Winning By Forfeit

Recent court decisions limit state seizures.

The name Renato Torres won't ever become a synonym for good luck: Torres and an associate were the objects of a federal sting operation that led government agents to seize $60,000 in cash with which Torres had tried to purchase three kilograms of cocaine. In the subsequent criminal prosecution, Torres entered a guilty plea and received a sentence of 73 months in jail.

But Torres's name may ultimately be closely linked to what one judicial activist calls an incipient "revolution" in forfeiture law. That's because Torres appealed his conviction on the grounds that following the $60,000 forfeiture, any further punishment violated constitutional guarantees against double jeopardy--being tried or punished twice for the same crime.

Torres's lawyers based their arguments on two recent Supreme Court rulings. The first, 1993's Austin v. U.S., established that civil forfeitures can be considered "punishment" subject to the Eighth Amendment's "excessive fines" clause. The second, 1994's Montana v. Kurth, declared that the imposition of a tax on confiscated drugs constitutes double jeopardy if the person possessing the drugs has already been sentenced in a criminal proceeding.

Although Torres's appeal was denied--he had never filed a claim to the confiscated money--the 7th Circuit Appeals Court accepted as valid the legal reasoning behind the motion. And that may amount to a major reversal in the next few years on all forfeiture issues, says Brenda Grantlin, president of Forfeiture Endangers American Rights (FEAR), a group dedicated to reforming forfeiture laws, restoring due process, and protecting property rights.

Currently, law-enforcement agencies are able to pursue parallel civil and criminal prosecutions and can often keep assets seized in a civil proceeding even if the criminal case results in an acquittal. But by ruling that civil forfeiture may invalidate criminal prosecution (and vice versa), Torres, along with two other 1994 verdicts, U.S. v. $405,089.23 (decided in the 9th Circuit Appeals Court) and U.S. v. McCaslin (decided in a federal district court in Washington state), will force prosecutors to pursue either a criminal forfeiture (if the defendant is found guilty) or a civil forfeiture without criminal prosecution.

That means, says Grantlin, that law enforcement agencies will have to clarify whether they believe assets are proceeds from illegal activity before they freeze or seize them and that they may not be able to conduct a civil forfeiture after a criminal acquittal. The court's acceptance of the double jeopardy limitation may curtail what Grantlin calls the "Sheriff of Nottingham syndrome--the taking of whatever the government wants."

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