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

. (page 2 of 37)
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 2 of 37)
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asked me to go with them, and I questioned them about going
where. And they said — they told me not to worry about that, just
come on, let's go.

Mr. Hyde. Did you tell them what you were about, where you
were going and for what purpose?

Mr. Jones. I did. I also presented them with a business card. At
that time, I was carrying a checkbook with my name and my busi-
ness name.

Mr. Hyde. What police were these; do you remember? With what
force were they associated?

Mr. Jones. It was DEA.

Mr. Hyde. Drug Enforcement Administration people?

Mr. Jones. Yes, sir,

Mr. Hyde. OK. Then what happened?

Mr. Jones. So we proceeded to go out of the airport, which they
had a little building out across the terminal. We went there. And
at that time, I was questioned about had I ever been involved in
any drug-related activity, and I told them, no, I had not.

So they told me I might as well tell the truth because they was
going to find out anyway. So they ran it through on the computer
after I presented my driver's license to them, which everything
was — I had — it was all in my name. And he ran it through the com-
puter, and one officer told the other one, saying, he is clean. But
instead, they said that the dogs hit on the money. So they told me
at that time they was going to confiscate the money.

Mr. Hyde. They determined from the dog's activities that there
were traces of drugs on the money?

Mr. Jones. That is what they said.

Mr, Hyde. That is what they claimed?

Mr. Jones. Yes, sir.

Mr. Hyde. Therefore, they kept the money?

Mr. Jones. They did keep the money.

Mr. Hyde. Did they let you go?

Mr. Jones. They did let me go.

Mr. Hyde. Were you charged with anything?

Mr. Jones. No. I asked them to, if they would, if they would
count the money and give me a receipt for it. They refused to count
the money, and they took the money and told me that I was free
to go, that I could still go on to Texas if I wanted to; that the plane
had not left.



14

Mr. Hyde. Of course, your money was gone. You had no point in
going to Texas if you can't buy shrubs.

Mr. Jones. No.

Mr. Hyde. So did you ever get your money back?

Mr. Jones. I finally got my money back 2V2 years — some 2V2
years later.

Mr. Hyde. How did that happen?

Mr. Jones. But at the same time, I left the — after they told me
I was free to go, I left the airport, and I rode down the interstate
for a while, and I got to thinking about what had happened, and
I turned and went back to the airport because it just didn't sound
right and didn't feel right.

I went back to the airport, and at this time they told me that
I was one of the few to — that they had taken as much as $100,000
off of people and had let them go, and that they — that was the last
place that they wanted to come back to. And I told them, I said,
well, I don't really have anything to hide or anything to cover up,
so I went back, and they told me at that time, again, I was defi-
nitely not going to get my money back, and they was not going to
arrest me.

Mr. Hyde. So how did you get your money back?

Mr. Jones. Well, at that time I contacted my attorney, which is
here, Mr. Edwards, and we started working on the case, because
we had to actually sue the Government to

Mr. Hyde. Return your money?

Mr. Jones [continuing]. Get my money returned.

Mr. Hyde. So you filed a lawsuit; is that correct?

Mr. Jones. That is correct.

Mr. Hyde. And after 2 years, you got your money back?

Mr. Jones. Yes.

Mr. Hyde. Was that by court order?

Mr. Jones. That was by court order.

Mr. Hyde. Did you get any interest on the money?

Mr. Jones. No.

Mr. Hyde. So you lost 2 years of interest, plus the use of the
funds, plus you had to hire an attorney and file a lawsuit.

Mr. Jones. That is correct.

Mr. Hyde. Is there anything that you wish to add to this, other
than what you have told us?

Mr. Jones. Not really, I guess other than how easy it is an inno-
cent person can get caught up into something like this. I was not
aware at that particular time that we was going to have to go
through all the different things we had to go through to just get
the money back.

Mr. Hyde. Would you identify your attorney, or would you iden-
tify yourself, sir? Do you have anything to add, counsel? Congratu-
lations on getting Mr. Jones' money back.

STATEMENT OF E.E. (BO) EDWARDS HI, ESQ.

Mr. Edwards. Thank you, Mr. Chairman. I am E.E. Edwards,
better known as Bo Edwards. I am from Nashville and over the
last several years have represented numerous people who have had
the misfortune of having property seized. Mr. Jones, I would say.



15

is probably by far the most famous, perhaps because his case is
sort of a potpourri of the abuses and the injustices of forfeiture.

The reason, Mr. Chairman, that Mr. Jones had to sue the Gov-
ernment to get his money back was because when he came to see
me 2 days after the money was taken, I explained to him that in
order to get into court he was going to have to post a bond, and
the bond would be $9,000, 10 percent of what they took from him.
And he said well, they took all my money. I don't have $9,000.

Mr. Hyde. You mean $900?

Mr. Edwards. I am sorry. $900, that's right. He said he didn't
have $900 left. They took all his money. Essentially, they took all
his working capital.

We filed affidavits. In fact, asked the Asset Forfeiture Office on
two or three occasions to waive the bond requirement, and they
consistently refused. So finally, he was faced with a choice of either
giving up or doing what we did. And perhaps because Mr. Jones
is a good man and a nice man and his lawyer was a little stubborn,
we decided to sue the Government. But, in fact, the Government
probably spent over $300,000 trying to avoid admitting that they
were wrong in taking Willie Jones' $9,000.

Mr. Hyde. Well, tell me about your litigation. What kind of a
suit did you file?

Mr. Edwards. We filed a civil rights action under section 1983
against the three officers who seized his money. And incidentally,
although they were operating under the leadership direction of the
DEA, they were actually local officers. The DEA in Nashville, as
occurs all over the country, had formed a joint task force by con-
tract. We actually obtained a copy of the contract and put it into
evidence in his trial, whereby the Metropolitan Police Force of
Nashville provided a certain number of officers. The Air Force — I
am sorry. The airport police department provided a certain number
of officers, and the DEA provided one agent to supervise. And that
is how this interdiction unit at the Nashville airport was composed.

The three officers we sued consisted of one Metro Nashville Po-
lice sergeant, who was on leave from the drug squad to this inter-
diction unit, and two airport officers. And we sued the three of
them. We could not ask for damages — or at least we made the deci-
sion not to, because of the doctrine of qualified immunity. Had we
asked for damages against the officers for taking — for stopping Mr.
Jones and taking his money, the lawsuit instead of taking 2 years
probably would have taken 3 or 4, and we would have run the risk
that the case would have been dismissed on the basis of immunity.
But because we asked only for his money back, they could not use
qualified immunity as a defense.

The first — there were actually two trials, Mr. Chairman. The
first trial was in response to the government's position that a U.S.
district court could not review the decision of the Asset Forfeiture
Office of the Justice Department in refusing to waive Mr. Jones'
bond. In other words, they wouldn't let him into court, and their
position was a district — a U.S. district judge couldn't pass judg-
ment on their decision.

Mr. Hyde. And because your client didn't have the $900 to post
a bond, you couldn't proceed under the asset forfeiture process?
You had to file a civil rights suit?



16

Mr. Edwards. That's exactly right. We couldn't afford to pay our
way into court, so we couldn't get a day in court for Willie Jones
without suing the Grovernment because they wouldn't waive the
bond requirement.

Mr. Hyde. The U.S. Attorney's Office defended this lawsuit?

Mr. Edwards. Yes, sir.

Mr. Hyde. And they persisted in withholding Mr. Jones' money?

Mr. Edwards. Well, that is a very interesting question, Mr.
Chairman. A few weeks after we filed the lawsuit under section
1983 as a civil rights case on behalf of Mr. Jones, I had a con-
ference with an assistant U.S. attorney in Nashville, and we talked
about the case, and I explained just how clean Mr. Jones was and
just how egregious the seizure of his money was, and the AUSA
thought that it would make a lot of sense, if we were willing, to
rethink refusing to waive his bond. And I told him that we would
agree to drop the civil rights case if the Government would agree
to waive the bond and let us go back into the normal forfeiture
process and get a trial under the court's jurisdiction to hear forfeit-
ure cases.

So we had a private agreement to do that, but he had to talk to
main Justice before we could solidify that understanding, and he
came back to me a few days later and said, main Justice wouldn't
go along with that.

Mr. Hyde. What year was this?

Mr. Edwards. This was in 1991. The lawsuit was filed, I believe,
1 or 2 days before the Fourth of July of that year. The seizure, of
course, was on February 27, earlier in that year.

Mr. Hyde. Did you deal with the Department of Justice other
than the U.S. attorney there?

Mr. Edwards. No, sir. I did not deal directly with anyone in
Main Justice.

Mr. Hyde. You don't know who was responsible for making that
decision?

Mr. Edwards. No, I am afraid I don't.

Mr. Hyde. What enlightened member of the Justice Department?

Mr. Edwards. Yes, sir.

Mr. Hyde. All right. So you proceed with the civil rights lawsuit.
Did you go to trial?

Mr. Edwards. The first trial resulted in the district judge, Thom-
as Wiseman, holding that the Asset Forfeiture Office had acted in
bad faith in refusing to waive the bond, and he ordered the bond
waived and ordered an immediate trial with respect to the seizure.

The Government asked for more time and after some argument
was granted additional time, and we finally had a trial, as I recall,
in late 1992. During that trial, the Government was fiying DEA
agents from Nashville to Houston and Houston agents from Hous-
ton to Nashville. I mean, it may very well be a modest conservative
estimate when I say the Government spent over $300,000 trying to
defend this seizure. But at any rate, I think it is certainly fair to
say that the Government did everything that they could think of
to try to prove that Willie Jones was a drug dealer. But they were
facing an insurmountable problem: The truth, because he wasn't
and never has been.



17

So ultimately, the judge held that the stop of Mr. Jones in the
airport was in violation of his fourth amendment rights; that the
money should never have been seized long before the dog sniff oc-
curred.

He further found, based on documents that I was able to obtain
showing that DEA lab technicians had long — had much earlier ad-
vised against using dog sniffs to establish proof with respect to cur-
rency, because the American money supply is so tainted with trace
cocaine, he decided that and held that there was no basis for the
seizure; there was no basis for a forfeiture, and he ordered the Gov-
ernment to return Mr. Jones' money.

Mr. Hyde. Why didn't he get interest back?

Mr. Edwards. Because of the same problem. We were concerned
about giving the Government an opportunity to raise the issue of
qualified immunity.

Mr. Hyde. To escape altogether, yes.

Mr. Edwards. There have been some decisions in Federal court
since Mr. Jones' case has ended that suggested — or that suggest
that perhaps he would have been entitled to obtain interest on his
money had we pressed that issue.

Mr. Hyde. How about your attorney's fees, did they get allowed,
or did Mr. Jones have to pay those?

Mr. Edwards. Well, that is very interesting. Had the Govern-
ment waived the $900 bond requirement and let Mr. Jones have
his day in court, I would have not been entitled to attorney's fees,
and Mr. Jones would have had to pay whatever fee I got paid out
of the money he got back. But because they refused to do that and
were acting in bad faith in refusing, that left us with the only al-
ternative of suing under the civil rights statute. By virtue of pre-
vailing as a plaintiff in a civil rights case, I was entitled to an
award of attorney's fees. So I was ultimately paid in the neighbor-
hood of $80 to $85,000 — I don't remember the exact amount — for
the work I did over 2V2 years representing Mr. Jones.

Had the Government waived the bond, I would have been paid
nothing, and Mr. Jones would have been stuck with the fee, which
is another reason that forfeiture can be so unjust. A reasonable at-
torney's fee, even in a modest, simple forfeiture case in Federal
court, is going to cost $20,000, $25,000, $30,000 in legal fees just
because of the time and attorney effort required. So when the
amount seized is a relatively modest sum, the property owner is
going to lose anyway, no matter what he does.

Mr. Hyde. Wouldn't you think somebody along the chain of com-
mand from the U.S. Attorney's Office in Nashville up to the Justice
Department would have the common sense to look at this and to
cut their losses and do a little justice for Mr. Jones? Does it boggle
your mind, as it does mine, that the bureaucracy refuses to give an
inch on something like this that is so blatant and egregious?

Mr. Edwards. Mr. Chairman, it makes me sad that my Govern-
ment acts that way. I didn't grow up believing in the kind of Gov-
ernment that I have seen exemplified in Mr. Jones' case or many
other cases. And money — the desire to get this property is what
causes it, I believe.



18

Mr. Hyde. I think that there is a whole field of inquiry of the
Federal Government suing people on suits that are baseless that
someday needs a real inquiry, but this is surely one.

Well, I congratulate you, sir. You are what a lawyer should be,
persistent and tough, and Mr. Jones is a smart man in picking you
for a lawyer.

Now, I notice you are on the panel, the third panel. Do you have
more to say then?

Mr. Edwards. Well, Mr. Chairman, I think my position on the
third panel is more with respect to the broader picture.

Mr. Hyde. Very well.

Mr. Edwards. And to the provisions in your bill itself because I
have been very active over the last several years in promoting your
cause, the cause of forfeiture reform.

Mr. Hyde. Thank you.

Mr. Edwards. But let me say thank you so much for your kind
words. But without the very courageous and bold position, public
position you have taken, I fear that many more Americans would
be subjected to the same kind of injustices, and America should be
very proud and very thankful for the work that you have done in
calling the country's attention to these injustices.

Mr. Hyde. You are very kind, and I accept that for lots of people
who are interested; Mr. Frank, and the ACLU, and Cato Institute
and many others. So this is a remedy whose time hopefully has
come, and you have made a great contribution and we will hear
from you again on panel three then.

Mr. Hyde. Very well. Mr. Cutkomp.

Mr. Cutkomp. Yes, sir.

Mr. Hyde. If you would fix your microphone. That's right, and
talk into the microphone.

Mr. Cutkomp. OK.

Mr. Hyde. What is your name?

Mr. Cutkomp. My name is King Cutkomp from Rock Island, IL.

Mr. Hyde. What is your business or profession?

Mr. Cutkomp. I am in the wholesale food business, wholesale
food distributor.

Mr. Hyde. Very good. And would you tell us your story as it in-
volves asset forfeiture.

STATEMENT OF KING CUTKOMP

Mr. Cutkomp. OK. Thank you very much.

I sincerely appreciate this opportunity to speak to you, a person,
about my mother's experience with the abuse of our national civil
forfeiture law, a law which ignores due process, encourages abuse
by police and prosecutors, confiscates property from innocent, law-
abiding citizens, and threatens our sacred honor with the tyranny
of a police state.

My mother is an 85-pound, 75-year-old, hard-working, frugal
lady, who chose to squirrel away any extra money she had rather
than buy herself any of the things most people consider necessities.
Although she has bought a few residential rental properties, she
still tears Kleenexes in half to stretch her money and settles for
eating half sandwiches rather than run up her grocery bill. She has



19

never taken a vacation or missed a day's work in the business, but
neither has she ever been to a shopping mall.

She has always lived as though the next Great Depression would
happen any day. By 70, she managed to save around $70,000,
which she kept in her house because her Depression experience
taught her not to always trust banks.

In December 1989, the U.S. Government came to my mother's
house and took her savings from a floor safe in the basement.
Three months later, they seized her home and two rental prop-
erties she owned.

You need to know, my innocent mother was never charged with
a crime, and the police acknowledged she was never part of my
brother's marijuana ring conspiracy. Mom's biggest sin was allow-
ing the adult son she loved to live next door to her.

After my brother was indicted, he fled town. The Grovernment
suspected she probably had allowed him to use her property ille-
gally and probably had been given cash earned by him illegally. As
you know, asset forfeiture laws only require probable cause to seize
property. Once property has been seized, it is the owner's burden
to prove innocence to the Government.

When this happened to Mom, I thought innocent until proven
guilty would apply in her case, and she would immediately get her
cash back. So trusting the Government, I didn't even hire an attor-
ney for that matter. I soon learned later that under the Constitu-
tion a citizen isn't afforded an innocent until proven guilty in civil
forfeiture cases. She wasn't considered innocent, and the Govern-
ment didn't have to prove anything.

The $70,000 they took from Mom was mostly old bills dated from
the 1960's and 1970's and was covered with mold and mildew. The
safe was rusted shut, and the safe handle broke off, and the whole
safe had to be drilled open. Tragically, the FBI did not keep her
cash in an evidence locker, but deposited her money into a bank,
commingling it with other people's money and thus destroying her
evidence and proof of innocence.

The morning Government agents banged on Mom's door telling
her that they were there to seize her home, it included the local
police, county sheriffs department, U.S. Marshal's Service, several
FBI agents and IRS agents; about 20 all in total. All this force to
take some propercy from one innocent, unarmed, law-abiding 70-
year-old, 85-pound woman.

I immediately called our family attorney, and he met me at
mom's house. He had previously been — it had previously been said
to me by one of the agents, now they want to take everything your
mother has and make her tell what she knows about your brother
and be abl€ to make him come back, too.

When I arrived at mom's house, she was in a daze. She said she
asked the agents where she was supposed to live and was told, I
don't care where you go, but you have got half an hour to pack up
and get out.

Thankfully our attorney was able to reach an agreement that al-
lowed mom to rent her own house from the Government until the
case went to trial. The horror of the forfeiture squad invading her
home still brings regular nightmares to mom 6 years later.



20

I did everything in my power to convince the Government agents
that they were making a huge mistake and that mom was not a
criminal. To them, that didn t matter. Since they could seize her
property, they did. An agent said to me, when I first took this case
to my boss, he said not even to mess around with it, that it was
just another stupid marijuana case, until I showed him how many
assets we could get.

I spent many, many cooperative and truthful hours trying to con-
vince them that this was insane and finally realized it would cost
me more going to trial than her properties were worth. I eventually
made a settlement with them, and Mom got to keep a little of what
she worked her whole life for. They took most of it, including her
dignity and love for our Grovemment.

I am here for a mother — for my mom and our country. It is too
late to help her case, and I had the Government sign a paper that
they can never bother her again. I want to make sure that they can
never do this to another mother with a bad kid.

I have been on this crusade since I saw a Reader's Digest article
in 1992 entitled "Is It Police Work or Plunder?" about nationwide
forfeiture abuse and Congressman Hyde's effort to reform this law.
I bought a computer, joined an on-line Internet service, and have
been E-mailing thousands of unaware citizens to educate them
about this barbaric civil forfeiture law. Nobody thinks it is right
when they learn how it is used.

One prosecutor told me, citizens don't need a proof provision.
Those in charge of a case are perfectly capable of determining who
is guilty. That statement, I was told by a constitutional law profes-
sor, is a definition of tyranny.

I love the America I knew growing up in the 1940's and 1950's,
and I am scared to death of the police state this country could be-
come with more and more laws allowing forfeiture. It has to stop.
Our Founding Fathers put their lives on the line against tyranny
and cavalier attitudes. In my opinion, no real or personal property
should be forfeited except in criminal cases. Eliminate this ridicu-
lous, insane, corrupt law or rewrite it to include proof, fairness and
compassion. It is ruining people's lives and is just another national
disgrace.

Thank you.

[The prepared statement of Mr. Cutkomp follows:]



21

Prepared Statement of King Cutkomp

I sincerely appreciate this opponuoity to speak to you in person about my mother's expenence
with the abuse of our national civil forfeiture law, a law which ignores due process, encourages
abuse by police and prosecutors, confiscates property from innoceot law abiding citizens and
threatens our sacred honor with the tyranny of « police state. My mother is an 85 pound. 75
year old hardworking frugal lady, who chose to squirrel away any extra money she had rather
than buy herself any of the things most people consider itecessities. Although she has bought a
few residential rental properties, she still tears Kleenex in half to stretch her money, and settles
for eating half sandwiches rather than run up her grocery bill. She has never taken a vacation or
missed a day's work in the business, but neither has she ever been to a shopping mall. She's
always lived as though the next Great Depression would happen any day. By 70, she managed
to save around S70.000 which she kept in her house because her Depression experience taught
her not to always trust banks

In December of 1989. the U.S. Government came to my mother's home and took her savings
from a floor safe in her basement. Three months later, they seized her home and two rental
properties she owned. You need to know my innocent mother was never charged with a crime,
and the police acknowledged she was never pan of my brother's marijuana ring conspiracy.
Mom's biggest sin was allowing the adult son she loved to live next door to her. After my
brother was indicted, he fled towa The government suspected she PROBABLY had allowed
him to use her property illegally, and PROBABLY been given cash earned by him illegally. As
you know, asset forfeiture laws only require probable cause to seize property.
Once property has been seized it is the owner's burden to prove innocence to the government.



22



When this happened to Mom, I thought "innocent until proven guilty" would apply in her cose
and she would immediately get her cksh back Trusting the government. I didn't even hire an
attorney then for that matter I soon learned later that under the Constitution a citizen isn't
afforded innocent until proven guilty in civil forfeiture cases. She wasnt considered innocent
and the government didnt have to prove anything.

The S70,000 they took from mom was mostly old bills dated from the 60's and 70'$ and was
covered with mold and mildew. The safe was rusted shut and had to be drilled open. Tragically,



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 2 of 37)