Drug Agents Guide to Forfeiture of Assets
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: firstname.lastname@example.org 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..