On Sept. 6, 1994, the United States Court of Appeals for the 9th Circuit extended the Supreme Court's ruling in Austin v U.S. a step further toward guaranteeing civil forfeiture victims the same Due Process given criminal defendants. The 9th Circuit ruled that, since the Supreme Court said in Austin that civil forfeiture is punishment, the Double Jeopardy clause applies to civil forfeiture.
The 9th Circuit case, United States v $405,089.23, involved parallel criminal and civil forfeiture proceedings against two defendants. After they were convicted, the government filed a motion for Summary Judgement in the civil forfeiture case, which the district court granted.
In finding that the Double Jeopardy clause prohibits civil forfeiture after the convictions, the 9th Circuit concluded that there were clearly two separate proceedings, since one was civil and the other criminal, they were assigned to different judges, and resolved by separate judgements. The court had little difficulty finding that civil forfeiture is punishment, pointing out that the U.S. Supreme Court decided that in Austin.
The 9th Circuit said the findings in this case will not bar forfeiture altogether, but will make the prosecutor choose between joining the property as separate criminal forfeiture counts in the criminal indictment, or going forward with the civil forfeiture case and foregoing a criminal prosecution.
It seems that this ruling will also apply to bar civil forfeiture proceedings after an acquittal, stating "[the] most basic element of the Double Jeopardy Clause is the protection it affords against successive prosecutions -- that is, against efforts to impose punishment for the same offense in two or more separate proceedings. That protection applies with equal force whether the first prosecution results in a conviction or an acquittal."
So, who were the brilliant forfeiture defense attorneys who achieved this wonderful result in the $405,089.23 case? Charles Wesley Arlt, and James Eli Wren, FCI Lompoc -- the criminal defendants -- represented themselves! (9th Circuit Court of Appeals cite for this case: 93-55947)
In U.S. v McCaslin, decided Sept. 2, 1994, Judge William Dwyer of the US District Court for the Western District of Washington State, ruled that seizure of real estate based upon its use to cultivate marijuana precludes separate prosecution of the homeowner who grew the pot.
Mr. McCaslin made the same arguments at his trial, before the same judge, in 1990. The arguments were rejected by the judge, and by the 9th Circuit Court of Appeals. The US Supreme Court declined to review the case.
Subsequent case law made it clear that McCaslin's arguments were correct, and Mr. McCaslin's conviction has now been vacated!
This decision brings Washington Federal Courts into line with the Supreme Court of Washington, which recently ruled that forfeiture of real estate based upon its use to grow marijuana constitutes punishment for purposes of double jeopardy. The government may still take the home and put the owner in jail, but now it must be done in the same proceeding. Since Washington, unlike the United States Government, does not have a law which would allow consolidation of the forfeiture and the criminal prosecution in the same case, Washington's ability to forfeit real estate has been severely limited!
The impact on federal criminal law may be equally dramatic, since Judge Dwyer's ruling appears to be retroactive. It could therefore apply to literally thousands of citizens who are in prison or on probation, whose homes or other property has been seized by the government in separate civil proceedings, but based upon the very crime for which they are incarcerated.
On Thursday, Aug. 18, the California Legislature unanimously passed a new drug forfeiture law. This marks the second major victory for F. E. A. R. in California -- following the sunsetting of the old forfeiture law last year. The new law, AB 114, by Assemblyman John Burton, requires proof beyond a reasonable doubt, makes the state prove an innocent owner "knew of and consented to the illegal use", requires an audit trail, prohibits police from keeping seized cars or boats for their own personal use, and diminishes the portion of the proceeds the police get to keep.
Thanks to Kathy Bergman of F.E.A.R. for these articles.
These favorable court rulings have added momentum to the drive for forfeiture reform. There are currently three federal forfeiture bills on the plate: John Conyers' comprehensive forfeiture reform bill, H.R. 3347, Henry Hyde's good but less comprehensive H.R. 2417, and a bill by the Department of Justice for which they have so far been unable to find a congressional sponsor. The DOJ bill makes the concession of requiring a criminal conviction before property may be forfeited, but more than makes up for that by vastly expanding the government's already widely abused powers to conduct forfeiture.
You can help by:
See Federal Legislation to learn how to contact your elected members of Congress.
For more information on asset forfeiture, contact:
F. E. A. R.
265 Miller Ave.
Mill Valley, CA 94941
415/388-8128
Online: F. E. A. R. will soon be publishing a bi-weekly electronic magazine. Send subscription requests to: The Activist Guide, Issue #3, September '94, DRCNet Publications section, A Guided Tour of the War on Drugs home page.
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