Drug Agents' Guide to Forfeiture of Assets (1987 Revision)

I. Introduction
Forfeiture is an ancient doctrine that has survived for thousands
of years. It is now an established part of American Law. Yet,
until recently, it has played a very insignificant role in our
stuggle with crime. As a result, few schools offer courses on
forfeiture; and few legal experts exist in the area.
Only a handful of police, lawyuers and citizens are even aware of
the concept.

Over the last decade, several events have occurred which are
changing this picture. In 1970, Congress passed the first
criminal forfeiture statutes in United States history. 18 U.S.C.
1962, 1963; 21 U.S.C. 848. Their purpose is to seize the
ill-g0otten gains of organized crime figures. In 1978,
Congress amended the civil forfeituresections of federal law to
permit the seizure of all monies used in and all proceeds
acquired from the illegal drug trade. 21 U.S.C. 881 (a) (6). This
is the first United States statute to permit the civil
forfeitureof the accumulated profits of criminal activity. And,
in 1974, the Supremem Court of the United States reviewd the law
of forfeiture and upheld it against constitutional attack. IN
1984, Congress again amended the civil forfeiture provisions to
allow forfeiture of real property used to facilitate drug
violations; substantially expanded other civil forfeiture
provisions, and added a criiminal felony forfeiture provision (21
U.S.C. 853).

As a result, drug agents now have a very real, a very powerful,
new weapon to strike at the profits of crime. No longer will
investigators be restricted to arresting traffickers and seizing 
drugs. The means now exist to seize the third element of every
criminal organization; namely, the illegally accumulated
assets of its members.

In addition, forfeitures produce vast amounts of revenue. Law
enforcement has the potential, through forfeiture, of producing
more income than it spends. With tax dollars becoming scarce,
forfeiture holds the promise of improving drug enforcement and
the method to use the assets of violators to support enforcement
activities (Public Law 98-473, 10/14/84, 28 U.S.C. 524 (c)). The
long-range implications are enormous.
                    **************************************

I've looked over the guide, and I strongly recommend that
everyone else try to get a copy too. Civil forfeiture law makes
cf easy for law enforcement agents. All they need for seizure is
probable cause. Hearsay is an acceptable part of probable cause.
Once probable cause is "proven" then the burden of proof shifts
to the citizen. I'll try to do some extracting and send it to the
group, but I won't have the time to type the whole thing. Let me
know if even extracting is worth your time, and mine. 

Patricia Neill.

============================================================================

Date: 28 May 1993 13:30:08 -0500 (EST)
From: Patty Neill 
To: civ@delfin.com
Message-Id: <01GYPL5GVVJM96VPLK@DBV>

The _Drug Agents' Guide to Forfeiture of Assets 
(1987 Revision), from the Department of "Justice", Drug
Enforcement Administration. The OCLC number is 07507214, written
by Harry I. Myers and Joseph P. Brzostowski. It includes notes,
biblio, court cases, history of forfeiture law and enforcement in
the US, and basically describes (with examples) how drug agents
should proceed.

Page 2

The immediate challenge, however, is to learn the law of
forfeiture and teach it to others who have a need to know. This
will not be easy. It will not happen overnight. The process of
educating thousands of state and federal agents, prosecutors and
judged on a previously ignored area of law will be a long one.
The Drug Enforcement Administration hopes this Guide will
simplify, and shorten, the educational process.

A. Definition

Forfeiture is the taking by the Government of property illegally
used or acquired, without compensating the owner. US v Eight
Rhodesian Statutes, 449 F. Supp. 193 (CD CAL. 1978); Mayo v US,
413 F. Supp 160 (ED ILL 1976); Kahn v. Janowski, 60 A.2nd 519 (MD
1947)

B. History

The concept of forfeiture can be traced as far back as the Old
Testament. Chapter 21 of Exodus reveals the religious beginnings
of modern forfeiture law:

"28. If an ox gore a man or a woman, that they die: then the ox
shall be surely stoned, and his flesh shall not be eaten; but the
owner of the ox shall be quit."

Note how Verse 28 subjected the ox to forfeiture (to God by being
stoned), without regard to the guilt or innocence of the owner.
Forfeiture under Verse 28 did not depend of criminally convicting
anyone. If an ox gored someone to death, the owner lost his
rights to the ox.

Forfeitures similar to Verse 28 appeared in Roman law as early as
451 BC: "if a quadruped causes injury to anyone, let the owner
tender him the estimated amount of the damage; and if he is
unwilling to accept it, the owner shall . . . surrender the
animal that caused the injury." 7 Twelve Tables 1, translated in
1 Scott, _The Civil Law_, 69 (1932).

The ancient Greeks also forfeited things involved in certain
wrongs. Aeschines the Greek (389-314 BC) noted: "(W)e banish
beyond our borders sticks and stones and steal, voiceless and
mindless things, if they chance to kill a man; and if a man
commits suicide, bury the hand that struck the blow afar from the
body." See Holmes, _The Common Law_ (1881).

[page 3]

Even the early Brittons recognized the concept of civil
forfeiture: "where a man killeth another with the sword of John
at Stile, the sword shall be forfeit as deodand, and yet no
default is in the owner." (from a book written in 1530 on he
reign of Edward the First of England), cited in _The common Law_,
above at 24-26.

Readers interested in tracing the history between these ancient
laws and our modern forfeiture statutes should refer to
Finklestein, _The Goring Ox: Some Historical Perspectives on
Deodands, forfeitures, Wrongful Death and the Western Notion of
Sovereignty_, 46 Temple Law Quarterly 169 (1973).

C. Purpose

Our ancestors created the concept of forfeiture out of a need for
revenge--revenge against the offending thing, if not against its
owner. Holmes, _The Common Law_ 34 (1881). Over the centuries,
the concept of revenge has gradually faded from our laws, but he
traditional doctrine of forfeiture remains. Today, forfeiture is
used to protect the public from harmful objects, such as
adulterated foods and sawed-off shotguns, and it is used to deter
crime.

The first seven chapters of this Guide are devoted to "civil"
forfeiture law. The eighth discusses "criminal" forfeiture. And,
the ninth probes the practical problems facing agents
investigating cases involving substantial drug-related assets.

II. EVIDENCE & DEFENSES
     
The forfeitability of property depends upon: (1) The scope of the
forfeiture statute involved; (2) the kinds of evidence usable to
prove forfeiture; and (3) the existence of any defenses. These
questions are so interrelated that it is difficult to discuss
one, without discussing the others. Nevertheless, we must start
somewhere.

Because a knowledge of the evidentiary rules and defenses is
fundamental to an understanding of forfeiture, they are discussed
first. This provides an overview of the law and facilitates the
later use of examples to explain the forfeiture statutes.

A. FORFEITURES ARE CIVIL ACTIONS AGAINST PROPERTY

Unless a forfeiture statute expressly requires a conviction, it
is considered a civil action against property, [page 4] totally
independent of any criminal action against anyone.

[list of court cases, I will list only a few]

Authorities
S.Ct.      Calero-Toledo v. Pearson Yacht Leasing Co., 94 S.Ct.
          2080 (1974).

10 Cir.   US v One 1975 Thunderbird, 576 F.2d 834 (1978); Bramble
          v Richardson, 498 F.2d 968 (1974).

[rest of list deleted]

[page 5]

DISCUSSION

To understand this principle it is helpful to distinguish between
legal proceedings _in personam_ and legal proceedings _in rem_.
It is also helpful to distinguish between criminal proceedings
and civil proceedings.

1. _In Personam v. In Rem_

In personam refers to any legal proceeding directed _against an
individual_, that will determine his _personal obligations_,
rights, duties or liabilities.

_In rem_ refers to any legal proceeding directed _solely against
property_, that will determine to _ownership_ of that property.

[page 6]

The differences between these two types of proceedings are very
significant:
a. The defendant in an in personam proceeding is a person; the
defendant in an in rem proceeding is an object, or property.

b. In personam proceedings may impose personal obligations or
liabilities upon the parties to the action; in rem proceedings
are limited to determining ownership of property and cannot
impose personal obligations on anyone. Freedman v. Alderson, 7
S.Ct. 165 (1886).

c. In personam decisions affect only the parties to the
proceedings; in rem decisions affect "the whole world"--including
unknown claimants. Van Oster v. Kansas, 47 S. Ct. 144 (1926);
Gelston v. Hoyt, 3 Wheat. 247 (1818).

c. The power of a court to issue in personam decisions depends
upon its ability to get personal jurisdiction over the parties;
the power of a court in in rem decisions does not depend upon
having jurisdiction over anyone. Pennoyer v. Neff, 95 US 714, 24
L.Ed. 565 (1878).

In short, in personam and in rem proceedings are distinct legal
actions, totally independent of one another. Readers interested
in a more detailed analysis of in rem actions should see Fraser,
Actions in Rem, 34 Cornell Law Quarterly 29-49 (1948). And see
Shaffer v. Heitner, 97 S. Ct. 2569 (1977).

2. Civil v. Criminal

Law is broadly divided into two categories: civil and criminal.
The rules of evidence, the rules of procedure, the standards of
proof, and the available defenses differ with each category.

Generally, the purposes of civil law are to determine private
rights, and to compensate for harm. The purpose of criminal law,
on the other, is to punish wrongdoers. But this division,
although useful, has never been perfect. Punishment can be, and
often has been, imposed in civil proceedings. For example, if you
deliberately harm someone, he can sue you in a civil action for
his losses (compensation). He can also demand "punitive damages"
or "smart money." Punitive damages are a civil "fine" [page 7]
intended to punish deliberately harmful conduct. Prossner, Law of
Torts, 4th ed. (1971).

Many statutes are "penal" in nature even though they are civil in
form. The federal Controlled Substances Act, for example,
contains a $25,000 civil penalty for violations of the law by
doctors, pharmacies, drug companies and other drug registrants
(21 USC 842). For an excellent discussion of so-called "civil"
punishment, see Clark, Civil and Criminal Penalties and
Forfeiture: A Framework for Constitutional Analysis, 60 Minnesota
Law Review 279-500 (1976).

Forfeiture of otherwise legitimate property is a punishment that
can be imposed in either civil or criminal actions.

[sect. deleted]

4. Civil Forfeiture

There was a second form of forfeiture recognized in old England.
It as an in rem proceeding against property [page 8] which had
been involved in some wrong. The proceedings were totally
independent of any criminal action taken against the owner. The
Palmyra, 12 Wheat. 1, 6 L.Ed. 531 (1827).

All forfeiture statutes were presumed to be civil, in rem
proceedings, unless they expressly required a criminal conviction
as a condition to forfeiture. In Re Various Items of Personal
Property, 51 SCt 282 (1931).

The American Colonies adopted these civil, in rem forfeitures and
began applying them to contraband imports and to ships
transporting contraband. CJ Henry Co v. Moore, 63 S Ct 499, 503
(1943) [some cases deleted]

The first Congress of the United States passed civil, in rem
forfeitures on pirate ships, ships violating the customs laws,
and slave ships. See Calero-Toledo v. Pearson Yacht Leasing Co.

For more than 200 years, Congress has continued to pass civil, in
rem, forfeiture statutes on a wide range of property: [cases
listed in guide deleted here--you all can let me know if you want
me to list them.]

[page 9]

Because these forfeitures have the effect, if not the purpose, of
punishing owners, they have been referred to as "quasi-criminal"
in character. [deleted] As we shall see, this characterization is
relevant only to the application of the "Exclusionary Rule" to
forfeitures.

For all other purposes, civil, in rem forfeitures are considered
independent civil proceedings. 

B. PROBABLE CAUSE IS ENOUGH TO BEGIN A CIVIL FORFEITURE

A preliminary showing of "probable cause" to believe property was
used illegally is all that is needed to start a forfeiture
action. Proof beyond a reasonable doubt is not required. A prima
facie case is not required. The same probable cause standard used
to arrest, search or seize is enough to begin a forfeiture..