mitchell Miller (University of Tennessee) and
Lance H. Selva (Middle Tennessee State University) received the 1994
Academy of
Criminal Justice Sciences Award for their undercover study and critical
analysis of asset
forfeiture's impact on police procedure. Based on twelve months of covert
observation from within narcotics enforcement agencies, Drug
Enforcement's Double-Edged Sword: An Assessment of
Asset Forfeiture Programs described forfeiture as a
"dysfunctional
policy" that forces law enforcement agencies to subordinate justice to
profit.
The Double-Edged Sword undercover researcher observed agencies
abandon
investigations of
suspects they knew were trafficking large amounts of contraband simply
because the case was
not profitable. Agents routinely targeted
low level dealers rather than big traffickers, who
are
better able to
insulate themselves and their assets from reverse sting
operations. The report
states: "Efficiency is measured by the amount
of money seized rather than impact on drug
trafficking."
A reverse sting
operation, where the officer becomes the seller who encourages the suspect to
commit a crime, "was the preferred strategy of
every agency and department with which the
researcher was
associated because it allowed agents to gauge potential profit prior to
investing a great
deal of time and effort." More importantly,
the narcotics units studied preferred seizing
cash
intended for
purchase of drugs supplied by the police, rather than confiscating
drugs already on
the street. When asked why a search warrant
would not be served on a suspect known to have
resale quantities
of contraband, one officer responded:
"Because
that would just give us a bunch of dope and the hassle of having to
book him (the
suspect). We've got all the dope we need in the
property room, just stick to rounding up cases with
big
money and stay
away from warrants."
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
March 20, 2007: Much thanks to
Microsoft's Fritz Sands for donating Microsoft Office Ultimate 2007 to
FEAR. We're enjoying the intuitive new features of Access 2007,
included in the Office suite, to index and cross-reference FEAR's
expanded Brief Bank II &
Private Collection. Without this powerful database software, our
extensive database of pleadings would be difficult and far more time
consuming to update and index.
We also plan to put the PowerPoint 2007 presentation software, also
included in the Office suite, to great use in developing presentations
for FEAR's Gideon Project
to make competent forfeiture attorneys more available to owners of
seized property. Thank you, Fritz and Microsoft!
"Contraband Confiscation Agreement"
circumstances ruled unconstitutional violation of due process: judge
orders Bradenton
police to
return $10,200 or use court system to file
forfeiture proceedings.
Bradenton
Police Department continues policy of bypassing court system by
coercing victims into signing forfeiture contract waiving right
to day in court.
by Judy Osburn
Each
year police in Bradenton, Florida side-step judicial oversight
provided in
Florida's Contraband Confiscation Act by intimidating hundreds of
people into
signing roadside agreements to give up property such as cash and cars
and waive
all rights to contest the confiscation in court. "Imagine
having to choose between signing over your cash or
going to jail," Tampa Bay defense attorney Denis DeVlaming said earlier
this year. "That's the situation that these people face. It's a scary
proposition."
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!"
U.S. Department of Justice' Federal
Money Laundering Cases
manual now available on
CD
The Department of Justice responded just before last
Thanksgiving to FEAR's appeal from the denial of Freedom
of Information Act requests for a number of DOJ publications by sending
FEAR the most recent edition of DOJ
publication Federal Money Laundering
Cases, published May
2005. FEAR now has the entireDOJ manual available
on CD ROM.
On appeal the DOJ granted our request
for this book in full. This bodes well for the rest of our
pending FOIA appeals, since
the manuals all contain the same kind of information: the DOJ's legal
analysis of the applicable law on forfeiture and
money laundering.
Federal Money Laundering Cases
is 200 pages or more of case digests of
the leading cases on money laundering, sorted by subject
matter. This is an excellent resource for any criminal
defense attorney who handles drug cases or money laundering cases or
just about any federal crime that generates money. Forfeiture defense
attorneys need it too because
many federal forfeiture cases have money laundering law components.
The granting of our FOIA request means that FEAR can legally distribute
this book without fear of retaliation from the Justice
Department. Because of its size, FEAR will not be adding it
to the Brief Bank any time soon. All the proceeds from the sale
of this CD-Rom manual will go to support FEAR's much needed but
severely underfunded services to forfeiture victims and defense
attorneys.
Montana Legislature Introduces
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 profit motive of
agencies
keeping seized property.
Montana's HB 775,
introduced February 19, would revise Montana
state
forfeiture laws to require criminal convictions of property owners
before
property may be forfeited by the state. The bill also would eliminate
the profit motive that corrupts priorities of police and prosecutorsby
directing proceeds from
state forfeitures, as well as local shares from federal forfeitures,
into a state fund for public defenders . By providing that all
state
forfeitures be imposed upon conviction
of a criminal
offense as part of sentencing, the bill would also
eliminate
state civil forfeiture proceedings that declare property guilty of
crime, regardless of the guilt or innocence of its owner.
The bill would also 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
the
state
fund for distribution to public defender offices. HB
775
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. Click here for full story.
Louisiana forfeiture trap case reversed
on appeal by Brenda Grantland
Louisiana forfeiture defense lawyer Paul Lemke scored a recent victory
in the Louisiana state courts in a highway forfeiture trap case.
Now that the Louisiana Supreme Court has denied review, the ruling is
final.
In State v.
$107,156, an officer stopped a car on the interstate highway
because it had a temporary tag. When the car's occupants acted nervous,
they ran criminal record searches and found out both occupants had
felony records. Then the police brought in a drug sniffing dog
which alerted to the car. They searched the car and found
$107,156 in cash.
The district court forfeited the cash, despite the claimant's evidence
of legitimate income, and the lack of evidence of any crime. The
court also denied their motion to dismiss for undue delay (and for the
government missing a statutory deadline in bringing the case to trial).
The appellate court reversed on the merits, holding that the facts as
presented by the government did not support forfeiture by a
preponderance of the evidence. Judge Stewart concurred in the
result, but dissented on the denial of the claimant's motion to dismiss
for undue delay, pointing out that the statute set a deadline and the
government missed it.
Paul Lemke commented on his victory:
"The state moved for writs to the
Louisiana Supreme Sourt and argued that hideous case from the 8th
circuit (
United States of America v.
$124,700 in U.S. Currency, 05-3295 (8th Cir. 2006
) (
Carrying cash while driving a rental car
ruled grounds for forfeiture) to apply to this case.
The Louisiana Supreme Court denied writs on November 22, 2006 so this
is now a final judgment, not a major win by any means but at least
Louisiana Appeal courts are looking better."
Congratulations, Paul!
Oregon State Supreme
Court upholds forfeiture reform initiative
by
Judy Osburn
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."
<>Without the
financial incentives that
pervert law enforcement priorities,
Oregon state
asset seizures dropped from
1,526 in
the year 2000 to
a mere 389 in 2001. However, as FEAR president Brenda Grantland
says, “this probably only
meant that
the
police turned property over to
the federal government for forfeitures
under the Equitable
Sharing (a.k.a.
‘Federal Adoption’) program,
which
allows the seizing state
or
local police agency to get a kickback of up to
80% of the proceeds of
forfeiture."
Over forty new
pleadings, motions and briefs, plus for new 2006 Department of
Justice manuals uploaded to FEAR's Brief Bank II & Private Collection!
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.
First Circuit vacates forfeiture
of owner's interest in sailing vessel "FLASH
II," once owned by the
late John F. Kennedy
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
“what (if any) efforts
it undertook
to identify
or locate potential
owners of the
FLASH II….The court’s order denying the
motion to
vacate the
default judgment appears to
have relied exclusively on Lane’s cognizance of the
sailboat’s seizure and his
decision to go to
ground at that
juncture. But
these facts
alone will not suffice to defeat
his insufficiency-of-notice
challenge if the government, knowing of the
existence of an unnamed investor and having ready access to
easily explored leads to that
investor’s identity,
simply buried its head in the sand.”
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.
Results of
FEAR's Freedom of Information requests: Three DOJ
publications released, but we have to fight for the rest
In early June, FEAR filed Freedom of Information
Act (FOIA) requests to the U.S. Department of Justice, asking them to
release to us the 2006 versions of several DOJ manuals, including the
manuals that former Attorney General Ashcroft tried to force libaries
to destroy in 2004. (In case you missed this controversy, the DOJ
was asking public libraries to destroy copies of DOJ manuals that had
already been distributed to them. The
rest of the story appears below.)
The 2004 story had a happy ending -- Ashcroft backed off on his order
that libraries burn the 2004 version of the books, and a library loaned
the books to FEAR. We scanned them in and put them in the FEAR Brief
Bank. That was not the end of the book burning story though,
because after 2004, all subsequent editions of these books were
stricken from the list of Government Printing Office documents
available to public libraries. We found out from reliable sources
that the DOJ was still updating these publications every year, printing
them at taxpayer expense through the Government Printing Office, and
distributing them to Justice Department lawyers.
So we decided to ask for the new editions.
In response to our FOIA requests, this week the DOJ released three
manuals to us voluntarily -- the 2006 versions of: Selected
Asset Forfeiture Statutes, Money Laundering Statutes and
Related Materials, and the DOJ Asset Forfeiture Policy Manual.
These manuals are hot off the presses -- the two compilations of
statutes (both of which include what appears to be a complete
collection of every relevant federal statute on the subject -- and some
very useful tables and "related material") were published in May 2006.
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!
We'll be updating progress on this project on the What's New at FEAR
Page and on FEAR-List. If you have an urgent need for any of
these manuals, please call FEAR at 415-389-8551.

The FEAR website won
another award!
Our
website has just received the Award of Excellence from StudySphere.com, which
describes our site as "one of the
best educational resources on the Web." StudySphere's
website describes itself as providing "fast, easy and FREE access to a wide variety
of
research-quality child-safe websites organized for education online
from home, school, study abroad and home school. StudySphere’s goal is
to help students, teachers, librarians, and other researchers find both
highly targeted and closely related information quickly."
We are very honored to receive this award!
FEAR's
new, updated, expanded, revamped and greatly improved
Brief Bank II
& Private Collection of Research Materials
... is now fully functional, but still growing!
Those of you with Brief Bank subscriptions should take a look at Brief
Bank II now. It's pretty awesome!
Brief Bank II - now with over 200 motions & briefs
- Brief
Bank II - indexed by Issue ( includes over 90 different issues)
- Brief
Bank II - indexed by type of motion or pleading (now includes
examples of 36 types of pleadings)
- Brief Bank
II - indexed by author
- Brief Bank
II - indexed by case name
Private Collection - now with 26 documents including six US
Department of Justice
manuals*
- Private
Collection - indexed by Issue (now includes 184 different issues)
- Private
Collection - indexed by author
- Private
Collection - indexed by publication or article
*The Private Collection
now includes a complete hypertext version of sixe DOJ forfeiture
manuals:
Try it once and you'll see, this is the first place to go
when conducting forfeiture research.
If you are a current subscriber to Brief Bank you can access the new
Brief Bank II using your regular user ID and password. If you are
not a current subscriber, a one-year subscription costs $100, and can
be purchased online on
the FEAR website, using Paypal.
FEAR's
"Gideon Project" -- to increase the availability of counsel for
forfeiture victims
Civil forfeiture victims frequently contact
FEAR complaining that they can't afford to hire counsel because all of
their assets
were
seized. Victims of federal forfeiture cases whose homes were
seized are eligible for court appointed
counsel under the Civil Asset Forfeiture Act of 2000
(CAFRA). For those financially unable to hire forfeiture
counsel, CAFRA requires the court to appoint counsel when the
claimant's primary
residence is seized. Where the claimant has a court appointed
attorney
in a related federal criminal case, CAFRA permits
the court to appoint that attorney for any other type of civil
forfeiture case as
well. Unfortunately, many federal judges apparently do not
know about these provisions. In one
case, the pro se claimant and his wife actually asked for counsel to be
appointed to defend their residence and the judge denied it. He
was forced to defend against summary judgment pro se, while
incarcerated -- and he lost. Then he contacted
FEAR. He followed our advice and argued that the summary judgment
ruling was void because he and his wife had been denied their statutory
right to counsel under CAFRA. The judge vacated the ruling, and
appointed counsel.
FEAR has been trying to determine the extent to which CAFRA's Right to
Counsel provisions are being
implemented. It appears from our preliminary research that
court appointments are rare. CAFRA took effect on August 23,
2000. By now, there should be
thousands of cases where counsel was appointed under CAFRA. We only
found a handful of published opinions that mention appointed forfeiture
counsel. We hear anecdotally that courts are appointing counsel
for forfeiture claimants who have pending criminal cases, but don't
know the extent to which that is happening. Gathering that
information is not easy.
CAFRA assigned the Legal Services
Corporation (LSC), in Washington, D.C., the responsibility of providing
counsel to claimants whose homes were seized. LSC admitted last
year that only $4,000 to $5,000 in attorneys fees
had
actually been paid out so far under that provision -- 5 years
after CAFRA took effect! The Congressional Budget
Office projected that enforcement of the right to counsel provisions
would cost the
federal government $1 million per year.
We have to do
something about this. FEAR did not lobby Congress for eight years
for forfeiture reform only to have CAFRA's key provisions ignored!
FEAR is seeking funding to embark on a project to address this
problem. We have named it "The Gideon Project" (after Gideon
v. Wainwright,
the Supreme Court case that established the constitutional right to
counsel in criminal cases). The plan includes three
components:
(1) research and compile statistics on the appointment of counsel in
federal courts nationwide
- Thanks to the Pacer database, which allows internet access to (most)
federal court dockets nationwide, it is now possible to research court
dockets and determine whether counsel is being appointed.
However, it will be expensive. Pacer charges by the
page for searches, and viewing the dockets on individual cases is slow
and labor intensive. We have determined from our
initial research that there are close to 2,000 real estate forfeiture
cases in the Pacer database since the year 2000. If finances
permit, we would like to look at every one of those cases, to see if
counsel was appointed, and if we find that any were forced to represent
themselves, we would immediately contact them and advise them of their
rights. The other category of claimants eligible for
counsel will not be so easy to locate. There are over 11,000
forfeiture cases in Pacer. We'd like to make at
least a random sampling of these cases, courthouse by courthouse, to
see if there are courts that are still not appointing counsel at
all. We'll try to survey it from other angles as well,
including through the Administrative Office of the U.S. Courts, where
the CJA vouchers are paid, but so far it appears that they don't
compile this data.
(2) educate judges, court clerks, and public defenders about the right
to counsel provisions
- This will include direct mailing to chief judges, court clerks
and public defenders. Unfortunately, letting judges know they can
(or must) appoint counsel now won't solve the problem in some
areas. Our anecdotal research turned up the unfortunate fact that
judges who want to appoint counsel have no pool of
experienced forfeiture attorneys willing to accept court appointed
cases. Criminal
Justice Act panel attorneys and Federal Public Defenders usually don't
know how to defend civil forfeiture cases, and experienced forfeiture
counsel are often unwilling to take cases for the rates
paid court-appointed attorneys. Hence, the next and most crucial
component...
(3) create a forfeiture training program for court appointed
criminal defense attorneys -
This is the most exciting component of the Gideon Project. We are
reassembling the team that produced FEAR's Asset
Forfeiture Defense Manual to work on this project. We've come up
with some great ideas on how we can make
these CLE programs available to attorneys nationwide (and
non-attorneys, if any pro se litigants wanted to take them) for a
reasonable cost to the individual attorneys. Our training programs
would qualify for
Continuing Legal Education (CLE) credit in the states where CLE is
required. As a by product,
this training program would vastly increase the number of qualified
retained forfeiture
lawyers
available nationwide, and assist lawyers handling their first
forfeiture cases.
We can't get the Gideon project off the ground without your help.
We will be applying for foundation
grants, and even some government grants, but we need donations from
private sources to get the project underway while we're applying for
grant money.
Tax-deductible donations can be made online at the FEAR
website, using
Paypal, or by mailing checks to FEAR Foundation, 20 Sunnyside Suite
A-419, Mill Valley, CA 94941. Write "Gideon project" in the memo
line of your check to earmark the funds for this project.
Forfeiture
victim story -- Corruption in Hamilton Ohio: Civil Asset
Forfeiture (the story of Earl Cavin Sr.)
This
forfeiture story is sad and maddening, but has a happy ending, at
least so far as forfeiture and justice is concerned. We are
interested in adding other forfeiture victim stories to the FEAR
website if anyone is interested.
The
California Supreme Court has agreed to review FEAR Board member Mark
Clausen's ruling invalidating the Stockton, CA forfeiture
ordinance!
On Friday
April 22, 2005, former FEAR Board of Directors member Mark Clausen, a
lawyer
in Sonoma County, California, won a great court victory against
city-wide forfeiture ordinances. The Third Appellate
District in California held in O'Connell
v. City of Stockton
that the Stockton ordinance violated procedural Due Process because it
failed to provide for a reasonably prompt post seizure hearing after
property was seized! The court also held that the
Stockton Ordinance was pre-empted by state law, which sets the
penalties for criminal violations.
This was a MAJOR VICTORY for our cause! Forfeiture
ordinances have been popping up in cities all over California, and a
few
other states. Now, the
state Supreme Court will decide whether the victory stands. If it
does, the ruling will invalidate forfeiture ordinances across
California!
Get the opinion here: O'Connell v. City of Stockton.
Now available on the FEAR website: all
four of the "almost-banned DOJ publications"!
FEAR's
Brief Bank II and Private Collection includes excerpts from
FEAR's Asset Forfeiture Defense Manual, and two of the "almost banned DOJ publications"
--
the 300+ page "Civil and Criminal Forfeiture Procedure" and the 26-page
introduction to "Select Criminal Forfeiture Forms." Even those of you
who purchased the FEAR manual will find this Private Collection
valuable.
For those of you who missed news of the
scandal, in the summer of 2004, the U.S.
Department of Justice ordered public libraries to destroy five DOJ
publications on
asset forfeiture -- publications distributed by the Government Printing
Office to public libraries. As FEAR
reported below, under pressure from public
librarians
and the public, the
DOJ backed down and rescinded its order that the public libraries
destroy the publications.
The DOJ's attempt to suppress these publications made us wonder what
was in these publications. We borrowed them and made
copies. Four of these
publications are very useful to forfeiture lawyers, victims,
legislators and forfeiture reformers! No wonder DOJ didn't want
the public to have them! (The fifth was a telephone directory of
forfeiture personnel at the different federal agencies - we didn't
bother copying that one.)
All four of the "almost-banned" DOJ
publications are now available on this website.
- 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]
FEAR pamphlet
available for download -- What to Do When Your Property Has Been Seized
We've
updated one of the original FEAR pamphlets, which answers the questions
new victims of forfeiture most need answered to survive the early
stages of the forfeiture process. "What to Do When Your
Property Has Been Seized" is now downloadable in PDF format.
This is the final, corrected version. Feel free to print it out
and make copies to distribute to clients and
friends. We would love to see these pamphlets available for free
in places where forfeiture victims frequently turn for assistance, such
as public defender offices and criminal law firms. If you would
like to make a donation earmarked for the mass printing and
distribution of this pamphlet to such sources, please contact us.
FEAR's
Asset Forfeiture
Defense Manual
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.
The U.
S. Attorneys' manual, complete with a search function, is online.
The area of most interest to us is Section
9-111, "FORFEITURE/SEIZURE".