Ill-Gotten Gains

Police and prosecutors have their own reasons to oppose forfeiture-law reform.

Richard Miniter from the August/September 1993 issue

(Page 3 of 4)

Rejecting several settlement offers involving large cash payments to the federal government, Munnerlyn insisted on a jury trial. He won. "The jury ordered the government to return my jet and charter fees," he says. The judge threw out the verdict on technical grounds and ordered a new trial. In the midst of the second trial, three years into the ordeal, Munnerlyn settled, "paying more than $15,500 to buy back my own property," he says. "This isn't the legal system for which I fought in Korea."

Even getting his plane back proved to be a pyrrhic victory. As Munnerlyn learned, the government has no obligation to maintain or safeguard the property in its custody—despite charging him storage fees. His plane had been ripped apart in a futile search for drugs, and he couldn't determine how many hours it had been flown. The Learjet Co. told him it would cost more than $100,000 for repairs and maintenance to pass a federal airline inspection.

Because fighting a forfeiture is so hard, officials don't have to be careful about picking their targets. "It is kind of like the old saying, 'Kill them all and let God sort them out,' " says Scott Bullock, an attorney with the Institute for Justice in Washington, D.C. "Only now the government is saying, 'Seize it all and let the innocent sue to get it back.' "

One favored way of raking in money is searching suspected drug couriers and seizing any cash they're carrying, on the assumption that it's either proceeds from a sale or the bankroll for a buy. Allen Coulter Kidd was riding his motorcycle through Chesterfield County, Virginia, in 1991 when he was stopped by local police. The police found no drugs on Kidd, but they took him down to headquarters anyway. They seized the $2,780 in cash he was carrying and his Harley Davidson motorcycle.

The 35-year-old pleaded not guilty to the drug charges, and the case was dismissed three months later, when the government could not supply any evidence. Yet Kidd had to wait more than a year before he got his motorcycle and half of his money back. The police kept the remaining $1,390. "They come here on suspicion and take anything I own," Kidd told The Richmond Times Dispatch. "It's a big joke—a joke that ain't funny."

In Volusia County, Florida, police have seized more than $8 million in cash and property in the last three years from motorists stopped for minor traffic violations. In many cases, drivers were stopped because police thought they were drug couriers, but no drugs were found. Sometimes police will cite traces of cocaine on seized money as evidence that it's connected to drug crime. But random tests find that more than 80 percent of U.S. currency is contaminated by cocaine, which adheres readily to paper and can be detected in trace amounts for months. Federal and state courts have begun to question the validity of such evidence. In April, U.S. District Judge Thomas A. Wiseman Jr. ordered federal drug agents to return $9,000 they had seized from a Nashville landscaper at an airport in 1991. "The presence of trace narcotics on currency," he wrote, "does not yield any relevant information whatsoever about the currency's history."

Even though such trace evidence is not likely to stand up in court, police can keep the money until the owner mounts a costly time-consuming lawsuit to get it back. Most just give up—and the funds go into police coffers. Carey H. Copeland, director of asse forfeiture at the U.S. Justice Department, concedes that in most cash seizures the owners are "technically innocent."

Concerns about the "technically innocent" have prompted calls for reform. "We continue to be enormously troubled by the government's increasing and unchecked use of the civil forfeiture statutes and disregard for due process," George C. Pratt, a judge on the U.S. Court of Appeals for the Second Circuit, wrote in a 1992 case, U.S. v. All Assets of Statewide Autoparts Inc. He urged federal district courts to stay asset seizures until after the owner is convicted of a crime, arguing that "through courageous and sensitive application of their discretionary powers the district courts can then ensure that due process remains a reality and is not reduced to a mere encomium."

In United States v. 92 Buena Vista Ave., decided in February, the U.S. Supreme Court offered some protection to innocent property owners. A New Jersey woman, Beth Ann Goodwin, challenged the forfeiture of a home she had purchased with money that her boyfriend, an alleged marijuana importer, had given her. The Court ruled that the "innocent-owner defense" allowed by federal law entitles Goodwin to present evidence that she did not know the money came from illegal activity. If she can convince a court, she can keep her home.

In two pending Supreme Court cases, property owners argue that forfeiture violates the Eighth Amendment's prohibition of cruel and unusual punishment and excessive fines when it imposes penalties that are grossly disproportionate. In Alexander v. the United States, a criminal forfeiture case, the government seized an entire chain of adult book stores and movie theaters based on the presence of a few obscene items. In Austin v. United States, a civil forfeiture case, the government took a North Dakota man's car-repair business and mobile home after he sold two grams of cocaine to an undercover agent. Although it upheld that forfeiture, the U.S. Court of Appeals for the Eighth Circuit wrote: "We are troubled by the government's view that any property, whether it be a hobo's hovel or the Empire State Building, can be seized by the government because the owner, regardless of his or her past criminal record, engages in a single drug transaction."

Recognizing that civil forfeiture constitutes punishment without trial, reformers argue that forfeiture should be allowed only after the owner has been convicted of a crime. This requirement would end arbitrary seizures of cash, curtail searches that are not likely to turn up evidence of a crime, and require prosecutors to establish a case before taking someone's assets. Property owners would enjoy the same protections as criminal defendants, including the presumption of innocence, the right to a prompt hearing, and freedom from cruel and unusual punishment.

Critics of forfeiture also argue that proceeds from the sale of confiscated assets should go into the government's general fund rather than law-enforcement coffers. This change would encourage police to focus on law enforcement rather than forfeiture.

But reformers who urge Congress and the state legislatures to curtail forfeiture abuses face stiff opposition from police and prosecutors, who like forfeiture and want to expand its use. The Justice Department's Copeland would like a forfeiture provision for every federal offense. Many prosecutors look to Arizona, which has the nation's strongest and broadest forfeiture laws. Unlike most states, Arizona does not give property owners a right to a jury trial. Just to file a forfeiture challenge, an owner must supply highly detailed information about the property's history. If he wins, he must pay his own legal fees; if he loses, he must pay the cost of the government's investigation and prosecution.

Arizona also allows seizure of property associated with "racketeering," which it defines very broadly. Under Arizona law (unlike the federal Racketeer Influenced and Corrupt Organizations Act), racketeering need not involve a pattern of activity or more than one offense. Just about any crime punishable by more than a year in prison, when committed for profit, qualifies. This includes not only biggies such as homicide, robbery, and kidnapping but also gambling, usury, drug offenses, weapons violations,obscenity, prostitution, restraint of trade, money laundering, and the sale of securities by unregistered brokers.

His state's goal, says Assistant Attorney General Cameron Holmes, is " 'social engineering' accomplished through government intercession in commercial activity harmful to the economy as a whole." He sees Arizona's approach as a model for other states.

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