New Forfeiture Law Proposed for Orange County, NY

The legislature in Orange County, NY is considering enacting a new forfeiture statute proposed by county District Attorney David Hoovler. Though law enforcement in the county already uses both current state and federal statutes, this new county-level statute would provide a "third route" that would keep all of the income from forfeiture within the county. Forty-one percent would be given to the seizing agency, the same as state law, but the rest would be divded between the county government and the District Attorney's office. Orange would join New York City, Nassau, Oneida, Westchester, and Rensselaer counties which all have their own forfeiture statutes.

Canadian Media Sounding the Alarm

A Senior Washington Correspondent for the Canadian Broadcast Corporation warns Canadians about the dangers of traveling with large amounts of cash in America. His travel advice?

Avoid long chats if you’re pulled over. Answer questions politely and concisely, then persistently ask if you are free to go.

Don’t leave litter on the vehicle floor, especially energy drink cans.

Don’t use air or breath fresheners; they could be interpreted as an attempt to mask the smell of drugs.

Don’t be too talkative. Don’t be too quiet. Try not to wear expensive designer clothes. Don’t have tinted windows.

And for heaven’s sake, don’t consent to a search if you are carrying a big roll of legitimate cash.

As the Canadian government notes, there is no law against carrying it here or any legal limit on how much you can carry. But  if you’re on an American roadway with a full wallet, in the eyes of thousands of cash-hungry cops you’re a rolling ATM.

Former Justice Department Officials Slam Asset Forfeiture

The Washington Post continues its barrage of coverage with an op-ed penned by two former federal officials. John Yoder, director of the Asset Forfeiture Office from 1983 to 1985, and Brad Cates, who directed the office from 1985 to1989, have written a stinging indictment of the modern forfeiture program.

Asset forfeiture was conceived as a way to cut into the profit motive that fueled rampant drug trafficking by cartels and other criminal enterprises, in order to fight the social evils of drug dealing and abuse. Over time, however, the tactic has turned into an evil itself, with the corruption it engendered among government and law enforcement coming to clearly outweigh any benefits.

The full op-ed can be read here. Yoder and Cates condemn the many changes made to the practice since the early days, including expanding the scope of property that could be forfeit, allowing law enforcement to keep and use recovered property, and the increasing number of crimes that can trigger forfeiture. They refer to modern civil asset forfeiture and money laundering laws as "gross perversions of the status of government amid a free citizenry" and recommend the complete abolishment of civil asset forfeiture.

Yoder and Cates really hit the nail on the head and pound it flat. Whatever noble intentions these laws were conceived with have been distorted and the amount of abuse this has led to is indefensible.

News Roundup

• Lawmakers in Wyoming will sponsor a bill in the 2015 legislative session that will end civil asset forfeiture in the state.
• George Leef argues for the abolishing of civil asset forfeiture laws in Forbes.
• The Washington Post ran an excellent series on asset forfeiture last week.

Rand Paul Introduces Asset Forfeiture Reform Bill

Rand Paul introduced a landmark bill last Friday that makes several significant changes to federal asset forfeiture law. It aims to remove the profit incentive by depositing sales proceeds in the Treasury's General Fund instead of giving it directly to the seizing agency.  The government must also show a substantial connection between the property owner and the alleged crime, that the owner "intentionally used the property in connection with the offense" or "knowingly consented or was will-fully blind to the use of the property by another in connection with the offense" before forfeiting property.

It also raises the standard of proof for federal prosecutors to meet before forfeiting property. The bill raises the federal court's standard of proof to "clear and convincing evidence", which makes it higher than many states. Radley Balko reports that the bill also requires states to "abide by state law" when they forfeit property, but that language is not in the current bill so it is hard to know what means exactly and if it applies to both financial and procedural aspects of state forfeiture law.

This is pretty big. Asset forfeiture is a big money maker for actors at all levels of government. The federal asset forfeiture fund had more than $2 billion in net deposits in 2013. The Department of Justice made more than $656 million in equitable sharing payments to law enforcement agencies in the 50 states. Law enforcement in New York and California have received more than $1.2 billion through the program between 2000 and 2013.This is not necessarily a bill that will be greeted with open arms by the law enforcement community.

 These changes have been a long time coming. Henry Hyde proposed raising the burden of proof to clear and convincing evidence almost 20 years ago. His reform efforts were stymied and his bill, passed as the Civil Asset Forfeiture Reform Act in 2000, settled for the lower standard of a preponderance of the evidence, which it stands at today. And while it would curb the problems associated with federal adoption, it would not address the myriad problems of state forfeiture laws. This bill represents a lot of progress though and Senator Paul should be commended for taking up the issue.

News Roundup

• Police in St. Louis are moving in to a new headquarters in the coming weeks. The new building was purchased in 2011 with $2.7 in forfeiture money. “Asset forfeiture money means money we seized from criminal enterprises. So in this case, crime really did pay for the metropolitan police department” said Police Chief Sam Dotson. Though state law directs asset forfeiture money to a fund for schools, that hasn't stopped law enforcement agencies in Missouri from receiving more than $135 million in equitable sharing payments since 2000, more than $14 million of which went to St. Louis Metro PD.
• Mendocino County's District Attorney's office is donating $10,000 in asset forfeiture revenue to a local anti-gang program for schools.
• Newsday chronicles the use of asset forfeiture on Long Island. The article includes some interesting details regarding how forfeiture money was spent in 2013, including $1.3 million for vehicles, $136,000 in out-of-town trips, and $385,000 in weapons and gear.
• A reporter for the Witness out of South Africa details the troubles of the National Prosecutor's Office and its' asset forfeiture unit. An unnamed AFU official blamed the unit's ineffectiveness on the "protracted legal process" that follows a seizure, while others point to infighting within the unit as a source of inefficiency.
• Webpronews discusses the moral quandary of purchasing property seized by police. They close by suggesting "...maybe the Ferrari that you see in that late night ad was once owned by a drug kingpin who now wears an orange outfit and a number. But maybe your local police force pays its salaries with the folding money of innocent out of state travelers."
• MyRecordJournal.com has a piece on how law enforcement in Connecticut use asset forfeiture funds to pay travel expenses. Jonathan Einhorn, a former New Haven police commissioner, is criticizes using forfeiture for travel and says “...[S]tate police have created a slush fund for vacations and travel, and that is just not the purpose.”

Former King's County DA Accused of Misuse of Asset Forfeiture Funds

Former Brooklyn DA Charles J. Hynes has been accused of using asset forfeiture money to pay a political consultant more than $200,000 for work on his unsuccessful reelection campaign. A report obtained by the New York Times suggests Hynes could face larceny charges for misuse of public funds. According to the investigation, Hynes made payments to the firm of Mortimer Matz from the state asset forfeiture fund. Payments totaled over $219,000 in 2012 and 2013 and $1.1 million between 2003 and 2013.

Tool or Profit Center?

The Daily Tribune out of Michigan considers the question in a new article on the state's medical marijuana industry. They focus on the use of forfeiture by Oakland County's Narcotics Enforcement Team.

For Oakland County’s Narcotics Enforcement Team, forfeitures totaled $924,358.06 in 2012. That total included $469,167.19 in cash, a share of federal forfeitures totaling $174,676.52, and 140 vehicles seized in drug raids and auctioned for $215,014.35, according to numbers provided by the Oakland County Sheriff’s Office.

In 2013, NET operations cost $1,191,597.40. Forfeitures in property and cash seized totaled $834,519.97.

 But, according to Oakland County Undersheriff Michael McCabe, forfeiture is just a tool against crime, not a money making venture.

“It’s not about making money; this is not an enterprise system; it’s not a profit-making business,” said McCabe. “The sheriff has always said he’s not in the business to make money. This isn’t a profit center.”

But, he added, “There are other places outside Oakland County that take a different approach than we do.”

News Roundup

• Police in Meriden, Connecticut used their asset forfeiture fund to purchase new mountain bikes and uniforms for a neighborhood patrol unit.
• The Taranaki Daily News has an article about New Zealand's uptick in asset forfeitures in since the passage of the Criminal Proceeds Recovery Act in 2009. The bill introduced the use of civil asset forfeiture to New Zealand. Previously forfeitures were limited by the requirement for a criminal conviction.
• The Treasury Department's anti-money laundering unit FinCEN had to rescind 11 job offers and temporarily freeze hiring after an Office of Personnel Management investigation determined that the agency was illegally screening job candidates. Federal agencies can only screen job candidates by the criteria given in the job listing and FinCEN reportedly targeted lawyers for open positions without ever stipulating that the positions were open only to lawyers.
• Over at Business Insider, Ethan Burger suggests asset forfeiture could be used to add some bite to recent sanctions against Russia.
• Authorities in the Philippines are auctioning off assets recovered after 27 years of litigation. The properties, valued at over $5 million, are connected to two associates of former president Ferdinand Marcos. Marcos was removed from office in 1986 after ruling the Philippines for 21 years. The properties include several homes and a sports club.
• Rep Kendall Kroecker has announced that he will be running for re-election in the Wyoming legislature. Rep. Kroecker sponsored HB0076, which would have increased the standard of proof required before law enforcement could forfeit property. The bill passed in the House but failed to make it out of Senate committee.
• Police in Downey, California financed the construction of a new training room using asset forfeiture funds. The new facilities will be used to train officers "who have been accused of using excessive force" in lethal and non-lethal arrest techniques.
• The Department of Justice has filed a civil forfeiture complain the Central District of California in an attempt to recover $700,000 in corruption proceeds. The money was seized from the sale of house formerly owned by Korea's ex-president Chun Doo-hwan's son. Doo-hwan's son, Chun Jae Yong, allegedly purchased the home using proceeds "traceable to his father's corruption." The US is working on the investigation in conjunction with South Korea's Supreme Prosecutor's Office, Ministry of Justice, and the Seoul Central District Prosecutor's Office.
• The Inquisitr tells the story of the man who had $50,000 in casino winnings seized during a traffic stop in Nevada. Tan Nguyen was never charged with or convicted of a crime and had to sue the Humboldt County Sheriff's Office to recover his money.
• The Pttsburgh Post Gazette has an excellent piece on law enforcement's use of confidential informants. They note that the federal government spent more than $26 million in asset forfeiture cash in 2013 on confidential informants.  
• Authorities in Jamaica have spent nearly four years searching for  the assets of drug kingpin Christopher 'Dudus' Coke and have only been able to link a small fraction of assets to his criminal activity.

News Roundup

• Texas Lawyer (registration required) has a short write up on the impact of Kaley v. United States on defense attorneys, including several tips for mitigating the impact of the decision on a defendant.
• The federal government has filed forfeiture papers against former New Orleans Mayor Ray Nagin. The money sought is connected to Nagin's conviction on corruption charges back in February.
• The Nassau County Police Department launched a new website developed with $300,000 in forfeiture proceeds.
• Police in Kansas have used a combination of asset forfeiture and grant money to purchase a 3d scanner for use in criminal investigations. The scanner uses a laser to scan and map crime scenes to determining bullet trajectories.
• President Pohamba of Namibia announced the formation of an asset forfeiture unit in his State of the Nation address.
• Suffolk County DA Daniel F. Conley is donating $5,000 in asset forfeiture cash to Operation LIPSTICK, a non-profit organization dedicated to "[p]reventing women from being used to buy, hide or hold guns for those who can't legally own them."