Self-Promotion Alert -- I publish a technical legal manual

I have been busy the last month revising and updating my legal treatise on Federal Forfeiture law. This is the body of law that authorizes the government to non-consensually transfer (read "take") ownership in both real and personal property upon allegations -- not proof -- that the property is connected to illegal activity. The manual -- which I have been selling since 1997 -- is for attorneys representing clients in this field and is called, appropriately, Federal Forfeiture Practice Manual. I am publishing it both in hard copy and as an electronic download though Lulu.com.

If you want to learn more, click the button below and follow the link to the hard copy or electronic versions where a preview is offered:

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Asset Forfeiture & The Fifth Amendment – Part I – Innocent Ownership

The fifth amendment to the Constitution guarantees due process. In the forfeiture context, two areas have arisen. The first is the constitutional question of innocent ownership. The second is whether the conduct of the government can deny due process rights. In 1968, President Richard Nixon, in his infinite wisdom, ushered in the "War on Drugs" adopting a "zero tolerance policy". One unfortunate recipient of this policy was the Pearson Yacht Leasing Company of Miami, Florida which had leased a $19,800 yacht to some residents of Puerto Rico. Unfortunately for these residents, they were discovered to have on board two marijuana cigarettes. . .

Under Puerto Rican law, this was sufficient to forfeit the vessel as being used to transport contraband. Of particular import, all parties to the proceeding agreed that Pearson Yacht had no knowledge that marijuana was being used or transported on the yacht, thus presenting the question of whether an "innocent owner" could lose his interest in property by reason of the actions of his lessee.

As we all know – or should know – the 5th Amendment states:

No person shall be held to answer for a capital, or otherwise infamous, crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war, or public danger; nor shall any person be subject, for the same offense, to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Pearson's obviously overwhelmed attorney first raised procedural due process issues in the way the forfeiture was handled – no pre-seizure notice and no opportunity for a hearing – but was shot down. Next, he argued that such a taking of an innocent owner's property would violate constitutional guarantees. Though right, Pearson Yacht lost because its counsel forgot that it isn't enough to be right on the law, you also must be right on the facts. In recognizing this important constitutional limitation of forfeiture, the Court held:

It therefore has been implied that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property; for, in that circumstance, it would be difficult to conclude that forfeiture served legitimate purposes and was not unduly oppressive.

Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689 (1974). Unfortunately, the record contained (and here read the attorney failed to develop) no facts to demonstrate that Pearson Yacht had done all it "reasonably" could to prevent the yacht from being used illegally. Indeed, the Supreme Court went on to hold that "But in this case appellee voluntarily entrusted the lessees with possession of the yacht, and no allegation has been made or proof offered that the company did all that it reasonably could to avoid having its property put to an unlawful use." Id. 690. Thus, the Pearson Yacht Leasing Co. lost their boat.

Another important holding of Calero-Toledo is that the governmental scheme of seize now without hearing and put the burden of proof of innocence on the claimant to the property met constitutional muster. Thus, under forfeiture, the rule was “guilty until proven innocent”. Who needs the criminal law anymore when under asset forfeiture that pesky notion of "proof beyond a reasonable doubt” can be dispensed with?

Smelling cash, the government would quickly move forward to start milking that cash cow.

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Asset Forfeiture & The Fourth Amendment

In 1965, George McGonigle was driving his 1958 Plymouth sedan across the Benjamin Franklin Bridge, towards Philadelphia, Pennsylvania when he was stopped by two police officers who had noticed that his car was riding quite low in the rear. Upon searching the car, without a warrant or, as later determined probable cause, the officers found 31 cases of liquor not bearing Pennsylvania tax seals. Among other actions, the officers seized the car under a Pennsylvania statute allowing forfeiture of conveyances used to move contraband.

Now of course, the Fourth Amendment has something to say about that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

In holding that the Fourth Amendment required suppression of the 31 cases of liquor seized thereby precluding forfeiture, the Supreme Court stated:

In sum, we conclude that the nature of a forfeiture proceeding, so well described by Mr. Justice Bradley in Boyd, and the reasons which led the Court to hold that the exclusionary rule of Weeks v. United States, supra, is obligatory upon the States under the Fourteenth Amendment, so well articulated by Mr. Justice Clark in Mapp, support the conclusion that the exclusionary rule is applicable to forfeiture proceedings such as the one involved here.

One 1958 Plymouth Sedan V. Pennsylvania, 380 U.S. 693, 703 (1965). Thus the first of two constitutional rights had been firmly established in modern forfeiture practice -- the exclusionary rule based upon the rationale that "a forfeiture proceeding is quasi-criminal in character. Its object, like a criminal proceeding, is to penalize for the commission of an offense against the law." Id. at 700.  The second was to come a few years later.

However, this holding, that a forfeiture was “quasi-criminal in character” would later prove inconvenient and force the Supremes twenty years later to change that holding.

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Asset Forfeiture - The Early Years

To fully understand the present state of federal forfeiture law, a solid understanding of its evolution is important. The underlying premise of forfeiture is that the "thing" (or "rem" in Latin) has the sentience to know that it has done something wrong and thus deserves a punishment just as a person would merit a punishment for breaking the law. Hence, in Exodus 21:29, it is written, "if the ox were wont to push whith his horn in time past, and if hath been testified to his owner, that he hath killed a man or a woman; the ox shall be stoned and the his owner also shall be put to death." Note also that in Exodus 21:28, it is ordained that the flesh of the ox should "not be eaten". Tough times to live in, but the sentiment is clear -- the ox must pay for his wrong even if he knew not what he was doing.

It didn't take too long for a centralized government – read the sovereign – to realize that the failure to eat a perfectly good ox was a waste of good ox meat. Thus the initiating of the legal institution known as the "Deodand" which is Latin for "to be given to God". The deodand required that any object which caused the death of a man was forfeited to the Crown. By the year 1280, the actual object causing the death was replaced by the value of the thing being forfeited to the King. Thus the small step was taken which initiated a thousand years of morally justified revenue enhancement for the sovereign. Forfeiture was on its way.

In August 1861, presumably seeking ways to vent their frustrations over the session of the Southern states, Congress passed the Confiscation Acts (12 Stat. 319; 12 Stat 589) which authorized the seizure of property, both real and personal, of Confederates and those aiding them. The Supreme Court, in determining that the Acts were constitutional stated:

The Constitution confers upon Congress expressly power to declare war, grant letters of marque and reprisal, and make rules respecting captures on land and water. Upon the exercise of these powers no restrictions are imposed. Of course the power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted. It therefore includes the right to seize and confiscate all property of an enemy and to dispose of it at the will of the captor. This is and always has been an undoubted belligerent right.

Miller v. United States, 78 U.S. (11 Wall) 268, 305 (1871). 

Emboldened by its new powers to raise revenue from a class that couldn't readily complain, Congress went on to pass an "Act Imposing Taxes on distilled Spierists and Tobacco" (15 Stat. 125, 133 (July 20, 1868). Here, moving for the first time beyond customs, admiralty or war powers, Congress sought to fight those who would avoid liquor tax obligations by authorizing forfeiture of both the real and personal property involved in the liquor making operation.

Again, the Supreme Court waded in holding that "Where the owner of a distillery and other property connected therewith leased them for the purpose of distilling, the acts or omissions of the lessee in carrying on the business of distilling while he was in possession, and with intent to defraud the revenue, although they are unknown to the owner, subject the distillery and such other property to forfeiture to the United States." Dobbins's Distillery v. United States, 96 U.S. 395 (1871). Now, the Rubicon had been crossed. No longer was the wrong doing of the owner of the property important as it was in the war-time confiscation acts -- only the fictional knowledge of the property itself at issue. The intellectual justification for such decision was that the proceedings were "civil" and not "criminal" in nature. The latter of course would require the full panoply of constitutional rights before a forfeiture could be enacted. 

Such a fiction would obviously trouble any right thinking jurist and indeed, in Boyd v. Untied States, 116 U.S. 616 (1886), the Supreme Court found that the Fourth and Fifth amendment do apply in a forfeiture case reasoning that "[a] proceeding to forfeit a person's goods for an offense against the laws, though civil in form, and whether in rem or in personam, is a "criminal case" within the meaning of that part of the Fifth Amendment which declares that no person "shall be compelled, in any criminal case, to be a witness against himself." Mr. Boyd could not be compelled to turn over his personal papers in that case.

Nonetheless, confusion reigned in forfeiture law as the Supremes went on to hold that there was no right to confront one's accusers in a civil forfeiture case (United States v. Zucker, 161 U.S. 475 (1896)) and that proof beyond a reasonable doubt was not required (United States v. Regan, 232 U.S. 37 (1914)). 

There things remained until 1965.

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What is Asset Forfeiture?

Simply stated, forfeiture is the legal process by which the ownership of property -- houses, cars, airplanes, cash, bank accounts, etc. -- is non-consensually transferred from its owner to the government. The rationale for the transfer is that the property -- not the owner -- has done something wrong. Once the property is guilty of a crime, then the government is authorized to forfeit it.

The conceptual underpinnings of civil forfeiture can be traced back to ancient Roman and medieval English law, both of which made objects used to violate the law subject to forfeiture to the sovereign. See United States v. 785 St. Nicholas Ave., 983 F.2d 396, 401-02 (2d Cir. 1992). United States laws providing for official seizure of property used in criminal activity perpetuate the legal fiction that "property used in violation of law was itself the wrongdoer that must be held to account for the harms it had caused." United States v. 92 Buena Vista Avenue, 113 S. Ct. 1126, 1135 (1993). Because the property, or res, is considered the wrongdoer, it is regarded as the actual party to in rem forfeiture proceedings. Id.

Civil forfeiture has recently gained new life as an instrument of federal law enforcement, particularly as a weapon in the "war on drugs". As part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, congress strengthened civil forfeiture as a means of confiscating illegal substances and the means by which they are manufactured and distributed. Pub. L. No. 91-513, 84 Stat. 1276 (1970), codified at 21 U.S.C. ss. 881-896. In 1978 congress amended the act to authorize the seizure and forfeiture of the proceeds of illegal drug transactions as well. The statute provides for the forfeiture of "all moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance [as well as] all proceeds traceable to such an exchange." Pub. L. No. 95-633, 92 Stat. 3777 (1978), codified at 21 U.S.C. @ 881(a)(6).

Now "one of the most potent weapons in the judicial armamentarium", see United States v. 384-390 West Broadway, 964 F.2d 1244, 1248 (1st Cir. 1992), civil forfeiture has become a favored method for imposing significant economic sanctions against narcotics traffickers. However, the ease with which the government can seize property and the potential hardships caused to innocent owners who seek to recover their property once the government has seized it have elicited concern from courts and commentators alike

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