Heritage to host "Arresting Your Cash: How Civil Forfeiture Turns Police Into Profiteers"

U.S. Representative Tim Walberg (R-MI-07), the Washington Post's Radley Balko, and the Institute for Justice's Scott Bullock to discuss civil asset forfeiture and the need for reform legislation, including the FAIR Act, on Tuesday, July 29th, 2014, in the Heritage Foundation's Lehrman Auditorium. Event is free and open to the public. Registrants may also attend online through the Heritage Foundation's event portal: http://www.heritage.org/events/2014/07/civil-asset-forfeiture. The event, entitled Arresting Your Cash: How Civil Forfeiture Turns Police Into Profiteers, will be moderated by Andrew R. Kloster, a legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. 
 
Also, if you haven't already, please take a minute to let your members of Congress know that you support the FAIR (Fifth Amendment Integrity Restoration) Act through our write your member of Congress portal @ http://bit.ly/WHgWOF. As we have noted, the FAIR Act would introduce three core reforms to federal civil asset forfeiture practice: (1) it would eliminate most of the direct incentives driving asset forfeiture abuse by directing forfeiture proceeds to the Treasury department's general fund in lieu of the DOJ's asset forfeiture fund; (2) it would prevent state and local police from evading state laws governing the availability of civil forfeiture and the distribution of forfeiture proceeds (several states' police agencies, for instance, circumvent state laws directing forfeiture funds to education by having the DOJ adopt their forfeitures in a process called equitable sharing); and (3) the Act would increase the Government's burden of proof for a forfeiture, from a preponderance of the evidence standard to that of a clear and convincing evidence standard, the standard originally proposed for the Civil Asset Forfeiture Reform Act of 2000 by the late Henry Hyde.

MUSTANG Drug Task Force Hates Transparency, So Here’s A Big Serving

Earlier this week, I wrote about the NITRO Task Force's refusal to follow Missouri's open records laws. Today, another drug task force, MUSTANG, contends for the title of least transparent government entity in the state.

Preliminary documents indicate the Mid-Missouri Unified Strike Team/Narcotics Group (MUSTANG) Drug Task Force, which is administered by the Cole County Sheriff's Department, seized over $60,000 in cash last year and temporarily turned it over to the federal government, so they could utilize the federal equitable sharing loophole. Missouri's Constitution requires all proceeds from asset forfeiture to go into a revolving fund for Missouri schools, but instead, MUSTANG hands it over to the feds, who in turn give back up to 80 percent to MUSTANG to spend as they see fit.

In what is probably not a coincidence, the MUSTANG Drug Task Force charged more people last year with selling marijuana than with selling meth and heroin combined. In both 2012 and 2013, MUSTANG charged more citizens with selling marijuana than any other drug.

Yes, I know the charts aren't well formatted. They were pulled directly from this 2012 report and this 2013 report published by the Missouri Department of Public Safety.

Given these questionable priorities in 2012 and 2013, I was interested in what MUSTANG had been up to for the first half of 2014. All drug task forces are required to submit quarterly status reports, which include a breakdown of drugs seized during the quarter, with the Missouri Department of Public Safety (DPS). These records should indicate whether MUSTANG's trend of prioritizing marijuana over heroin, cocaine, and meth continued in 2014.

On Monday, July 24th, I filed a Sunshine Law Request for these documents with the primary contact listed for MUSTANG. My request included the standard language requesting advance notice of any records fees exceeding $10. The individual handling the records request informed me that their hourly rate is $25.89 but didn't state how many hours the request would require. Given the extremely limited nature of my request (three documents totaling 28 pages) and how easily the records can be accessed (the records custodian can print them from an online records program kept through DPS), I didn't expect the request to take more than a quarter of an hour to fulfill.

So I was rather surprised to receive an email from Betsy Rackers, the Administrative Officer of the Cole County Sheriff's Department, claiming I owed her $64.73 in research fees. Obviously, this was in clear defiance of my request to be notified of any fees exceeding $10, but more puzzling is how it could take two and a half (very expensive) hours to print out three reports?

Screen Shot 2014-07-23 at 10.44.25 PM

 In my reply email, I voiced objections to the lack of notice for the charge exceeding $10. (The entirety of our email exchange is available here). I also questioned how it could possibly have taken two and a half hours to respond to my extremely simple request, when other drug task forces have been able to provide these same records for free. She responded, in part:

Screen Shot 2014-07-23 at 10.49.38 PM

Here's the problem: Of the three reasons given for the charge (get the appropriate data, print reports, redact information) only one of these was potentially legitimate. She didn't actually "get the appropriate data" I requested; it was already compiled in the quarterly status reports submitted to DPS. I can believe that she spent hours redacting information from the documents. However, she was not legally permitted to redact that information, as it was all part of an open record and redaction is not in fact justified by RSMo 610.100.3.

One of the documents MUSTANG provided overlapped with a document I had already requested and received from DPS. MUSTANG redacted basic information about the function of the task force, including the number of agencies participating in the task force and where the task force funding comes from, which is not information that can be legally redacted under Missouri's Sunshine Law. What's more, MUSTANG claimed they took advice on what to redact in the documents from DPS, but DPS didn't even redact that same information themselves!

Screen Shot 2014-07-23 at 11.41.39 PM
Identical copies of the same quarterly status report. On the left: a report provided by the Missouri Department of Public Safety. On the right: the same report provided by MUSTANG, with significant illegal redactions.

Nonetheless, I was not willing to pay $70 to see records that should be available to the public for free, so I filed a second request for access to the records that had already been compiled in response to my request. In this request, instead of asking for copies, I asked for access to the documents for inspection (as required by Missouri's Sunshine Law) and was told they'd be available for viewing on Friday, July 18th.

Given the hostility exhibited by representatives of the MUSTANG Drug Task Force during our conversations via email, I carried an audio recorder into the public records inspection for my protection. When I arrived in the designated conference room at the Cole County Sheriff's Department, the requested records were laid out on a table for viewing. In a completely petty show of force, three representatives of the department were present to watch me read through their documents. As I took out my phone to begin photographing the open records, one armed officer interrupted and called out, "Hey, you can't take pictures!"

"Sure you can," I replied. "Haven't you read the law?" and continued photographing the documents. This was a blatant attempt by the officer to dissuade me from photographing open records that reflected negatively on the MUSTANG Drug Task Force.

 

[audio mp3="http://show-mecannabis.com/wp-content/uploads/2014/07/Cole-County-Sheriff.mp3"][/audio]

When I asked about the illegal redactions discussed above, the representatives of the Cole County Sheriff's Department became hostile and aggressive. They were extremely angry that I was questioning what had been redacted. One individual stated that they had taken advice on what to redact from an individual at the Department of Public Safety -- an individual who is not a lawyer and not qualified to give legal advice.

When I pointed this out, things became even more heated. Throughout the encounter, representatives of the Cole County Sheriff's Department and the MUSTANG Drug Task Force behaved in an inappropriately aggressive manor. Their conduct suggested an inherent hostility toward the press and free inquiry, and their actions had a clear "chilling effect" on the First Amendment rights of myself and anyone else that might desire to ask questions about the MUSTANG Drug Task Force. Additionally, their deliberate and illegal defiance of Missouri's Sunshine Law furthers concerns that the MUSTANG Drug Task Force does not operate under adequate levels of transparency or public oversight.

Finally, the documents that MUSTANG didn't want the public to see showed that, during the first six months of 2014, the MUSTANG Drug Task Force seized more marijuana than any other drug. I can't imagine why they wouldn't want the rest of us to know what they're up to.

If  you believe in government transparency, we need your help. Task forces like MUSTANG rely on the assumption that we won't have the resources to challenge them when they break the law and keep illegal secrets. Let's prove them wrong and show MUSTANG and all the drug task forces in Missouri that we are watching them. If holding these drug warriors accountable is important to you, please make a contribution here. 

P.S. Since MUSTANG seems so opposed to you knowing what they're up to, here is every record we've ever received on them since this research project began a year ago.

If you're interested in my other research on Missouri's Drug Task Forces, please check out these related articles:
Drug Task Force Priorities: Marijuana or Meth?
Law Enforcement Training vs Political Propaganda: The Fine Line
Saint Louis Police Attorney Denies Existence of Drug Task Force That He Represents
In Jefferson County, Drug Cops Run Wild
This Is Not a Drug Task Force: The Kafkaesque World of NITRO

-Aaron Malin is the Director of Research for Show-Me Cannabis. You can email him with questions or comments at Aaron@ShowMeCannabis.comSpecial thanks to Americans for Forfeiture Reform and the National Cannabis Coalition for making this research financially possible, as well as to Kelsey Smith for countless hours of research assistance.


Senator Paul has introduced a bill to reform federal asset forfeiture laws.

Reason reports that Senator Paul has introduced a bill (the Fifth Amendment Integrity Restoration Act) to reform federal asset forfeiture laws. The proposed legislation aims at (1) heightening the Gov't's burden of proof for a forfeiture to a clear and convincing evidence standard (the standard that the late Henry Hyde unsuccessfully pushed for in 2000's reform legislation CAFRA); (2) forcing state police to follow state laws governing forfeitures (several states' police agencies circumvent state laws directing forfeiture funds to education by having the federal Gov't adopt their forfeitures in a process called equitable sharing); and (3) directing forfeiture proceeds to the Treasury's general fund (eliminating the profit incentive for most federal agencies).

 


Texas town settles suit with 64-year-old cash seizure victim after revealing that 89% of its revenues came from fines and forfeitures.

The City of Estelline, TX has agreed to pay a 64-year-old woman, Laura Dutton, $77,500 in exchange for dropping her lawsuit against the small municipality. Among the allegations in Ms. Dutton's suit were claims of wrongful arrest, prolonged detention, and unlawful seizure.

In November of 2012, then Estelline Police Officer Jayson Fry stopped Ms. Dutton and her pickup truck, alleging that Dutton was travelling 11 MPH above the posted speed limit. In addition to citing Ms. Dutton for speeding, Officer Fry asked permission to search Dutton's truck. When Ms. Dutton refused permission, Officer Fry contacted Chris Jolly, the Police Chief of nearby Memphis, TX.

Police Chief Jolly showed up with a K9 unit.

The K9 unit then, according to Officer Fry, alerted to Ms. Dutton's truck. The officers subsequently searched Ms. Dutton's truck and found either $29,600 or $31,000 in cash, still bundled in bank currency wrapping. [If $31,000, which sounds more credible, given the other established facts, $1,400 of the seized currency appears to have 'disappeared' after Officer Fry seized it.]

Included in Officer Fry's report was the familiar cataloging of unverifiable elements used to support a finding of probable cause in currency forfeitures. Ms. Dutton, according to Officer Fry, was "nervous, made furtive movements, showed signs of deception and gave evasive answers when he questioned her" (Russell Anglin, Due Diligence, or 'policing for Profit'?: Woman Decries Seizure of Nearly $30K Cash, Amarillo Globe News, Jan. 21, 2013). Fry also claimed to have detected a “'strong odor of unknown origin' that he thought to be marijuana coming from inside Dutton’s Ford F-150 pickup" and from the currency (Id.).

Officer Fry then arrested Ms. Dutton and seized her currency, despite Ms. Dutton's objections that she had no involvement with drugs, and despite her claims that the currency was obtained from a recent real estate transaction. 

 
Ms. Dutton was held overnight, in the local jail, before bonding out.

To the credit of the local District Attorney's office, they refused to prosecute the case, agreed to drop the speeding ticket, and agreed to return Ms. Dutton's seized cash (or at least $29,600 of it), after verifying Ms. Dutton's story.

Ms. Dutton, understandably aggrieved, and probably still smarting from the missing $1,400, sued the City of Estelline, TX.

The City of Estilline settled after revealing (1) that it could not (or would not) produce record of Dutton's roadside interrogation; (2) that the City "had no written drug dog policy, no written arrest policy and no established forfeiture policy"; (3) that the City "maintained no written records of past searches or seizures"; and (4) that "traffic fines and forfeitures made up more than 89 percent of its gross revenues in fiscal year 2012" (Jim McBride, Estelline 'speed Trap' Settles Missing Cash Suit, Amarillo Globe News, July 21, 2014).

DC Class-Action Asset Forfeiture Settlement Approved for 1377 Claimants

Last month, Nick Divito at Courthouse News reported that:

A federal judge approved an $855,000 settlement of a class action accusing D.C. police of failing to return cash seized from suspects it then failed to prosecute.
Anthony Hardy and Donnell Monts brought the lawsuit in June 2009, challenging the district's "Forfeiture Statute," which allows police to seize all cash "allegedly related to a violation of the Controlled Substances Act."
The statute also requires the mayor of Washington, D.C., to give notice by certified mail. To retrieve their money, affected individuals must file a claim within 30 days. The district meanwhile has up to a year to file the civil forfeiture action.
Hardy $127 in cash was taken from him after his arrest in December 2006, while Monts said police seized $823 in cash from him after his July 2006 arrest.
The district allegedly "never provided notice of forfeiture of the money seized, nor brought a forfeiture proceeding within one year."

The opinion by District Judge Christopher Cooper (an Obama appointee) notes that claims administrators processed claims for 14% of the roughly 9759 class members affected by DC property seizure and forfeiture during this time period. Class members fell into two classes: failed notice, where the DC Metropolitan Police Department failed to send a notice of asset forfeiture outright, and jailed notice, where the individual was in MPD custody and unable to receive a mailed notice at their place of residence. This racket allowed the DC MPD to pull in $2,968,634 in asset forfeiture from the entire class of 9759 members; subtracting the value of the settlement, the DC MPD still clears over $2 million in illegally garnered forfeiture proceeds. 


Exporting Corruption, DOJ Looks for Lucrative Overseas Partnerships

Last month, the US Embassy in Pretoria, South Africa, announced that the Department of Justice was conducting a workshop to teach South African law enforcement the practice of civil forfeiture:

The United States Department of Justice (USDOJ), in partnership with the South African National Prosecuting Authority (NPA), is conducting an asset forfeiture workshop for members of the South African Police Service Directorate of Priority Crimes Investigations Asset Forfeiture Division. The workshop is on-going at the U.S. Consulate in Johannesburg, South Africa from June 24 - 27, 2014.

The four day instructor-led training workshop is sponsored by the United States Secret Service and structured to impart the best asset forfeiture practices that are currently being employed in the United States to disrupt criminal enterprises constructed through unlawful activity. It is estimated that over one billion dollars in assets are seized by the USDOJ yearly.

During the workshop, 55 SAPS and 10 NPA participants will learn to conduct an in-depth investigation and apply financial techniques and strategies to expand the scope of a criminal investigation through identifying and tracking assets for seizure and for forfeiture. The USDOJ Asset Forfeiture Program encompasses the seizure and forfeiture of assets that represent the proceeds of, or were used to facilitate federal crimes. The primary mission of the program is to employ asset forfeiture powers in a manner that enhances public safety and security. This is accomplished by removing the proceeds of crime and other assets relied upon by criminals and their associates to perpetuate their criminal activity against our societies. Asset forfeiture has the power to disrupt or dismantle criminal organizations that would otherwise continue to function if we only convicted and incarcerated specific individuals. Further, asset forfeiture programs are strengthened when nations effectively partner to disrupt transnational syndicates who commit crimes outside the borders of local law enforcement jurisdictions.

This is problematic for a number of reasons. First, civil forfeiture is a legal system associated with systemic civil rights abuses; exporting it to a Third World nation without a strong rule of law tradition is an open invitation to tyrants and despots. Second, civil forfeiture is anti-democratic, and allows law enforcement agencies in the executive branch to attain some degree of independence from civilian or democratic oversight. Third, foreign partnerships in law enforcement investigations allow the DOJ the ability to use worldwide NSA dragnet surveillance to find and acquire targets for asset forfeiture, particularly under the Foreign Corrupt Practices Act (FCPA).

The efforts of the DOJ to develop what is essentially an infinite revenue source through international civil asset forfeiture should be viewed with great skepticism by Congress, and should compel America's elected legislative leadership to reassert their fundamental "power of the purse" by ending the practice of allowing law enforcement to directly retain forfeiture proceeds.


Huff V. Reichert – Lessons in Asset Forfeiture

My name is Terrance Huff. I am a life long American citizen. While driving in these United States of America, I have been subjected to multiple “pretext traffic stops”.  A pretext traffic stop occurs when a police officer decides he doesn't like something about the way you or your car looks. The officer then locks his gaze upon you, looking for any menial excuse to pull you over so he can search your vehicle. If the officer can not find a reason to pull you over, a reason will be fabricated like “following to closely” or “weaving”. My last pretext stop forced me to say that enough was enough. This resulted in a landmark civil rights case. The following is a significant portion of what I learned during this case. 

On December 4th of 2011, My friend and I were targeted by a highway drug interdiction officer. His name was Michael Reichert and is under the employ of the Collinsville Illinois Police Department. As an interdiction officer, his job is to visually examine cars passing through his portion of highway. Reichert looks for indicators that could mean someone is a possible drug of cash courier. Finding a target is this is the first step in the highway asset forfeiture game and this is where our lessons begin. 

 How we were targeted by Reichert is mostly rooted in a program designed to catch drug runners that was initiated by the Illinois Highway State Police during the late 90's. The program entitled “Operation Valkyrie” was designed to teach awareness skills to drug police. These skills rely heavily on visual cues and recognition of traits that are common amongst known drug smugglers. Some of the traits (or indicators) include, older vehicle with new tires, two companions of the same sex, out of state license plates and driving in the right or middle lane, at or under the posted speed limit. We were traveling through Illinois, in a 2003 Chrysler. We were cruising the in the middle lane at 5 miles under the posted speed limit. The tires had been purchased 3 days before the trip. We are now on the side of the highway for “breaking our lane of travel”.  

If you have seen my film “Breakfast in Collinsville” you know what happens next. Officer Reichert wants to search my car based on his suspicion that is steming from a 12 year old cannabis arrest which charges were dismissed. Reichert will perform a well rehearsed song and dance that is designed into pressuring me into surrendering my 4th Amendment Right. He tries to trick me into giving up my personal amount of whatever drug I was carrying by claiming he's “not overly concerned” about personal amounts. I refuse to let him search. 

Reichert extends his song and dance into full blown roadside theater with the addition of a drug dog. Reichert claims his dog alerts to the presence of drugs but it conveniently happens off camera. We would spend a total of 55 minutes one the side of the road being searched from our pockets to the floor mats of my car before we were permitted to leave. 

After some research on traffic stops and watching every K9 video I could find I was sure that he dog alert, as well as the rest of the stop was bogus. A Google search of “Michael Reichert Collinsville Police” would solidify my resolve. It was known within the courts that Reichert had a history of questionable traffic stops. Reichert cases had been thrown out of court due to credibility issues and had a conviction for selling knock off Oakley Sunglasses. It was clear to me that I must expose this this road side piracy to the world.

With the help of Chicago lawyers Louis Meyers and Dan Kiss, our pursuit to expose this roadside jackassery would lead to a Federal Civil Rights Case. We also released a second film entitled “Lodging in Collinsville”.  In that film Officer Reichert admits to “wiping weed” on cars of unsuspecting motorists for “K9 Training” during his deposition. He also confesses the awareness that another drug dog down alert on the same car hours later due the residual smell. Theoretically this could be used to “set up” drivers for a search. Collinsville, as well most  other police departments in Southern Illinois, in the area are equal partners in an a “equitable sharing agreement”.  All police departments in this agreement share a portion of what they collectively confiscate no matter which department makes the bust or seizes cash.

After making our way through the Seventh Federal Court Circuit, we settled Huff V. Reichert at the urging of the court during a court ordered settlement conference on April 8th 2014 for $100,000. Huff v. Reichert is now precedent within the Seventh Circuit and can be used as a persuasive court argument throughout the United States.  The court affirmed that police officers have rules to abide by just like everyone else. If officers do not obey those rules, they can and should be held accountable. Huff v. Reichert is already being cited in other cases involving stops like ours. 

 Why did this happen in first place? What makes a highway drug interdiction officer so eager to pursue drivers and try so hard to search their vehicles? The answer is simple: Asset Forfeiture. The internet is filled with horror stories about confiscation of property and cash from motorists by highway drug interdiction officers, most of which are never charged with a crime. 

Many people in the United States unknowingly haul illegal drugs after purchasing used cars at auctions. In 2011 psychologist in California found $500,000 worth of cocaine hidden in the door panels of his used Chrysler Town & Country 15 months after he bought the car, when his car was in the shop having its brakes examined.

In 2002, a man in Artesia New Mexico purchased a car at a police auction. He would discover nearly 10 pounds of cocaine under his console when he went in to repair his emergency brake. 

In 2008, a man by the name Mike bought a used Pontiac from a car dealership in Georgia. Mike took his recently purchased vehicle into an audio shop to have a stereo system installed. Much to his surprise, the technician working on his Pontiac discovered bags of powder and crack cocaine concealed under the dash and in the steering column.  The drugs did not belong to Mike so he notified the authorities. The car was traced back to previous owner, a major car rental agency. It would be impossible to determine the origin of the cocaine.

I don't know if Mike really understood how much trouble he would have found him if he had been targeted by a highway drug interdiction officer. What if a guy like Mike had been traveling through another state in that cocaine filled vehicle? Let's say he had just withdrawn $3000.00 of savings and was going to purchase a camper. On the way to pick up the camper, he is stopped by a drug interdiction officer. Now this guy like Mike has a K9 alert to his vehicle. The cocaine is discovered by the officer. Now this guy like Mike is under arrest for a felony narcotics trafficking offense. His money is seized under, citing asset forfeiture laws and his car will soon follow.

A guy like Mike is stripped search and jailed. A guy like Mike keeps telling the police that he's innocent. The officers laugh because they hear that every day. The arresting agency phones a warrant into a guy like Mike's home county. His home is raided and all of his property seized. 

A guy like Mike will spend the next 15 months and $10,000 in legal fees trying to prove his innocence in two separate cases. Regardless of a guy like Mike's verdict, he's never getting his money back. If he is fortunate a guy like Mike walks away from this case unemployed and penniless. If he is found guilty, a guy like Mike could spend a decade or more prison. Both verdicts or any plea deal will result in a life ruined and a bank account emptied because a guy like Mike bought a used car that once was rented by a cocaine smuggler who had forgotten some of his load.

This brings me back to a guy named Mike who pulled me over in December of 2011. What if I unknowingly had drugs in my used car? I interviewed one of the nicest guys I have ever met for my film “Forfeiture in Collinsville”. His name was Bob Stahl. He revealed exactly what happens in Collinsville if you caught with drugs or cash. Bob was driving medical cannabis from California to Ohio. The cannabis was to be used to ease his dying father's suffering. A traffic jam would force him to take a single nights residence at a Motel 6 in Collinsville Illinois. 

The hotel clerks in Collinsville work with the police and are rumored to phone in license plate numbers of persons staying there to police dispatch. The police run the plates looking warrants. The Collinsville police also check the FBI criminal data base for all arrest records, regardless of disposition. If they find a drug arrest, the police in Collinsville will stalk the driver when he leaves the hotel and find a reason to pull them over. 

This happened to Bob. It cost him his real estate license, his business, his bank accounts in California, $10,000 in legal fees and $26,000 of his life savings. His father would die alone in a nursing home while Bob was fighting his court case in Collinsville and having assets seized over possession of a plant that is now legal in Illinois for medicinal use. Senseless. 

Asset Forfeiture laws offer terrible incentives for some police to do what they do. These laws create zealot police officers who froth at the mouth while chasing the high one can get from making a big bust. Andrew Hawkes, a top high drug interdiction officer, uses the pitch “Feel the rush of finding the Mother Lode!” to sell his interdiction books at http://highwaydruginterdiction.com.  

Hawkes is also a blogger for a police officer information website at Policeone.com. In his post “Legal weed and the future of drug interdiction” Hawkes affirms that the war on drugs is not about public safety at all. Hawkes writes “The only difference in the future will be that instead of arresting the mule for possession of 300 pounds of marijuana, you’ll arrest them for possession of 300 pounds of untaxed marijuana.” Straight from the horses mouth: The war on drugs is about MONEY.  As laws change, cops enforcing these fleeting drug laws are looking for new ways to arrest, imprison and extort American citizens. No one is safe from an officer who is addicted to chasing and arresting people. We need to be wary of drug police who suffer from “Arresting Madness...” It's unfortunate that a sensible of pursuit of public saftey doesn't offer the same “rush” these officers get  from busting people for victimless crimes or offer the same financial incentives as confiscating someone's cash.

The lessons learned: Asset forfeiture laws have criminalized possession of cash currency regardless of the monies origin.  Asset forfeiture laws and failed drug policy have created predatory policing for profit which is basically state funded highway robbery. Drug interdiction police, driven by bad policy, look for any means to peel away the layers of our constitutional protections. Some drug interdiction police will blatantly violate someones rights because they know it will cost money and time that most people dont have to fight it. Bad laws are used as a means of legalized extortion that often will leverage an individual's freedom, forcing the victim to surrender their assets even if the person has committed no crime. It's unfair. It's immoral. It's UnConstitutional. It's time to reform drug policy and asset forfeiture laws. It's time to legalize and tax cannabis. 

Terrance Huff is a civil rights activist, award winning filmmaker and actor.  He is currently shooting his next film, a feature length how-to documentary called “Blue Shakedown: How to sue a cop and get paid.” Terrance can also be seen in James Franco's “Child of God” which is scheduled to hit theaters August 1st 2014. 


Man loses $15K and mobile home in forfeiture settlement after losing suppression hearing, despite proving that he was innocent of the traffic violation that led to his forfeiture case.

The U.S. Attorney's Office for the District of Nebraska has agreed to a settlement with forfeiture claimant Hugo L. Soto. By the terms of the settlement, the U.S. Government will return $30,000 of the $45,000 that it attempted to forfeit from Mr. Soto. In exchange, Mr. Soto agreed to cease contesting the forfeiture of the remaining money and of his 2001 Itasca Suncruiser Mobile Home--an RV that Mr. Soto had purchased two years ago for $16,000. Mr. Soto also consented to bear his own legal expenses, mooting his request for an award for attorney fees and other costs conditioned upon substantially prevailing in his federal civil asset forfeiture case.

 
For Mr. Soto, those expenses are likely substantial. Indeed, in an attempt to suppress evidence resulting from the traffic stop that precipitated the confiscation of his mobile home and currency, Mr. Soto arranged for a civil engineer to demonstrate to the court, in a frame-by-frame reconstruction of the traffic footage, that Mr. Soto had not, in fact, committed the alleged traffic violation--a failure to travel 100 feet after signaling before commencing a lane change--that a Nebraska State Trooper used as the basis for stopping Mr. Soto. A process that sounds like a lot of lawyer time.

 
Unfortunately for Mr. Soto, however, whatever money spent on proving that he was innocent of breaking Nebraska's traffic laws appears to have been wasted.  While U.S. Magistrate Judge Cheryl R. Zwart agreed that Mr. Soto had not committed the alleged signalling infraction (she kind of had to as the Government's own expert agreed that Mr. Soto had not violated Nebraska's signalling law), she declined to suppress any evidence resulting from the errant stop. Magistrate Judge Zwart reasoned that either Mr. Soto's subsequent consent to a search of his RV purged the the taint of the errant stop or that the state trooper's mistake about whether a traffic violation had occurred was insufficient to warrant granting Mr. Soto's suppression motion.

 
That left with Mr. Soto with appealing Magistrate Judge Zwart's order, contesting the merits of the forfeiture, or settling for whatever sum prosecutors would concede. 

 
In other words, no good options.

 
An appeal married substantial risk (losing it all if the settlement offer disappeared and Mr. Soto lost) with further substantial expense (more litigation) and the continued detention of all of his money while navigating the appeal process (which could take years).

 
Accepting Magistrate Judge Zwart's order and fighting the merits of the forfeiture surely had some appeal. The Government had not introduced any evidence that Mr. Soto's cash or his RV were in any way linked to any illicit enterprise--let alone that either was used or intended to be used in the transportation, sale, receipt, possession or concealment of a controlled substance, as the Government's complaint alleged. Indeed, Mr. Soto had never been convicted of any drug crimes. Moreover, a search of the RV merely found the cash. Neither drugs nor drug paraphernalia were found on Mr. Soto or in his RV. True, the Government might have argued that a drug dog alerted to the cash. That could, however, be argued away. Repeated case studies have demonstrated that trained drug dogs alert to drugs and other things--like handler cues and other scents. On the other hand, continuing the fight meant, again, more expense and the risk of losing everything. Moreover, the fight would be fought against the backdrop of a legal system that overwhelmingly favors the prosecution. 

 
Mr. Soto chose to settle, getting back some of his money.

 
The remainder of the money and the proceeds from selling the RV will now be split between the agencies involved in the forfeiture. Approximately 20% (less costs) will go into the DOJ's Asset Forfeiture Account. Approximately 80% (less costs) will go to the Nebraska State Patrol for executing the seizure after the phantom traffic infraction. 

 
At the end of the fiscal year, the The U.S. Attorney's Office for the District of Nebraska and the Nebraska State Patrol will include the proceeds of the forfeiture in their drug forfeiture tallies. Both are likely to issue press releases extolling their successes in seizing money from drug dealers and how they are 'saving' the public money through forfeiture. Details of any questionable forfeitures will likely be omitted.

 

Connecticut Police Chief Association President Rejects Legislative Control of Forfeiture Revenues

Michelle Sullo at the New Haven Register has a good article last week on the use of asset forfeiture revenues in Connecticut. The whole story is worth reading, and Sullo concludes by highlighting a fundamental issue with the asset forfeiture system:

Eapen Thampy, executive director of Americans for Forfeiture Reform, based in Missouri, said there are thousands of recipients annually, with very little oversight or auditing to protect against inappropriate purchases like luxury items or trips.

Thampy expressed concern over how much control police have over how the money is spent, without consent from an outside municipal legislative body.

“Even if they are following the law, they are not necessarily using it for the best thing,” Thampy said. “Military grade equipment in a local police department is probably legal, but is it desirable? There is this conflict of interest because law enforcement gets to decide what they do with the revenue, rather than having it go through a system of checks and balances. We advocate that this money should go to a general fund, and a legislative body should appropriate it.”

Connecticut Police Chiefs Association President John Daly, who is chief in Southington, responded to the criticism by saying that the law allows for police to decide how the money will be spent.

“I would say that the way it is set up now, with the money being used for training and to enhance investigative skills, that is where it is well spent,” John Daly said.


A Day Late Is $99,500 Short Says U.S. Magistrate Judge

U.S. Magistrate Judge Laurel Beeler has denied a forfeiture claimant, Mr. Chike Okafor, opportunity to contest the forfeiture of $99,500, seized from Mr. Okafor’s luggage, because his claim was received one day after the deadline for filing a referral of his case for judicial forfeiture, despite a declaration, from his attorney, under oath, that the attorney FedExed the claim for timely delivery.

Mr. Okafor’s troubles began when DEA agents seized $99,500 from his carry-on luggage at San Francisco’s International Airport. The DEA then sent a letter of notice informing Mr. Okafor that the DEA intended to administratively forfeit his currency under the theory that the currency was suspected of having been used in or acquired from a violation of the Controlled Substances Act.

The DEA’s letter continued by providing Mr. Okafor with three options.

The first option was to do nothing, in which case the DEA would administratively forfeit his money

Option two was to file a “Petition for Remission and/or Mitigation.” Apart from requiring more paperwork, the second option rarely results in anything different from the first option. A Petition for Remission and/or Mitigation asks the agency that has declared intent to forfeit the property to either not forfeit the property or reduce the forfeiture. It is essentially a beg for mercy in the form of asking an agency to conduct an internal review of the forfeiture. Sole discretion to decide Petitions for Remission and/or Mitigation resides with the agency who wants to forfeit the property. Moreover, the agency is partially funded from the forfeitures it perfects.

The Government tends to favor options one and two, obviously.

The third option was to file a claim contesting the forfeiture.

In general, timely filing of a claim stops all administrative forfeiture proceedings.The claim, in a federal civil asset forfeiture action, if timely, is transferred to the Office of a U.S. Attorney who (usually) has 90 days to either initiate a judicial forfeiture action in a federal district court or return the seized property. The Government usually prevails with option three, too. The Government, nonetheless, usually disfavors option three. Removing a forfeiture action to federal court means that someone from outside of the Executive branch (a judge) reviews arguments at each stage of the forfeiture proceedings. It creates a public record for journalists and activists to criticize Government behaviour. It guarantees the availability of an appeal process. It means that a judge or jury could rule against the Government.  And it is significantly more expensive to fight a claim than to deny a Petition for Remission and/or Mitigation or to simply administratively forfeit the property. The Government has its own legal expenses in fighting a judicial forfeiture and, if the claimant prevails on the merits of the forfeiture, the Government can be ordered to retroactively pay the legal expenses of the claimant. Indeed, it may not be worth it, depending on the value of the forfeiture, and the likelihood of the Government prevailing, for the Government to pursue a judicial forfeiture, once a timely claim is filed.

On the other hand, claimants usually disfavor option three, too. For most, the laws governing forfeitures are too Byzantine and too unforgiving to navigate without a lawyer who specializes in fighting forfeitures. Such lawyers are rare. They also tend to be expensive. Fighting a judicial forfeiture also exposes the claimant to expansive discovery requests that could lead to criminal liability. Factoring the improbability of prevailing against the Government, the potential liability, and the substantial legal expenses of fighting a forfeiture, then, usually points the potential claimant towards conceding the forfeiture, pleading for mercy, or filing a claim without a lawyer (which seldom goes well). Moreover, the potential claimant may not even be able to hire a lawyer, if he cannot find one who will take the case on contingency, or for potential fee awards, or pro bono, because the Government has seized (and moved to forfeit) the very funds that the claimant would use to hire a lawyer.

Mr. Okafor chose option three, filing a claim. Well, he thought he filed a claim.

Mr. Okafor, at least, appears to have taken all of the steps that one could reasonably conclude were required for filing a claim. After having his currency seized, he retained a lawyer. Through his attorney, he filled out the paperwork for option three, the claim, and entrusted the mailing of the claim to his attorney, David M. Michael.

The claim “need not be made in any particular form," it need only make clear that it is a claim and “identify, under oath, the property being claimed and the claimant's interest in that property.” Volpe v. United States, 543 F.Supp.2d 113 (D. Mass. 2008) citing 18 U.S.C. § 983(a)(2)(C),(D).

The claim is, though, required to be filed in a timely manner. To be timely, it must be received by the due date that the agency sets for filing a claim. The agency, however, cannot set the due date for “earlier than 35 days after the date the letter is mailed.” Id.§ 983(a)(2)(B).

In Mr. Okafor’s case, the DEA sent out a letter of notice bearing a mailing date of May 1st, 2013. The earliest deadline that the DEA could demand, then, was June 5th, 2013, which is the deadline the DEA set.

According to court records, Mr. Okafor’s claim, or attempted claim, arrived at the DEA’s office on June 6, 2013, at 9:03 a.m--or 3 minutes into the business day of the first day after the DEA’s deadline.

A week later, the DEA sent a letter to Mr. Okafor’s counselor, Mr. Michael, stating that the claim was untimely and offering to construe the claim as a Petition for Remission and/or Mitigation.

Michael responded with a series of letters arguing that the claim was sent in a timely manner and requesting that, even if the DEA thought the claim untimely, it exercise its discretion to consider the claim to be timely because the untimely receipt was not due to inadvertence or error on the part of Mr. Okafor. Indeed, Mr. Michael eventually provided a sworn declaration declaring that, on June 4th, Mr. Michael personally delivered a FedEx envelope containing Okafor’s claim to a Berkeley, CA FedEx office and paid for overnight delivery to arrive at the DEA before 10:30 a.m. on June 5th, 2013.

The DEA maintained its position that the claim was untimely and ultimately construed Mr. Okafor’s day late attempt at a claim as a Petition for Remission or Mitigation. The DEA then denied the Petition for Remission or Mitigation that it unilaterally created on behalf of Mr. Okafor.

Mr. Michael, on behalf of Mr. Okafor, subsequently filed a motion requesting that the Court order the return of Mr. Okafor’s currency or, alternatively, deem Mr. Okafor’s attempted claim as timely and direct the DEA to file a judicial complaint for forfeiture within 90 days or return Mr. Okafor’s currency.

The Government, for its part, argued that the Court lacked jurisdiction to deem Mr. Okafor’s attempted claim as timely.

Magistrate Judge Laurel Beeler, while rejecting the most ludicrous arguments of the Government, nonetheless declined to deem Mr. Okafor’s attempted claim as timely. Magistrate Judge Laurel Beeler reasoned that the facts of Mr. Okafor’s case failed to support a finding of extraordinary circumstances and equitable tolling that would merit remand to the DEA to consider the claim as timely.

Barring successful appeal, then, Mr. Okafor appears to be precluded from even challenging the forfeiture of his currency--which just seems crazy. Whether one finds a place for civil asset forfeiture in our criminal justice system or not, individuals who have their property seized for forfeiture should at least have an opportunity to challenge the merits of the forfeiture. Procedural guidelines should neither trump nor displace bedrock principles of due process, basic fairness, or the rights of property owners to have independent review of Government actions before they are deprived of private property--particularly where the claimant is not at obvious fault and where bending the deadline causes no significant harm.

Moreover, the DEA itself should welcome judicial hearing in such a case. For one, the Government stands to lose little in allowing a hearing because Mr. Okafor seems unlikely to prevail if the case gets heard on the merits. Secondly, and more importantly, the DEA's position is petty and alien to any cognizable sense of fair play. Over the long run, that is dangerous for the DEA and its continued use of forfeiture. As Stefan D. Casella, one of the chief architects of modern asset forfeiture law, has noted, "...no system, no program, no tool of law enforcement, however effective at fighting crime, can survive for long if the public thinks that it violates the basic principles of fairness and due process that lie at the core of the American system of justice..." Stefan D. Casella, U.S. Senate Subcommittee on Criminal Justice Oversight. Oversight of federal asset forfeiture: its role in fighting crime: hearing before the Subcommittee on Criminal Justice Oversight of the Committee on the Judiciary, United States Senate, One Hundred Sixth Congress, first session... July 21, 1999. Vol. 4. USGPO, 2000.

Read U.S. Magistrate Judge Laurel Beeler's opinion here.


In Jefferson County MO, Drug Cops Run Wild

The Missouri State Auditor's Office just released their comprehensive annual report on the federal asset forfeiture activity of Missouri law enforcement agencies. This report demonstrates the extent to which dozens of Missouri police departments rely on asset forfeiture proceeds to fund their budgets. Even more concerning, the report indicates that multiple agencies had federal asset forfeiture proceeds but did not fill out the necessary paperwork or keep the records required to do so.

As a result, money and property are being seized from Missourians without accountability or transparency. That is even more troubling given the self-serving nature of federal asset forfeiture laws, which allow local law enforcement agencies to keep 80 percent of the money seized through forfeiture.

State law requires forfeiture reports to be submitted by "law enforcement agencies involved in using the federal forfeiture system under federal law." Seven law enforcement agencies reported holding a balance of funds in their federal forfeiture accounts on December 31 2012, but failed to disclose activity in 2013. Holding federal forfeiture dollars in your agency's bank account certainly constitutes being "involved in the federal forfeiture system" under any objective reading of the statute [as it would be impossible to know how federal forfeiture proceeds were spent by law enforcement if this disclosure isn't submitted].

Last year, seven law enforcement agencies in Missouri didn't supply the required documents to the Auditor's office for their annual report. State Law makes this lack of compliance a class A misdemeanor, and also prevents the Department of Public Safety from issuing funds to agencies who have not complied. The seven agencies with federally funded accounts but no records in 2013 include:

Cameron Police Department
Eureka Police Department
Hickory County Sheriff's Department
Jefferson County Municipal Enforcement Group (JCMEG)
Normandy Police Department
Park Hills Police Department
Webster Groves Police Department

State Law makes "knowing failure" to comply with the reporting requirement a class A misdemeanor -- although there's no evidence to suggest this law has been recently enforced. The 2013 audit report referenced above notes that:

"The DPS compiled a list of law enforcement agencies using information from the Peace Officer Standards and Training (POST) program and the Justice Assistance Grants (JAG) distribution lists, and notified the law enforcement agencies of the requirement to submit reports if the agencies participated in the federal forfeiture system.

The agencies have been notified by DPS of their requirement to comply, which means that they are guilty of a "knowing failure to comply with the reporting requirement" and thus should be charged with a class A misdemeanor and shall be denied funds from the Department of Public Safety (DPS) -- as prescribed by section 513.651.1 of the Revised Statutes of Missouri. After all, if police aren't held accountable when they knowingly defy the law, how can they claim the moral authority to enforce the law themselves?

Of these seven non-complying agencies, one stands out as having the most to lose by being cut off from funding through the Department of Public Safety. The Jefferson County Municipal Enforcement Group -- a multi-jurisdictional drug task force based in Jefferson County -- received over $336,000 in funding allocated through DPS in the last two years. With so much on the line, you might think law enforcement would be more attentive to reporting requirements, but JCMEG has flouted reporting requirements for asset forfeiture not only from the State Auditor, but from the Department of Public Safety as well.

A look into documents obtained from DPS via open records requests might shed some light on how this important responsibility could have been cast aside. To maintain eligibility for state grants from DPS, state law requires each multi-jurisdictional enforcement group (like JCMEG) to:

"(2) Establish a MEG policy board composed of an elected official, or his designee, and the chief law enforcement officer from each participating unit of local government and a representative of a hazardous materials response team or, if such team is not formed, then a representative of the local fire response agency, to oversee the operations of the MEG and make such reports to the department of public safety as the department may require;"

These policy boards provide some of the only formal oversight of drug task forces, so the law requiring them serves a compelling public interest. Unfortunately, documents from a site monitoring visit/compliance check conducted by DPS in March 2014 indicate that the Jefferson County MEG does not have an established policy board as required by state law. This raises the question: Does anyone actually oversee this government agency?

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Moreover, some members of the task force seem to openly disdain public oversight and their roles as public servants. As part of another research inquiry, open records requests were filed with the JCMEG in November 2013. The commander of the task force, Corporal Chris Hoffman, was extremely hostile and disorganized in his response.

Upon receiving my requests, Corporal Hoffman started off his response by mocking my open records request and sarcastically thanking me for my "official-sounding email."

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I replied the day I received this email with a follow-up request, providing some clarification on my end and requesting additional information. That second request went entirely ignored for over a month, at which point I emailed Corporal Hoffman again to follow up on my second request.

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He responded by saying he planned to have answers to my request "forwarded to you at our convenience," either unaware that the Missouri Sunshine Law requires a response to an open records request within three business days, unwilling to comply with that law, or both.

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The Sunshine Law exists because legislators decided (rightfully) that Missourians have a right to basic information about how their government agencies enforce laws and spend their tax money. When state officials openly mock the Sunshine Law, they are mocking one of the basic tenets of good governance in a republican society while simultaneously proving its necessity.

The Sunshine Law lays out specific guidelines to ensure transparency, including provisions of law that require timely responses to requests for information. I informed Corporal Hoffman of this provision and requested a response within three business days as required by state law.

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He responded by telling me to talk to someone else (after nearly six weeks of back and forth emails in which he fulfilled submitted open records requests himself). Maybe if JCMEG complied with the state law that requires it to organize a policy board for oversight and transparency, it might find it easier to comply with state open records law. Just an idea.

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Unfortunately, the lack of oversight I found in Jefferson County is hardly an isolated incident. I hope to continue exploring how Missouri's drug laws are enforced and the shocking lack of transparency and accountability shown by these government agencies.

However, this research is time-intensive and expensive. Simply acquiring the records upon which this research is based cost nearly $4,000. There is far more to write about those documents, but we can't do it without the funding.

Please help us hold Missouri's drug task forces accountable to the public by making a contribution to Show-Me Cannabis now!

Aaron Malin is the Director of Research for Show-Me Cannabis. You can email him with questions or comments at Aaron@ShowMeCannabis.comSpecial thanks to Americans for Forfeiture Reform and the National Cannabis Coalition for making this research financially possible, as well as to Kelsey Smith for countless hours of research assistance.


How Did the Missouri National Guard "Directly Contribute" to $23 Million in Drug Asset Forfeiture in 2013?

The 2013 Annual Report of the Missouri National Guard contains a section (page 22) detailing the activities of its Counterdrug Task Force:

The Counterdrug Task Force leverages its unique assets on four fronts: providing analytical support to law enforcement to reduce the supply of illicit drugs; providing prevention professionals to communities to aid in reducing the demand for illicit drugs; providing aviation support to law enforcement to find illicit drugs in the state; and providing prevention train- ing, outreach services and treatment resources to Missouri National Guard members.

Highlights for FY-13 include:

• The Task Force has 30 personnel in nine communities. In fiscal year 2013, The Missouri Counterdrug Task Force scored 98.7 percent on its Counterdrug Program Evaluation, which led the nation.

• Criminal analysts supported 17 county, state and federal law enforce- ment agencies. The team’s goal has been to provide dedicated, concise and accurate analytical assistance in cases with a drug nexus.

• The counterdrug criminal analysts develop intelligence products that ensure timely prosecution of a large number of suspects that the law enforcement agencies may not otherwise have the manpower to pursue. This has directly contributed to 1,866 arrests and the seizure of $23,973,155.16 worth of drugs, weapons, vehicles and property. 

We don't know what precise role Missouri National Guard intelligence analysts play in the enforcement of drug laws, and particularly in context of investigations yielding seized property. The statute governing the Missouri National Guard's participation in drug enforcement, RsMO 45.475.1, states:

The governor is hereby authorized to request volunteers of the organized militia to assist federal law enforcement authorities within or outside the state, or to assist federal, state or local law enforcement authorities within this state, and order such volunteers to duty for the purpose of providing assistance in drug interdiction and counter-drug activities and operation and maintenance of equipment and facilities for such purposes pursuant to plans adopted and funding assistance received under the provisions of 32 U.S.C. 112.

This arrangement might be the key interface between Patriot Act/FISAAA dragnet surveillance and revenue-driven state and local law enforcement partnerships with federal agencies through the Equitable Sharing program. As Reuters reported in August 2013:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence - information that could reveal entrapment, mistakes or biased witnesses.

THE SPECIAL OPERATIONS DIVISION

The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred.

(John Shiffman and Kristina Cooke, U.S. directs agents to cover up program used to investigate Americans, Reuters, 5 Aug. 2013)

AFR Research Director Scott Meiner notes that:

“While the techniques described are universally bad, they carry special concern in forfeiture cases–where intelligence tips of a driver carrying cash (for legitimate or illegitimate reasons) compels officers to create parallel constructions to obfuscate from the courts and the public the real reasons why drivers are pulled over: so the department can score forfeiture proceeds.”, said AFR Research Director Scott Meiner.  “Informed police departments can use SOD tips to pull over cars that they know have cash (whether it is legitimate or illegitimate) and then apply a K9 sniff (with seeming random innocuity) and find the cash that they knew existed. A positive sniff (which is an inevitably positive sniff given what we know of cuing errors) validates the purported connection to drugs and thus justifies the forfeiture to the courts.”

We have good reason to suspect that tainted products of unconstitutional federal dragnet surveillance are being used on an active basis for everyday criminal law enforcement in Missouri. As WLOX.com reported on May 30, 2014:

The Street Crimes Task Force is out in Poplar Bluff, Missouri on Friday night, May 30.

According to Chief Danny Whiteley, they will be serving 30 or more warrants, along with the usual search for criminal activity in Poplar Bluff's highest crime neighborhoods.

The Street Crimes Task Force is made up of officers from Cape Girardeau, Sikeston, Poplar Bluff and Charleston. The Missouri State Highway Patrol, the SEMO Drug Task Force and the Missouri National Guard also have members involved.

Their goal is to target street level crimes in neighborhoods targeted as problem areas in each community. 


Former police informants claim they planted incriminating evidence on hundreds in what was, then, largest federal drug forfeiture case in U.S. history--one informant estimates 80% of those he helped convict were innocent

Michael Powell, in today's New York Times, reports on two former police informants who claim to have colluded with police and prosecutors to frame hundreds of tenants of New York City's Kenmore Hotel. In the 1990's, the Government, relying upon evidence of pervasive drug use within the Kenmore, acquired the property, through forfeiture, and chased out existing tenants:

''I planted drugs, I planted guns, I made false reports,'' Mr. Merritt said. ''I was given a list -- little stars by the list of tenants who I was supposed to set up.''
''I helped send hundreds of people out in handcuffs,'' he added, ''and I'd say 80 percent were innocent.''
Mr. Merritt, 70, who hobbles about with wrecked hips and two black canes, was an informer for nearly 40 years, according to federal and police records. The Manhattan district attorney confirmed that he had worked at the Kenmore; two officers said he was an excellent informer. He named dozens of people he said he had set up. Some served prison terms, records show. After the takeover of the Kenmore, he said, he undermined its tenants' association, again at the direction of federal agents. 
Mr. Merritt took his accusations to the Manhattan district attorney last year. He said an assistant prosecutor in the mid-1990s had directed him to swear falsely that he had witnessed certain crimes...."
...Robert Chaney also worked there as a confidential informer. As pressure increased, narcotics officers plotted. ''They would get really upset when they busted into a room and found nothing there,'' he said. ''They gave him drugs and maybe a gun and he'd plant it.''
Asked about this, Mr. Merritt nodded. ''They would tell me which rooms to target, and I would slip crack behind a mattress or under the sink.''
Detectives taught him to set small fires, he said. Firefighters would batter down doors; the police would find crack and guns. He got $50 per arrest, and $100 every time he testified to a judge. Prosecutors guaranteed Mr. Merritt that he would not have to testify in public. They had suspects over a barrel: Serve six months in jail and leave the hotel -- or we'll imprison you for 20 years..."
...Mr. Merritt described being driven to the Manhattan district attorney's office on a rainy evening. A prosecutor was typing statements for him, which he was going to swear to before a judge.  
''Read this carefully and don't stray from the statement,'' the prosecutor told him, he said. ''You're going to have to swear to this. Do you have a problem, Tony?'' 
He said he looked at the prosecutor and asked: ''So you want me to commit perjury?''
''I don't want to hear that,'' the prosecutor replied, according to Mr. Merritt.
After the takeover, Mr. Merritt said, federal marshals and the police told him to disrupt the tenants' association. He and Mr. Chaney tore down notices and interrupted meetings and shrieked. An officer, he said, told him to vandalize Mr. Crispino's car. ''He was very skilled and very scary; he could get you arrested in about five minutes,'' said Sal Martinez, a tenant leader. ''I complained and a federal agent yelled at me: 'Merritt is working for us. Don't get in our way.' ''
 
Read the full story @ Michael Powell, Takeover of Hotel: Informer Recalls His Complicity, 2014 New York Times(2014).

69-year-old church-going widow awaits appeal, hopes en banc court decides that 8th Amendment protects against losing home and vehicle for son's conduct.

69-year-old church-going widow awaits appellate ruling, hopes en banc court decides that 8th Amendment's constitutional protection against excessive fines prevents DA's office from forfeiting her home and 17-year-old minivan for son's alleged drug activity, activity in which she neither participated nor condoned. 

Chris Mondics of the Philadelphia Inquirer reports:

"...On April 3, 2013, Common Pleas Court Judge Paula Patrick ruled in favor of the D.A.'s Office and ordered Young, 69, a widow active in her church, to turn over her home to the city. The city had arrested her son and another man for the sale of small amounts of marijuana there, and then, under civil forfeiture statutes, moved to seize Young's home.

They were able to do this even though Young had never been accused of a crime, much less convicted. The loss of the home is no small thing, say her lawyers. She has been forced to stay with relatives. The house was appraised at $54,000, and it was her main asset.

That and her 1997 Chevrolet Venture minivan. The D.A.'s Office took that, too.

Young's case is now on appeal before Commonwealth Court. A three-judge panel originally heard the case in October, but in a sign of how seriously the court views the constitutional issues implicated by the seizure, a majority of its 11 justices decided to rehear the matter in May. It is expected to rule any day now on whether the seizure violated Young's constitutional protection against excessive fines under the Eighth Amendment.

Young's lawyers at the firm of Ballard Spahr, Jessica Anthony and Jason Leckerman, have no quarrel with the city's aggressive posture toward drug dealing. They say the concern is that in his zeal to push back against drug dealers, District Attorney Seth Williams is subjecting people to exceedingly harsh punishment for crimes that someone else committed...." Continue reading full article @ Chris Mondics, Law Review: Loss of Assets Shines Light on Civil ForfeiturePhila. Inquirer, June 30, 2014.


Federal judge grants motions to strike claims from City of Berkeley, CA and 6 patients in attempted forfeiture of Berkeley Patients Group dispensary.

Judge Jon S. Tigar has granted motions to strike claims from the City of Berkeley, CA (represented by our friends at the Drug Policy Alliance) and six medical marijuana patients of the Berkeley Patients Group (BPG). Judge Tigar reasoned that the individual patients and the City of Berkeley lacked sufficient constitutional standing, as claimants, to challenge the attempted forfeiture of BPG's licensed dispensary at 2366 San Pablo Avenue, Berkeley, CA.

Subsequent to the order, Judge Tigar scheduled an August 28th hearing to consider a U.S. Government motion for summary judgment, against the individual patients and the City of Berkeley, that threatens to, if successful, absent a contrary appellate ruling or reconsideration, effectively remove the individual patients and the City as parties defending against the forfeiture of the property.

BPG's claim contesting the forfeiture, however, remains intact.


Operation Mini-van: NYPD still using scantily clad female officers as bait to forfeit the vehicles of men looking for sex. Innocent spouses and dependents left to suffer.

Eli Rosenberg, reporting for the New York Daily News, quotes an unidentified police officer joking that the NYPD's forfeiture scheme, "Operation Losing Proposition," should be redubbed "'Operation Mini-van,' [for] all the cars they take in.”


The officer has a point. "Operation Mini-van" better evokes the confiscation of family cars from innocent spouses, as well as the loss of transportation to innocent family members. Both of which are undoubtedly occurring under this dumb, but enduring, initiative.


Embraced a generation ago, the NYPD's controversial program, "Operation Losing Proposition," deploys scantily clad female officers to the streets of New York City. The officers then, posing as sex workers, solicit agreements to exchange money for sex acts from motorists. Ensnared motorists subsequently face misdemeanor charges and the forfeiture of the vehicles--or face misdemeanor charges and the (in-effect) ransoming of the vehicles, on threat of forfeiture, if the motorist wishes to settle, typically by consenting to pay a substantial monetary fine and agreeing to a "hold harmless" agreement that absolves the Police Department of liability, among other things.


It is debatable, of course, whether purely consensual behavior among adults should be criminalized, or even fined. Civil asset forfeiture schemes too, of course, are objectionable for a variety of reasons. We've chronicled many of them. The shredding of due process 'rights' that Americans assume they have until they meet the bizarre world of asset forfeiture, the perverse incentives that pit law enforcement against the citizens that they are supposed to be serving, and the loss of the citizens' control of police priorities, forfeited whenever law enforcement are given the power to sidestep the legislature and self-appropriate their funding, by keeping what they seize, are among the most obvious reasons that civil asset forfeiture constitutes bad policy.


Some law enforcement (but not all) cite countervailing reasons to embrace civil asset forfeiture, despite the doctrine's obvious defects. Most of those champions have financial incentives tied to perpetuating the controversial program, of course. Moreover, the policy arguments, we think, when examined, in practice and theory, point towards requiring convictions before property may be forfeited; and point towards severing department incentives to seize and forfeit private property. Time and time again, civil asset forfeiture programs (and the structuring of police incentives to profit from whatever they seize) have proven corrosive


What ought not be open for debate, though, is structuring a program to foreseeably punish innocents. And that, of course, is what happens when you take away the family car, either permanently or temporarily holding it hostage for a payoff/fine, because the husband or Daddy got caught committing the minor misdemeanor of attempting to patronize a prostitute. If the state should assess a penalty, the punitive sanctions should be reserved for the offender. And the punishment should be proportioned to the offence. Need the family really have to lose their car, or mini-van, too, because Daddy got caught stepping outside of the marriage vows? Isn't it enough, for them, that they have to deal with the embarrassment and scrutiny? Moreover, how is it in the public's interests to deploy scantily clad female officers to tempt wayward husbands into violating marital bonds and conceding family vehicles? And doesn't the NYPD have more pressing worries? Or at least, shouldn't they have more pressing worries?

 


The Substantial Limitations of the Rohrabacher Marijuana Amendment to H.R. 4660

Nota bene: I initially published this in 2012 when US Rep. Dana Rohrabacher offered virtually the same amendment to the current appropriations bill. I am reproducing this post as the analysis is essentially the same. I also do not mean to detract from the notion that the passage of this amendment represents a substantial political victory for marijuana reformers, which may offer opportunities for substantial further reform.

----

In an op-ed yesterday in the Huffington Post, Steph Sherer touts the Rohrabacher-Hinchey-Farr Amendment to the appropriations bill H.R. 5326 as a tool “to deny funding to DEA raids against dispensaries operating in accordance with state law”. While I agree that limiting appropriations is a great tool to control federal agency behavior with, I do not believe that the Rohrabacher-Hinchey-Farr Amendment will effectively end DEA prosecution of marijuana dispensaries operating legally under state law.  There are two core reasons for this: I do not believe the text of the amendment will close off federal prosecution of marijuana dispensaries, and the amendment does not touch non-appropriated funds, particularly funds contained in the Department of Justice Asset Forfeiture Fund.

Will the Rohrabacher-Hinchey-Farr Amendment End DEA Raids of State-Legal Dispensaries?

The Amendment reads:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alaska, Arizona, California, Colorado, Delaware, District of Columbia, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

If this amendment passes, I predict that the DEA will continue raiding state-legal marijuana dispensaries. The justification will be that while any state can “implement their own State laws” regarding medical marijuana the amendment does not (explicitly) prohibit the enforcement of federal law criminalizing all aspects of marijuana, and a court is likely to sanction the interpretation that a federal agency can enforce federal law without “preventing” states from “implementing” their own laws. Nor does the Rohrabacher-Hinchey-Farr Amendment provide an affirmative defense for defendants caught in the federal medical marijuana crackdown. In other words, the Rohrabacher-Hinchey-Farr Amendment provides only the barest of restrictions on the actual conduct of the Department of Justice and its subsidiary agencies towards medical marijuana. And before we finish beating this horse, I should note the Amendment does not reach non-DOJ agencies like the IRS, who are also currently part of the federal crackdown on medical marijuana.

And…this Amendment would also not prevent state or local agencies from enforcing the federal law at the behest of the Drug Enforcement Administration. How is this the case? Keep reading…

Beyond Appropriations: Asset Forfeiture Allows for Agency Independence

A basic, structural feature of Drug War funding are the federal asset forfeiture laws that drive hundreds of millions of dollars of seizure revenue into funds not appropriated by Congress but by the Department of Justice itself. I’ll excerpt this overview from the FY 2013 Performance Budget of the Asset Forfeiture Fund of the Department of Justice:

The Assets Forfeiture Fund was created by the Comprehensive Crime Control Act of 1984 (P.L. 98-473, dated October 12, 1984) to be a repository of the proceeds of forfeitures under any law enforced and administered by the Department of Justice (see 28 U.S.C. 524(c)).

The primary purpose of the Fund is to provide a stable source of resources to cover the costs of an effective Asset Forfeiture Program (AFP), including the costs of seizing, evaluating, inventorying, maintaining, protecting, advertising, forfeiting, and disposing of property seized for forfeiture. Prior to the creation of the Fund in 1985, the costs of these activities had to be diverted from agency operational funds. The more effective an agency was in seizing property, the greater the drain on its appropriated funds. The creation of the Fund is responsible, in large measure, for the growth in the Department’s forfeiture program over the past decade. A secondary benefit of an aggressive and well-managed forfeiture program is the production of surplus revenues to assist in financing important law enforcement programs. If the forfeiture program ceases to function effectively in its primary role, these surplus revenues will not be generated. The AFF’s mission has as its primary strategic goal to enforce Federal laws and prevent and reduce crime by disrupting, damaging and dismantling criminal organizations through the use of civil and criminal forfeiture. The program attempts to remove those assets that are essential to the operation of those criminal organizations and punish the criminals involved by denying them the use of the proceeds of their crimes.

Table 1 on page 2 displays the functional activities of the participating agencies. For the full names of the participating agencies, see footnote 1. These agencies investigate or prosecute criminal activity under statutes, such as the Comprehensive Drug Abuse Prevention and Control Act of 1970, the Racketeer Influenced and Corrupt Organizations statute, the Controlled Substances Act, and the Money Laundering Control Act, or provide administrative support services to the program.

Note again that line from the Rohrabacher-Hinchey-Farr Amendment…”None of the funds made available in this Act”…that is, funds appropriated by Congress. But this ignores the river of non-appropriated forfeiture revenue controlled by the DOJ, implying that in the case that this law is read to substantially affect appropriations for federal marijuana law enforcement, DOJ agencies will just find their revenue from non-appropriated sources. Moreover, the federal Equitable Sharing program is slated to distribute close to half a billion dollars in forfeiture revenue to state and local law enforcement agencies participating in a federal seizure in 2013. Another $147 million in forfeiture revenue is budgeted for joint operations between state and federal law enforcement operations. In other words, the DEA and any other federal agency that still deems it worthwhile to enforce federal law against state-legal medical marijuana operations still has plenty of funding…and motive…to do so.

 


Former Romulus (MI) Police Chief, accused, with fellow officers, of using asset forfeiture funds to pay for drugs, hookers, and personal enrichment, pleads guilty.

Former Romulus (MI) Police Chief, Michael St. Andre, accused, with fellow officers, of illicitly diverting asset forfeiture funds to pay for drugs, hookers, and personal enrichment, has pled guilty to counts of embezzlement by a public official, misconduct in office, and of conducting a criminal enterprise.

Michigan Live's Gus Burns reports:
Wayne County Prosecutor Kym Worthy said the investigation revealed that Michael St. Andre handpicked a members from the Romulus Police Special Investigations Unit to conduct investigations into Michigan Liquor Control Commission violations, prostitution, and narcotics trafficking at the two adult clubs, the Landing Strip Bar in Romulus and Subi’s Place in Southgate.
Those officers are now St. Andre's co-defendants, former Detective Sgt. Richard Allan Balzer, former Detective Richard Bruce Landry and former Detective Donald Ralph Hopkins. For a year, from January 2010 to January 2011, the crew conducted covert operations that the Special investigation Unit supervisor was hidden from and never filed a complaint with the Wayne County Prosecutor's Office, Worthy said.
The officers are accused of buying prostitutes "for personal gratification" during the course of their investigation. The Prosecutor's Office says $49,000 in forfeiture funds were never accounted for. Additionally, from 2006 to 2011, St. Andre and complicit subordinates filed false expense reports and otherwise siphoned forfeiture funds.
Once the external state police investigation began in 2009, because a whistleblower came forward, St. Andre is accused of attempting to bribe or intimidate witnesses.
In February, St. Andre's wife, Sandra Vlaz-St. Andre, received a 7 to 20 year prison sentence for her alleged complicity in the forfeiture fund malfeasance. Among other things, she was accused of diverting forfeiture funds to a business owned by the Andres and into their personal bank accounts.

Audit Ordered After San Diego Union-Tribune Watchdog Public Records Request Spots $1 Million in Missing SDPD Forfeiture Funds

Jeff McDonald at the San Diego Union-Tribune Watchdog reports:

A million dollars appears to be missing in records of San Diego Police Department funds seized from drug runners and other criminals, and the department is seeking an audit after U-T Watchdog spotted the issue.

Under a program that directs seized assets to local law enforcement agencies, the police force receives money from the U.S. Treasury Department. The Watchdog identified the missing money in reviewing records of the program over the past five years.

The certification report San Diego police submitted to the federal government in 2010 showed a closing balance of $1,153,426.

For 2011, the same report showed a beginning balance of $153,426 — exactly $1 million less than the prior year — with no explanation.

The funds in question came from assets seized by Treasury agencies including Internal Revenue Service, Customs and Border Protection and the Secret Service. Local agencies also receive funds from the Department of Justice when assets are seized by the Federal Bureau of Investigation, the Drug Enforcement Administration and other agencies.

Over the past five years, San Diego police received $6.4 million from the Justice and Treasury programs.

The U-T has been reporting on spending through such programs in jurisdictions across the region since April. The Watchdog received the San Diego police program records on May 14, and asked the next day about the $1 million inconsistency.

On Thursday, spokesman Lt. Kevin Mayer issued a brief statement saying the matter was being referred to financial investigators at City Hall.

“We acknowledge you have noted a discrepancy,” Mayer wrote. “We have asked the City Comptroller to do a complete review and audit of the seized asset fund to see if there is an error.”

The Treasury Department declined to discuss what ramifications there might be for the San Diego Police Department. Officials issued a statement saying the government has measures in place to make sure program participants comply with federal rules over how the funds may be used.

The complete records obtained by McDonald's Public Records Act request are here

Diane Goldstein, a speaker with the organization Law Enforcement Against Prohibition, says, "Regardless of what is going on with the missing funds, the California Legislature should reform the process to reclaim Equitable Sharing revenues to a general fund, where a legislature will be responsible for them (either state or local), and the state auditor will be able to conduct more vigorous oversight."

 


Berkeley Patients Group wins another round in forfeiture fight: Despite Feds’ objections, Magistrate Judge rules U.S. must respond to BPG’s requests for civil discovery.

Yesterday, over the objections of federal prosecutors, U.S. Magistrate Judge Maria-Elena James issued an order granting the Berkeley Patients Group (BPG) their motions to compel responses to various discovery requests relating to the attempted forfeiture of BPG's licensed medical cannabis dispensary.

The Government first attempted to close BPG by threatening BPG's former landlord with forfeiture of its property if BPG continued operations on its property. At the time, federal prosecutors represented that BPG's close proximity to Berkeley, CA schools motivated the attempt to force closure. BPG subsequently agreed to close its former location. It reopened in November of 2012 "after extensive vetting by Berkeley officials to ensure it was located outside the vicinity of any schools." United States v. Real Prop. & Improvements, Case No. 13-cv-02027-JST (MEJ), 2014 LEXIS 70623 (N.D. Cal. May 22, 2014)

In April of 2013, the Government moved to forfeit BPG's new location, despite the vetting of Berkeley officials, "alleging that BPG was located within 1000 feet of Nia House Learning Center and Color Me Children Preschool, which BPG contends are daycare facilities for toddlers and preschoolers, not schools." Id.  

BPG then served the federal Government with a series of Interrogatories, Requests for Admissions and Requests for Production relating to BPG's sixteen asserted affirmative defenses. Among other things, BPG sought discovery relevant to whether the federal Government was selectively interpreting its policies against BPG and whether the federal Government was vindictively or selectively prosecuting BPG. 

The federal Government, in turn, “objected to each Interrogatory on the grounds it was ‘burdensome,’” and “objected to the entire set of Interrogatories on the basis of relevance, arguing that it need not provide discovery related to affirmative defenses that are insufficient as a matter of law.” Id. Further, federal prosecutors "asserted general objections based on attorney-client privilege and attorney work product privilege to the entire set of requests, as well as specific objections to each request based on law enforcement privilege and deliberative process privilege." Id

Laudably, U.S. Magistrate Judge Maria-Elena James rejected the arguments of federal prosecutors.