South Carolina

S.C. Judge Rules the Obvious: It's Unconstitutional for Police to Seize and Keep People's Property Without Proving They Committed Crimes

Law enforcement and prosecutors have seized millions from people they’ve arrested. That might be coming to an end.


Thanks to chronic abuse and misuse by local police departments, the days may be numbered for South Carolina's forfeiture system that allows cops to seize and keep cash and property of the people they arrest in order to fund their own departments.

Circuit Judge Steven H. John has ruled that the South Carolina's civil asset forfeiture regulations violate the Fifth, Eighth, and Fourteenth Amendment rights of the citizens.

Civil asset forfeiture has been in the crosshairs across the country for years now because it allows police and prosecutors to declare that any money or property owned by a suspect is "connected" to a crime, seize it, and then ultimately keep it for themselves. And because this is a civil process, police and prosecutors can do this without having to convict anybody. It's the assets that are considered the defendants (in this case, the respondent is actually the $20,771 that Horry County wants to seize from a man charged with trafficking cocaine), prosecutors typically have a lower threshold to make their case than "beyond a reasonable doubt," and people who are pulled into these forfeiture cases don't have access to public defenders and have to fund their own lawyers.

The end result: Police trying to keep whatever they can grab off anybody they arrest, claiming it's all proceeds or property connected to criminal activities, and using it to line their own pockets. This incentivizes police to look for people who have assets that can be seized. Local newspapers in South Carolina teamed up to investigate the extent of abuses and discovered police agencies across the state had seized more than $17 million in assets across three years. In one-fifth of the cases, nobody was charged or even arrested for a crime.

Judge John notes all of these problems in a decisive ruling that smacks down the practice of civil asset forfeiture. In his 15-page opinion, he writes that South Carolina's forfeiture practice violate both the U.S. Constitution and the state's because the statutes "(1) place the burden on the property owner to prove their innocence, (2) unconstitutionally institutionally incentivizes forfeiture officials to prosecute forfeiture actions, and (3) do not mandate judicial review or judicial authorization prior to or subsequent to the seizure." He also notes that the statutes violate citizens' Eighth Amendment protections against excessive fines.

South Carolina's asset forfeiture system is particularly terrible because 75 percent of the seized assets go directly to the law enforcement agency that seized the property, while 20 percent goes to the state solicitor's offices (the prosecutors). The money seized goes directly to the people trying to seize it. The money seized is supposed to be used solely for "drug enforcement activities," but John observes that this restriction has very little oversight; law enforcement ends up approving spending above and beyond what their agencies have budgeted, with the understanding that they'll make up the difference from seizures. That doesn't even get into the issue that tying a police department's budget to proceeds from fighting the drug war warps their priorities to such a degree that they're not focusing on crimes that have actual victims.

Later in the ruling, John painstakingly goes through a checklist to show exactly how the state's forfeiture system leads to bad incentives and a cycle of revenue-seeking:

"We have to find more money to seize or our budget will run out and we'll lose our jobs," is not a model for a policing system that is focused on fighting actual crime.

But the fight to reform South Carolina's system is far from over. The decision doesn't extend statewide, and Horry County's Solicitor's Office has filed a motion asking John to reconsider his ruling, noting that, among other things, the defendant in this case pleaded guilty to the crimes and the seized cash is worth much less than the potential maximum fine of $50,000 he could have faced.

Writing at Forbes, Nick Sibilla notes that in the wake of local reporting about the expansive abuse of asset forfeiture in South Carolina, lawmakers attempted to pass a bill which would have eliminated civil forfeiture entirely. It stalled due to some technical issues with the wording, but Sibilla expects a revised version to return in the next legislative session. If it passes, South Carolina would join New Mexico, Nebraska, and North Carolina in completely eliminating civil asset forfeiture. A conviction would be required in order for police and prosecutors to try to keep somebody's cash and property for themselves.

Read John's ruling here.

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  1. So they seize property “connected to a crime”, yet it’s a civil process, not a criminal one.

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    2. And they haven’t proven that it’s connected to a crime, so it’s not actually connected to a crime in the first place.

    3. Look at it from the perspective of people in government going after criminals, via seizing their property, which is how the practice originated especially with merchants hiring ships to smuggle goods or do things like ship British clothing on non-British ships (actually against the law in the 1600s, but not unlike the Jones Act in the US).

      A civil suit has a lower burden of proof, which is why government agents like it. The thing is, most cases in which civil asset forfeiture is used, the only victim is the guy whose assets were seized; otherwise, they’d just be seizing stolen property to return to the person it was stolen from.

      Of course, power corrupts, so corrupt government agents use civil asset forfeiture. It’s just one of many ways government agents immorally take from individuals.

      But at least this ruling is good news. Thank our founders for balancing out the powers in government.

  2. “Circuit Judge Steven H. John has ruled that the South Carolina’s civil asset forfeiture regulations violate the Fifth, Eighth, and Fourteenth Amendment rights of the citizens.”

    But somehow not the 4th?

    1. But somehow not the 4th?

      Because there’s no criminal case.

    2. I think the issue there is that regardless of if they satisfy the lower reasonable suspicion standard for seizure or not, the forfeiture deprives a person of property without due process (5th and 14th) and often constitutes a fine or penalty excessive compared to the suspected activity (8th). But you’re right, many of these cases also involve dubious 4th amendment applications.

      1. Unfortunately, though I don’t know the particulars of SC law, courts have accepted that it is “due process” for the legislature to pass a law, that says it is OK to seize property, without charges, or a conviction.
        The Constitution says a right can be denied by due process, but if a legislature can pass blanket laws, and those are considered due process, then our rights are all subject to being removed by simple legislative action.
        IMHO, due process should be an individualized activity, where the one, whose rights are to be “violated” gets to present a defense, as in a court of law.
        However, with a Supreme Court, making rulings based on “substantive” due process, I don’t hold out hope for sanity on this subject.

        1. Well, I’m sure the courts agree with that, but I don’t think it actually holds water. After all, the right to die process contains an equal list, but life, liberty, and property. If the courts are holding that due process to remove property only requires a law that says police can take it, what does that say about the other two? I’m guessing there is more strict precedent on them.

          I dunno, maybe I’m gasping at straws. Civil assert forfeiture seems so blatantly antiamerican to me that I have trouble fairly reading the arguments for it in a constitutional sense.

  3. IANAL, and I don’t like civil forfeiture, but hasn’t the US Supreme Court mostly blessed the practice (subject to some limitations)?

    And if so, is this case another example of a judge ignoring precedent in favor of his own beliefs? It’s one thing if the judge said some aspect of the SC law ran afoul of the USSC’s rulings, but to rule the program itself was improper sure seems like judicial activism

    1. Precedent isn’t all binding. In fact, overturning precedents is often the only way to end bad laws. See Brown v Topeka Board of Education.

      1. plessy v ferguson, Dred Scott

        1. That’s my point. The precedence set I. Those cases was terrible and inconsistent with the Constitution, therefore the courts were correct to overturn precedent.

      2. I think most analysts think it will be overturned. They’ll not eliminate it probably, but they’ll put severe limitations on it. Thomas has basically said as much and I can’t imagine Gorsuch or the liberals supporting the way its used now.

    2. SCOTUS kinda sorta maybe a little bit blessed the practice but
      a) only in the context of the federal Constitution (that is, things allowable by the Feds can still be in violation of a state’s constitution); and
      b) only to the extent of the challenges raised in those precedential cases. If, for example, all the previous challenges were on 5th amendment grounds, those decisions have almost no precedential value to deciding a challenge on 8th amendment grounds.

      So to the extent this judge’s decision is based on their state constitution, SCOTUS precedent is largely irrelevant. And to the degree that this judge’s decision is based on the Federal Constitution, I think the SCOTUS precedents “blessing” civil asset forfeiture are at best weak and contradictory and not too hard for the plaintiff’s lawyer to distinguish from the current case.

    3. You are correct. It is nice to have a South Carolina judge citing the obvious, but unfortunately the US Supreme Court doesn’t care what this judge says. So I wouldn’t hold my breath waiting for abusive asset forfeiture to end any time soon.

    4. Yes, it is judicial activism. And your point is what?

      1. Protecting individuals from having their rights usurped is not judicial activism.

        We told the government it can’t take our stuff without first proving a crime was committed. Very clearly spelled out in Amendment V.

        Civil asset forfeiture is an attempt by government agents to evade those requirements by claiming, without the need for government to demonstrate proof of its claim, that the person who possess the property in question never had legitimate title to the property to begin with.

        1. Protecting individuals from having their rights usurped is not judicial activism.

          Yes, it is, and it’s a good thing. We need more of it.

      2. Standing up for the rights of WE THE PEOPLE is not judicial activism. You would only say that if you stand to lose something from this judge’s spot-on analysis. Free money that never has to be returned is something law enforcement has gotten away with for decades and is the best DISINCENTIVE to be honest and just regarding the process. There should never be an instance where law enforcement doesn’t have to answer to anyone for anything. They have proven time and time and time and time again they cannot be trusted.

      3. This is why civil asset forfeiture needs to be gone. This happened as someone was leaving Vegas with their GAMBLING WINNINGS!

        Now read this and quit kissing the system’s butt.

    5. They’ve fucked up many other times, too. What’s your point?


  4. “It stalled due to some technical issues with the wording,”

    How hard is it to say “you have to follow the damn constitution, stop stealing!”

    1. For a human, or a lawyer?

  5. Is there anybody defending civil asset forfeiture who is NOT a cop?

    1. Several people with just a cursory familiarity with the subject who feel that criminals shouldn’t be able to profit off of crime. Unfortunately, these individuals see someone is arrested for cocaine possession and don’t read any further.
      If we expanded our focus beyond drug arrests to demonstrate how these laws impact law abiding citizens we would be much better at convincing these last hold outs. Reason should discuss poaching laws, which many states also seize property without conviction for, even for unintentional acts.

      1. these individuals see someone is arrested for cocaine powdered milk possession and don’t read any further

        1. Kind of my point.

      2. These forfeiture efforts are also similar to the legislative limits on how much cash one may have; because drug laws are hard to enforce, since both sides of the “crime” don’t want any laws enforced.
        So they have looked for ways to punish those that they just know are engaging in the illegal activity but they can’t prove it

    2. As currently practiced? No.

      As originally practiced? Yes. Remember that civil asset forfeiture was originally a legal fiction created to solve the problem of abandoned contraband from smuggling. At the time of the Founding, smuggling was a real and significant problem. If it looked like you were going to be caught, it was not uncommon to dump the contraband overboard or go overboard yourself. Assuming you get away, the police are left holding obvious contraband with no known owner. (Who’s going to come forward to claim the stuff when doing so means admitting that you were the smuggler?) The police needed some legal fiction to allow them to seize the bad stuff and dispose of it.

      The modern equivalent is a pound of heroin dropped during a failed drug arrest. The police can’t legally seize the heroin from the owner because they don’t know who that is. But the police can’t leave the heroin in the middle of the street either. Without the original, limited form of CAF, what legal right do the police have to collect and destroy it?

      Where we went wrong was not the original CAF but in the much more recent extension of that concept from self-evident contraband to the subjective and ambiguous ‘anything “connected” to a crime’.

      1. You’re saying, without civil forfeiture, cops would have no alternative to but to leave abandoned contraband where it lies?

        Why don’t we treat abandoned contraband like any other abandoned property: hold it for a fair period and see if an owner claims it, and if not, sell it or destroy it?

        1. That is exactly what he was prescribing as the original intent.

          1. Exactly. Civil asset forfeiture was the legal process that enabled transfer of title in property from “unknown owner” to the State.

            The alternative would be to have no process, where agents of the state merely seize an item and claim that it’s derelict, and deny any claim by the actual owner that it’s not, in fact, derelict, but was stolen by the state.

      2. A facile misstatement. Customs and tariff laws provide government takings under libel proceedings (nothing to do with bad-mouthing). The goods are then sold at customs auctions just as confiscated vehicles are sold at police auctions. In 1920s Rio de Janeiro loads of legal cocaine were seized under tariff laws and auctioned at the custom house. Pressure from the likes of William Jennings Bryan and later Herbert Hoover caused prohibition laws to cripple economies all over the continent. But just as FDR was elected to four terms on a legalize beer platform, so non-Puritan Evo Morales just won a fourth term for keeping plant leaves legal in Bolivia.

      3. that’s silly on its face… the coppers SHOULD seize it and hold it as evidence that there was contraband being tramsported, sold, smuggled, etc. NO ONE advocates leaving it in the middle of the road for anyone else to pick it up and…..

        But this is NOT what today’s CAF has become. And today’s CAF is a corrupt racket that MUST be ended. NOT THE SLIGHTEST SHRED OF EVIDENCE is required to seize any item or amount of cash from anyone under any pretense.

        Yes, if they raid a drug house during a buy, there are bags of white powder piled on the kitchen table, scruffy looking critters are divind out the windows, and a large suitcase full of dead Benjamins is open on the table, with quite a few more Bens scattered about the table.. SURE< scoop it all up along wiht as many of the miscrants as you can cuff. BUT… that is all evidence. Arrest, charge, try, convict.. THEN the stuff that was seized is fair game for the coppers.

        But to walk in because a neighbour complained about lod music at midnight, and see a pile of cash on the table, walk up and take the cash, and SAF on that.. with not the slightest shred of evidence it is connected in any way to anyhting ilegal… now THAT is a corrupt abuse of police power. Particularly when they can't find a shred of evidence connecting the greenbacks with any criminal activity, AND there is a plausible story explaining the presence of $35,000 cash on the table.. Mike is buying Charlie's two year old Ford F 150 Raptor pickup. And the $35 Large is the agreed upon price. But NOOOOOOOoooooo the dirty coppers invent a story out of whole cloth, take the money, and Mike and Charlie now have to figure out who is the rightful owner of the truck, as the money had just been counted out and Mike had shoved it across the table but Charlie had not yet picked it up to count again, when the fuzz busted in.

        1. Ah, but it has been ruled illegal for Mike to have that $35 large in cash.
          Go to your local bank and pull out $10 grand and the bank is required to report you to LE, as is any legitimate business that is handed similar sized quantities of paper money.
          It is all part of the “war on drugs”; a war that both sides of transactions don’t want reported to the authorities, while the authorities try to figure out ways to stop it from happening.
          Asset forfeiture and restrictions on cash are two ways they use.
          That’s why an industry like “money laundering” is on the rise.

          1. Go to your local bank and pull out $10 grand and the bank is required to report you to LE, as is any legitimate business that is handed similar sized quantities of paper money.

            Na, they don’t directly report you to law enforcement. They make you give your personal information and they file a large cash transaction report (“LCTRs”) which is stored and must be readily available if the FBI or some other type of costume-with-a-badge type people come sniffing. Suspicious Activity Reports (“SARs”) are different and can be filled out at the discretion of bank staff for a whole host of reasons but isn’t specific to cash transactions and isn’t necessarily triggered by them either. SARs are mandatory in many cases, but simply withdrawing or depositing > $10k isn’t one of them.

            Although LCTRs can be used for researching cash flows for drug activities, it was originally put in place to stem the flow of cash to terrorist activities.

            At least, that’s how it was when I worked in banking not too long ago.

        2. Are you having trouble reading, Tionico?

          First, I agreed with you that today’s CAF practices are (or should be) unconstitutional. What I was describing were the historical origins of the practice.

          Second, while you are correct that police could theoretically seize the heroin as “evidence”, they can’t hold it forever. If nothing else, it would just pile up too high over time. And some forms of evidence (such as contraband fish) really don’t age well. Holding it as “evidence” could work as long as you have a hope of making a prosecution on the case but sometimes you just need to get rid of the stuff.

          And here’s the critical part – the police can’t legally destroy it until they actually own it. CAF was and remains the only legal process by which the government can take ownership of the contraband in order to destroy it.

          So to answer Anomalous’ original question (“Is there anybody defending civil asset forfeiture who is NOT a cop?”), yes – in its original, limited form.

  6. “It’s Unconstitutional for Police to Seize and Keep People’s Property Without Proving They Committed Crimes”

    Should apply to taxes too 🙂

    1. Except for the friggin 16A.

      1. 16A, passed just before 18A, was what South Carolina lawyer Manly Sullivan was convicted under for not reporting his profits from liquor. Sullivan pled that under 5A he could not file a return with bootlegging and bribing officials on it, and the Circuit Court backed him up. La Suprema Corte went with Mrs Willebrandt’s arguments, Sullivan went to jail, the German economy tanked and Willebrandt’s syndicate column started the bear market in early September of 1929. It is fitting that manly Carolinan nullifiers put an end to the looter madness that causes Great Depressions.

        1. 16-18th amendments, the worse part of the Constitution.

          1. True, but one down, one to go…

  7. Next, let’s have a ruling that you can’t prosecute someone for “obstruction of justice” unless you have proved there was a crime.

    1. Failing to prove the crime was proof of obstruction of justice.

    2. I’m for that. If no underlying crime obstruction of Justice is pure bullshit. It flirts with double jeopardy.

      1. This runs into the “there’s no such thing as a perfect crime” canard – if there were a perfect crime you’d never know it happened, so by definition absence of evidence isn’t evidence of absence.

        While I generally agree that there needs to be something improper to trigger penalties for “obstructing” the state, the opposite problem occurs where any effective obstruction defeats the prosecution of the underlying crime.

        Imagine an effective mob family who is so terrifying (enemies get skinned alive, then fed to sharks while their family watches, or some scene from Helraiser), where no one is willing to testify against them for broad fear of that happening to them – the populace is more afraid of the thugs than the state. Since they’ve so effectively intimidated everyone they become unprosecutable for any crimes.

        1. Obstruction of justice and witness intimidation are two different things.

        2. What you are describing is assault or threatened assault, already illegal. As is witness tampering.

  8. “S.C. Judge Rules the Obvious: It’s Unconstitutional for Police to Seize and Keep People’s Property Without Proving They Committed Crimes.”

    How sad it is when it takes a judge to point out the obvious to a bunch of property grabbing government officials.

  9. I remember reading the reporting when it came out, the Greenville cops were basically having the mail boys call them in whenever they found any cash and then taking it under “asset forefeiture”. It was some shit straight out of a banana republic, I’m glad that the state I grew up in is doing something about it.

  10. I wonder if the judge’s outline of how civil forfeitures cause significant disincentives and revenue-seeking will ever be applied to the much larger scheme of state AG’s jumping on any righteous public anger bandwagon, a la tobacco settlements. Now that they have established the pattern, states have discovered that they can fatten the state coffers, particularly the AG’s, by shaking down say, drug companies, vape companies and using the Feds, banks. Of course, all of these forfeitures can only be large enough to be a cost of business and passed on to the consumers, as according to the internal logic revealed by the judge, the state can never afford to put them out of business.

  11. I hope all the stolen money or property is promptly returned and the LOE’s that stole it are charged with strong arm robbery, RICO…

  12. When Cops show first came out decades ago, a good old boy pulled over a Mexican family traveling cross-country, searched their trunk, and found $8000 in a tire, took it, and sent them on their way.

    Congresscritters sat there and demanded to know why the cop wasn’t arrested for theft, and by god, they were going to do something about it!

    A quarter century later, here we are.

    “Well cost cutting is impacting police departments, and allowing them to make up the difference by seizing money and claiming it crime contrand without actually proving it gives us breathing room so we can cut more so we can spend it elsewhere for more votes.”

  13. This ruling, if it survives the looter onslaughts, will crash-proof the U.S. economy better than anything. Since 1893 when the lame-duck Republican changed customs regulations to confiscate drug cargoes evading the tariff, through 1929, when prosecutor Willebrandt unfolded the lengths the feds were going to using tax evasion and asset forfeiture grabs to shore up prohibition enforcement, that economy-wrecking power has existed. But the Reagan-Biden “Just Say No” laws of 1987 and Bush Jr forfeiture of real estate in 2008 showed how much more quickly prohibitionist looting wrecks a modern economy. Basta!

  14. As I first began hearing about this Civil Asset Forfeiture, I wondered how legal it really was, Seemed to violate a few of the items in the Bill of Rights.

    But when I read that the cash/item itself is “charged” before the court, and since it is not a person cannot have a lawyer, and somehow must PROVE it is not related by any wrongdoing…. I KNEW it was all a scam.

    Can any RATIONAL” individual actually defend the proposition that a pile of C notes can be charged with a crime, can mount a defense for itself, can even speak for itself? What are these guys SMOKING anyway?

    And they wonder why we laugh, poke fun at, despise, “government”?
    Maybe next time a cop gets his paycheck, he ought to be required to wait until that money can PROVE it belongs to HIM before HE can go and put it in the bank. Our Founders would be up all night rolling cartridges and cutting worn out nightgowns for wadding…. cuz there’d be some shootin goin on in th’ morning. They’d be going to GET that money back from the magistrate, and likely giving him a ride out of town on a fence rail. Hot tar optional but recommended.

    1. I like how you think, Tionico!

    2. Maybe some idiot named the money as a party to this case because they heard somebody say “Money talks!”

  15. I still am not seeing the practical effect of this ruling.

  16. Excerpt from the novel, Retribution Fever:

    The obverse had been a practice known as “civil forfeiture”. Innocent until proven guilty was a bedrock principle of U.S. justice. In most states, if a police officer merely suspected that property was connected to a crime, he could seize it without any actual evidence of wrongdoing. Through a federal program called “Equitable Sharing”, police could confiscate eighty percent of seized value. To recover that which was rightfully theirs, Americans must have proven that the property had no connection to a crime.

    [Optional Note for Readers: The practice had begun with the British several hundred years ago in order to deal with pirates beyond the reach of maritime law, judging the goods guilty of the crime, if not the accused. During the War Between the States, the Union adopted the practice to confiscate Northern property owned by Southerners. In 1921, the U.S. Supreme Court in J. W. Goldsmith, Jr.-Grant Co. v. United States endorsed the practice. Early on, however, it dealt more with payment of customs-duties and rarely applied to ordinary citizens until 1984 when Congress created the “Assets Forfeiture Fund” within the Department of Justice supposedly to impede drug-trafficking. The program generalized from there, as do such programs fostering theft by government.]

  17. If they cannot completely eliminate forfeiture completely, they certainly need to rewicker it so that the proceeds do not go into the state coffers in general and certainly not into the LEO & prosecutors’ coffers. If all forfeiture funds were sent to the e.g., victim restitution trust fund instead, at least (part of) the perverse incentive for LEO to be hyperquick to confiscate & forfeit would be removed.

    1. Spot on, mpercy!
      If the LEOs get the money from the confiscations, the potential for abuse of power is incredible… and to be expected!

      As I’ve been saying for years, “It’s NOT ‘Follow the Money,’ it’s actually ‘Follow the Money, the Power and the Control over People!”

      LEOs can’t help but love, defend and protect their ‘right’ to that money because it benefits them to do so! Gee… sounds like the Emoluments Clause, just a little? They get to decide what to take and what to keep, and if it’s sold, they get to keep the money!!

      Obviously, NO Chance of anything untoward happening there, right?
      Critical Thinking is DEAD!

  18. The real issue is what was intended to seize the illicit profits of drug dealers and therefore make the risk overwhelm the rewards was perverted by cash strapped cities and states. To avoid the political disaster of raising taxes they decided to steal from criminals figuring no one would care because they are, criminals. The problem is like anything controlled by government it went to far. Even criminals have rights and these laws are a basic denial of due process which is why it has to end.

  19. Judge John notes all of these problems in a decisive ruling that smacks down the practice of civil asset forfeiture.

    How nice. But the problem is that courts apparently for a long time have decided that this was OK. So, courts tolerated decades of constitutional violations but now one court is coming around? This says more about a broken court system than it says about civil asset forfeiture.

  20. THIEVES is filmed on location with the men and women of law enforcement. All goodies are guilty until proven innocent in a kangaroo court of law.

  21. The state of TN uses civil asset forfeiture to seize the car or home of any registrant who violates the residency or employment restrictions attached to the sex offender registry. Just another layer of putting the screws to registered citizens.

  22. Observe that South Carolina has an active and effective Libertarian Party. That has more do so with sensible court decisions than blind luck or sheer coincidence. Libertarian spoiler votes pack clout you can measure in foot-pounds.

  23. The LAW of Unintended Consequences. Asset Forfeiture, RICO, etc.

    The application of these laws have nothing to do with justice. It is all about getting money to buy more “toys” because the “boys” need the latest toys or they just can’t catch criminals.

    It probably started before OJ, but his trial is the most visible case of “over” prosecution. So much was presented to the jury all the defence had to do was ask: Could any of that evidence be unreasonable?

    Obviously, enough of it was to cause the jury to NOT convict him.

    The same goes on every day. Instead of prosecuting the Hildabeast for 10 breaches of security, they want to prosecute her for all 30,000 plus.

    On the flip side, how can you NOT “lie” to the FBI when THEY have the transcript and you are trying to remember something from months before?

    There is no justice in America. Just persecution and punishment.

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