Sunday, January 18, 2009

Senate committee: Asset forfeiture too often a 'profit making' venture

In criminal trials the burden of proof falls on the state, which is why Texas prosecutors prefer to get asset forfeiture cases into civil court, where the burden lies with the property owner.

However, if the Texas Senate Criminal Justice Committee had its way, says their interim report (large pdf), the state would change the asset forfeiture law so the burden of proof shifts to the government to prove property was tainted by illegality, where currently that burden lies on the property owner. (Interim charge 6, p. 68)

Right now, "In civil forfeiture cases, the burden of proof is on the individual to get the property back from the state once the underlying case is dismissed or acquitted." However, "By placing the burden of proof on the property owner, the government has an unfair advantage over property owners in a lawsuit to get their property returned. Such a fight can come at a great cost to property owners. Therefore the committee recommends for property seized under civil law, the burden of proving the 'guilt' of the property should shift to the government."

If they're making good cases, that new standard should be no big deal. But the committee heard "allegations of profit making" on asset forfeiture cases by district attorneys. "In Texas, with its smuggling corridors to Mexico, public safety agencies seized more than $125 million" in 2007, and "Some poorer counties have come to rely on drug money to pay for their basic operations." The report also documented forfeiture funds spent to pay for office parties, bonuses, trips to Hawaii, and even TV ads for a DA's reelection campaign!

They also intimated that simply improving documentation wouldn't fix the problem:

"Giving seizing agencies direct financial incentives in forfeiture is an unsound policy that risks skewing enforcement priorities," the committee concluded, suggesting that "one approach" to the issue might be to "have forfeited assets deposited into a central treasury at the state level," which would "remove the incentive for law enforcement agencies to focus more on assets rather than criminal acts" and provide "greater legislative oversight of forfeited proceeds."

The committee's final recommendations didn't go that far, suggesting only that the state centralize reporting on asset forfeiture funds and give the Comptroller authority to audit and investigate abuses.

Still, that's a lot of money sitting around in local slush funds. In tight budget times, I wouldn't be surprised to see the Legislature insist that money is spent on things like drug treatment, diversion programs, and other public safety priorities, not just for bonuses, travel and booze.

29 comments:

Anonymous said...

Art. 59.05. FORFEITURE HEARING. (a) All parties must comply
with the rules of pleading as required in civil suits.
(b) All cases under this chapter shall proceed to trial in
the same manner as in other civil cases. The state has the burden of proving by a preponderance of the evidence that property is subject
to forfeiture.



The law appears at variance with the conclusions of the interim report.

Anonymous said...

“In tight budget times, I wouldn't be surprised to see the Legislature insist that money is spent on things like drug treatment, diversion programs, and other public safety priorities, not just for bonuses, travel and booze.”

There are provisions for how forfeited asses are to used and spent, including drug treatment (TX CCP Chapter 59). The problem is there are no penalties under Chapter 59 for not doing what the Code says. You are also required to submit a proposed budget to the local government before spending it.

Rather than send this money to the state, which may be what the state wants because it’s “another revenue generating resource”, punish the agencies who are violating the forfeiture law.

“The committee's final recommendations didn't go that far, suggesting only that the state centralize reporting on asset forfeiture funds and give the Comptroller authority to audit and investigate abuses.”

Currently, agencies must send an annual accounting, seizure and expenditure, to the Attorney General. If they fail to do so, the AG’s office can have the comptroller’s office audit the agency.

Centralizing, authority to audit and investigate is not enough. There have to be penalties as well.

“If they're making good cases, that new standard should be no big deal. But the committee heard "allegations of profit making" on asset forfeiture cases by district attorneys.”

And that’s another problem. I’m not for crooks but you got to get ‘em right. Just because a trained narcotics detection canine alerts on money and drugs or no drugs are found, those facts alone are insufficient to show a nexus between the money and criminal activity. See also In TheCourt of Appeals Sixth Appellate District of Texas at Texarkana No. 06-07-00132-CV $130,510.00 IN U.S. LAWFUL CURRENCY, Appellant V. THE STATE OF TEXAS, Appellee.
And one agency in that same county is still taking money when the only evidence is either an alert on money or no alert but money present, but no dope.
See http://www.dailytribune.net/edition/?haspdf=

Anonymous said...

No dope, but money.

http://www.dailytribune.net/edition//?haspdf=1

http://www.dailytribune.net/articles/2008/09/14/news/01.txt

Gritsforbreakfast said...

To 1:50, as I understood it, the initial forfeiture proceedings happen early in the process, typically while criminal charges are still pending which tends to satisfy the minimalist "preponderance of the evidence standard." The issue is, according to this reading, how can the person get their assets BACK once criminal charges are dropped.

That's how I read it, anyway. Anybody with more direct experience on this please correct me if that's wrong. Sorry if the post wasn't clear.

Gritsforbreakfast said...

To 2:14 - they said the reports filed with the AG are not checked for accuracy unless they fail to file them at all and there's no ongoing oversight and no pro-active audit authority. Basically there's de minimus reporting but with no teeth.

To 2:25, here's another one with no dope but money.

Anonymous said...

Read about imprisoned former Gray County DA Rick Roach and how he dealt with matters in his jurisdiction. Kept himself supplied with dope, cash and guns while plea bargaining cases down so he could get his hands on stuff. I think he's still doing time.

Plato

Anonymous said...

I'm sorry I couldn't get those two articles to load. I'm going to mail them to you.

What is concerning about these incidents is there's probably a great deal of money in circulation that has come in contact with drugs. Doesn't mean it's seizable. And dope in the car doesn't automatically mean it's seizable either. You got to create the nexis. And the money is being seized where there is no dope. And most defendants don't know about the recent ruling by the 6th Court of Appeals in Texarkana. I wonder how many lawyers do.

These kinds of arbitrary seizures, right there on the road without any evidence to support it, are going to cause us to lose our ability to seize assets and the end to the Texas money laundering statute.

Anonymous said...

And dope in the car doesn't automatically mean it's seizable either.

I meant dope in the car with cash doesn't automatically mean the cash is derived from criminal activity and subject to forfeiture or even seizable.

I've got to slow down and start reading what I'm saying.

Anonymous said...

I read a news article in the Texarkana Gazetter where a trooper made a drug seizure. In the pc affidavit, he said he noticed the driver was "exhibiting nervous criminal behavior." What is this?

I don't blame the trooper because that's probably what he's been taught. This is the sort of stuff that's being used in seizure cases too. Those kinds of statements are like giving free ammo to the defense attorney. I just wonder how many of these civil cases are actually being tried.

Don Dickson said...

I won't pretend to know what "nervous criminal behavior" is.

DPS removed from its LAR a request for money to purchase a jet aircraft. They've been using a 1985 Aero Commander -- which was seized.

I kidded with the acting Chief of the Criminal Law Enforcement Division that we need his guys to go out and seize us a new one.

Anonymous said...

That's how I read it, anyway. Anybody with more direct experience on this please correct me if that's wrong. Sorry if the post wasn't clear.

Nope, your post was clear, it's the report that's wrong. Some intern must've misread the law or something.

Gritsforbreakfast said...

I'm still not sure, 10:59. The report talks about the standard for suing to get your property back. That seems like a different procedure than the initial seizure by law enforcement, and perhaps the standard is different than at the "forfeiture hearing"?

I'll check with the committee staff after the holiday and see if I can clarify. This is an area I've never focused on a great deal.

Anonymous said...

Don't know about state courts but in federal court all you have to do is post a claim in cost bond. That starts the process of getting your money back.

Cash seizures are windfalls with attorneys who know the law. They're assured they'll get paid and a 1/3rd when they win is a big payoff.

I'd like to hear from someone who knows about an experience where drugs were found in a car and the cash that was found wasn't related to the drugs. I'm not looking for an exception so I can write a rule; but rather the rule so I can consider the exception.

Seizing assets from criminal enterprises is a very good tool. Giving it back corrupts the reason you took it.

Anonymous said...

Step in the Right Direction

http://www.empowertexans.com/node/791

Anonymous said...

To 6:42

Possession of a large sum of money is not illegal in and of itself. $27,920.00 in U.S. Currency v. State, 37 S.W.3d 533, 535 (Tex. App.--Texarkana 2001, pet. denied); see also $136,205.00 v. State, 848 S.W.2d 888, 891 (Tex. App.--Houston [14th Dist.] 1993, no writ) (despite evidence of marihuana, drug paraphernalia, and large amount of cash at residence, positive dog alert on safety deposit box at bank was insufficient to connect deposit-box funds to marihuana confiscated at residence).

Anonymous said...

I'm still not sure, 10:59. The report talks about the standard for suing to get your property back. That seems like a different procedure than the initial seizure by law enforcement, and perhaps the standard is different than at the "forfeiture hearing"?


To entitle itself to the forfeiture of the cash, the State had to prove by a preponderance of the evidence that the cash is contraband. Chapter 59 authorizes the State to pursue the forfeiture of funds that constitute proceeds from illegal drug trafficking. See Tex. Code Crim. Proc. Ann. arts. 59.01-.14 (Vernon 2006 & Vernon Supp. 2008). Although Chapter 59 specifies no additional evidentiary requirements for forfeiture beyond proof that the property is contraband, the Texas Supreme Court has held that the State must also show probable cause for seizing a person's property. See Fifty-Six Thousand Seven Hundred Dollars in U.S. Currency v. State, 730 S.W.2d 659, 661 (Tex. 1987); see also State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991). "Probable cause in the context of forfeiture statutes is a reasonable belief that 'a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute.'" Fifty-Six Thousand Seven Hundred Dollars in U.S. Currency, 730 S.W.2d at 661 (quoting United States v. $364,960.00 in U.S. Currency, 661 F.2d 319, 323 (5th Cir. 1981)); see State v. Thirty Thousand Six Hundred Sixty Dollars & No/100, 136 S.W.3d 392, 407 (Tex. App.--Corpus Christi 2004, pet. denied). Property, including currency, is subject to seizure and forfeiture if it is found to be contraband. Tex. Code Crim. Proc. Ann. art. 59.02(a).
Contraband is property used or intended to be used in the commission of certain felonies, or proceeds derived from those felonies. Tex. Code Crim. Proc. Ann. art. 59.01(2)(A)-(D); State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex. 2004). Germane to this case, contraband is money that is derived from or intended for use in manufacturing, delivering, selling, or possessing a controlled substance. Tex. Code Crim. Proc. Ann. arts. 59.01, 59.02; $24,156.00 in U.S. Currency v. State, No. 06-07-00061-CV, 2008 WL 320518, at *743 (Tex. App.--Texarkana Feb. 7, 2008, no pet.); $27,920.00 in U.S. Currency v. State, 37 S.W.3d 533, 535 (Tex. App.--Texarkana 2001, pet. denied).
The statute places on the State the burden of proving, by a preponderance of the evidence, that the item being forfeited is subject to forfeiture. In re One Man's Rolex Watch Yellow Gold, 223 S.W.3d 451, 452 (Tex. App.--Amarillo 2006, no pet.). Although defenses and explanations are useful tools for analysis, the burden of proof (6) remains on the State to prove the funds were contraband, not on the owner (7) to prove the source or purpose of the funds

Anonymous said...

"The issue is, according to this reading, how can the person get their assets BACK once criminal charges are dropped."

If no charges are pending, the property can be replevied pending disposition of the civil proceeding. See below.

Art. 59.02. Forfeiture of contraband


(a) Property that is contraband is subject to seizure and forfeiture under this chapter.


(b) Any property that is contraband other than property held as evidence in a criminal investigation or a pending criminal case, money, a negotiable instrument, or a security that is seized under this chapter may be replevied by the owner or interest holder of the property, on execution of a good and valid bond with sufficient surety in a sum equal to the appraised value of the property replevied. The bond may be approved as to form and substance by the court after the court gives notice of the bond to the authority holding the seized property. The bond must be conditioned:


(1) on return of the property to the custody of the state on the day of hearing of the forfeiture proceedings; and


(2) that the interest holder or owner of the property will abide by the decision that may be made in the cause.

Gritsforbreakfast said...

Thanks for the extra detail - unless there's some other applicable provision of the code, what you're saying seems right. I'll run it by the committee staff and maybe a lawyer or two with experience on the topic and see what their reaction is.

Anonymous said...

Last year, NBC's "Dateline" did a prize-winning expose of the practice of Louisiana sheriff's deputies stopping motorists with little or no cause and seizing cars and cash under the state's forfeiture laws. The deputies started a slush fund with the money. According to "Dateline," deputies used the fund to pay for a ski trip, pizza and doughnuts; thousands of dollars were unaccounted for.

Maybe we need an Asset Forfeiture Integrity Unit too!

Anonymous said...

Prosecutors Spend Confiscated Drug Money on Margarita Machine, Win 'Best Margarita' at County Fair

Article Posted in Chronicle Blog by Scott Morgan on Fri, 07/11/2008 - 7:48pm
Drenched in tequila, the brave men who fight the war on drugs will be the first to tell you that our asset forfeiture laws are a vital resource for law-enforcement:


IN 2005 the Montgomery County district attorney’s office held a party at the county fair in east Texas. They had beer, liquor and a margarita machine. The district attorney, Mike McDougal, at first denied that this had been paid for by drug money. He acknowledged that his office had a margarita machine at the fair. In fact, he said, they won first prize for best margarita. But he insisted they came by it fair and square. In any case, he pointed out, the county’s drug fund was at his discretion. Under Texas forfeiture law, counties can keep most of the money and property they rustle up.


Mr. McDougal…fessed up in the end about the margarita machine. [Economist]

It really more or less speaks for itself. They spent confiscated drug proceeds on booze, won an award for their awesome margaritas, and then lied about it. These are the people that will put you behind bars for smoking marijuana. They are the champions in the fight against drug abuse and they are as good at putting people in jail for drugs as they are at mixing alcoholic beverages.

Literally drunk on their own power, the hypocrites on the front lines of our war on drugs ought to arrest themselves if they ever sober up.

Anonymous said...

“I ain’t figured out what the hell law they violate,” Senator Whitmire said. Chapter 59 of the Texas criminal code, which covers forfeiture, is vague on the subject. It says only that assets must be used “for law-enforcement purposes”.

How about Texas Penal Code 39.02, Abuse of Official Capacity?

Also see The Sheriff's Stash
http://www.economist.com/world/unitedstates/displaystory.cfm?story_id=11707305

Anonymous said...

"Such a fight can come at a great cost to property owners."

Since the state alleges the assets are derived from criminal activity, properety owners who cannot afford an attorney may well should be appointed one, even though the forfeiture proceedings are civil in nature. Perhaps something for the lege and the courts to look at.

Do you suppose that truly innocent property owners civil cases go unconstested because the property owner cannot afford counsel, especially the nickel and dime seizures, or live out of state and were passing through Texas when their money was seized and cannot afford the inconvenience of driving numerous times for docket call only to have their cases continued.

Just a thought.

Anonymous said...

TO: 9:35am

"Drenched in tequila, the brave men who fight the war on drugs will be the first to tell you that our asset forfeiture laws are a vital resource for law-enforcement"

Wrong. 27 year DEA veteran here and most of my colleagues except for management feel Asset Forfeiture as it stands right now is an abomination; so is DEA.

In federally disposed assets, the feds only keep 20% which goes to the asset forfeiture fund. That fund managed by the Marshals is used to manage the assets. The Agency that processes the forfeiture gets "NOTHING". It's distributed to the local or state law enforcement agencies or DA offices.

A good DEA Agent now a days knows how to get cash not investigate; distribute it to the local sheriff or state police; then they in turn give him his "AWARD". DEA Management loves this sort of mindless bullshit because the state and locals contribute personnel (Task Force Agents) in return for a % of the forfeitures.

As far as mispending goes, you can't mispend something you can't get. The spending misconduct occurs at the State and Local level so focus your efforts there. Personnaly, I feel that ALL ASSET FORFEITURE MONEY should go to Education; and treatment; not the POLICE.

The problems related to drug law enforcement today are just about all tied to which department gets the "money". Change that and you'll see a substantive change in the way drug laws are enforced.

"the hypocrites on the front lines of our war on drugs ought to arrest themselves if they ever sober up."

No Hypocrit here only someone who believes that people like you really don't know what you're talking about; but others might think you do.

kaptinemo said...

The tight times we are going to experience is going to increase the kind of abuse of forfeiture that has happened since the inception of the program back in the 1980's.

But perhaps that will be a good thing. Not for the victims, of course, at least, not right away. But it will also force a much-needed debate about the DrugWar, as civil forfeiture is its' bastard child.

Anonymous said...

"Asset forfeiture too often a 'profit making' venture"

Often?

More like always, I would imagine, unless there is spite to assuage.

Anonymous said...

"Drenched in tequila, the brave men who fight the war on drugs will be the first to tell you that our asset forfeiture laws are a vital resource for law-enforcement"

Wrong. 27 year DEA veteran here and most of my colleagues except for management feel Asset Forfeiture as it stands right now is an abomination; so is DEA.

Don't you know what satire is Mr. DEA retired? Loosen up man.

Anonymous said...

No dount something need to be done here. I know someone who just retired from an agency that is still holding onto seized money, not awarded, that has been in the agency's possession for years and the prosecuting attorney failed to file the civil cases.

No due process in these cases, thats for sure.

Anonymous said...

Highway robbery by Tenaha law enforcement and county prosecutors alleged


Posted: July 29, 2008 06:39 PM CDT

Updated: July 30, 2008 08:47 PM CDT





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By Donna McCollum

SHELBY COUNTY, TX (KTRE) - Some observers are calling the practice highway robbery. This is how it works. Motorists of color are stopped by law enforcement. They're searched for illegal drugs. When none are found their personal belongings, generally large amounts of cash are taken. Then the person is asked to sign a waiver forfeiting their belongings in exchange of not having any money laundering charges filed against them. This practice has been seen across the nation. Now its alleged to be happening in the city of Tenaha, with the Shelby County district attorney's office as a partner.

Nacogdoches attorneys David Guillory and Tim Garrigan have filed a civil action suit against Tenaha Deputy City Marshal Barry Washington, the Teneha mayor, Shelby County District Attorney Lynda K Russell and Shelby County Precinct four Constable Randy Whatley. The plaintiff is James Morrow, an Arkansas man who claims he had about $3900 in his wallet and two cell phones taken by Barry Washington. However, attorneys say as many as 200 motorists were affected in similar ways. Guillory alleges, " People with $1500 or $500, no evidence of any drugs or anything like that and they would just take their money and tell them and threaten them with the inconvenience of having to defend themselves against a crime if they contested or they anyway sought to get back their money back. I think that's wrong and a violation of the 4th and 14th amendments. "

Guillory's sleuthing in the district clerk's office raised his suspicions. " We found out what the names of those people were and then we looked in the criminal docket there in Shelby County for the past 24 months to see if any of those people were ever charged with a crime or prosecuted of a crime. The answer is we didn't find anyone. That's what really caught our eye. That's what made it suspicious and that's what made it seem like a situation where it's just a money shakedown operation beside the road with no intent of enforcing crime or criminal laws or anything like that. "

Guillory estimates about 3-million dollars has been taken in the last 24 months. His oddest discovery was a gold crucifix and an incomplete affidavit signed, but not having any property listed at all. " It appears to me they had a standard form ready to be signed and ruled on,but in this case just forgot to fill it out. "

The defendants in the lawsuit have yet to be served, but they are aware of the suit's action. The case will be heard in the Marshall division where it could be classified as a class action lawsuit. Similar allegations have surfaced in south Texas and featured in articles and investigative reports.

http://www.ktre.com/Global/story.asp?S=8756476&nav=2FH5dBbR

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