[CTRL] Position Paper of Forfeiture Endangers American Rights Foundation

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[DRAFT #BG-12-1-98]
Note:  This position paper has been partially updated from
the
original 1992 version, but the updating is not yet complete.
Your
suggested corrections, questions and comments should be
directed to Brenda
Grantland by e-mail at [EMAIL PROTECTED],
or
by snail mail to Brenda Grantland, 20 Sunnyside, Suite A-204, Mill
Valley,
CA 94941.  Or call 415-380-9108, or fax to 415-331-3696.
Position Paper of Forfeiture Endangers American Rights Foundation

FEDERAL ASSET FORFEITURE LAWS NEED TO BE AMENDED
TO RESTORE
DUE PROCESS
AND PROTECT PROPERTY RIGHTS IN THE FORFEITURE
PROCESS
F.E.A.R.'s Proposal For Reform


Forfeiture Endangers American
Rights Foundation
P.O. Box 15421
Washington, D.C. 20003
202-546-4381



Introduction

Police and prosecutors describe civil asset forfeiture as "The Greatest
Single Weapon In The War Against Drugs." They proclaim to the legislatures
that "it hits drug dealers where it hurts -- in the pocketbooks," and that

it "takes the profits out of crime, and gives them to the police."

In truth, civil forfeiture laws allow police to confiscate private
property without having to pay for it, and without even having to arrest
anyone, much less prove the property owner guilty of any crime.

Under current federal law and the law of most states, civil asset forfeiture allows 
the police to keep what they seize and forfeit. Not only do they
get to keep it, but for the most part, they don't have to account for it
.
And even if they account for it, generally no one looks into where they
got it, or what they did with it.


The Evolution of Abusive Forfeiture Laws

Until 1984, civil asset forfeiture was so rare that few Americans had
ever heard of it. Even now most Americans don't know what it means, even
when it has become so widespread as to generate half a billion dollars
a year
in revenue for the Department of Justice alone -- close to a billion
a year between all the federal agencies.

Since Colonial times, forfeitures were disfavored in America. The forfeiture practices 
of England against the colonies were one of the reasons for the Revolutionary War.

Forfeitures for customs violations have always been allowed. Undeclared, counterfeit, 
or contraband goods coming across the U.S. have always been subject to confiscation 
without compensation to the property owner. U.S. ci
tizens do not possess constitutional rights outside U.S. borders, and
have no right to bring anything into the country. But the situation is
very different when these same laws are applied to activities occurring
inside t
he U.S. - where constitutional guarantees are supposed to apply.


The "Orwellian Amendments"

In 1984, Congress catapulted asset forfeiture into the political landscape,
with the passage of the Omnibus Crime Bill, which drastically changed the
federal forfeiture laws. The bill vastly expanded the forfeiture laws a
pplicable
to drug offenses. It mimicked the Customs laws by making the process "in
rem", which means against the property itself instead of against its' owner.
It used the "in rem" label as an exception to basic constitut
ional principles
as it took away any semblence of due process for the hapless forfeiture
victim.

Since 1984, the forfeiture laws have been drastically expanded for use
inside U.S. borders, for any purpose that law enforcement could come up
with -- as the "War Against Drugs," recently renamed the "War Against Crime"
-
- overtook America. Now, according to Justice Department Asset Forfeiture Chief, Cary 
Copeland, there are over 200 federal forfeiture statutes, allowing confiscation of 
private property without compensation for federal "o
ffenses" ranging from drug crimes and bank or mail fraud to: making a false statement 
on a bank loan application, killing an endangered species of rat on your
own land, collecting feathers of migratory birds such as sea g
ulls, or
failing to report to the IRS the purchase of over $3000 in money orders
within 24 hours or a cash sale involving over $10,000.

In the effort to fight the bogeyman, "Drugs" or "Crime," the police
said they needed to obtain powers not permitted by the Constitution. In
exchange the police promised they would take the incentive out of crime
-- or "hi
t the drug dealer where it hurts, in the pocketbooks" -- their
reasoning went. The police would take the profits criminals made off crime,
funnel them back into law enforcement efforts, and soon would conquer "Crime."

The theory sounded good on paper and in television sound bites. But
"Crime" is an inseperable part of human civilization; although it can be
deterred, and should be punished, it is not eradicable.

What was not considered in the 1984 Omnibus Crime Bill's radical restructuring
of federal law enforcement priorities and power, was the fact that shifting
the lure of assets from criminals to the police would tend to corr
upt the
police -- and that it would shift law enforcement priorities away from
apprehending violent criminals and toward the more lucrative pursuits of civil 
forfeiture for drug offenses.

The corruption of the police did not stop with the federal government.
Starting in 1984, federal police began a program began called "Equitable
Sharing" or "Federal Adoption," which allowed the federal police to recruit
s
tate and local police to work for them in seizing property under federal
statutes. Under this law, local or state police could seize property --
even if the seizure was invalid under state law -- and turn it over to
the f
ederal government for forfeiture under a federal statute. If the federal
forfeiture case was resolved favorably to the police, the feds would split
the proceeds with the local cops -- even if the forfeiture would have
bee
n totally illegal under state law, and even if their motivation
in going federal was only to evade state law.

As the 1984 amendments to the federal forfeiture laws grew in popularity among the 
police elements that profitted from them, state forfeiture laws
were expanded to cut out the middleman -- the federal government. Across
t
he country, state governments have stumbled all over themselves trying
to enact state forfeiture statutes as draconian as the federal statutes,
so that state and local police can keep all they seize.

Historically accepted in rem principles -- such as the "legal
fiction" that it's the property itself, not the property owner, who is
being punished, the "relation back doctrine," and the fiction that civil
forfeiture is "
remedial" rather than "punishment" -- were responsible for
most of the unfairness and abuse civil forfeiture has caused. As Terrance
Reed noted in his Policy Analysis paper on forfeiture abuse for the Cato
Institute:(1)

The personification fiction that animates civil forfeiture law has
given rise to truly peculiar vignettes in courtrooms across this country.
Property owners whose assets have been seized by government officials often
try
to press their claims for relief through traditional, well-respected,
legal arguments, such as that they have not been accused of criminal conduct,
that they are presumed by law to be innocent of wrongdoing, or that the
g
overnment has taken their property without affording them any prior notice
or hearing.

Unfortunately, those facially formidable legal claims, claims that
normally would find ample support in the Constitution, prove unavailing.
Instead, an otherwise rational judge -- one who has earned his status through
the
 exercise of careful, logical, and sober judgment -- informs the property
owner that it is his property, not he, that is being prosecuted by the
government; that, in the eyes of the government, his property is a criminal

perpetrator and that it is his property's rights (or lack thereof), not
those of its human owner, that determine the sufficiency of the procedures
the government can use to confiscate it.

More than one property owner has been baffled by this spectacle as he
tries to invoke traditional legal arguments against such government action.
Such an imaginative notion of transferred responsibility for misconduct
see
ms more natural from a child with his hand in the cookie jar than from
a learned judge....

The power of these historical arguments is formidable, as the Supreme
Court has acknowledged. They have been repeatedly used to cast aside fundamental 
notions of fairness that have otherwise guided the development of our
system of justice. The notion, for example, that the innocence of a property owner
is no defense to the forfeiture of his property to the government does
violence to widely accepted common understandings of fair play and
due
process. As recently as 1974, however, the Supreme Court reaffirmed the
triumph of forfeiture over protestations of owner innocence solely by reference
to forfeiture's historical lineage."(2)

But that was before the 1992-1993 term of
the United States Supreme Court, during which the high court issued five
consecutive opinions finding constitutional violations in federal forfeiture
laws.(3) These legal fictions
 are finally
being abandoned as the courts begin to recognize that the Constitution runs deeper 
than any legal fiction, no matter how ancient its historical
roots.

The forfeiture revolution in the Supreme
Court

The Supreme Court opinions of the 1992-93
term presented a major turning point in the reform of the forfeiture laws,
abandoning antiquated fictions that had been used for centuries as an excuse
to get around established c
onstitutional principles.

In the five consecutive decisions, the Supreme
Court consistently agreed with us, as you will see if you compare our then-"radical"
1992 position paper with the reasoning in the five Supreme Court decisions
from the 1992-
93 term.

If anything, these five decisions, and the
sea change in underlying theory, call into question many more constitutional
problems with forfeiture laws, such as the constitutionality of applying
a civil burden of proof, shi
fting the burden of proving innocence to the
property owner, summary judgment and other procedural mechanisms that deprive
the owner of the right to a jury trial, the imposition of a cost bond as
a prerequisite to obtaini
ng the right to due process.

When the 1992-93 term cases are taken to
their full conclusion, civil forfeiture as a principle appears doomed.
How can we, consistent with the Constitution, allow a civil process that
"punishes" innocent spouses, childre
n, landlords, lienholders and other
third parties? Isn't guilt a pre-requisite to punishment?

The news media began to abandon the forfeiture
issue after the 1992-93 term, thinking the problems and abuses had been
resolved by the Supreme Court. But the battle to restore constitutional
rights in the forfeiture proce
ss was far from over.

For all the progress we made in the 1992-93
term of the Supreme Court, we took two steps forward and then three steps
back in the 1996 term, when the Supreme Court decided forfeiture was not
punishment for purposes of the
 double jeopardy clause, and that the Constitution
did not protect innocent owners from forfeiture of their property.

The need for prompt legislative change
to cure further constitutional problems

We can't wait for the courts to resolve the
remaining problems -- too many innocent people will be destroyed.
Forfeiture of families' homes for the crimes or infractions of one family
member breeds homelessness and unfai
rly punishes children of wrongdoers
thereby assuring they will rebel against the authority of the state creating
a new generation of wrongdoers. Forfeiture is used discriminately, divesting
minorities of their economic po
wer and unfairly reducing their political
strength as well. And worst of all, forfeiture corrupts the police by making
them depend for their income on seizing property from others.
The cost in human misery cannot be compensated
by after-the-fact lawsuits for reparations, even if the government waives
sovereign immunity. Many will be too reduced to poverty or hopelessness
to avail themselves of the r
emedy. Massive reforms need to be implemented
now.

Federal forfeiture reform bills sponsored by key U.S. Repesentatives
Henry Hyde (Rep.) and John Conyers (Dem.) have gotten nowhere in the six
years we have lobbied for their passage, while forfeiture expansion provisions

are tucked into legislation that passes every few months.  Our elected representatives 
are not willing to help us reform the forfeiture laws because they are threatened by 
law enforcement lobbyists who bully them with thr
eats of appearing "soft on crime."

The only solution to this dilemma is for the American public to rise
up and tell their Congressmen to reform the forfeiture laws or lose their
vote.  They need to hear from their constituents that restoring the
rights we
are guaranteed in the Constitution is not "being soft on crime."
And the only way to get the American public to wake up is to educate them
to the reality that, yes indeed these laws can be used to take their property
--
even if  they have nothing to do with drugs.
Table of Contents

I. Abolish civil forfeiture
and allow forfeiture only under criminal forfeiture statutes, and only
after conviction of the property owner, with proof beyond a reasonable
doubt and all other criminal procedural safeguards

II. Require proportionality
between the offense and the forfeiture, and forbid seizures and
forfeitures for minor offenses, technical reporting
requirements, and seizures that do not serve a legitimate law enforcement
pur
pose but merely generate revenue

III. Narrowly restrict reliance
on informants' testimony - require corroborating evidence, preserve right
to confront and cross-examine informant, and abolish informant payola
IV. Restore principle of "innocent
until proven guilty", prohibit seizure and detention of assets prior to
trial, require early probable cause hearing, and abolish requirement of
stay to preserve jurisdiction on appeal

V. Abolish forfeiture of attorneys
fees, narrowly restrict asset freezes to situations where necessary
to prevent removal of asset, prohibit freezes that interfere with the right
to counsel and subsistence of the property
 owner, and provide court appointed
counsel before indigents' property can be forfeited.

VI. Revamp administrative forfeiture
process to remove the cost bond requirement, unreviewable discretion, and
unfair deadlines imposed on claimants

VII. Prohibit frivolous, wasteful,
and inappropriate use of forfeited assets and the proceeds from forfeited
assets by directing the deposit of proceeds into the general treasury,
with all disbursements to law enforcement
 going through normal appropriations
channels instead of being directed into a police slush fund with no oversight

VIII. Strengthen protection
for innocent owners by placing the burden of proof on the government to
show the owner knew of and consented to the illegal use, and abolishing
the relation back doctrine
IX. Return the responsibility
of detecting and stopping crime to the police, where it belongs

X. Prevent federal trampling
on states' rights to enact forfeiture statutes more protective of their
citizens

XI. Abolish governmental immunities
under the Federal Tort Claims Act for damages to property while detained,
and create retroactive remedies to make whole the innocent owners, lienholders
and third parties that have been
 harmed by these laws because the procedures
were inadequate to protect their due process & property rights


FEDERAL FORFEITURE LAWS NEED TO BE AMENDED
TO RESTORE DUE PROCESS
AND PROTECT PROPERTY RIGHTS IN THE
FORFEITURE PROCESS
F.E.A.R.'s Proposal for Reform

I. Abolish civil forfeiture
and allow forfeiture only under criminal forfeiture statutes, and only
after conviction of the owner, with proof beyond a reasonable doubt and
all other criminal procedural safeguards.
A. Current Law
The vast majority of the damage done to our
Due Process and property rights by civil forfeiture statutes was achieved
by placing a "civil" label on the forfeiture statutes. Although the U.S.
Supreme Court finally acknowle
dged in Austin v. United States, 113
S.Ct. 2801 (1993), that civil forfeiture is punishment for purposes of
the Eighth Amendment at least, it did not go so far as to find civil forfeiture
statutes to be unconstitutional p
er se, and it did not address the
constitutionality of the burden of proof.

Unlike criminal forfeiture statutes -- which
require all the Due Process safeguards of a criminal trial, including proof
beyond a reasonable doubt -- federal civil forfeiture statutes do not even
require the minimal burde
n of proof ordinarily placed upon plaintiffs in
civil trials -- "a preponderance of the evidence". Instead, at trial
they only require the government to show "probable cause" to believe the
property was involved in a crim
e, or proceeds of a crime, then the burden
of proof shifts to the property owner, who has to prove by the preponderance
of the evidence that the property is not subject to forfeiture.
Under this standard, innocent owners can lose
valuable real estate, for example, because a stranger plants marijuana
in some remote corner of it, unbeknownst to the owner. With the burden
of proof shifting to the property
 owner, he/she is faced with the dilemma
of having to prove a negative. How do you prove you didn't know marijuana
was growing on your property, when you have the burden of proof?
If an informant with an extensive criminal
record, who is promised by the DEA that he would receive 25% of the value
of any property forfeited as a result of his testimony (and therefore has
an obvious reason to lie) test
ifies that the owner knew the marijuana was
growing there, the property owner is sunk. The informant could even be
the person who planted the marijuana.

Clearly, our American principles of justice
require more proof before depriving citizens of their property. The burden
of proof should always be on the government, and it should be a higher
burden of proof than the civil
standard of a preponderance of the evidence.

It is absurd that a major drug trafficker
being prosecuted under criminal forfeiture statutes, such as RICO (18 U.S.C.
Sec. 1963), or the Continuing Criminal Enterprise statute (21 U.S.C. Sec.
848) -- both statutes design
ed to attack organized crime -- has far greater
due process safeguards governing the forfeiture of his/her property than
an innocent parent whose child used the family car to transport a small
amount of drugs, allowing it
 to be seized under 21 U.S.C. Sec. 881. But
that's the way the current federal forfeiture laws are written.

B. Corrective Amendments

We believe the burden of proof should be
on the government, and that it should have to prove the owner's guilt --
beyond a reasonable doubt -- before forfeiting property. To go a step further,
we believe civil forfeiture
should be abolished, and all forfeitures treated
as criminal forfeitures -- because forfeiture is in fact criminal punishment,
not a civil remedy.

Initially, the Justice Department justified
lowering the burden of proof in civil forfeitures by relying on the "legal
fiction" that it is the property, not the property owner, that is on trial,
and that property does not
 have rights. However, this premise ignores the
fact that people have property rights.

It also assumes that the forfeiture is a
civil penalty, rather than a criminal punishment. That reasoning will no
longer suffice, however, because the Supreme Court has now acknowledged
that forfeiture is punishment.

II. Define a standard
for determining proportionality which focuses on the culpability of the
property owner
A. Current law
In the past few years there has been a huge
proliferation of forfeiture statutes, with the scope of the behavior that
can give rise to forfeiture seizures ever widening. The trend in a number
of states is to enact legisla
tion proposed by federal law enforcement lobbyists,
which make property forfeitable for any criminal offense, no matter how
trivial.
Until recently, federal forfeiture laws did
not require proportionality between the offense and the forfeiture. The
courts often upheld forfeitures of extremely valuable assets for minor
offenses and technical violations,
 with no regard to the proportionality
of the offense to the penalty.
F.E.A.R. member Jim Spurlock, owner of an
aircraft sales company in Texas, saw two of his customers' airplanes seized
by Customs. The first, a Lear Jet, was seized In January 1992 because of
a tip from an informant,(4) th
at the airplane,
which was headed for its new home in Brazil, would be carrying a large
sum of money. Customs agents searched the airplane and did not find any
money, nor were they able to find any other evidence of wrong
doing that
would corroborate the informant's tip, but Customs seized the plane anyway.
Meanwhile, they checked all the paperwork submitted to the Federal Aviation
Administration regarding the plane and found a mistake on
a form. To describe
the owner of the plane, they had checked the box "corporation" instead
of "foreign corporation." The FAA's standard response to such as mistake
is to require the paperwork to be corrected.

Customs also checked the paperwork submitted
on all of Mr. Spurlock's other airplane sales, and found one other paperwork
mistake, again a "technical" mistake, and in April 1992, seized a plane
purchased by another custom
er.
After detaining the airplanes several months
-- the Lear jet 7 months, and the other plane 4 months, the government
agreed to give them back after the customers paid "impoundment fees" --
the "fee" for the Lear jet being
over $16,000. This is in addition to substantial
investments made by Mr. Spurlock's customers in attorneys fees incurred
in getting the planes released. Also, there was damage done to the planes
during the period of their
 detention which cost more money to cure.

Another F.E.A.R. member had his $1.5 million
yacht seized because his captain had failed to declare some fish he was
bringing back to donate to a public aquarium. Our member is a noted philanthropist
who over the years ha
s contributed substantial sums, as well as marine
specimens to the aquarium, among other philanthropic endeavors. He was
not on board his yacht when the seizure occurred. Customs agents had boarded
the boat and were looki
ng at the fish in the tank when the customs agent
asked the captain "what do you have to declare?" The captain said "nothing",
thinking that he did not have to "declare" fish. There was no reason the
captain would want to
 "smuggle" the fish into the country, since they were
to be given away to a public charity. After months of seizure, the owner
bought back his yacht.

What legitimate law enforcement purpose do
these seizures serve? Are they really removing the means to commit another
similar offense? If so, what is the government trying to deter in the case
of the fish -- philanthropy?


Technical violations, such as the FAA paperwork
"errors," now gives the government the power to extort $16,000 from an
airplane owner, without even having to go to court, or make any showing
that the government had a case
 that justified forfeiture as a punishment.
What purpose does this seizure serve?

Like over-punishing a child for a minor transgression,
disproportionate and unfair forfeiture seizures do not deter future violations
but only create distrust of, and disrespect for, law enforcement.

B. Corrective amendments
(1) Limit the range of forfeitable offenses
All the forfeiture statutes on the books should
be re-examined and the range of conduct that gives rise to forfeiture severely
limited. Technical paperwork mistakes and failures to declare property,
where there is no proo
f of intent to defraud, should not be the basis for
forfeiture seizures. Minor infractions should be removed from the scope
of forfeiture triggering offenses so that law enforcement cannot seize
property for trivial offen
ses.
Similarly, the property owner should always
be made aware of the requirements of law, violation of which gives rise
to forfeiture, and the means to avoid the forfeiture, before property can
be seized for failure to comply
 with such requirements. For example, international
travellers should be warned of the customs declaration laws and the applicability
of any forfeiture penalties, so that they do not unintentionally violate
the law. If th
ey are not forewarned of the penalty of forfeiture, their
property should not be subject to seizure.

We believe that the best way to prevent these
forfeiture seizures that serve no legitimate law enforcement purpose is
to limit forfeiture to proceeds of crime, period. Short of that,
for statutes allowing forfeiture of ve
hicles and real property used to
facilitate a criminal offense, specific minimum limits should be imposed
on the quantities of drugs involved before forfeiture can occur.
(2) Devise a Standard for Measuring Proportionality
That Focuses on the Culpability of the Property Owner
When the U.S. Supreme Court decided in Austin
v. United States, ___ U.S. ___, 113 S.Ct. 2801 (1993) that civil forfeiture
was punishment, subject to the limitations of the Excessive Fines clause
of the Eighth Amendment, i
t did not define the standard for determining
proportionality.

The Justice Department has proposed a proportionality
test which focuses on the guilt of the property, and ignores the property
owner's culpability. Under its test, a civil forfeiture would not be disproportionate
if:

A. The criminal activity involving the property
has been sufficiently extensive in terms of time and/or spacial use of
the property; or

B. The role of the property was integral
or indispensable to the commission of the crime(s) in question, or

C. The particular property was deliberately
selected to secure a special advantage in the commission of the crime.

The problem with the Justice Department test
is that it attempts to determine what would be appropriate punishment for
an inanimate object, ignoring the property owners' rights. The three prongs
of the test -- only one of
 which is needed to validate a disproportionate
forfeiture -- focus only on the role of the property. The test does not
even consider the degree of involvement of the property owner, the one
being punished by the forfeitu
re.

The Justice Department obviously relied on
the test proposed by Justice Scalia's in his concurring opinion in Austin,
which considers whether the relationship
of the property to the offense . . . [w]as . . . close enough
to render
the property, under traditional standards, `guilty' and hence forfeitable? 113 S.Ct. 
at 2815.

However, it must be noted that Justice Scalia's
proposed test was rejected by the rest of the Court.

F.E.A.R. believes the Third Circuit set out
the proper test in United States v. RR 1, Box 224, Dalton, 14 F.3d
864 (3d Cir. 1994), which applied the standard for proportionality defined
by the Supreme Court in Solem v. He
lm, 463 U.S. 277 (1983) (a criminal
case):
 "(i) the gravity of the offense and
the harshness of the penalty; (ii) the sentences imposed on other criminals
in the same jurisdiction; and (iii) the sentences imposed for commission
of the same crime in other jurisdic
tions." Solem 463 U.S. at 292,
103 S.Ct. at 3010.
In balancing these factors, the Supreme Court
advised the courts to consider the "absolute magnitude of the crime" and
the "culpability of the offender." Id. at 292-94, 103 S.Ct. at 3010-12.

In United States v. Parcel Located at
9638 Chicago Heights, St. Louis, Mo., ___ F.3d ___ 1994 WL 259428,
pp. 2, 3 (8th Cir. No. 93-3350, decided June 15, 1994), the Eighth Circuit
stated that the courts should consider:
 the monetary value of the property,
the extent of criminal activity associated with the property, the fact
that the property was a residence, the effect of forfeiture on innocent
occupants of the residence, including chi
ldren, or any other factors that
an excessive fine analysis might require. 1994 WL 259428 pp. 2 - 3.
These cases seem to present the most logical
test, given the fact that it is derived from an earlier Supreme Court case.
This test also appears to reflect the current thinking of the Supreme Court.

 III. Narrowly restrict
reliance on informants' testimony --require corroborating evidence, preserve
right to confront and cross-examine informant, and abolish informant payola.
A. Current law
(1) Informants are paid for their testimony

An investigative report released in August
1992 by Representative John Conyers, Chairman of the House Government Operations
Committee, revealed that, in the prior two years, the Justice Department
spent $28.6 million on i
nformants. Sixty five Justice Department informants
were paid more than $100,000 a year, about two dozen made between $100,000
and $250,000, and eight made over $250,000. The highest paid informant
made $780,000 in one ye
ar. Customs also has the authority, and its own
slush fund to purchase the testimony of informants to support forfeiture
seizures.

These informants are paid under provisions
in the forfeiture laws that allow the government to pay up to 25% of the
value of forfeited property to informants whose information is used to
forfeit the property.

(2) Informants, by nature, are not your
average law-abiding citizen

Informants are typically not normal, hard-working,
law abiding citizens making an honest living. These informants are, for
the most part, criminals with extensive records. Often informants are recruited
when they themselv
es are arrested for drug trafficking and other serious
crimes, and offer to "rat on" other people in exchange for getting their
own charges reduced or dismissed. They may also be offered 25% of the forfeiture
"take" in ad
dition to reduced punishment in their own cases.

Thus, paid informants have a strong incentive
to lie.

(3) Informants' word is being relied on
to seize property even when there is strong indicia of prevarication

Consider the case of informant Bobby Watts.
A CBS Street Stories episode, aired July 9, 1992, told how information
from Bobby Watts was used, without corroborating evidence, to seize the
house of the Cwiklas. Bobby Watts,
 working off charges from his own bust
for marijuana cultivation, told prosecutors that the Cwiklas had stored
300 pounds of marijuana at their residence. Later Watts changed his story
to say they had stored 200 pounds, t
hen 100 pounds, then 1 pound. According
to Street Stories, Watts had a strong motive to lie about the Cwiklas:
Bobby Watts had been busted for running a
marijuana operation on his Connecticut farm. He faced 35 years in prison.
But the prosecutors made him a deal: turn in other people and we'll see
what we can do for you. Watts end
ed up with a suspended sentence and got
to keep his property, while the Cwiklas faced the fight of their lives.
 CBS Street Stories, July 9, 1992,
transcript pages 14 - 20.

There was other evidence that Watts was not
telling the truth. Another informant who was asked to corroborate Bobby
Watts' allegations failed a lie detector test -- the test indicating deception
on his part.

Without ever searching the Cwikla's house,
or in any other way verifying Bobby Watts' allegations, Assistant U.S.
Attorney Leslie Ohta's office seized the Cwikla's house and are trying
to forfeit it.

The circumstances surrounding this informant's
allegations should create a serious doubt in the minds of most Americans.
Still, the government continues to rely on such informants "because they
put money in the pot" -- in
 the words of former Department of Justice forfeiture
chief Cary Copeland.(5)


B. Corrective amendments

(1) Property owners should never have
the burden of proof in countering informant testimony

In criminal cases, informants may be useful
despite the problems that are inherent with regard to their credibility.
In criminal cases, however, the criminal defendant has the right to confront
and cross-examine his accus
ers. Problems with the veracity of informants,
resulting from their criminal nature, biases against the people they accuse,
deals with the prosecutor for leniency in their own cases in exchange for
their testimony, and es
pecially any promises of cash rewards in exchange
for their testimony, can be brought out and taken into consideration by
the jury in determining what weight to give their testimony.

More importantly, in criminal cases, the
government has to prove its case beyond a reasonable doubt. Informants
with shaky testimony, long criminal records, and deals with the prosecutor
in exchange for their testimony ca
n be disregarded by the jury under the
reasonable doubt standard of proof.

However, when the unscrupulous, self-dealing,
and financially rewarded informant is used in civil forfeiture, where the
burden of proof is on the property owner, anything could happen. The burden
of proof being on the pro
perty owner, rather than the side presenting the
purchased testimony -- the jury is in effect asked to give the informant
more credibility than the property owner!

Paid informants should never be given the
benefit of a doubt. When it's "my word against his", the property owner
should not have to bear the burden of proof against brokered testimony.
Clearly, anything an informant says
 should be considered very cautiously,
and subject to the "beyond a reasonable doubt" standard of proof.

(2) Informant information should be corroborated
before a warrant is issued or property is seized

Informant testimony may be a necessary evil
in order to convict drug traffickers. However, even with the proper criminal
forfeiture procedures and burden of proof, some corroboration must be required
for paid informants a
nd informants getting reduced sentences in exchange
for their testimony.

Even when informants are not paid or given
other consideration for their testimony, allowing one person's word to
be enough to justify forfeiting property invites business competitors to
ruin their competition by making f
alse claims. This is a practice we are
coming to see more and more. This practice is as dangerous to American
business as the "McCarthy era" was to political liberty.

(3) Hearsay should be inadmissable at
trial

No other type of case allows hearsay to be
admitted at trial. There is no reason an exception should be created in
forfeiture. Hearsay is too flimsy and untrustworthy to be used to deprive
citizens of valuable property ri
ghts.

(4) Informants should never be paid for
their testimony
No other area of jurisprudence allows eyewitnesses
to be paid for recounting their version of the facts. Expert witnesses
are the only witnesses paid for their testimony. They are paid because
of their expertise on a subj
ect outside the realm of knowledge of the jury.
They are not paid for testifying to events they allegedly eyewitnessed,
but for their professional opinions on subjects on which the jury needs
their assistance.

Informants should not have their testimony
bought in forfeiture cases. This taints the credibility of the entire process.
No money should ever be paid to an informant for his testimony,
and especially they should not be p
romised a percentage of the property
forfeited.

 IV. Restore principle
of "innocent until proven guilty", prohibit seizure and detention of assets
prior to trial, require early probable cause hearing, and abolish requirement
of stay to preserve jurisdiction on appeal
.

A. Current law

(1) Pretrial detention of assets
Currently civil forfeiture statutes allow
the government to seize property, except real estate, without a warrant
if: "the seizure is incident to an arrest or a search under a search warrant"
or if police have probable ca
use to believe it is subject to forfeiture
under a civil or criminal forfeiture statute. 21 U.S.C. Sec. 881(b).

Once seized, personal property is impounded
by the government until the entire forfeiture case is disposed of, except
in the rare cases where the government allows expedited release.(6)
Once seized, no one -- not even an
innocent lienholder who has the right
to repossess or foreclose on the property because the owner stopped making
payments on the lien(7) -- can get the property
away from the government before the case is over.

Until recently, real estate, including a
residence or business, could be seized on the basis of an ex parte seizure
warrant, and the property owner ousted from the property pending trial
-- without notice or an opportunit
y to be heard. The Supreme Court held
in United States v. James Daniel Good Real Property, 114 S.Ct. ___
(1993) that such practices are unconstitutional when they apply to seizures
of real estate. Due Process requires not
ice and the opportunity to be heard
before real estate can be seized, the Court held, and that in most situations
that should mean that the property owner not be disturbed in his possession
of his property pending trial.

But the Supreme Court in Good expressly
limited the holding to real property -- residential or commercial. It did
not affect pretrial detention of cars, bank accounts, cash, and other personal
property.

There is nothing to be gained by the pretrial
detention of property -- it merely deteriorates in value, without being
used and enjoyed by anyone, while the government incurs substantial costs
in storing, guarding and main
taining the property -- a function that the
government has been notoriously negligent at performing.

Numerous General Accounting Office reports
show property is being wasted to a fraction of its seized value during
government detention.(8)
A 1983 GAO report, Better Care and Disposal
of Seized Cars, Boats, and Planes Should Save Money and Benefit Law Enforcement,
7-15-83 GAO/PLRD-83-94, p. ii, states:
Seized conveyances devalue from aging, lack
of care, inadequate storage, and other factors while awaiting forfeiture.
They often deteriorate -- engines freeze, batteries die, seals shrink and
leak oil, boats sink, salt ai
r and water corrode metal surfaces, barnacles accumulate on boat hulls, and windows 
crack from heat. On occasion, vandals
steal or seriously damage conveyances.
 The end result of the pretrial detention
of assets is that a property owner who fights his/her case all the way
to trial and wins gets back a broken piece of junk nobody in their right
mind would have spent the money fig
hting for. Because the government is
immune from damages, the property can't sue the government for damages
to the property during the detention.

Even when the government wins the forfeiture
case, they get the same depreciated piece of junk. The U.S. Marshal Service
-- and most police -- have better things to do than guard and care for
seized property. Even if it's
 their job they don't do it well, because
they resent such petty assignments. Most police went to work to be police
officers and not parking lot attendants. Give them back their police responsibilities!

(2) No right to probable cause determination

In most non-real-estate forfeiture cases,
the property is seized without a warrant, based on some exception to the
warrant requirement where the police are supposed to have probable cause
to believe the property is forfei
table, but no court reviews the probable
cause prior to trial.

Thus the police can seize property without
probable cause, and then force the property owner through the byzantine
process -- requiring payment of a cost bond of 10% of the value of the
property, within 30 days or less of
 the notice, in order to have any judicial
remedies -- without having to show that they have a case. Often, they don't.

In most jurisdictions, the aggrieved property
owner has no right to a post-seizure probable cause hearing at any time
until trial, which may be years after the seizure.

(3) "Legalized extortion"

Asset freezes and police seizure and detention
of assets prior to trial are now being used as a bullying tactic to force
property owners to settle out of court -- even when the government has
no case. When the property ow
ner knows that fighting the case all the way
to trial will take several years, due to backlogs in the court system,
the detention of the property pending trial is often enough to force property
owners to strike a deal wit
h the government, even if the property owner
has an airtight case.

Consider the case of the prestigious law
firm of Kaye, Sholer, Fierman, Hays & Handler, the firm that defended
Lincoln Savings and Loan. When the government sued the firm, it simultaneously
froze all the firm's assets. Th
eir bank couldn't honor the checks they
had issued, leaving the firm no funds to continue its operation.
Their clients began leaving. They couldn't pay their employees. Within
a week they were forced to settle -- for $41
million -- without the government
ever having to prove anything.
On June 29, 1992, the Orlando Sentinel
reported a "forfeiture trap" set up in Volusia County, Florida, on the
highway to Disney World. The police would stop motorists for driving too
close, faulty tail lights, speeding, a
nd other routine traffic stops, and
would seize all their money, or sometimes their cars -- with or without
any evidence of wrongdoing -- then offer to "settle" for half the value
of the property. The same settlement offe
r was made to drug traffickers
and innocent tourists alike.

In a growing number of cases, the combined
economic forces of a forfeiture seizure -- no matter how unjustified --
its impact on a person's business reputation, credit, and cash flow, and
the cost of forfeiture litigation
, completely destroys the financial
welfare of the person or business -- even when the government can not
prove any wrongdoing by the property owner.

We call this "legalized extortion." It has
become rampant in America. State and federal forfeiture squads have learned
they can easily increase their dollar "take" overall by seizing more property,
with or without a case,
 and then make a standard "settlement" offer to
everyone, drug dealer and innocent citizen alike. The more desperate the
property seizure makes the citizen, the quicker they settle. An out-of-state
tourist driving to Disn
ey World can't very well afford to fight seizure
of the family car all the way to trial when their family is stranded in
a hotel room.
This practice is extremely dangerous to our
system of justice, and to American property rights in general. Because
the law enforcement agency acts as judge, jury and executioner -- and
gets to keep the proceeds -- none of
 its illegal practices ever see
the light of day.

No one is policing the police. The police
should never be above the law. Yet these laws allow just that.

B. Corrective amendments

The notion that the government should be
able to seize and detain property prior to trial in a forfeiture case is
something out of Lewis Carroll's Alice in Wonderland, where the
rule is "punishment first, trial later." Th
at principle is alien to our
system of justice.

There is no reason vehicles should waste
away on police impoundment lots while the parties wait for a trial on the
forfeiture case. Impoundment of vehicles makes them deteriorate faster
than being routinely used, and also
 causes substantial storage costs. No
one gets any use out of them pending trial.

Innocent owners should not have a pyhrric
victory when they win the forfeiture case and find out the asset has been
destroyed pending trial. The property owner should be able to keep his/her
property unless and until the
government wins the forfeiture case.
The ability to seize property prior to trial
also gives the government a stranglehold on the property or business owner.
The American economy is dependent on business, and the viability of a business
requires a fluid cash
 flow. When cash flow can be arbitrarily strangled,
it is only a matter of time before the business suffocates. Government
should not have this power to destroy business and property owners' lives
prior to trial.

The obvious solution is to require that the
forfeiture verdict preceed any seizure. This will cut down on the
government's ability to force an out-of-court settlement in cases where
they lack sufficient evidence.

 V. Abolish forfeiture of
attorneys fees, narrowly restrict asset freezes to situtations where necessary
to prevent removal of asset, prohibit freezes that interfere with the right
to counsel and subsistence of the prop
erty owner, and provide court appointed
counsel before indigents' property can be forfeited.
A. Current Law
The 1984 amendments to the federal forfeiture
laws allowed the forfeiture of attorneys fees. It was supposed to take
away the ability of major crime lords to hire expensive legal counsel.
Once the law was put in place it was used
selectively to prevent retained attorneys from representing certain defendants
by seizing all the defendants' assets. Even threatening to seize their
assets is enough to prevent m
ost attorneys from representing a client.
>From the start the law has been used selectively, at the whim of the Department
of Justice.

The U.S. Supreme Court held in Caplin
& Drysdale, 109 S.Ct. 2646 (1989) that forfeiture of attorneys
fees did not deny a criminal defendant the right to counsel because court
appointed counsel was always available in crim
inal cases. We think that
case should be re-examined by the Court.

If we are presumed innocent until proven
guilty, then the government should not be able to take away from us our
right to hire defense counsel of our chosing, from our own funds -- even
if they are seized by the governmen
t. Even if the Supreme Court has ruled
otherwise, we disagree, and ask our legislators to correct these abuses.

A new question is presented when the government
seizes all the assets a property owner has, and thereby denies him/her
the ability to retain a lawyer to defend the forfeiture case. There is
no recognized right to court-ap
pointed counsel in forfeiture cases. In
a growing number of cases, the government is seizing so much of a forfeiture
victim's assets that they have nothing left to retain a lawyer. As one
can imagine, forfeiture victims w
ho represent themselves always lose.
Using these forfeiture statutes and the seizure
authority they bestow, police and prosecutors have been able to selectively
dictate who has the right to a fair trial.

B. Corrective Amendments

F.E.A.R. is opposed to forfeiture of attorneys
fees and asset freezes that interfere with the right to counsel, in all
cases, civil and criminal.
Our basic concept of "Justice" -- particularly
our notion that a person is innocent until proven guilty -- is turned on
its head when the government can use an asset freeze or civil forfeiture
to prevent a citizen from hi
ring an attorney to defend them.

The Supreme Court has not addressed the issue
of asset seizures that interfere with the right to counsel in forfeiture
proceedings. The rationale in Caplin & Drysdale would not apply
in forfeiture cases, because there is
currently no right to court appointed
counsel in forfeiture cases, when the forfeiture seizure renders someone
indigent.

F.E.A.R. believes that whenever property
is seized, the owner should be able to force the courts to release a sufficient
amount of seized assets to retain a lawyer. Since forfeiture is punishment,
forfeiture claimants who
 are indigent should be entitled to a lawyer at
the government's expense before they can be deprived of their property.

 VI. Revamp the administrative
forfeiture process to remove the cost bond requirement, unreviewable discretion,
and unfair deadlines imposed on claimants.

A. Current law

(1) Suspension of right to sue
Currently, the forfeiture process starts with
a Notice of Forfeiture from the DEA, FBI, Customs, INS, Postal Service,
or other seizing agency, which is mailed to the property owner and simultaneously
published in a newspa
per. There is currently no deadline for agency publishing
and sending notice, but it generally occurs 3 weeks to 6 months after the
seizure, and in some cases as late as
3 years after the seizure.
Until the notice of forfeiture is sent, there
is nothing the property owner can do. The statutes take away the right
to file an action in replevin. Even criminal rule 41, which authorizes
motions for return of property, h
as, in most jurisdictions, been construed
as barring any actions for the return of property held for forfeiture.
Ironically, a Rule 41 motion applies only to a criminal defendant who has
a pending criminal case -- it usua
lly is not available to an innocent owner.

(2) Cost bond

After property owners receive the notice
of forfeiture, they have 20 to 30 days to file a Claim and pay a "cost
bond" of 10% of the value of the property -- with a minimum fee of $250
and a maximum fee of $5000(9) -- in o
rder
to retain their right to a judicial hearing in the forfeiture case.

If the property owner does not file a claim
and pay the cost bond (or apply for a waiver of the bond on the grounds
he/she is indigent) within the 20 - 30 days after notice is sent, he/she
loses, by default, all judicial
remedies to contest the forfeiture. The
forfeiture case is then, irrevocably, lost by default.

(3) In forma pauperis

Even when a person is truly indigent, and
asks to proceed in forma pauperis, the agency can arbitrarily and
capriciously deny the petition, without stating reasons, and without ever
having to even prove probable cause to
seize the property before a disinterested
magistrate. This trick is used in a large and growing volume of cases to
take away the property owner's day in court on the forfeiture. Indigent
property owners cannot afford to p
ay counsel to litigate the denial of
in forma pauperis treatment, nor do they have the necessary legal
knowledge to represent themselves. They generally lose, by default, at
step one.

(4) Petitions for remission or mitigation

There is one other "alternative", although
a useless one. Instead paying the cost bond to obtain judicial remedies,
the owner can file a petition for remission or mitigation. The notice of
seizure often encourages the pro
perty owner to take this path instead of
paying the cost bond, and many unwary claimants fall into that trap, waiving
all judicial remedies. This is a particularly dangerous trap for genuinely
innocent people, who often n
aively assume good faith on the part of the
enforcing agency will result in a fair disposition.

Petitions for remission/mitigation are decided
by the seizing law enforcement agency, without a hearing, at the sole and
unreviewable discretion of the seizing agency which, of course,
always decides to keep the property.
(10)

(5) Judicial process

When the claim is filed and the cost bond
is paid on time, the case is referred to the U.S. Attorney's Office for
filing of a civil forfeiture case in federal court. In drug cases involving
the seizure of an automobile, b
oat or airplane, prosecutors have 60 days
within which to file a forfeiture complaint or give back the property.
However, when someone is indigent and files a petition to proceed in
forma pauperis instead of paying the co
st bond, this deadline -- the only deadline imposed upon the government in forfeiture 
cases other than
the 5 year statute of limitations -- does not apply. It also doesn't apply
to seizures of other types of property, or
seizures under non-drug statutes.

Claimants encounter a second set of traps
for the inexperienced in U.S. District Court. After being served with a
forfeiture complaint the owner has only 10 days to file a "Verified Claim."
No other type of civil or crimi
nal proceeding has this requirement. Most
people cannot find a competent forfeiture lawyer(11)
within 10 days.

B. Corrective Amendments
The cost bond should be abolished, as should
all other administrative hurdles that are conditions precedent to the right
to judicial remedies. If forfeiture is punishment, the Sixth Amendment(12)
right to a jury trial, to
 confront and cross-examine the witnesses and
to present witnesses in his defense invalidate these hurdles to obtaining
our guaranteed Sixth Amendment rights.

The courts have held, at the urging of the
Justice Department, that agency decisions on petitions for remission and/or
mitigation are not reviewable by a court. This renders the administrative
"remedy" totally ineffectual
 -- as well as unconstitutional -- in our view.
Petitions for remission or mitigation should either be totally abolished,
so that unwary litigants do not make the mistake of choosing such "remedies,"
or they should be mad
e into useful remedies that shortcut the forfeiture
process, but do not require waiver of the right to trial. To accomplish
this, Congress would have to create standards for the granting and denial
of petitions for remiss
ion/mitigation, and make all agency decisions reviewable
de novo by a court of law.

In federal courts, the deadlines set for
property owners to respond in forfeiture proceedings should be the same
as in any other case -- thirty days after receipt of the complaint. There
is no reason for a ten-day deadlin
e to file a "verified claim", and it
should be abolished. And whatever the deadline, the courts should have
the power to grant relief for failure to promptly contest the forfeiture,
if the property owner can should good c
ause for the failure.

VII. Prohibit frivolous,
wasteful, and inappropriate use of forfeited assets and the proceeds from
forfeited assets by directing the deposit of proceeds into the general
treasury, with all disbursements to law enforcement
 going through normal
appropriations channels instead of being directed into a police slush fund
with no oversight.

A. Current laws

The forfeiture examples described in part
III above, dealing with seizure of the Schrama's house, cars and all their
personal property for a $500 offense; the seizures of Jim Spurlock's customers'
airplanes for technical
paperwork mistakes; and the seizure of the $1.5
million yacht for failing to declare fish -- all show how far out of hand
law enforcement has gotten in its seizure spree.

They also show that the real motive behind
most forfeiture seizures is greed. Current laws let law enforcement agencies
keep the proceeds they seize and forfeit. This gives them the ability to
create for themselves an unl
imited budget with no oversight. The statutes
also let them take items into government use, which often results in individual
officers picking out a particular fancy car for their own use -- cars the
police department wou
ld never be able to justify if they had to buy them
through their appropriated budget.

Seizure fever often blinds police to the
purpose behind the forfeiture laws -- solving crimes and catching criminals.
Law enforcement forfeiture squads out meeting their forfeiture quotas are
more concerned with the value
 of the asset seized than whether there is
a real case justifying forfeiture. They find it easier to make a seizure
of one expensive asset, such as a $1.5 million yacht, than to take $1500
from 1000 street level drug deal
ers -- that's a lot of work, and dangerous
too. Innocent people don't fight back with violence as criminals often
do.

The end result of this greed is that, more
and more, the attention is turned away from solving murders, rapes, robberies,
domestic violence, child abuse, and other serious crimes, or breaking up
real drug rings and catchi
ng major drug traffickers, while the law enforcement
agencies' focus is switched to seizing and forfeiting property from anyone
who happens to fall within the ever-widening scope of the forfeiture laws.

B. Corrective Amendments

There is no reason why law enforcement, of
all government agencies, should be exempt from the oversight of Congress
over their budgets. There is no reason why they should not meet the same
standards for justifying expendi
tures, nor why they should have property
of higher quality than other governmental agencies.

Law enforcement has become hooked on their
forfeiture slush fund, which is why so many agents have gone awry into
creating their own private slush funds, beautifying their own offices with
seized property, driving unneces
sarily posh automobiles, and even padding
their own pockets.

Obviously, government oversight over property
acquisitions for law enforcement should be just as stringent as over other
agencies. Law enforcement should not be permitted end runs around the budget
and appropriations proc
ess.

It is time to take away law enforcement's
unreviewable discretion to privateer off seized property. The proceeds
of forfeited property should go into the general treasury of the United
States. When law enforcement units c
annot directly profiteer off seizures,
seizures will immediately become more honest. Much of the abuses we have
seen will probably disappear overnight.

VIII. Strengthen protection
for innocent owners by placing the
burden of proof on the government to show the owner knew of and consented to the 
illegal use.

A. Current Law

Under current federal forfeiture laws, innocent
ownership is an affirmative defense. Affirmative defenses put the burden
of proof on the person asserting it. This means that, even if the burden
of proof is changed for for
feiture cases in general, the burden of proof
would not change on the issue of the innocence of the owner as long as
innocent ownership remains an affirmative defense. If forfeiture is punishment,
however, it is unconstit
utional for the state to make the property owner
prove innocence -- the burden should be on the government to prove scienter
as a part of its case.

We have already discussed the problems owners
face in having to prove a negative -- that they did not know something,
or that they did not consent to something -- when they bear the burden
of proof. Rather than require ow
ners to prove a negative, lack of innocent
ownership should be made an element of the government's case, so that the
government has to show guilty knowledge and consent in order to deprive
property owners of their propert
y.

B. Corrective Amendments
Property owners should be protected from seizure
of property used by someone else to facilitate a crime unless the government
can show, prior to seizure, that the owner had sufficient scienter (guilty
knowledge) and mens
rea (bad intent) to justify punishment. That is a basic
premise of criminal law which is being overlooked as the government pursues
punishment by forfeiture.

 IX. Return the responsibility
of detecting and stopping crime to the police, where it belongs.

A. Current Law
In Calero-Toledo v. Pearson Yacht Leasing
Company, 416 U.S. 663 (1973), the U.S. Supreme Court held that it was
permissible for forfeiture statutes to put the burden of proof on otherwise
innocent property owners to show
that they were not negligent in allowing
their property to be used to smuggle drugs. In that case, the property
seized was a yacht leased by a company in the Caribbean, and used to smuggle
drugs into the country. The Supr
eme Court reasoned, with a little help
from the Justice Department, that the government should be able to use
forfeiture statutes to put some of the burden of stopping crime on private
citizens.
At least in the case of large boats, leased
in the Caribbean (an area known for drug smuggling), without the leasor
giving sufficient scrutiny to the lessee, most citizens wouldn't be too
concerned that the leasing compan
y lost its property.

The Pearson Yacht case, however, does
not make a good example by which to fashion a law to apply domestically,
to garden variety personal property and real estate seizures. Nevertheless
law enforcement has expanded the us
e of this principle to pawn off upon
everyday citizens the responsibility of stopping crime, by treating citizens
as if they were strictly liable for the "crimes" committed by others using
their property.

Several years ago, a man bought a billiards
hall in a ghetto. In the past few years he has tried to clean the place
up, as drug dealing has proliferated in the neighborhood, not to mention
in his parking lot, and, increas
ingly, inside his establishment. He went
to the local police and asked them for help in getting the drug dealers
off his property, because they were ruining his business. He was told there
wasn't anything the police could
 do about it. A few weeks later, they arrested
him for "operating a public nuisance" (a felony), took his business license,
and threatened to forfeit his business if he did not clean up the drug
sales on his property.

Another example is the case of Bill Munnerlyn,
a pilot and owner of a charter air service in Las Vegas, Nevada. As CBS
Sixty Minutes (13) explained, Munnerlyn's
Lear jet, the cornerstone of his entire business, was seized
 by DEA when
he flew a charter passenger who, unbeknownst to Munnerlyn, was carrying
a large amount of money. Munnerlyn had no reason to be wary of this particular
passenger, because he was an elderly man who appeared to
be what he claimed
to be -- a banker. As pilot/owner of the charter airline service, he had
no duty -- or right -- to search the luggage of his passengers.

The common thread to both cases is that LAW
ENFORCEMENT is expecting honest, every-day, hard-working citizens to perform
the police function of detecting and preventing crime. They are expected
to police their customers:
 without guns? (What if the culprits have
bigger guns and are more willing to use them, such as the drug dealers
plaguing the Maryland billiard parlor?)
 without the power to arrest?
without the resources to search and/or guard
the premises?
without immunity from false arrest and invasion
of privacy lawsuits when they try to do the things the police tell them
they have to do to avoid having their property seized?
B. Corrective Amendments

Police officers, when they apply for the
job, know that certain risks are inherent in their job description. They
are hired to do the job, notwithstanding those risks, and to detect crime,
find the culprits, arrest them,
and testify against them in court. This
is not a job for private citizens -- not now, particularly in places like
Washington D.C. and other major cities, where the crime world is a very
dangerous thing to oppose.

The government has no right to palm off police
responsibilities on private citizens and take their property when they
fail to perform satisfactorily. This negligence standard for forfeiture
seizures from innocent owners m
ust be abolished.

X. Prevent federal trampling
on states' rights to enact forfeiture statutes more protective of their citizens.

A. Current Law
A number of states have enacted statutes giving
innocent owners greater protections than the federal forfeiture statutes.
Federal authorities are not bound by the state forfeiture laws, however.
Local police can make an e
nd run around state forfeiture laws by asking
federal agencies, such as the DEA or FBI, INS or Customs, to adopt the
forfeiture. They then get to split the proceeds with the "adopting" federal
agency.

In most cases, the "adopted" forfeitures
would be illegal under state forfeiture law. Federal adoption can also
intrude on state constitutional rights. The highest court of New York has
recognized more protective state co
nstitutional rights regarding illegal
searches and seizures(14) than are recognized
by the U.S. Supreme Court, interpreting the federal constitution. However,
it is an open question as to whether the federal authorities h
ave to abide
by the New York Constitution when seizing property from New York residents.
B. Corrective Amendments

We believe that any state that makes the
effort to enact state forfeiture statutes should not have their forfeiture
statutes overridden within the boundaries of their borders, by the federal
government's use of "adoption"
 procedures. We believe this is an unconstitutional
intrusion on states' rights.
When a state legislature has passed forfeiture
statutes, the federal government should abide by its standards when operating
within its boundaries. This goes for DEA and FBI seizures as well as "adoption"
cases. Until fed
eral forfeiture laws begin to protect citizens' due process
and property rights, citizens should be able to turn to their own states
for protection, and their states' will in this regard should be honored
inside its own b
orders.

XI. Abolish governmental
immunities under Federal Tort Claims
Act for damages to property while detained, and create retroactive remedies to make 
whole the innocent owners, lienholders and third parties that have
been har
med by these laws because the procedures were inadequate to protect
their property rights.

A. Current Law

(1) Damages to impounded property

On March 13, 1992, United Press International
reported that, in 1989, Jacksonville University Professor Craig Klein's
new $24,000 sailboat was boarded by 11 customs agents looking for drugs
which were never found. Armed w
ith fire axes, powerdrills and a chain saw,
they did $50,000 worth of damages to the boat, going so far as to drill
holes in the hull and sails. "They literally chopped the engine up with
a fire axe," Professor Klein said
. "They left the boat in a sling at the
marina. It was just a wreck."

When Professor Klein demanded that customs
repair the damages, they told him they were immune from damages -- which
is true under current law. The Federal Tort Claims Act, 28 U.S.C. Sec.
2680(c) exempts the federal govern
ment from liability for "any claim arising
in respect of . . . the detention of any goods or merchandise by any officer
of customs or excise or any other law-enforcement officer."

(2) Damages to lienholders

In 1983, F.E.A.R. members Carl and Mary Shelden
of Moraga, California became two of the earliest innocent victims of the
forfeiture laws when their former residence, which they had sold in 1979
and owner financed -- after
 exercising the normal scrutiny employed in
such real estate transactions -- was seized and forfeited. The buyer of
the property, who owned a clothing store chain, appeared to be a legitimate
businessman. What the Shelden
s and the rest of the community didn't know
was that he had also been involved in prostitution. When he was convicted,
the property was forfeited under RICO. The Sheldens were not given notice
nor opportunity to be heard
regarding the disposition of the forfeited
assets.

When the property was forfeited, its appraised
value was $350,000. The Sheldens had a $160,000 second trust lien -- by
far, the largest interest in the property.

Although the 1983 RICO statute required the
government to sell the property as soon as was commercially feasible, and
to protect the interests of innocent third parties and promptly pay off
lienholders, the U.S. Attorney
entered a stipulation with the criminal
defendant's lawyer that the criminal's family could live in the property,
rent free, while the defendant's appeal was pending. No provision was made
in the stipulation to guarantee
payment of the Sheldens' mortgage lien,
nor did the government, which acquired all right and title to the property
by virtue of the forfeiture verdict, assume the mortgage. They were left
in limbo. The criminal's lawyer m
ade payments to them, as he could, from the proceeds of the criminal's other 
properties, but nothing guaranteed
it in writing. The Sheldens never consented to extending this mortgage
past the change of ownership in the pr
operty.

The Sheldens hired lawyer after lawyer and
did everything they could think of doing to try to protect their interest.
They frequently tried to foreclose on the mortgage, but were rebuffed at
every turn by the government.

Two years later, the criminal defendant's
conviction was overturned on appeal, and the forfeiture verdicts were remanded
to the trial court. The Sheldens again
tried to foreclose, but the criminal defendant had declared b
ankruptcy
the day his conviction was reversed. While they were in the bankruptcy
court, trying to defend their interests, they learned the property had
been seriously damaged since the forfeiture. They hired an appraiser
and found out it had been reduced to a fraction of its former value by waste.
A retaining wall the criminal had erected on the hillside property before
he was arrested had fallen, while the property was in government cust
ody,
and no move was made to correct the damage, nor to inform the Sheldens
about it. The erosion resulting to the hillside undermined the foundation
of the house, causing it to crack open, throughout the house. In places

one can see daylight through the wall. There is a crack in the front facade
wide enough to bury a hand up to the top knuckles.

After hearing of the engineer's reports,
the bankruptcy court told the Sheldens they could foreclose, since the
property was virtually worthless. They did "foreclose", but had to evict
the criminal's family, who were stil
l living there. They tried for a while
to rent the damaged house, but found it increasingly difficult, and were
forced to move back into it, their savings wiped out fighting the government.

In 1988 they hired their 11th lawyer on the
case, to file suit to try to recoup the rest of the value of their lien,
which the government had destroyed by allowing the property to waste. The
suit was filed in U.S. Claims
Court, and alleged that since they were innocent
lienholders who did everything they could have been expected to do, under
the circumstances, the failure of the government to sell the property and
promptly pay off their l
ien -- in its entirety -- was a "taking" under
the Fifth Amendment, entitling them to just compensation.

In January 1990, the U.S. Claims Court ruled
in the Shelden's favor, finding there had been a "taking" requiring just
compensation. The case was set for trial on the issue of damages in August
1990. One week before trial
the Justice Department filed a "motion for
reconsideration" -- a motion that was required to be filed within 10 days
of the order, and thus was seven months late. After reconsidering and sitting
on the motion for almost t
wo years, in June 1992, the judge reversed himself
and said there was no "taking" and dismissed the suit.

Meanwhile, in 1990, the Sheldens discovered
that the federal government still owned the property they had taken possession
of and been living in. Through the checking of records in relation to their
civil suit, they learn
ed that, in 1989 the criminal defendant plea bargained
and got probation and title to two of the forfeited properties. The government
quit claim deeded those two of the forfeited properties back to the defendant,
but forf
eited all other remaining properties, including the property the
Sheldens previously held a lien on, had "foreclosed" upon, and were now
living in, to the federal government. No effort was made to notify the
Sheldens of t
his.

The government finally gave the Sheldens
a quit claim deed to the damaged property in May 1990.
In 1993, almost 10 years after their saga
began, the Court of Appeals for the Federal Circuit held that there had
been a "taking" of their mortgage, in violation of the Fifth Amendment's
Just Compensation Clause, when the
 government forfeited the underlying
property.   The Court remanded to the Court of Federal Claims
for a trial on the amount of damages owed as "just compensation" for their
mortgage.  After a trial in the summer of 1994
and an award of over
$200,000 in damages in August of 1997, the government appealed a second
time.  The case settled on the merits in December 1997. The
petition for attorneys fees, which is still pending as of this writi
ng
in December 1998, will hopefully be settled soon.

Most innocent lienholders could not afford to litigate 14 years to
be made whole, and most attorneys would not take such a case on a contingency, hoping 
to get their attorneys fees paid by the government under one of
the
fee-shifting statutes.

B. Corrective Amendments

The exemption from liability for law enforcement
should be stricken from the Federal Tort Claims Act.

The saga of Carl and Mary Shelden show that
corrective,
retroactive remedies need to be enacted to make reparations
for
the damages done to innocent lienholders. What happened to the
Sheldens
should never happen -- statutes should require the
government to pay off
lienholders -- in full -- when they forfeit the
property. No innocent lienholder
should have to fight the
government 10 years and beyond for what was rightfully
theirs in
the first place. Retroactive remedies should be enacted creating
a
simple process to make whole the innocent lienholders who lost
any part
of the value of their liens because of inadequate
protection of their interests
under previous forfeiture statutes.
Conclusion

It is our firm and patriotic belief that the
United States Constitution
and our basic human rights to own property and
to have Justice in
the courts assume these things: that a person is innocent
until
proven guilty, that a person cannot be punished without being
proven
guilty beyond a reasonable doubt, that we have a right to
confront and
cross-examine our accusers, that we should be free
from unreasonable searches
and seizures of our person and our
property, that we have a right to own
property which is as
important as our right to be free from incarceration,
and that the
punishment should fit the crime and should follow rather
than
precede the trial.
We believe that forfeiture is punishment --
for all purposes. We
believe that applying civil burdens of proof is unconstitutional,
and
that any person who was not convicted of a crime but nevertheless
lost
property under those standards should have a new trial. We
believe that
every time forfeiture statutes allowed innocent
lienholders, or anyone
who qualified for the Pearson Yacht
defense, to lose any portion
of their property rights to the
government, it was a "taking" which requires
just compensation,
not just whatever compensation the government decided
to give
them.

We believe a large number of American citizens
have been
harmed severely by these unfair laws, and demand
reparations.
We ask for retroactive remedies for property owners
who are found to be
innocent under the standards set out above.
If the government needs money to finance law
enforcement,
Congress should raise taxes for that purpose. The "War
on
Drugs/Crime" should not be financed by a lottery tax that hits a
few selected
people, destroying them financially in order to spare
the rest the inconvenience
of fairly-assessed taxes. Nor should
the police be empowered to raise their
own funds by thievery and
extortion, for such a system only breeds crime
and corruption in
police forces while it erodes the public confidence in
law
enforcement.
FOOTNOTES:
1. See Generally, Terrence
Reed, "American Forfeiture Law:
Property Owners Meet The Prosecutor," Policy
Analysis, Cato
Institute, (1992). 2. 2 The case
he is referring to is Calero-Toledo
v. Pearson Yacht Leasing Company,
416 U.S. 663 (1974). 3.
United States v.
James Daniel Good Real Property, 114 S. Ct.
492; 1993 U.S. LEXIS 7941;
126 L. Ed, 2d 490 (1993) I don't have
all the cites right now. 4. Mr. Spurlock has strong
evidence that
the informant was his business competitor -- in fact,
the
competitor publicly bragged of being the informant. 5. 5 The
Orlando
Sentinel reported on August 4, 1992:


Cary Copeland, Justice forfeiture chief, said
the snitch payoffs are
moneys well spent.
He said the law forbids Justice from paying
more than 25 percent
of a seizure to an informant. That means, he said,
that the $30
million in snitch stipends the past two years has netted at
least
$120 million in forfeited funds during that time.
"We're not paying it to them because we like
them," Copeland
said. "We're paying them because they put money in the
pot."


"Informants Make Out Like Bandits," Orlando
Sentinel, page A-1,
August 4, 1992. 6. See 21 C.F.R.
Sec. 1316.92. 7. See In Re
Newport
Savings and Loan Association, 928 F.2d 472 (1st Cir.
1991). 8. See Better Care and
Disposal of Seized Cars, Boats,
and Planes Should Save Money and Benefit
Law Enforcement, 7-
15-83 GAO/PLRD-83-94; Statement of Arnold P. Jones
Before the
Committee on the Budget, United States Senate, on Customs'
Management
of Seized and Forfeited Cars, Boats, and Planes,
Statement, 4-3-86; Statement
of Gene L. Dodaro Before the
Subcommittee on Federal Spending, Budget and
Accounting,
United States Senate, Real Property Seizure and
Disposal
Program Improvements Needed, 9-25-87 GAO/T-GGD-87-
28; Seized Conveyances:
Justice and Customs Correction of
Previous Conveyance Management Problems,
2-3-88, GAO/GGD-
88-30; Statement of Gene L. Dodaro Before the Subcommittee
on
Crime, House of Representatives, on Asset Forfeiture Programs:
Corrective
Actions Underway But Additional Improvements
Needed, 3-4-88, GAO/T-GGD-88-16; Statement of Gene L. Dodaro
Before the Subcommittee on Federal Spending, Budget and
Accounting, United States Senate, on Asset Forfeiture Programs:
Progress and Problems, 6-23-88, GAO/GGD-88-41; Statement of
Gene L. Dodaro
Before the Subcommittee on Crime, House of
Representatives, on Asset Forfeiture:
An Update, 4-24-89, GAO/T-
GGD-89-17;
Statement of Richard L. Fogel Before the Subcommittee
on
Oversight, House of Representatives, Profitability of Customs
Forfeiture
Program Can Be Enhanced, 10-10-89, GAO/T-GGD-90-
1; Asset Forfeiture:
Need for Stronger Marshals Service Oversight
of Commercial Real Property,
5-91, GAO/GGD-91-82.

--
    When robbery is done in open daylight by sanction of
    the law, as it is done today, then any act of honor or
    restitution has to be hidden underground. -- Ragnar
    Danneskjöld













 9. When numerous items
of property are seized, the
government often sets separate cost bonds for
each of them,
maximizing the property owner's costs of fighting the case. 10. The
only types of
property owners who ever win in the administrative
forfeiture process
are a certain class of commerical lienholders.
We have heard rumors about
an agreement made between the
Department of Justice and a national organization
of lienholders
that, in exchange for certain unknown consideration -- probably
a
promise to remain silent -- the members of the lienholder
association
would get special treatment from the Department of
Justice in forfeiture
cases. The only corroboration for this rumor
we have been able to find
is in the Houston Chronicles article by
Dianna Hunt, published May
17, 1992. 11. As one can
expect,
competent forfeiture lawyers are a rare breed, virtually
extinguished financially
when all their clients' assets are routinely
confiscated pre-trial. 12. The Sixth Amendment
provides:


In all criminal prosecutions, the accused
shall enjoy the right to a
speedy and public trial, by an impartial jury
. . . ; to be confronted
with the witnesses against him; to have compulsory
process for
obtaining witnesses in his favor, and to have the Assistance
of
Counsel for his defence. 13. First aired 4-5-92,
rerun 8-30-92. 14.
People v. Guy F.
Scott, 1992 N.Y. Lexis 940, Court of Appeals of
New York, decided April
2, 1992.

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