United States. Congress. House. Committee on the J.

Civil Asset Forfeiture Reform Act : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 1916 ... July 22, 1996 online

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CIVIL ASSET FORFEITURE REFORM ACT

^^ Y 4. J 89/1:104/94

Civil Asset Forfeiture Reforn Act,...

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIAKY
HOUSE OP REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

SECOND SESSION
ON

H.R. 1916

CIVIL ASSET FORFEITURE REFORM ACT



JULY 22, 1996



Serial No. 94







Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
35-668 CC WASHINGTON : 1996

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-053850-5



CIVIL ASSET FORFEITURE REFORM kCl







Y 4. J 89/1:104/94

Civil Asset Forfeiture Reforn Act,...

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATrVES

ONE HUNDRED FOURTH CONGRESS
SECOND SESSION

ON

H.R. 1916

CIVIL ASSET FORFEITURE REFORM ACT



JULY 22, 1996



Serial No. 94




''f 8 2 m?



Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
35-668 CC WASHINGTON : 1996

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-053850-5



COMMITTEE ON THE JUDICIARY



HENRY J. HYDE, Illinois, Chairman



CARLOS J. MCX)RHEAD, California
F. JAMES SENSENBRENNER, Jr..

Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
MARTIN R. HOKE, Ohio
SONNY BONO, California
FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, Illinois
BOB BARR, Geoi^a



JOHN CONYERS, JR., Michigan
PATRICIA SCHROEDER, Colorado
BARNEY FRANK, Massachusette
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JOHN BRYANT, Texas
JACK REED, Rhode Island
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
XAVIER BECERRA, Cahfomia
ZOE LOFGREN, California
SHEILA JACKSON LEE. Texas
MAXINE WATERS, Cahfomia



Alan F. Coffey, Jr., General Counsel/ Staff Director
Julian Epstein, Minority Staff Director



(II)



CONTENTS



HEARING DATE



Page

July 22, 1996 1

TEXT OF BILL

H.R. 1916 4

OPENING STATEMENT

Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois,
and chairman. Committee on the Judiciary 1

WITNESSES

Blanton, Jan P., Director, Executive Office for Asset Forfeiture, Department

of the Treasury 237

Cassella, Stefan D., Deputy Chief, Asset Forfeiture and Money Laundering

Section, Criminal Division, Department of Justice 42

Cutkomp, King 18

Edwards, E.E. (Bo) III, Esq., on behalf of the National Association of Criminal

Defense Lawyers 14, 278

Komie, Stephen M., secretary, Illinois, State Bar Association 27

Jones, Willie 12

KappeUioff, Mark J., legislative counsel, on behalf of the American Civil

Liberties Union 262

McMahon, James, superintendent, New York State Police, on behalf of the

International Association of Chiefs of Police 241

Reed, Terrance G., chairperson, RICO, Forfieiture, and Civil Remedies Com-
mittee, Section of Criminal Justice, on Behalf of the American Bar Associa-
tion 256

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Blanton, Jan P., Director, Executive Office for Asset Forfeiture, Department

of the Treasury: Prepared statement 239

Cassella, Stefan D., Deputy Chief, Asset Forfeiture and Money Laundering

Section, Criminal Division, Department of Justice: Prepared statement 215

Cutkomp, King:

Forfeiture bill and analysis 43

Information concerning successful forfeiture challenges 248

Edwards, E.E. (Bo) III, Esq., fiavid B. Smith, and Richard J. troberman,
Cochairs, National Association of Criminal Defense Lawyers Asset Forfeit-
ure Abuse Task Force, on behalf of the National Association of Criminal
Defense Lawyers: Prepared statement 282

Kappelhoff, Mark J., legislative counsel, on behalf of the American Civil

Liberties Union: Prepared statement 265

Komie, Stephen M., secretary, Illinois, State Bar Association: Prepared state-
ment 33

McMahon, James, superintendent, New York State Police, on behalf of the

International Association of Chiefs of Police: Prepared statement 243

Reed, Terrance G., chairperson, RICO, Forfeiture, and Civil Remedies Com-
mittee, Section of Criminal Justice, on Behalf of the American Bar Associa-
tion: Prepared statement 258

(III)



IV

Pace
AI'PENDIX

Material submitted for the hearing 357



CIVIL ASSET FORFEITURE REFORM ACT



MONDAY, JULY 22, 1996

House of Representatives,
Committee on the Judiciary,

Washington, DC.
The committee met, pursuant to notice, at 9:40 a.m., in room
2141, Rayburn House Ofifice Building, Hon. Henry J. Hyde (chair-
man of the committee) presiding.

Present: Representatives Henry J. Hyde, Greorge W. Grekas, Car-
los J. Moorhead, Bob Barr, and Barney Frank.

Also present: Alan F. Coffey, Jr., general counsel/staff director;
Diana Schacht, deputy general counsel; Kenneth Prater, clerk;
Stephanie Peters, minority counsel; and Melanie Sloan, minority
counsel.

OPENING STATEMENT OF CHAIRMAN HYDE

Mr. Hyde. The committee will come to order.

Under our rules, it is permissible for purposes of hearings to pro-
ceed with less than a full complement, and while today is Monday
morning and the House doesn't go into session until sometime later
and votes later this afternoon, it is understandable that a lot of
Members aren't present. But frankly, this subject is an important
one, and because of the press of other calendar matters, we haven't
gotten to it this year until this morning. And I am loath to forgo
the opportunity to advance this legislation. So we are going to pro-
ceed with it, but I apologize for the paucity of Members, and I con-
gratulate my friend George Gekas for his being here.

Mr. Gekas. Thank you, Mr. Chairman.

Mr. Hyde. The gentleman from Pennsylvania.

Mr. Gekas. Yes. I am eager to listen to the witnesses and to per-
haps engage in a colloquy with one or more of them on this, like
you say, important subject.

I just wanted to lay a little background on the basis that this
committee in the early 1980's, in furtherance of then President
Reagan and then President Bush, and even more recently under
President Clinton, we were considering this subject matter in one
form or another. As a matter of fact, all the comprehensive crime
plans which we have either contemplated or adopted in one way or
another touched upon this subject, and I must say that you cannot
have a comprehensive crime program unless you include forfeiture
as one of the matters which you must consider thoroughly.

I am eager to see where we have failed, where we can improve,
what it really means to law enforcement, and, therefore, I join with

(1)



the chairman in moving ahead to make a record on this very im-
portant subject.

Thank you, Mr. Chairman.

Mr. Hyde. I thank the gentleman. Those people in the room who
are in the Navy will recognize the phrase, "now hear this."

Well, now hear this: Federal and State officials have the power
to seize your home, your car, your business and your bank account,
all without indictment, hearing or trial. Regardless of sex, age, race
or economic status, we are all potential victims of civil asset forfeit-
ure procedures.

Just ask Willie Jones, owner of a Nashville landscaping business.
In 1991, he made the mistake of paying for an airplane ticket in
cash — behavior that was deemed to fit a drug courier profile. Mr.
Jones was detained. His luggage was searched. No drugs were
found, but his wallet contained $9,600 in cash. The money was
seized, but Mr. Jones was not charged with any crime. After 2
years of legal wrangling, his money was finally returned.

In 1989, during a fruitless 7-hour search for drugs aboard Craig
Kline's $24,000 new sailboat. Federal agents wielding axes, power
drills and crowbars nearly destroyed the boat. No evidence of con-
traband was found. The boat was sold for scrap, and only after
Congress intervened did Mr. Kline receive a reimbursement of
$9,100, a third of the boat's value.

Over the course of several years, Florida police routinely con-
fiscated cash, an estimated $8 million total, from hundreds of mo-
torists who supposedly fit profiles of drug couriers. Criminal
charges were rarely filed in these cases, and only in three instances
did the individuals successfully have funds returned.

According to one estimate, in more than 80 percent of civil asset
forfeiture cases, the property owner is not charged with a crime.
Nevertheless, Government officials usually keep the seized prop-
erty. Furthermore, to justify its seizure, the Government need only
present evidence of what its agents see as "probable cause." That
is the same standard required to obtain a search warrant, but in
that situation, police are permitted to seek evidence of a crime, not
to permanently take somebody's property. Even worse, under
present law, the burden of proof is on the property owner, who
must establish by a preponderance of the evidence that his or her
property has not been used in a criminal act or not otherwise for-
feitable. The uncharged victim must prove the negative.

The basic presumption in American law, you are innocent until
proven guilty, has been turned on its head. Property owners who
lease their apartments, cars or boats risk losing their property be-
cause of renters' conduct, conduct over which the actual owner has
no control.

To contest Government forfeiture, owners are allowed only a few
days within which to file a claim and post a 10-percent cash bond
based on the value of the property. Even if the owner is successful
in getting the property returned, the government is not liable for
any damage to the property which occurs while in the Govern-
ment's possession.

In 1992, former New York City Police Commissioner Patrick
Murphy observed that the large monetary value of forfeitures has



created a great temptation for State and local police departments
to target assets rather than criminal activity.

Now, let me stress, I view criminal asset forfeiture following a
criminal conviction as an appropriate punishment. There, the
guilty party has been accorded due process of law. But civil asset
forfeiture all too often punishes innocent persons. These procedures
may have made sense in the 18th century, when ships containing
contraband or smuggled goods were seized, but in today's modern
world, the targets of noncriminal forfeiture are residences, busi-
nesses and bank accounts. We need to reform these procedures so
as to ensure fundamental fairness and due process rights.

For these reasons, I have introduced the Civil Asset Forfeiture
Reform Act, H.R. 1916. First and foremost, this legislation revives
the notion that property, like individuals charged with crimes, is
innocent until proven guilty. It allows property owners to recover
for the damage done to property while in the custody of law en-
forcement agencies and protects innocent property owners, such as
landlords, who are unaware of illegal activity. Further, the bill
would eliminate the regressive cash bond now required of property
owners who file an appeal in a seizure case and would extend the
period of time for appeal of a seizure from the current 10 or 20
days to a more reasonable 30 days.

The fifth amendment to our Constitution reads: "No person shall
be deprived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use without just com-
pensation."

Today this committee embarks on a path of reform that hopefully
will comport Federal civil asset forfeiture law with the true spirit
of the fifth amendment.

[The bill, H.R. 1916, follows;]



104TII ('()N(}RKSS
1st Skssion



H.R.1916



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Online LibraryUnited States. Congress. House. Committee on the JCivil Asset Forfeiture Reform Act : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 1916 ... July 22, 1996 → online text (page 1 of 37)