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The DEA? Or the Mafia?

On July 2, 2010, in Uncategorized, by Eapen Thampy

The story of Jeffrey Scarabin and his $12,360

In 1992, the US Court of Appeals for the 5th Circuit ruled that it did not have jurisdiction to return $12,360 in cash that had been seized by law enforcement from Jeffrey Scarabin in 1990, during a narcotics warrant search that reveal negligible evidence of drugs otherwise. First offense marijuana and paraphernalia charges were filed against Mr. Scarabin but later dropped for lack of evidence.

The decision in Scarabin v. DEA was actually rendered the third time the case came before the court. In the first two hearings, the Court directed the DEA to consider Scarabin’s complaint through the statutory administrative process, which features a hearing regarding the ownership of the property and legitimacy of the forfeiture. In these hearings, Scarabin presented evidence, not disputed by the DEA, that the money was lawfully gained. Regardless, the DEA denied Scarabin’s petition for return of his property and kept the $12,360, disbursing 90% back to the local agency (the Plaquemines Parish Sheriff’s Office in Louisiana). The DEA is able to do this through the use of a neat little trick called Equitable Sharing, which is a Department of Justice program for funneling money from state seizures, around state statutory and legal jurisdiction, and back into law enforcement budgets.

In Scarabin’s third appearance before the court, the court ruled that the transfer, as such, had never really occurred, and that the DEA had never actually taken control of the literal $12,360 in cash, which still resided at the bank at which the Plaquemines Parish Sheriff had taken the cash to and purchased the cashier’s check which was then sent to the DEA.  This argument, notably, was not made by the DEA in the first or second court hearings on the issue; the DEA waited until the court accepted Scarabin’s claim that the DEA’s administrative process was unfair and heard the case for the third time. The ruling directed Scarabin to seek redress under state law, which the 5th circuit presumed would rule favorably for Scarabin.

The 5th Circuit did condemn the DEA strongly for its behavior in the entire affair. In the section where the facts of the case are discussed, the Court notes:

On November 16, 1990, the DEA gave the Sheriff’s Office $11,124 (or 90% of $12,360) under a federal statute that allows the DEA to return forfeited property to state or local law enforcement agencies that have participated directly in the seizure or forfeiture of that property. Thus, with the assistance of the DEA, the Sheriff’s Office was able (at least for the time being) to circumvent Louisiana law that would have required it to return Scarabin’s $12,360. NFL sportscasters might call the handoff from the Sheriff’s Office to the DEA, followed by the lateral back from the DEA to the Sheriff Office, a “flea-flicker” play. Scarabin calls the arrangement between the DEA and Sheriff’s Office a “scam,” “shell game,” and “money laundering,” and refers to the return of $11,124 to the Sheriff’s Office as an “illegal kickback.”  We really cannot quarrel with those appellations. The DEA, more prosaically, refers to it as an “equitable sharing arrangement”[6] — admittedly a kinder, gentler euphemism, albeit one inappropriate here.

Later on, right before the conclusion, the court slams the DEA for what might otherwise be money laundering (emphasis mine):

As was obvious at the oral argument of this appeal, each member of the court was deeply disturbed by the actions of the federal and state agents in appropriating Scarabin’s money — candidly acknowledged by counsel for the DEA — actions that would have constituted illicit money laundering if perpetrated by private parties. We were even more distressed by the revelation that those activities were not merely condoned but were actively advocated and supported by officials of the DEA in positions to make and implement policy.

My thoughts

Though the court eviscerated the DEA’s actions in chasing Scarabin’s money, it did not include as part of its ruling any real redress for Mr. Scarabin. Over a period of two years, the Drug Enforcement Administration led Mr. Scarabin on a wild goose chase, forcing him to navigate a complex web of laws and obtain legal representation (which is expensive) before making the absurd claim that they never even had his money in the first place. Certainly, whether or not the physical cash that Scarabin possessed was ever deposited with the DEA or with a bank seems to me irrelevant; the DEA represented that they had adopted a state seizure, and that they were sending a kickback to the state agency.

Unfortunately, this story is only one of many. It is far too common that people who’ve had their property taken from them by the police find themselves in this situation. Regardless of the legitimacy of the police’s claim (that the property was associated with illegal behavior) the defendant was never convicted of a crime, and no court passed sentence on his property. Instead, a bureaucrat in Louisiana and a bureaucrat in Washington DC decided that they wanted this money to supplement their budgets, and that desire took precedence over the right of a citizen to his lawful property.

The court system for years has stymied these claims. Rulings in cases like these, where the court agrees that the defendant was deprived of their property without due process but rules that it does not have jurisdiction to enforce a remedy, are commonplace. Data I have collected indicates that the vast majority of the appeals that are made to the courts end with the court declaring that a) it doesn’t have jurisdiction to decide the claim favorably for the claimant or b) that the claimant gave up the right to further contest the forfeiture by failing to make hyper-specific claims in the complex administrative appeals process that claimants have to engage in when the federal government seizes property. There seems to be no consideration given to the notion that these administrative channels are controlled by the bureaucrats who sit as judge and jury against citizens for cash and real property they can take for their use.

To be continued…

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1 Response » to “The DEA? Or the Mafia?”

  1. [...] and also to the origins of the Department of Justice’s Equitable Sharing (read “money laundering” program). The entire article is worth reading, and I excerpt particularly a comment from Dan [...]

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