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 26 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 26 of 37)
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S2500. Vlr. Perrv' had to take out a loan to be repaid at a rate of S 1 55.63 a month. '

Finally, the lucrative business of asset forfeiture has created a strong temptation for law
enforcement officials to pursue assets at the expense of pursuing convictions The extensive use of
civil forteiture by federal and state law enforcement authorities has led to the confiscation of billions
of dollars in drug assets All of the money and propertv' seized by state and federal officials is



' Sce.c.:. SteveBem & JeffBraz:: /wiiicii i\i^ln>r hi^v \/«wr ' ORL.WDO SEMINEL, June U. '•3^:. nt A-

I. 'iiiftia noie .'v see also ^tli Mimnc^ Yon i\- I luLr Anc\i tCBS teleMsiiin broadcast. .Apr 5 I'^'^^i

' ( /rei:i'nutii. June 2'^. I '■'"30. p D-J

' I'SA f,H.hn. May IS. l'>9:. pp. i A. 7A



272



deposited back into the budyets of the seizing agencies. What onginalK was seen as a means or'

tbrcint.' cnminals to pay for their own apprehension, has become an mcentne for local, state and

federal officials to seize properr.- to auction justice to the highest bidder. As a result, major druL'

dealers are allowed to baner their way out oflengthy prison terms by prosecutors who ha\e become

preoccupied with huge sums of money to be obtained from drug forfeiture assets Conversely, low

le\el druL' users, with no assets or information to swap, are exposed to the full wrath of the harsh ;,

drug laws. specitlcalK designed over the past decade for the worst drug offenders Last fall, mo ■

reponers from the Hiision dlohc uncoxered the distressing truth about this practice in action m

I
Vlassachusens The\ compared the distinctlv different experiences of Rachel .Ace\edo and Stephen

I
Fenderson Rachel Acevedo. a 2^-year-old mother of three, is currently serving a ten \ear mandaion ^

sentence, without the possibility of parole. She was prosecuted along with her former boyfriend for

selling four ounces of cocaine to an undercover drug officer. The boyfriend fled before tnal, leaving

Ms. Acevedo the lone target for the prosecutors. Stephen Fenderson, on the other hand, had his

home raided by police, where they found 23 bags of cocaine, a loaded illegal shotgun, ammunition.

and other drugs hidden throughout the house. All tolled, these offenses would normally subject him

to a mandatory sentence of fifteen years in pnson. This did not occur Mr Fenderson forfeited

S425.000 in drug money, and is a free man today after serving only 2 Vi years." It seems that cnme

does pa\ if you can actually afford to pay



' Dick I.ehr .v Bnice Biiiiertieid. ^nnill-lf-ncrs i ,ci Hurt/ ! imc THE B()STO\ GLOBF. Metro p I (September ;

100>l



273



REFORMING CIVIL ASSEST FORFEITIRE: ANALYSIS OF H.R. 1916

To be sure, the abuses discussed above clearl\ make the case for civil asset forteiture reform
The current law of civil forfeiture borders on the Medieval: it allows law enforcement authonties
full discretion to confiscate any and all cash and property based upon mere suspicion of wrong
doing; owners of such money and property are not entitled to appointed legal counsel: unjust
procedural barriers such as an unreasonable short time limits to contest a seizure and the requirement
that a propert\' owner post a bond in order to contest the seizure often times bar recover\'; and the
uncharged and completely innocent are presumed guilrv in coun because the burden of proof is on
the individual whose property is being seized. H.R 1')I6. the Civil Asset Forfeiture Reform Act
represents a beginning in the reform of these civil asset forfeiuire laws.

Possibly the most important provision in H.R. 1916, places the burden of proof on the
government to prove that property it has seized was subject to forfeiture by clear and convincing
evidence. Under current law, the government is simply required to meet its low standard of proof -
probable cause that the property is subject to forfeiture - then the burden shifts to the property owner
to prove either the "properties innocence." or that the owner did not know and did not consent to the
property's illegal use. " The governments probable cause burden, in reality, means only slightly
more than a hunch and far less than what is necessar> to prove guilt in a criminal coun It is
commonplace to have a seizure and forfeiture of money and property based solely on hearsay
"evidence" that is deemed too unreliable to be admissible in most other judicial proceedings These



' This .standard has been adopted in New York and Flonda .Vv. N Y Ci\ Prac L & R Section 131 l(3MMcKinney
Supp I0Q4 ). Depanmeni of Law Enforcement \ Real Propenv . 58S So :d "57. 067 (Fl lOQU
'" This IS commonly referred to the innocent owner ' defense uhich requires the owner of seized property to carrv'
the burden of proving that she did not know and did not consent to the propenys illegal use 2! U S C Sec 881(a)



274



burdens, easy on the gosemment, hard on the propert\ owner, often result in the seizure of propert>
owned by one auainsi whom the government cannot suppon a cnmmai charge An owner can onl\
overcome this presumption by proving that he had no knowledge of the illicit activity or did not
consent to that activity That is, the owner is required to prove a negative. H.R 1916 corrects this
unfairness by simply restoring fiindaniental due process for property owners by changing these unfair
evidentiary rules

Section eight of H.R. 1916 offers a clarification of the 'innocent owner" defense. This
provision specitlcally provides for the protection of owners from civil forfeiture who neither knew of
the cnminal misuse of their property nor consented to the illegal activity. Although under this
codification, an innocent owner would still have the burden of proving his ignorance or non-consent,
the ACLU believes this provision would provide additional protection for innocent property owners
and insure uniform enforcement of the forfeiture laws.''

H.R. 1916 also provides for the appointment of counsel for indigents. Section five allows
indigent property owners the opportunity to obtain court-appointed counsel to assist them throughout
the forfeiture process. Since the civil forfeiture system can be as punitive as the cnminal system, it is
essential that those exposed to either system receive legal counsel to protect their nghts and libenies.
The ACLU believes that this provision is absolutely essential in order to insure that individuals can
avail themselves of the other reforms contained in H.R. 1916 designed to protect their property rights



' ' Eighty percent of the people who lost property to the Federal szovemment were never chargea with a cnme
■"Government Seizure \ictimize Innocent." I'lllshiirgh l'res\. August II. IWl

'■ The Supreme Court s recent confounding decision in Bennis \ Micnman . 1 16 S Ci W4 ( |oom emphasized the
importance of the innocent owner defense Despite acknowledging that Ms Bennis lacked an\ knowledge that her
husband had used their jointh owned automobile to engage in cnminal sexual indiscretions with i prostitute, the
Court permitted ihe forteiture of the automobile



275



and liberties Indeed without the right to counsel, the other retbrms ha\e less impact on ret'orming
the system.

The ACLU also supports the provisions in H.R. 1916 that improve the unfair procedural
obstacles that make it difficult to contest forfeitures. First of all. section three of H.R. 1916 extends
the deadline to contest a government forfeiture from as little as ten days to thirty days. Although we
would prefer a longer penod of time,' this provision impro\es the extremely short time penod
currently in effect; thus, reducing the chances that a claimant will miss the deadline for filing a claim
to recover his propen\-. In addition, the Act also eliminates the need for an owner to pa\ the cost of a
bond in order to file a claim. The government has smctly enforced these requirements, and has
permanently deprived owners of their property for any slight non-compliance with them. It also
would allow for the release of confiscated property if the seizure causes a substantial hardship on the
owner and a right to sue if confiscated property is damaged through governmental negligence.



' Chairman Hvde s previous Asset Forfeiture Retbrm \c\. H R 241". provided tor a sixiv dav time penod tor t'llinu
a claim This would be a preferable time penod



276



THE ACLl SUPPORTS ADDITIONAL REFORM MFAStRES

While the ACLU supports H.R. 1916 and urge its adoption, we belies e additional provisions
should be added to the bill that would fiirther curtail abuses and protect the ci\ il libenies of citizens.
Any future forfeiture reform initiatives should include the following measures:

• A person should be convicted criminally before the government may seize the propert>' involved.

• The government should be required to conduct an adversanal preliminan heanng pnor to
seizure.

• The standard ofproof to support a forfeiture should be be\ond a reasonable doubt

• There should be a proponionality requirement that only allows for the tbrteiture of propert\ that
is equal to or less than the cnme.

• The property seized should be limited to the items used to facilitate the cnminal enterpnse.

• Asset forfeiture proceeds should be turned over to the general fund to allow for the equitable
distnbution of the proceeds among governmental agencies.



277



CONCLl'SION

Civil forfeitxire as a whole stands outside the doctrines of due process and criminal
procedure. Despite the widespread use and misuse of civil forfeiture, it is an arcane legal doctrine
which exists merely because of its historical foundation and its fiscal advantage to law enforcement
agencies While promoted as a civil cause of action, its ramifications are more akin to the harsh
punitive aspects associated with the criminal system - without any of the important fundamental
constitutional protections for civil nghts and liberties This lea\es man\- citizens unprotected from
law enforcement's overzealous and unencumbered use of these laws The time is long overdue to
reform the unfair civil asset forfeiture system. As stated eariier. the ACLU believes that all civil
forfeiture schemes should be abandoned However, we do support H.R. 1916 and other meaningful
reform efforts which would mitigate the harshness of civil asset forfeiture and incorporate equitable
provisions and principles of due process which strengthen the position of a claimant when faced with
a prospective forfeiture. We believe that Chairman Hyde's proposal is a welcome and important first
step in this direction.

We thank you Chairman Hyde for the opponunity to present our comments to your
Committee today.



278

Mr. Hyde. Mr. Edwards.

STATEMENT OF E.E. (BO) EDWARDS III, ESQ., ON BEHALF OF
THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAW-
YERS

Mr. Edwards. Thank you, Mr. Chairman. It is a pleasure to be
with you today and I rehsh the opportunity to take a nibble on the
other side of the apple this afternoon.

There are a couple of comments that I would like to make, but
then I would try to turn my attention to the DOJ proposal and
offer you some thoughts and reactions from our side of the aisle,
as it were, to what the DOJ has brought to you in the last week
or so.

I think the proper way to approach forfeiture reform is to recog-
nize that forfeiture, modern civil asset forfeiture is not fought on
a level playing field. The laws and procedures as now written are
structured so the Government will win. There are pitfalls, dead-
lines, hoops you have to jump through in order to get into court to
get your case heard, let alone to prevail. So it is easier for the Gov-
ernment to win.

Unfortunately, that attitude has not diminished one bit. What is
going on in modern forfeiture is really not only inconsistent, but it
is anathema to the role, the high esteem which this country has
paid to the private ownership of property since its founding, and
in fact the vital role that it has always played to a democratic soci-
ety.

An argument could be made that as much as we like to stand
up for freedoms that are enunciated in the Bill of Rights, freedom
of press, freedom of assembly and speech, et cetera, if we didn't
have private property in this country we probably wouldn't be here
today with the structure that we have. So I think it is vital that
the fundamental tenets of private ownership of property be upheld,
and they are not consistent with modern asset forfeiture.

It needs to be recognized and it needs to be said that the imposi-
tion of forfeiture in America in the 1990s has its hardest impact
on the least of those among us, on the poor, on people who are not
able to afford a lawyer, on the weak, people who are afraid that
if they assert themselves against the government there will be re-
criminations, and upon minorities.

There are people who cannot leave Austin, TX, and drive to De-
troit without being stopped, and I am presuming that they observe
every motor vehicle law and rule of the road that exists. They
couldn't do it. Why? Because they would be stopped by a State
trooper before they got out of Texas, and they certainly wouldn't
make it across Arkansas. The deputy sheriffs wouldn't let people
go across Arkansas without a courtesy search. They might be
stopped because they were following too close, weaving a little, but
they would be stopped for the purpose of searching their car to see
if tney have some money. If they have money, it will be taken. If
they are white, it is going to be taken too, but the likelihood that
they are going to be stopped if their complexion is dark is substan-
tial.

It happens in Shelby County, TN, but it also happens in Grand
Rapids, MI, for example. In the West of our country the police have



279

a slang expression for a particular type of highway stop. It is called
"driving while Hispanic," and they make stops of Hispanic drivers,
and police and lawyers in the west coast States will confirm that.
They stop Hispanic drivers because they want to search the car to
see if they have any drugs or money, and if it is money, they take
it. Eagle County, CO, the home of Vale, CO, one of the most exclu-
sive ski resorts in the country, has been cited by a Federal judge
in Denver for stopping Hispanics routinely because they are His-
panic.

Then there is the problem that when someone who is not totally
innocent does something wrong, such as committing a drug offense
and loses a family car or home, spouses and children suffer as well.
It seems to me our society is much better served by punishing the
person who commits the crime by imprisonment than by taking
property upon which his dependents depend.

Now to this piece of work that the Justice Department has sent
over — I haven't thought about a movie that I saw a month or two
ago channel surfing one day since I watched it until today. The
thing that popped in my mind as I looked and listened this morn-
ing to the DOJ proposal was a scene from an old black and white
movie starring the Marx Brothers called "A Day at the Races."
There is a scene where Harpo and Groucho are standing outside of
a racetrack. A debt collector comes up and demands payment.
Groucho pulls a $5 bill out of his pocket and gives it to the man.
The man immediately sticks it in his pocket, and Harpo goes
around and picks his pocket and slips it back to Groucho. The debt
collector says, $5 is not enough. Groucho looks through a couple of
pockets, pulls out another $5 bill and gives it to the man. The debt
collector sticks it in his pocket and Harpo picks his pocket and slips
it back to Groucho. This keeps going on, and finally the debt collec-
tor happily walks away believing that he has collected $25 from
Groucho and he has nothing in his pocket.

The Justice Department magnanimously says we will agree to
change the burden of proof to a preponderance of the evidence on
the Government, but there are a couple of presumptions of evi-
dence we would like for you to include in your law while you are
at it.

All they are doing is taking from the right hand and giving to
left. Peter and Paul are going to wind up no richer or more in debt
than they started. In fact, there are provisions in the DOJ pro-
posal, it is like a supplementary appropriations bill. It has every-
thing that any law enforcement agency could want stuck in that
bill.

There is a provision called an investigative summons that would
make a little star chamber out of every U.S. attorney's office in the
country. Under this proposal, any AUSA who would issue a civil
summons to any citizen anywhere in the country and make that
citizen come to his office, it is done ex parte, the citizen would have
to sit down and answer his questions. The provision includes the
possibility of subpoenaing records so an AUSA could subpoena
someone from a thousand miles away to come to his office and
bring any record he wanted to demand that he produce.

That barkens back to the days before the founding of our Repub-
lic when things went on that were repudiated by the American



280

Revolution, and it is certainly reminiscent of the KGB and of simi-
lar institutions in other nations that we do not revere.

In short, the DOJ proposal is replete with every Christmas tree |
light the DOJ could think of, and I would suggest, and this is lit- I
erally how strongly I feel about it, I would rather keep what we
have on the books now than have your legitimate and laudable ef- ;
forts to reform forfeiture be demeaned by passing this bill, because '
it is not reform at all. ■

Now, to be sure, there are things in this bill that are consistent
and compatible with proposals that you have made, and that we
agree with. The problem is that DOJ wants to bargain. They don't
want to give any reform without taking some place else.

I think I should add, Stef Cassella is a friend of mine. We have
appeared on panels before and I have a very high respect for him '
and his intellect and his integrity. But he has a client: The law en- ,
forcement community. And the proposals he has made here in J
many, many instances are bordering on reprehensible.

Let me respond to a couple of things that were mentioned this j
morning. The cost bond, there is no reason to phase out the cost |
bond. It should be repealed today. It should have been repealed 1
yesterday. There shouldn't be a cost, a price of admission, to get j
in Federal court when it is the Grovernment that is trying to take
property that somebody already owns. It just shouldn't be. |

There is a modest filing fee when I go down to the clerk of my :
Federal Court and file a lawsuit. It is usually depending on the 1
tvpe of case, 60 or 70 bucks. That is fine. That is enough. And if j
the Government needs some sort of reparation in extraordinary
cases, if they have to dry dock a yacht or something, then I have '
no problem with a provision where they can go before a judge and \
show the judge that there is cause that there ought to be a bond, i
But the ordinary run-of-the-mill case, the property owner ought to
be able to go into court for nothing, or for a very modest filing fee. |

What I would suggest — they are concerned about frivolous |
claims. Well, my goodness, they are taking property from someone j
else that it belongs to before tney got it. Let's try it for a year or |
two and see how it works. And then if they can come back before
this committee and prove that there is a problem with frivolous
claims, then I will be very happy to second Mr. Cassella in suggest- i
ing some modification of the abolition of cost bond. |

This bill provides for a pretrial restraint of substitute assets.
That means if the Government believes they can prove that there
were some assets that were illegally obtained, but no longer avail-
able for the government to seize, after the case is over and they
have won, they have the right to go after substitute assets in the
hands of the property owner, but they don't want to wait.

Well, the amount of abuse replete in that proposal, I would
think, is obvious. But I can tell you from my experience what will
happen. They will try to seize every asset. If they have a target,
they think they know somebody is engaging in criminal conduct,
they will seize every asset they can find that that person owns
under the guise of being substitute assets for the forfeiture that j
has not yet occurred and then they will wait months, maybe even j
years, and then indict them. And in the meantime, these people are I
crippled, economically I mean, and far less able to defend them- |

i
»

1

1
f



281

selves and maybe, just maybe, the Government is wrong and they
really aren't as bad as guys as the Government thinks they are.

There is one thing — there are a couple of things that I would
urge the Chair to consider adding to your bill. One, I have dis-
cussed with Stef Cassella in the past and I don't want to represent
what DOJ's response is, but I don't think he thought it was a bad
idea, and that is to have a time requirement, such as 90 days — a
reasonable time — after a claim is filed for the Government to go
into court.

As it is now, once a property owner has filed a claim, property
has been seized and a claim is filed, there is an indefinite period
up to the 5-year statute of limitations that the Grovernment has to
file a complaint in a Federal court. And very often, the wait from
the time the property owner files a claim to the time the Govern-
ment files the case in court, so you have a court to go to, it may
be months and in some cases even years.

So I would propose, or suggest, that there be a 90-day time pe-
riod, after a claim is filed that the Government has to file a com-
plaint in the Federal court and if they don't meet that, or perhaps
go into Federal court and ask for an extension, I mean, sometimes
you get in a bind. It happens to private lawyers. It happens to Grov-
ernment lawyers. Then that's fine. Let them go into Federal court,
show cause why they should be given an extension, but there ought
to be a time limit.

Property is often damaged and it often deteriorates, especially
vehicles that are seized by the Government are invariably worth-
less when they are returned than they were when they were seized
by the Government. Cars sit out in open weather storage lots.
Boats deteriorate because the Government doesn't want to spend
money to maintain them and winterize them and so forth. There
should be provisions whereby property owners who establish their
right to property can get it back.

Then there is one other thing that I would like to ask the com-
mittee to consider. And that is making forfeiture cases in personam
cases after a claim is filed. As it stands now, when a forfeiture ac-
tion is filed, it is United States versus a parcel of land or a lot of —
$100,000 in currency and it stays that way. And courts sometimes
use the legal fiction that it is the property that has done wrong and
it is the property we are punishing to avoid the application of basic
fundamental rights that we accept in this country.

So my suggestion is that the committee consider, when there is
a case pending in Federal court, and in rem action against prop-
erty, and a claim is filed, allow the claimant to be substituted as
a party for the property so the case may start off United States v.
a Parcel of Land at 101 North Main Street, but after the owner
files a claim let it be United States v. John Brown, owner of that
parcel of land. Then it is an in personam action.

And if Mr. Brown, the property owner, has some rights, they can
be protected by the Federal court and this legal fiction that really
was devised at the time of the formation of the country in order
to get jurisdiction — because as we discussed this morning, the little
federation we formed back in 1776 couldn't hold on to those ships
that were owned by the East India Co. and so on, the Dutch and



282

the English and the French, if they didn't grab the boat and keep
it.

Well, it is fine for the Government to use that to get jurisdiction,
to get into court. But consider making it an in personam case, just
like all the other cases in Federal court, once a claimant files, and
some of the mischief that has been done in modern Federal forfeit-
ure will end.

And then the final thing, the one thing that would change the
complexion of forfeiture more than anything else is to have for-
feited property or the liquidation, the money received from liquida-
tion of forfeited property, go into the general fund of the United
States or of the State or of the local government.



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 26 of 37)