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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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 4 of 37)
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to forfeit his money. The only way he is going to correct this is by
going to an appellate court.

Mr. Hydp:. It makes a joke of due process, doesn't it?

Mr. KoMiE. It makes the "d" so small you need a pair of glasses
or a magnifier to see it.

Mr. Hyde. Is that your testimony?

Mr. KoMlE. I would like to summarize, Mr. Chairman, by saying
that we want to help you and the members of this committee in
any way, shape or form to bring about reform in an area where the
American public is unaware, except by your efforts, by your book
and the publication of the Pittsburgh Press, in an area where the
American public is largely uninformed about how insensitive our
courts are, in an area where there is no oversight of the people
making the decisions, in an area where there has never been a Jus-
tice Department official fired for making a mistake.

This is an area where there needs to be oversight, there needs
to be an active change in the law. And in our printed statement
we have made a couple of suggestions; require delivery directly to
the person who is going to be forfeited.

In one case, Mr. Bryant, he was walking through the Detroit Air-
port — and, by the way, you should know that the Government has
a program of paying off ticket agents who work for the airlines a
certain percentage of the forfeiture.

Anyone who shows up at the counter and pays cash, they imme-
diately call the DEA Task Force and say someone just paid cash,
this is the description of that person, grab them at the gate, and
the task force goes to the gate. These people have their property
taken and don't even get the letter delivered to them.

It is either published in USA Today, and 21 days thereafter the
money is considered forfeited, or the land is considered forfeited, or
the other opportunity is that they don't have to sign for the notice.
There is no requirement in the law that there be a registered letter
or summons issued to the person who is being forfeited.

Mr. Hyde. So the clock starts running on their statute of limita-
tions, their 10 days, and they don't know it?

Mr. KOMIE. Right. In Mr. Bryant's case, he was walking through
the Detroit Airport and they delivered the letter to his neighbor.
The neighbor thought she was doing him a favor by picking up the
letter and he didn't get it until after the 21 days had elapsed. And
so he had to go to Federal court, obtain an order from a Federal
judge setting aside the forfeiture, despite numerous attempts to get
the mitigation of the Justice Department, to mitigate the forfeiture
that had already entered and he even supplied a cost bond.

He had a postmarked envelope and a cost bond that he sent in.
They lost it and wouldn't even allow him to replace it. It is a ter-
rible situation. So we need to require registered mail or a sum-
mons. We need to require the Federal judges to hear motions to
suppress and prohibit summary judgment.

Summary judgment in the current state of the law allows the
Government to nave the magistrate make the whole decision and



33

the individual comine to court has no chance against that decision
because the two of them where not in the courtroom at the same
time the decision is being made. So summary judgment needs to
be prohibited in these types of cases.

We need to ehminate "contingent fee law enforcement" by requir-
ing that these monies either go to alternatives to sentencing, alter-
natives to incarceration and drug programs so these people don't
come back into the court system, the people who are charged with
crimes and convicted.

We need to leave to the States the question of the family farm.
By allowing the local police when they get caught doing something
wrong to call the Federal folks to bail them out is not good policy.
The local circuit court judge should be in charge of what is going
on in his own county and the marijuana-growing family farm
should be left to the local State law and the issues raised by the
ownership of the family farm by family members.

We think you should prohibit Federal courts from intervening
once a State court has obtained jurisdiction of the property. The
case books are replete with observations of sheriffs who once they
realize that they are losing in State court immediately call up the
Federal Government and nave them come in and say, here, take
the property to the Federal building, seize it and hand it over. And
that is not limited to Illinois. It happens in other places.

Mr. Hyde. What happens to the proceeds that are seized? Why
is law enforcement so zealous?

Mr. KOMIE. The answer to that is it turns out to be unappropri-
ated expenditures for police departments. In other words, every
government in the United States sits down every year and decides
how much their budget is for what they do. So much of that goes
to law enforcement. The chief of police has a budget that is ac-
counted for. These moneys go back to whoever is responsible for
bringing them to the attention of the Federal Government based on
a formula. And when they get that money they don't have to an-
swer to the city council, to the county board, or the State legisla-
ture.

Mr. Hyde. It is off budget?

Mr. KoMiE. It is off budget. That is why it is "contingent fee law
enforcement." It is in addition to the budget. That tank that they
wanted to buy last year to suppress civil disturbance, the county
board said no, that is a waste of money, we have one civil disturb-
ance once every 10 years; now they can buy the tank if that is what
they want.

Mr. Hyde. Thank you very much.

[The prepared statement of Mr. Komie follows:]

Prepared Statement of Stephen M. Komie, Secretary, Illinois State Bar

Association

Mr. Chairman and Members of the Judiciary Committee, the Illinois State Bar
Association is a private, voluntary association with more than 34,000 members and
growing with each law school graduation. The Association has provided professional
services to attorneys, referral services to the public, and education to attorneys, the
judiciary, and the citizens of Illinois since 1877. We are the oldest bar association
of practicing attorneys in Illinois. One of the touch stones of the Illinois State Bar
Association is to advise the General Assembly in Illinois and the members of Con-
gress on issues of public importance which bear upon the rights and liberties of the
citizens of our great country.



34

In that regard, the Illinois Bar Association wishes to salute Chairman Henry J.
Hyde for his leadership in tackling the issue of civil asset forfeiture. His book on
the subject, "Forfeiting Our Property Rights," may be used as a manifesto of the im-
portance of constitutional liberties, rights, and the rule of law. Chairman Hyde has
been in the forefront of the debate over reform of a system run amok. We are espe-
cially proud of the fact that Illinois lawyers are a part of providing a solution to
the terrible iniustices resulting from civil asset forfeiture. With Chairman Hyde's
leadership and followed by Representative Michael Patrick Flanagan, we are con-
fident this Congress will succeed in providing necessary reform for the protection
of the innocent.

Incidentally, Chairman Hyde has been an ISBA member for more than 37 years
and practiced law in the community which elected him to Congress. He is uniquely
suited to bring forth H.R. 1916 because he knows firsthand the treatment innocent
persons receive in the federal court. Today we stand in support of Chairman Hyde's
efforts and urge continuing reforms which surpass those currently set forth in the
Bill. For that reason we wish to bring to your attention the episodes of victims of
the zeal of contingent fee law enforcement. As you know, the framers of the Con-
stitution were very mistrustful of placing power in the hands of government and
were especially fearful of placing power in the bureaucracy. Our forefathers would
be shocked to learn that a person's home and property could be forfeited by the bu-
reaucrats with the blessings of the federal judiciaiy without a jury ever seeing a
witness or hearing any testimony. In 1789, George Washington and Thomas Jeffer-
son would have told you such a thing was unconstitutional. In fact, every person
to whom the United States Congress has built a monument and school children are
taught to revere would protest this affront to our fundamental Constitutional ten-
ants. However, since 1970, modem Americans have been confronted with draconian
forfeiture proceedings. We at the Illinois Bar Association, while supporting law en-
forcement, stand fast against civil asset forfeiture which fails to provide adequate
protections for the innocent and the guilty alike.

All Americans agree that the family farm has been an historic institution since
the founding of the republic. As members of the Committee know, family farms have
remained a part of the social fabric, contributed to the agricultural might of Amer-
ica, and have acted as a stable social institution for over 250 years. Many Ameri-
cans have left their farms to their children resulting in the operation of the farm
by one brother or sister on behalf of the non-resident family members. In Illinois,
for good reason, the Illinois General Assembly has never authorized the forfeiture
of the family farm for growing marijuana. Obviously, marijuana could be grown on
a large farm without the knowledge of the absent family members or could be grown
by a child without the knowledge of his parents. Certainly, the family farm as an
institution should be protected from seizure under those circumstances. Yet 21
U.S.C. 881 authorizes the seizure of real property regardless of the drug involved
or the quantity of the drug. So a family farm may be seized and forfeited for less
than 5 marijuana plants. This is ironic because the Midwest the federal government
had encouraged the planting of hemp for the production of rope for liberty ships and
for use by our Navy in World War II. Hence, marijuana grows without cultivation
in many parts of the Midwest. Therefore, there are many good reasons why the fam-
ily farm should not be forfeitable.

SEIZURE WITHOUT NOTICE

Steven and Suzanne Stout are joint owners of a parcel of property commonly re-
ferred to as 47 West 644 Route 30, Maple Park, Illinois. In actuality, this parcel
is a family farm of which Steve Stout acquired a half interest as a gift from his
father Paul. His sister. Holly Accardi, has lived on the family farm with her hus-
band Greg and their three small sons. Steve Stout and his wife Suzanne, and their
children live in Grand Rapids, Michigan. They would only come to the Accardi farm
over the Christmas vacation and occasionally on Thanksgiving. During these times,
they would sometimes hunt pheasant.

On September 15, 1992, members of the Illinois State Police raided the Accardi
farm. During the course of the raid, they entered the Accardis' farm without consent
to search or a search warrant and began to search the farm before they contacted
any of the owners. On the day of the nearing for the motion to suppress evidence,
the police of fleer produced an alleged consent to search form purportedly ^ned by
Gregory Accardi. This form was not in the file of the Illinois State Police. The form
was sent to the Springfield laboratory of the State Police. There, Jeanne Brundige,
a handwriting expert, employed by the Illinois State Police found Mr. Accardi's sig-
nature was a forgery. Mr. Accardi so testified as did a privately retained hand-
writing expert. Mr. Steven Kane. As the police were certain there would be difficul-



35

ties with their case in the state court, they turned the matter over to the Drug En-
forcement Administration Forfeiture Unit. Since they could not seize and sell the
farm by state law, they turned to the callous bureaucracy to take the family farm.

After this storm trooper raid on the Accardi farm, the Stouts never received actual
notice that their interest in the farm would be forfeited. An ex parte order was en-
tered in the Federal District Court for the Northern District oi Illinois authorizing
the seizing of the farm and other property on December 9, 1992. The Stouts received
no actual notice of this ex parte proceeding. The Stouts did not receive actual service
of the complaint of forfeiture of which was subsequently filed on December 14, 1992
under cause number 92 C 7906. The government instead chose to publish notifica-
tion in the newspaper the U.S.A. Today. The Stouts do not read this newspaper.

People like the stouts are deemed innocent owners under the statutes. Tney had
no idea that any contraband was present on the farm as they were only present on
the farm during the winter months when no marijuana was or could be grown. The
parcel of property has been in Steve Stout's family and he wishes to have the oppor-
tunity to pass it on to his children. To do that he has been forced to retain the serv-
ices of a Chicago lawyer and contest the ex parte seizure as well as the illegal entry
by the police to preserve his and his wife's claim as innocent owners. This has cost
him anticipated legal fees of up to $10,000.00 which is a great deal of money for
a young family. The property that the Stouts always viewed as a source of solace
and relaxation has now become a source of anguish and unforeseen expense.

The lessons to be drawn from the Stout case are notice of the proceedings and
the intended forfeiture should be delivered directly to the owner oi a property and
not published solely in U.S.A. Today. Secondly, the family farm shoula not be sub-
ject to seizure under these circumstances which place an ordinary citizen with little
resources against the federal government. A federal judge must have discretion to
appoint counsel to contest a lorfeiture and Chairman Hyde's Bill provides for ap-
pointment of counsel. We support this provision. Finally, for the small amount of
marijuana involved in this case, the Stouts have been subjected to several years of
court proceedings and a demand from the federal government to pay the federal gov-
ernment money to get their farm back or face the risks of trial. We hope this Bill
will be amended to prohibit seizure of family farms for marijuana and leave this
matter to the states consistent with their public policy.

MAILING NOTICE TO THE WRONG PERSON

Mr. Milton Bryan was walking through the Detroit Metro Airport. He was ap-

firoached by the Airport DEA Task Force. Mr. Bryan is a black American. He was
orced to produce identification and escorted by DEA Task Force members larger
than him to their office more of Chairman Hyde s and encourages its enactment.

grandma's bank ACCOUNTS

Michael Hershman, a bona fide druggist without a license, was indicted for his
drug business. Simultaneously, the government filed an asset forfeiture case against
every asset in the name of Hershman. Michael Hershman's grandmother, Rachel
Levine, had a savings account at Columbia Savings and Loan. The government
seized the account in 1990. The account represented the lifetime savings of grand-
ma. Fearing she would die. Grandma made Michael Hershman a beneficiary to her
account in tne event of death. The Drug Enforcement Administration was extremely
insensitive to grandma's estate plan. It took grandma three years and attorneys'
fees to get the government to release grandma's money forcing her to live on her
social security only. Grandma had no remedy or a federal judge to petition in order
to release the account before the trial of the forfeiture action. Once again. Chairman
Hyde's Bill provides for a release of property. We, the Illinois State Bar Association,
support giving^federal judges discretion to release property to innocent owners be-
fore the trial. Further, we request Congress state in the legislate purpose of the act
the need to protect innocent owners from draconian actions of the bureaucracy. Fi-
nally, the Bill should be amended to place mandatory time limits for hearing for
innocent owners. In no case should the government avoid a hearing for temporary
relief for more than ninety days.

LIFETIME EARNINGS SEIZED AND FXJRFEITED WITHOUT A TRIAL

Mr. Anthony Lombardo has owned a pizzeria which has supported him for several
decades. Purportedly, an arrested burglar claimed he was selling stolen property on
the back than a half-mile away from his boarding gate. There, they went through
his cairy-on luggage. They discovered $32,000 in United States currency but found
no drugs. The oincers insisted on taking the money and giving Mr. Bryan a receipt
for his money. He then caught his plane to St. Louis where he was met by ofiicers



36

who demanded to search his checked baggage. They discovered no drugs and sent
him on his way. One would think our kind federal government would send Mr.
Bryan notice they intended to forfeit his money. They did sent notice to Mr. Bryan
without restriction of delivery to the addressee only. Another person living in the
same housing complex signed for the letter and did not give it to Mr. Bryan until
too late. Upon receiving the letter several days late. Mr. Bryan post marked a claim
and posted a cost bond which was lost by the Asset Forfeiture Unit of the Drug En-
forcement Administration. Mr. Bryan though counsel contacted this unit and at-
tempted to replace the missing cost bond with a second cashiers check from his
bank. The Asset Forfeiture Unit refused to accept the replacement cost bond or the
good faith efforts of Mr. Bryan to contest the forfeiture of nis money.

Mr. Bryan filed a motion under Federal Criminal Rules of Procedure 41(e) to re-
turn his property. A federal judge had to vacate a decree of forfeiture due to the
absence of proper notice. According to the government it should not make any dif-
ference who they deliver the notice to if they live in the same neighborhood. The
lesson to be learned here is Congress shoulci require notice to be delivered to the
owner of the property just like any other civil proceeding or require the post Office
to deliver to the addressee (owner), only. Additionally, Congressman Hyde's Bill

£ laces the burden of proof on the federal government and not the claimant. Here
Ir. Bryan is being forced to prove the innocent nature of his money in federal court
with no burden to prove the money is derived from the drug business. The Illinois
Bar Association supports this reform steps of the pizza parlor. The Chicago Police
Department obtained a search warrant for the crime oi receiving stolen property.
The police searched the pizzeria and they find flour and pizza but no stolen prop-
erty. However, Mr. Lombardo kept his savings in a barrel. The police seized
$506,000.00 in United States currency in small bills. The police took the money to
the Police Station. Since they found no drugs at the pizza parlor, they called for a
dog to sniff the drugs. They claim the dog alerted to the presence of drug on cur-
rency. They then deposited the money in a national bank. They paid no attention
to the scientific research which demonstrates the money supply in the United States
is contaminated by the rollers in the Federal Reserve Bank System. On this evi-
dence alone, the (Jhicago Police justified the seizure of the money. Mr. Lombardo
had no criminal record and no history of investigations for drug activities. So Mr.
Lombardo comes to court in the Circuit Court of Cook County, Illinois. He filed a
motion to return his property to him. The Chicago Police, well aware of the con-
tinent fee law enforcement, authorized by 21 U.S.C. 881 called the Drug Enforce-
ment Administration Asset Forfeiture Unit. The United States filed a case in federal
court obtaining a warrant for the money although Mr. Lombardo was before a state
court judge attempting to obtain his property.

A week later a state court judge ordered the return of the money to Mr.
Lombardo. The government obtains an order from a federal judge requiring him to
bring the check given to him by the state court to the federal building and handed
over to the U.S. Marshall. This was only the beginning of Mr. Lombardo's travail
to obtain his property. The federal judge assigned to Mr. Lombardo's case refused
to give Mr. Lombardo a hearing on a motion to dismiss for lack of jurisdiction, on
a motion to suppress evidence seized, or on a motion to suppress evidence on the
grounds the application for the search warrant was a fraud, and granted summary
judgment in favor of the government without Mr. Lombardo and the judge ever lay-
ing eyes on each other. Mr. Lombardo was never afforded a contested probable cause
hearing as the court found the ex parte determination of a magistrate to issue a sei-
zure warrant was sufficient to avoid the requirement of a trial. It is clear Mr.
Lombardo got the least amount of due process our government could provide for
him. As we said earlier, the founders of our country would be shocked and saddened
to learn Mr. Lombardo's property could be seized and forfeited without a trial or
a judge ever holding a hearing in open court. The lesson to be learned here is that
a person can be stripped of their property without ever having a hearing a federal
court. This case was decided solely on the paper filed and not the evidence heard
by the court. Chairman Hyde's Bill takes a great step forward in shilling the burden
back to the government to prove by clear and convincing evidence the criminality
of the property. This will avoid the dire consequences suffered by Mr. Lombardo.
The Bill should be attended to prohibit summary judgment and require hearings on
motions to suppress evidence illegally seized. (Jases like Mr. Lomoardo's can only
erode the confidence of the American people in the federal courts, their justice de-
partment and their police agencies. Therefore, Chairman Hyde, we call upon you to
strengthen the procedures to protect the liberties and property ownersnip of our
people.

The Illinois State Bar Association encourages and promotes the enactment of leg-
islation which restores due process and protects the rights of the innocent and the



37

guilty alike. We stand ready to assist this Committee and its staff in the passage
of H.R. 1916. We wish to thank you for the opportunity to appear here today and
express our views. Please call upon us to assist you. We also ask that anyone inter-
ested in this issue and other legal issues contact us at our Internet address at http:/
lwww.illinoisbar.org. Thank you.

Mr. KOMIE. Thank you for having us. If we may be of any service
to the committee, please call on us.

Mr. Hyde. Thank you, and I am sure you will be.

Mr. Frank.

Mr. Frank. Mr. Chairman, I am delighted that you are taking
the lead that you are taking, and as I have told vou, I will work
as closely as possible with you to get this corrected. This is an em-
barrassment.

I was pleased in reading the Justice Department's testimony to
see acknowledgment from them that serious change is needed, but
that is long overdue. I gather we got a bill from them last week,
so the hearing may have already had some positive impact.

We have to legislate, and I would hope the administration would
put aside the kind of bureaucratic impulses we sometimes get and
join this. It is appalling what we hear.

I wanted to note and I was pleased to hear Mr. Edwards say that
he was compensated on behalf of Mr. Jones through the provision
of the Civil Rights Act that allows for attorneys' fees. I know not
all of our colleagues have been as supportive of that reimbursement
for attorneys bringing civil rights cases, and I am delighted to see
that this is a case where it worked well. It is a maligned provision
but a very important one.

A couple of questions because I am interested to hear from the
administration.

To Mr. Jones, and to Mr. Edwards, when they were, let me use
the technical term, harassing you, did they ever bring forward evi-
dence to suggest that vou had engaged in illegal activities other
than the dogs sniffing the money?

Was there anything they brought forward of any sort, Mr. Ed-
wards.

Mr. Edwards. No, sir. What they knew when they seized the
money was that Willie Jones was an African -American who had
bought with cash a round-trip ticket to Houston, that drug-source
city in Texas, and was flying under his true name. That is how
much they knew when they took his money.

Mr. Frank. Flying under

Mr. Edwards. His own name. Not an assumed name, but the
same name that was on his driver's license.

Mr. Frank. For that — that was all they had and all they ever
had. At no point did they adduce anything that suggested that
there was any wrongdoing of any sort?



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 4 of 37)