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The Ninth Circuit Court of Appeals has rejected Damon Louis’s appeal of a federal district court’s summary judgment for the government. The district court determined that Louis lacked standing to challenge the forfeiture action of the $133,420 seized from his rented automobile, after Louis was stopped for allegedly failing to use his traffic signal.   The Ninth Circuit Court of Appeals appears to have made several mistakes including citing inapposite passages.

Perhaps simply confused, the effect of the appellate court’s ruling would seem to create situations wherein private property can be permanently confiscated from private citizens who aver ownership interest unless they waive protections against self-incrimination and answer expansive interrogatories-without any adjudication on the merits of the seizure.   The framework would seem to permit the government to wield Article III standing challenges as a weapon designed to put the private citizen in the untenable position of having to sacrifice one constitutional right to maintain another.

  • Either it compels privileged information (by precluding citizens from exerting a constitutional right against compulsory self-incrimination -on pain of losing access to adjudicate actual violations of legally protected interests that are redressable by the court);
  • or, it forces the citizen to involuntarily cede property interest without adjudication (by precluding citizens from any access to the courts to rule on the impropriety of the taking-on pain of crimination).

The appellate court seems so untroubled by this result that it was willing to quote inapposite passages, ignore logic, and to jettison core constitutional principles to get there.

Yet, nothing-in the statutes or the supplemental rules-requires this result.

The court has gone out of its way to construe the statutes, supplemental advisory notes, and supplemental rules in a way that is abhorrent to the Constitution. It then sanctions the abhorrence.

That is simply terrifying.

To be deprived of something you must have it in the first place.

Damon Louis had property. The property was taken from him.

The seizure occurred after Arizona Department of Public Safety Officer Mace Craft executed a stop pursuant to an alleged failure to signal. Craft asked Louis if the vehicle contained large amounts of currency. The complaint indicates that Louis denied that a large amount of currency was in the vehicle.   Officer Craft asked for permission to search the vehicle. Louis declined.   Officer Craft indicated that he was going to have his K9 Unit Dog, Gabby, conduct a K9 olfactory search:

Officer Craft walked Gabby to the front of the vehicle and gave her the command   to search. Gabby began working around the vehicle in a counterclockwise direction. She worked   down the driver’s side before reversing direction. Gabby worked around the front of the vehicle and upon reaching the passenger side front tire, Officer Craft noticed a distinct change in Gabby’s behavior consistent with her working the odor of controlled substances. Gabby put her muzzle in the wheel well and immediately became very focused and excited. Gabby remained in this area and subsequently alerted by scratching. Officer Craft rewarded Gabby with her burlap toy and returned her to his patrol vehicle.   Officer Craft advised Louis of the positive alert and informed him that he had probable cause to search the vehicle.-June 5th, 2009 Verified Complaint For Forfeiture In Rem

Officer Craft searched the Louis’s vehicle. In the trunk, Craft found two boxes containing decorative rocks. A third box contained a set of knives and $133,420 in United States currency. No inherently illegal contraband was found. Officer Craft seized the cash and transported Louis to an AZ DPS office. A search of Louis’s person revealed a receipt for the purchase of a set of knives time stamped from earlier that day. The receipt appears to be a receipt for the knives found in the trunk of Louis’s rental.   The officers conducted a second K9 olfactory search at the AZ DPS. The Complaint states that Gabby, again, appeared to give a positive alert for the currency.

Upon arrival at the AZDPS office, Officer Gerard removed the three boxes from   the trunk of the vehicle driven by LOUIS and placed them approximately fifteen feet apart in the parking lot. Officer Craft removed Gabby from his patrol vehicle and gave her the command   to search. Gabby sniffed the first box and continued on to the second box. Gabby placed her   muzzle in the seam of the second box and immediately became very excited and began biting   and scratching at the second box. Officer Craft rewarded Gabby with her burlap toy and   returned her to his patrol vehicle. The box Gabby alerted to the second box which contained the U.S. currency.-June 5th, 2009 Verified Complaint For Forfeiture In Rem

Louis was detained and questioned. Louis refused to sign any forms disclaiming ownership of the currency. The officers released Louis-less his cell phones and $133,420 in US currency.

 

So at this point, you have a search and seizure on a probable cause theory. The complaint implies that the search failed to turn up what it was looking for…i.e. the dog did not find what it was supposedly trained to find. Additionally, it did not find what the complaint alleges that it was being used to find.   Officer Craft employed the dog to conduct a search for drugs. No drugs were found. The dog found the currency. They repeated a test and the dog, again, found the currency but no drugs. So, unless they were searching for currency, their search did not find anything that it was particularized to find. One could argue that since the dog gave a positive “drug” sniff to the currency; the currency is, at minimum, seizable evidence on the theory that it had drug residue. That is a theory. However, more than 80% of publicly tendered US currency has drug residue. It is not reasonable to permit the seizure of currency that has drug residue, because it has drug residue, in a country where more than 80% of the publicly tendered currency has drug residue. We would not have any workable system for publicly tendering currency. The currency would be worthless. Further, the frequency of drug residue and the frequency with which currency is tendered would seem to defenestrate any scienter theory-absent some other showing.

In any event, Louis has a plausible arguments to make challenges concerning the taking of the currency. It might not win, but it should be litigable. If he wants to invoke the Fifth Amendment protection against self-incrimination, he needn’t rely on any of his own testimony to make arguments concerning harms that are ordinarily justiciable.

Relying only the government’s in rem complaint, Louis can show many things.

The police searched Louis’s rented automobile without his permission. The police seized $133,420 and the cell phones that were in his possession. They handcuffed him. They detained him. They questioned him. Louis refused to sign a form disclaiming ownership of the currency. The police found the currency stored in the trunk of his rental, in a box which also held knives for which he had a receipt. The receipt was taken from his person. The police search of his vehicle did not reveal any contraband. The dog was supposedly trained to search for drugs. It was supposedly searching for drugs. It found no drugs. It found currency. The police repeated the exercise outside of the vehicle and the dog again found currency but no drugs. The searches, seizures, detentions, and initiation of forfeiture action were directly caused by police conduct. The in rem complaint also states, “[o]n March 9, 2009, Damon J. Louis, through his attorney David M. Michael, filed a claim for the defendant currency with the Drug Enforcement Administration.” The government’s in rem complaint establishes that these actions took place independent of any entered testimony by Louis.

The court could, if so inclined, redress the situation with a favorable judgment to Louis (returning the currency, fees, and possibly awarding damages). Louis is the party that had his rights most violated. And, the court is in the best position to make Louis whole again. That a regulatory, statutory, and judicial process exists to process such claims implies that this would be the best avenue to handle such claims.

Louis filed a claim for the currency on March 9, 2009. The government initiated an in rem civil forfeiture proceeding on June 5th, 2009; pursuant to 21 U.S.C. §881(a)(6) and 18 U.S.C. § 981(a)(1)(C). In August of 2009, Louis filed a verified claim. Louis’s verified claim stated, “[t]he undersigned hereby claims an ownership and/or a possessory interest in, and the right to exercise dominion and control over, all or part of the defendant property.”

In October, 2009, the government served Louis with a series of special interrogatories, document production requests, and admission requests-pursuant to the Federal Rules of Civil Procedure and Rule G(6) of Supplemental Rules for Certain Admiralty or Maritime Claims. The requests sought “information and documents relating to Louis’s identity, his claimed interest in the defendant property, his manner of acquiring that interest, his sources of income, and his and the currency’s relationship to drug trafficking.”

Louis asserted that he had litigable interest in the property. Louis asserted that the property was taken without probable cause. He made a motion which would compel the adjudication of the establishment of probable cause. In response to the interrogatory questions, Louis invoked Fifth Amendment privilege against self-incrimination in answering questions beyond confirmation of his identity (addresses, telephone numbers, names, identity numbers, et cetera) and a direct statement about his relationship to the property: “Without waiving said objections, my interest in the defendant property is as the owner and possessor of said property, with a right to exercise dominion and control over said property.”

He has provided two answers to his identity and to his direct relationship to the property:

  • “The undersigned hereby claims an ownership and/or a possessory interest in, and the right to exercise dominion and control over, all or part of the defendant property.”
  •  “Without waiving said objections, my interest in the defendant property is as the owner and possessor of said property, with a right to exercise dominion and control over said property.”

 

Neither excludes the other. However, the government and the courts have put a lot of emphasis on the differences.

Louis has, otherwise, invoked his Fifth Amendment protection against compulsory self-incrimination.

The first statement was on his claim. The second was included in a response answer to the special interrogatories.  The government argued that both statements were inadmissible. They argued that the claim was facially deficient under Supplemental Rule G(5). The courts did not rule on this because they did not have to do so. The government claimed that they could move to strike the second statement as inadmissible because Louis would be using privilege as a sword and shield-if he were allowed to submit testimony but hide behind Fifth Amendment privilege in not answering its interrogatory questions. The district court agreed. The response was struck. The government then moved for a summary judgment of dismissal for lack of Article III standing. The district court granted. Louis appealed.

 

The Ninth Circuit Court of Appeals held that the district court did not err:

  • in striking Louis’s interrogatory response claiming ownership of the property; nor did it err
  • in determining that the remaining evidence was inadequate to establish that Louis had sufficient standing to survive the government’s motion for summary judgment to dismiss his claims.

 

The Ninth Circuit Court of Appeals, inter alia, rejected arguments that

 

  • “the government’s interrogatories went beyond the scope of Supplemental Rule G(6)(a) and that [Louis] properly objected to them on that basis;”
  • “requiring [Louis] to answer questions about his relationship to the currency at an early stage of the forfeiture proceeding improperly shifts the burden of proof and requires him to “prove the merits” of his claim in order to establish Article III standing;”

 

  • “the district court’s decision to strike [Louis's] discovery responses was equivalent to making an adverse inference against him for failure to testify;
  • “that the district court erred by failing to consider his Fourth Amendment objections before striking his responses;” and that
  • “the district court permissibly struck his response to the government’s Interrogatory No. 2 to prevent him from improperly using the Fifth Amendment privilege against self-incrimination as both a sword and shield.”

An application of the ruling would threaten to permit the government to seize your property-absent any compelling reason-and then demand that you answer probing interrogatories- that might, perhaps, turn up something useful-on pain of depriving you of your property-before any probable cause has been established by adjudication. And you would have no standing to petition the redress of your grievances unless you waive a core constitutional right.

That is what appears to have occurred in this case.

That seems facially offensive to the First, Fourth, and Fifth Amendments of the U.S. Constitution (it is offensive to other core protections and tenets, as well):

  • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. Constitution, Amendment I
  • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Constitution, Amendment IV
  • No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. Constitution, Amendment V

 

This case involves someone’s effects that were involuntarily searched, without a warrant, on a theory of probable cause that has never been adjudicated. Property in his possession was involuntarily seized from his effects, without a warrant, on a theory of probable cause that has never been adjudicated. The courts have ruled that the adjudication of his complaint (a key component of the due process of law) is precluded unless he waives a core constitutional right (protecting against compelled self-incriminating testimony). His right to petition redress of his grievances (his right to pursue a claim for the deprivation of property without due process, adjudication of the reasonableness of the search and seizure) are, in this case, conditional to the waiver of his right of a core constitutional right (protecting against compelled self-incriminating testimony). Property that he claims is private and in of his dominion (and that was seized from his private property) will be taken for public use without compensating him for the loss (If anyone has a right to petition a redress of grievances for the taking of the $133,420 for public use without any compensation (just or unjust), he would seem to be the party most affected).

 

The government invites a world where law enforcement can seize your property- including the cash out of your wallet-if they know that you would be unwilling to submit to full disclosure to their expansive special interrogatories. If the property owner is unwilling to submit to expansive disclosure, his only safe property is property with clear title or external corroborating evidence. Likewise, they encourage a world where they can seize your property to compel you to answer their expansive special interrogatories.

The government is making the individual choose which constitutional rights they want to retain. And these courts are sanctioning this behavior. If the courts think that this is the only possible result (and it is not), they should discard the intolerable mechanisms or find accommodation.

The Supreme Court has often spoken against attaching a penalty or deprivation of benefits to the invocation of the Fifth Amendment’s protection against self-incrimination unless the claimant is offered immunity. There is nothing in the court record to offer that Louis was offered immunity if he answered the special interrogatories. Even in cases where the Supreme Court has minimized the protections of the Fifth Amendment by clarification, it has still stressed that targets of investigations cannot be compelled to waive protections against compulsory self-incriminating testimony unless they are offered immunity.

Nor can the Ninth Circuit’s approach be reconciled with our case law. It is well established that the government may compel witnesses to testify at trial or before a grand jury, on pain of contempt, so long as the witness is not the target of the criminal case in which he testifies. See Minnesota v. Murphy , 465 U. S. 420427 (1984) ;Kastigar v. United States, 406 U. S. 441443 (1972) . Even for persons who have a legitimate fear that their statements may subject them to criminal prosecution, we have long permitted the compulsion of incriminating testimony so long as those statements (or evidence derived from those statements) cannot be used against the speaker in any criminal case. See Brown v. Walker , 161 U. S. 591602–604 (1896) ; Kastigar , supra , at 458; United States v. Balsys , 524 U. S. 666671–672 (1998) . We have also recognized that governments may penalize public employees and government contractors (with the loss of their jobs or government contracts) to induce them to respond to inquiries, so long as the answers elicited (and their fruits) are immunized from use in any criminal case against the speaker. See Lefkowitz v. Turley, 414 U. S. 7084–85 (1973) (“[T]he State may insist that [contractors] … either respond to relevant inquiries about the performance of their contracts or suffer cancellation”); Lefkowitz v. Cunningham, 431 U. S. 801806 (1977) (“Public employees may constitutionally be discharged for refusing to answer potentially incriminating questions concerning their official duties if they have not been required to surrender their constitutional immunity” against later use of statements in criminal proceedings). By contrast, no “penalty” may ever be imposed on someone who exercises his core Fifth Amendment right not to be a “witness” against himself in a “criminal case.” See Griffin v. California , 380 U. S. 609614 (1965) (the trial court’s and the prosecutor’s comments on the defendant’s failure to testify violates the Self-Incrimination Clause of the Fifth Amendment). Our holdings in these cases demonstrate that, contrary to the Ninth Circuit’s view, mere coercion does not violate the text of the Self-Incrimination Clause absent use of the compelled statements in a criminal case against the witness.  Chavez vMartinez - 538 U.S. 760 (2003)

Conceivably there might be occasions where potential petitioners have to waive Fifth Amendment protections against compulsory self-incrimination. Those situations ought to be necessary. They ought to be extraordinarily rare. They should serve an overriding public interest that outweighs the repugnant nature of forcing someone to pay a penalty for a core constitutional right. Such occasions should only be resorted to when there is no better mechanism to address the constitutional crisis. Judicial strategy should not be structured to do more harm than good. And, the government should demonstrate a compelling reason for instituting such an offensive mechanism.

Application of the appellate court’s opinion is ripe for abuse; would encourage malfeasance; retard access to the courts; discredit the government; encourage citizens to avoid contact with the police-frustrating law enforcement aims; chill vindication of rights; and offend the presumption of liberty.  It is not an ideal solution.

There is no compelling public interest to adopt this policy. The public interests served already have mechanisms in place. They are satisfactory.  The government may prosecute someone for perjuring themselves and for obstructing justice. There is no rash of forfeiture claims being made with which the government cannot keep pace (and if there were, it would be more likely because the government is attempting forfeiture too often-which it is).

There is nothing to recommend this solution.

The path with the least friction is to simply let the claim proceed and prohibit the submission of any further testimony (Louis’s original claim stands as admissible)-unless Louis waives his Fifth Amendment protections against self-incrimination. Louis seems to have indicated that he wants merely to rely on the undisputed facts anyway. The intent to contest the claim, an oath or affirmation, and the material in the government’s Verified Complaint For Forfeiture In Rem provide sufficient material to satisfy the textual Article III case or controversy demands of the Constitution as well as Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992) :

 

First, the plaintiff must have suffered an “injury in fact” – an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not `conjectural’ or `hypothetical,’” Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” The party invoking federal jurisdiction bears the burden of establishing these elements….

When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depend considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.

Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992)

 

 

Instead, the appellate court seems incapable, or unwilling, to find sane accommodation. Even stranger, the texts that the courts rely upon give the courts leeway to avoid encouraging such a crisis.   Instead, the appellate court woos crisis without logic:

  • “Additionally, Louis argues that the government’s interrogatories went beyond the scope of Supplemental Rule G(6)(a) and that he properly objected to them on that basis. In other words, Louis invites us to interpret Supplemental Rule G(6)(a) narrowly so that his refusal to answer various interrogatories would not constitute an impermissible use of the Fifth Amendment. According to Louis, because a claimant can establish standing merely by asserting an interest in the property, and because the advisory committee’s note to Supplemental Rule G(6) limits the interrogatories to questions “bearing on a claimant’s standing,” it follows that Rule G(6) allows only questions regarding the identity of the claimant and the type of legal interest asserted. Therefore, Louis asserts, the rule does not allow the government to pose any questions about the circumstances in which the claimant obtained an interest in the property, and the government’s interrogatories here were well beyond the scope of Rule G(6)….
  •  Moreover, the advisory committee’s note to this rule contemplates that the government may seek information beyond the claimant’s identity and type of property interest, stating that when “the claimant asserts a relationship to the property as bailee, the interrogatories can inquire into the bailor’s interest in the property and the bailee’s relationship to the bailor.” Supp. R. G advisory committee’s note (subsection (6)).”

It might be appropriate to use the example of bailee if that were Louis’s claimed assertion of interest. However, that is not the issue here. The appellate court is permitting the striking of  “[w]ithout waiving said objections, my interest in the defendant property is as the owner and possessor of said property, with a right to exercise dominion and control over said property” due to a failure to respond further to the government’s expansive special interrogatories under the standard of supplemental rules governing bailees. The appellate court conflates-or confuses-the assertion of owner and assertion of bailee. Because someone would be incarcerated if you put him in jail, it does not follow that he is incarcerated.   The supplemental rules clearly distinguish claimants that are asserting bailee interest:

But the appellate court mocks causality and justiciability. The court’s logic demands that we punish now all those that would be guilty if they were to commit a crime. 5=1 because 5-4=1 That is insane.

  • Furthermore, Louis’s limited interpretation would make Supplemental Rule G(6)(a) superfluous because Supplemental Rule G(5)(a)(i)(B) already requires the verified claim to “identify the claimant and state the claimant’s interest in the property.” It is a “‘cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant.’ ” Spencer Enters., Inc. v. United States, 345 F.3d 683, 691 (9th Cir. 2003) (quoting Kungys v. United States, 485 U.S. 759, 778 (1988)).

Again, the court’s logic is flawed.

    Supplemental Rule G (5) Responsive Pleadings.

(a) Filing a Claim.

  (i) A person who asserts an interest in the defendant property may contest the forfeiture by filing a claim in the court where the action is pending. The claim must:

(A) identify the specific property claimed;

(B) identify the claimant and state the claimant’s interest in the property;

(C) be signed by the claimant under penalty of perjury; and

(D) be served on the government attorney designated under Rule G(4)(a)(ii)(C) or (b)(ii)(D).

 

Supplemental Rule G (6) Special Interrogatories.

(a)         Time and Scope. The government may serve special interrogatories limited to the claimant’s identity and relationship to the defendant property without the court’s leave at any time after the claim is filed and before discovery is closed. But if the claimant serves a motion to dismiss the action, the government must serve the interrogatories within 21 days after the motion is served.

 

Supplemental Rule G(5)(a)(i)(B) does indeed require that the claimant “identify the claimant and state the claimant’s interest in the property.”  That does not follow that allowing the government to serve special interrogatories limited to the claimant’s identity and relationship to the defendant property hold no purpose. The government can ask questions. The claimant can answer those questions or object to them. Louis answered some questions and that yielded answers that were not required information by Rule G(5) including aliases, past addresses, identity numbers. If the claimant asserts ownership interest then the claimant’s interest in the property might be the same as his relationship to the property but that need not be case.

As Richard J. Troberman (Chair or Co-Chair of the NACDL’s Forfeiture Abuse Task Force, 1991 to present) stated in a 2002 letter to the Rules Committee Support Office of the Administrative Office of the United States Courts, 18 USC § 983 d(6) defines  “owner” broadly.

Ownership interest is more than full dominion, full title, and full possession without any assignment of interest.

18 USC § 983 d(6) In this subsection, the term “owner”—   (A) means a person with an ownership interest in the specific property sought to be forfeited, including a leasehold, lien, mortgage, recorded security interest, or valid assignment of an ownership interest; and

(B) does not include—

(i) a person with only a general unsecured interest in, or claim against, the property or estate of another;

(ii) a bailee unless the bailor is identified and the bailee shows a colorable legitimate interest in the property seized; or

(iii) a nominee who exercises no dominion or control over the property.

 

There are all sorts of permutations where a claimant’s interest in the property might be different than a claimant’s relationship to the defendant property. That they could be the same thing is not sufficient reason to invent new powers for the government- or the property owner. Invoking a “cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant” is inapposite.

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4 Responses to “Scary Ruling From The 9th Circuit Court of Appeals: No Clear Title? Then Choose Between Your Liberty And Your Property”

  1. mitch says:

    Dumb it down a little for the kiddies like me. Unless this is a law review or you are litigating in print. too much info to kink to form my blog on an otherwiae important piece. Keep up the good work

  2. mitch says:

    should have been… Link to from my blog…

  3. [...] federal prosecutors still need to show probable cause to win a contested forfeiture attempt (if the claimant survives an Article III standing challenge). Until recently, a number of judges were persuaded by the Currency Contamination Theory: In a [...]

  4. [...] federal prosecutors still need to show probable cause to win a contested forfeiture attempt (if the claimant survives an Article III standing challenge). Until recently, a number of judges were persuaded by the Currency Contamination Theory: In a [...]

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