[ANNEX TO RISKS-12.13, Monday 19 August 1991, FTP-able]
Government Seizures Victimize Innocent
By Andrew Schneider and Mary Pat Flaherty
The Pittsburgh Press, Sunday, August 11, 1991
Part One: The overview
February 27, 1991.
Willie Jones, a second-generation nursery man in his family's Nashville
business, bundles up money from last year's profits and heads off to buy
flowers and shrubs in Houston. He makes this trip twice a year using cash,
which the small growers prefer.
But this time, as he waits at the American Airlines gate in Nashville
Metro Airport, he's flanked by two police officers who escort him into a small
office, search him and seize the $9,600 he's carrying. A ticket agent had
alerted the officers that a large black man had paid for his ticket in bills,
unusual these days. Because of the cash, and the fact that he fit a "profile"
of what drug dealers supposedly look like, they believed he was buying or
selling drugs.
He's free to go, he's told. But they keep his money -- his
livelihood -- and give him a receipt in its place.
No evidence of wrongdoing was ever produced. No charges were
ever filed. As far as anyone knows, Willie Jones neither uses drugs,
nor buys or sells them. He is a gardening contractor who bought an
airplane ticket. Who lost his hard-earned money to the cops. And can't
get it back.
That same day, an ocean away in Hawaii, federal drug agents arrive at
the Maui home of retirees Joseph and Frances Lopes and claim it for the U.S.
government.
For 49 years, Lopes worked on a sugar plantation, living in its camp
housing before buying a modest home for himself, his wife, and their adult,
mentally disturbed son, Thomas.
For a while, Thomas grew marijuana in the back yard -- and threatened
to kill himself every time his parents tried to cut it down. In 1987, the
police caught Thomas, then 28. He pleaded guilty, got probation for his first
offense and was ordered to see a psychologist once a week. He has, and never
again has grown dope or been arrested. The family thought this episode was
behind them.
But earlier this year, a detective scouring old arrest records for
forfeiture opportunities realized the Lopes house could be taken away because
they had admitted they knew about the marijuana.
The police department stands to make a bundle. If the house is sold,
the police get the proceeds.
Jones and the Lopes family are among the thousands of Americans each
year victimized by the federal seizure law -- a law meant to curb drugs by
causing financial hardship to dealers.
A 10-month study by The Pittsburgh Press shows the law has run
amok. In their zeal to curb drugs and sometimes fill their coffers
with the proceeds of what they take, local cops, federal agents and
the courts have curbed innocent Americans' civil rights. From Maine
to Hawaii, people who are never charged with a crime had cars, boats,
money and homes taken away.
In fact, 80 percent of the people who lost property to the
federal government were never charged. And most of the seized items
weren't the luxurious playthings of drug barons, but modest homes and
simple cars and hard-earned savings of ordinary people.
But those goods generated $2 billion for the police
departments that took them.
The owners' only crimes in many of these cases: They "looked"
like drug dealers. They were black, Hispanic or flashily dressed.
Others, like the Lopeses, have been connected to a crime by
circumstances beyond their control.
Says Eric Sterling, who helped write the law a decade ago as a
lawyer on a congressional committee: "The innocent-until-proven-guilty
concept is gone out the window."
The law: Guilt doesn't matter
Rooted in English common law, forfeiture has surfaced just twice in
the United States since colonial times.
In 1862, Congress permitted the president to seize estates of
Confederate soldiers. Then, in 1970, it resurrected forfeiture for the
civil war on drugs with the passage of racketeering laws that targeted
the assets of criminals.
In 1984 however, the nature of the law was radically changed
to allow government to take possession without first charging, let
alone convicting the owner. That was done in an effort to make it
easier to strike at the heart of the major drug dealers. Cops knew
that drug dealers consider prison time an inevitable cost of doing
business. It rarely deters them. Profits and playthings, though, are
their passions. Losing them hurts.
And there was a bonus in the law. the proceeds would flow back
to law enforcement to finance more investigations. It was to be the
ultimate poetic justice, with criminals financing their own undoing.
But eliminating the necessity of charging or proving a crime has moved
most of the action to civil court, where the government accuses the item -- not
the owner -- of being tainted by a crime.
This oddity has court dockets looking like purchase orders:
United States of America vs. 9.6 acres of land and lake; U.S. vs. 667
bottles of wine. But it's more than just a labeling change. Because
money and property are at stake instead of life and liberty, the
constitutional safeguards in criminal proceedings do not apply.
The result is that "jury trials can be refused; illegal searches
condoned; rules of evidence ignored," says Louisville, Ky. defense lawyer
Donald Heavrin. The "frenzied quest for cash," he says, is "destroying the
judicial system."
Every crime package passed since 1984 has expanded the uses of
forfeiture, and now there are more than 100 statutes in place at the state and
federal level. Not just for drug cases anymore, forfeiture covers the likes of
money laundering, fraud, gambling, importing tainted meats and carrying
The White House, Justice Department and Drug Enforcement
Administration say they've made the most of the expanded law in
getting the big-time criminals, and they boast of seizing mansions,
planes and millions in cash. But the Pittsburgh Press in just 10
months was able to document 510 current cases that involved innocent
people -- or those possessing a very small amount of drugs -- who lost
their possessions.
And DEA's own database contradicts the official line. It showed that
big-ticket items -- valued at more than $50,000 -- were only 17 percent of the
total 25,297 items seized by DEA during the 18 months that ended last December.
"If you want to use that 'war on drugs' analogy, the
forfeiture is like giving the troops permission to loot," says Thomas
Lorenzi, president-elect of the Louisiana Association of Criminal
Defense Lawyers.
The near-obsession with forfeiture continues without any proof
that it curbs drug crime -- its original target.
"The reality is, it's very difficult to tell what the impact
of drug seizure is," says Stanley Morris, deputy director of the
federal drug czar's office.
Police forces keep the take
The "loot" that's coming back to police forces all over tha
nation has redefined law-enforcement success. It now has a dollar sign
in front of it.
For nearly eighteen months, undercover Arizona State Troopers worked as
drug couriers driving nearly 13 tons of marijuana from the Mexican border to
stash houses around Tucson. They hoped to catch the Mexican suppliers and
distributors on the American side before the dope got on the streets.
But they overestimated their ability to control the distribution.
Almost every ounce was sold the minute they dropped it at the houses.
Even though the troopers were responsible for tons of drugs getting
loose in Tucson, the man who supervised the setup still believes it was
worthwhile. It was "a success from a cost-benefit standpoint," says former
assistant attorney-general John Davis. His reasoning: It netted 20 arrests and
at least $3 million for the state forfeiture fund.
"That kind of thinking is what frightens me," says Steve
Sherick. a Tucson attorney. "The government's thirst for dollars is
overcoming any long-range view of what it is supposed to be doing,
which is fighting crime."
George Terwilliger III, associate deputy attorney general in
charge of the U.S. Justice Department's program emphasizes that
forfeiture does fight crime, and "we're not at all apologetic about
the fact that we do benefit (financially) from it."
In fact, Terwilliger wrote about how the forfeiture program financially
benefits police departments in the 1991 Police Buyer's Guide of Police Chief
Magazine.
Between 1986 and 1990, the U.S. Justice Department generated $1.5
billion from forfeiture and estimates that it will take in $500 million this
year, five times the amount it collected in 1986.
District attorney's offices throughout Pennsylvania handled $4.5
million in forfeitures last year; Allegheny County (ED: Pittsburgh is in
Allegheny County), $218,000, and the city of Pittsburgh, $191,000 -- up from
$9,000 four years ago.
Forfeiture pads the smallest towns coffers. In Lexana, Kan, a Kansas
City suburb of 29,000, "we've got about $250,000 moving in court right now,"
says narcotics detective Don Crohn.
Despite the huge amounts flowing to police departments, the are few
public accounting procedures. Police who get a cut of the federal forfeiture
funds must sign a form saying merely the will use it for "law enforcement
purposes."
To Philadelphia police that meant new air conditioning. In Warren
County, N.J., it meant use of a forfeited yellow Corvette for the chief
assistant prosecutor.
{At this point in the article there is a picture of three people in an empty
apartment, with the following caption:
Judy Mulford, 31, and her 13-year old twins, Chris, left, and Jason,
are down to essentials in their Lake Park, Fla., home, which the
government took in 1989 after claiming her husband, Joseph, stored
cocaine there. Neither parent has been criminally charge, but in April
a forfeiture jury said Mrs. Mulford must forfeit the house she bought
herself with an insurance settlement. The Mulfords have divorced, and
she has sold most of her belongings to cover legal bills. She's asked
for a new trial and lives in the near-empty house pending a decision. }
`Looking' like a criminal
Ethel Hylton of New York City has yet to regain her financial
independence after losing $39,110 in a search nearly three years ago in Hobby
Airport in Houston.
Shortly after she arrived from New York, a Houston officer and Drug
Enforcement Administration agent stopped the 46-year-old woman in the baggage
area and told her she was under arrest because a drug dog had scratched at her
luggage. The dog wasn't with them, and when Miss Hylton asked to see it, the
officers refused to bring it out.
The agents searched her bags, and ordered a strip search of Miss
Hylton, but found no contraband.
In her purse they found the cash Miss Hylton carried because she
planned to buy a house to escape the New York winters which exasperated her
diabetes. It was the settlement from an insurance claim, and her life's
savings, gathered through more than 20 years of work as a hotel housekeeper and
hospital night janitor.
The police seized all but $10 of the cash and sent Miss Hylton on her
way, keeping the money because of its alleged drug connection. But they never
charged her with a crime.
The Pittsburgh Press verified her jobs, reviewed her bank statements
and substantiated her claim she had $18,000 from an insurance settlement. It
also found no criminal record for her in New York City.
With the mix of outrage and resignation voiced by other victims of
searches, she says: "The money they took was mine. I'm allowed to have it. I
earned it."
Miss Hylton became a U.S. citizen six years ago. She asks, "Why did
they stop me? Is it because I'm black or because I'm Jamaican?"
Probably, both -- although Houston police haven't said.
Drug teams interviewed in dozens of airports, train stations and bus
terminals and along other major highways repeatedly said they didn't stop
travellers based on race. But a Pittsburgh Press examination of 121 travellers'
cases in which police found no dope, made no arrest, but seized money anyway
showed that 77 percent of the people stopped were black, Hispanic, or Asian.
In April, 1989, deputies from Jefferson Davis Parish,
Louisiana, seized $23,000 from Johnny Sotello, a Mexican-American
whose truck overheated on a highway.
They offered help, he accepted. They asked to search his truck. He
agreed. They asked if he was carrying cash. He said he was because he was
scouting heavy equipment auctions.
They then pulled a door panel from the truck, said the space behind it
could have hidden drugs, and seized the money and the truck, court records
show. Police did not arrest Sotello but told him he would have to go to court
to recover his property.
Sotello sent auctioneer's receipts to police which showed he was a
licensed buyer. the sheriff offered to settle the case, and with his legal
bills mounting after two years, Sotello accepted. In a deal cut last March, he
got his truck, but only half his money. The cops kept $11,500.
I was more afraid of the banks than anything -- that's one reason I
carry cash," says Sotello. "But a lot of places won't take checks, only cash,
or cashier's checks for the exact amount. I never heard of anybody saying you
couldn't carry cash."
Affidavits show the same deputy who stopped Sotello routinely stopped
the cars or black and Hispanic drivers, exacting "donations" from some.
After another of the deputy's stops, two black men from
Atlanta handed over $1,000 for a "drug fund" after being detained for
hours, according to a hand-written receipt reviewed by the Pittsburgh
Press.
The driver got a ticket for "following to (sic) close." Back home, they
got a lawyer.
Their attorney, in a letter to the Sheriff's department, said deputies
had made the men "fear for their safety, and in direct exploitation of that
fear a purported donation of $1000 was extracted..."
If they "were kind enough to give the money to the sheriff's office,"
the letter said, "hen you can be kind enough to give it back." If they gave the
money "under other circumstances, then give the money back so we can avoid
litigation."
Six days later, the sheriff's department mailed the men a $1,000 check.
Last year, the 72 deputies of Jefferson Davis Parish led the state in
forfeitures, gathering $1 million -- more than their colleagues in New Orleans,
a city 17 times larger than the parish.
Like most states, Louisiana returns the money to law enforcement
agencies, but it has one of the more unusual distributions: 60 percent goes to
the police bringing a case, 20 percent to the district attorney's office
prosecuting it and 20 percent to the court fund of the judge signing the
forfeiture order.
"The highway stops aren't much different from a smash-and-grab
ring," says Lorenzi, of the Louisiana Defense Lawyers association.
Paying for your innocence
The Justice Department's Terwilliger says that in some cases
"dumb judgement" may occasionally cause problems, but he believes
there is an adequate solution. "That's why we have courts."
But the notion that courts are a safeguard for citizens
wrongly accused "is way off," says Tjomas Kerner, a forfeiture lawyer
in Boston. "Compared to forfeiture, David and Goliath was a fair
fight."
Starting from the moment that the government serves notice
that it intends to take an item, until any court challenge is
completed, "the government gets all the breaks," says Kerner.
The government need only show probable cause for a seizure, a
standard no greater than what is needed to get a search warrant. The
lower standard means the government can take a home without any more
evidence than it normally needs to take a look inside.
Clients who challenge the government, says attorney Edward
Hinson of Charlotte, N.C., "have the choice of fighting the full
resources of the U.S. treasury or caving in."
Barry Colin caved in.
Kolin watched Portland, Ore., police padlock the doors of
Harvey's, his bar and restaurant for bookmaking on March 2.
Earlier that day, eight police officers and Amy Holmes Hehn,
the Multnomah County deputy district attorney, had swept into the bar,
shooed out waitresses and customers and arrested Mike Kolin, Barry's
brother and bartender, on suspicion of bookmaking.
Nothing in the police documents mentioned Barry Kolin, and so
the 40-year-old was stunned when authorities took his business, saying
they believe he knew about the betting. He denied it.
Hehn concedes she did not have the evidence to press a criminal case
against Barry Kolin, "so we seized the business civilly."
During a recess in a hearing on the seizures weeks later, "the
deputy DA says if I paid them $30,000 I could open up again," Kolin
recalls. When the deal dropped to $10,000, Kolin took it.
Kolin's lawyer, Jenny Cooke, calls the seizure "extortion."
She says: "There is no difference between what the police did to Barry
Kolin or what Al Capone did in Chicago when he walked in and said,
'This is a nice little bar and it's mine.' the only difference is
today they call this civil forfeiture."
Minor crimes, major penalties
Forfeiture's tremendous clout helps make it "one of the most
effective tools that we have," says Terwilliger.
The clout, though, puts property owners at risk of losing more
under forfeiture that they would in a criminal case under the same
circumstances.
Criminal charges in federal and many state courts carry
maximum sentences. But there's no dollar cap on forfeiture, leaving
citizens open to punishment that far exceeds the crime.
Robert Brewer of Irwin, Idaho, is dying of prostate cancer,
and uses marijuana to ease the pain and nausea that comes with
radiation treatments.
Last Oct. 10, a dozen deputies and Idaho tax agents walked
into the Brewer's living room with guns drawn and said they had a
warrant to search.
The Brewers, Robert, 61, and Bonita, 44, both retired form the
postal service, moved from Kansas City, Mo., to the tranquil, wooded
valley of Irwin in 1989. Six months later, he was diagnosed.
According to police reports, and informant told authorities
Brewer ran a major marijuana operation.
The drug SWAT team found eight plants in the basement under a
grow light and a half-pound of marijuana. The Brewers were charged
with two felony narcotics counts and two charges for failing to buy
state tax stamps for the dope.
"I didn't like the idea of the marijuana, but it was the only
thing that controlled his pain," Mrs. Brewer says.
The government seized the couples five-year-old Ford van that
allowed him to lie down during his twice-a-month trips for cancer
treatment at a Salt Lake City hospital, 270 miles away.
Now they must go by car.
"That's a long painful ride for him. His testicles would
sometimes swell up to the size of cantaloupes, and he had to lie down
because of the pain. He needed that van, and the government took it,"
Mrs. Brewer says.
"It looks like the government can punish people any way it sees fit."
The Brewers know nothing about the informant who turned them in, but
informants play a big role in forfeiture. Many of them are paid, targeting
property in return for a cut of anything that is taken.
The Justice Department's asset forfeiture fund paid $24 million to
informants in 1990 and has $22 million allocated this year.
Private citizens who snitch for a fee are everywhere. Some airline
counter clerks receive cash awards for alerting drug agents to "suspicious"
travellers. The practice netted Melissa Furtner, a Continental Airlines clerk
in Denver, at least $5,800 between 1989 and 1990, photocopies of checks show.
Increased surveillance, recruitment of citizen-cops, and expansion of
forfeiture sweeps are all part of a take-now, litigate-later syndrome that
builds prosecutors careers, says a former federal prosecutor.
"Federal law enforcement people are the most ambitious I've ever met,
and to get ahead they need visible results. Visible results are convictions,
and, now, forfeitures," says Don Lewis of Meadville, Crawford County. (ED: a Pa
county north of Pgn by two counties.)
Lewis spent 17 years as a prosecutor, serving as an assistant U.S.
attorney in Tampa as recently as 1988. He left the Tampa Job -- and became a
defense lawyer -- when "I found myself tempted to do things I wouldn't have
thought about doing years ago."
Terwilliger insists U.S. attorneys would never be evaluated on
"something as unprofessional as dollars."
Which is not to say Justice doesn't watch the bottom line.
Cary Copeland, director of the department' Executive Office
for Asset Forfeiture, says the tried to "squeeze the pipeline" in 1990
when the amount forfeited lagged behind Justice's budget projections.
He said this was done by speeding up the process, not by doing
"whole lot of seizures."
Ending the Abuse
While defense lawyers talk of reforming the law, agencies that
initiate forfeiture scarcely talk at all.
DEA headquarters makes a spectacle of busts like the seizure
of fraternity houses at the University of Virginia in March. But it
refuses to supply detailed information on the small cases that account
for most of its activity.
Local prosecutors are just as tight-lipped.
Thomas Corbett, U.S. Attorney for Western Pennsylvania, seals court
documents on forfeitures because "there are just some things I don't want to
publicize. the person whose assets we seize will eventually know, and who else
has to?"
Although some investigations need to be protected, there is an
"inappropriate secrecy" spreading throughout the country, says Jeffrey Weiner,
president-elect of the 25,000 member National Association of Criminal Defense
Lawyers.
"The Justice Department boasts of the few big fish they catch. But
they throw a cloak of secrecy over the information on how many innocent people
are getting swept up in the same seizure net, so no one can see the enormity of
the atrocity."
Terwilliger says the net catches the right people: "bad guys"
as he calls them.
But a 1990 Justice report on drug task forces in 15 states found they
stayed away from the in-depth financial investigations needed to cripple major
traffickers. Instead, "they're going for the easy stuff," says James "Chip"
Coldren, Jr., executive director of the Bureau of Justice Assistance, a
research arm of the federal Justice Department.
Lawyers who say the law needs to be changed start with the basics: The
government shouldn't be allowed to take property until after it proves the
owner guilty of a crime.
But they go on to list other improvements, including having police
abide by their state laws, which often don't give police as much latitude as
the federal law. Now they can use federal courts to circumvent the state.
Tracy Thomas is caught in that very bind.
A jurisprudence version of the shell game hides roughly $13,000 taken
from Thomas, a resident of Chester, near Philadelphia.
Thomas was visiting in his godson's home on Memorial Day,
1990, when local police entered looking for drugs allegedly sold by
the godson. They found none and didn't file a criminal charge in the
incident. But they seized $13,000 from Thomas, who works as a
$70,000-a-year engineer, says his attorney, Clinton Johnson.
The cash was left over from a Sherrif's sale he'd attended a
few days before, court records show. the sale required cash -- much
like the government's own auctions.
Citing a hearing over the seized money, Thomas presented a withdrawal
slip showing he'd removed money from his credit union shortly before the trip
and a receipt showing how much he had paid for the property he'd bought at the
sale. The balance was $13,000.
On June 22, 1990, a state judge ordered Chester police to return
Thomas' cash.
They haven't.
Just before the court order was issued, the police turned over the cash
to the DEA for processing as a federal case, forcing Thomas to fight another
level of government. Thomas is now suing the Chester police, the arresting
officer, and the DEA.
"When DEA took over that money, what they in effect told a local police
department is that it's OK to break the law," says Clinton Johnson, attorney
for Thomas.
Police manipulate the courts not only to make it harder on owners to
recover property, but to make it easier for police to get a hefty share of any
forfeited goods. In federal court, local police are guaranteed up to 80 percent
of the take -- a percentage that may be more than they'd receive under state
law.
Pennsylvania's leading police agency -- the state police -- and the
state's lead prosecutor -- the Attorney General -- bickered for two years over
state police taking cases to federal court, an arrangement that cut the
Attorney General out of the sharing.
The two state agencies now have a written agreement on how to divvy the
take.
The same debate is heard around the nation.
The hallways outside Cleveland courtrooms ring with arguments over who
will get what, says Jay Milano, a Cleveland criminal defense attorney.
"It's causing a feeding frenzy."
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