A Stitch in Haste

Even non-lawyers generally know that a defendant can be acquitted of a crime (because the prosecution failed to meet the high burden of proving guilt "beyond a reasonable doubt") but can still lose a civil lawsuit over the same transaction or occurrence (because the plaintiff faces the much lower burden of proving liability "by a preponderance of the evidence"). See, of course, "O.J. Simpson."

And most non-lawyers know, or can guess, that a criminal defendant who is, for example, caught with illegal drugs can be acquitted (e.g., because the drug evidence was suppressed as the result of an illegal search) but will still forfeit the illegal drugs — the police of course do not give you your illegal drugs back simply because you were found "not guilty."

Now put these two seemingly innocuous principles together, and you get one of the most egregious examples of "two rights make a wrong" you may ever see:

On May 28, 2003, a Nebraska state trooper signaled [Emiliano Gomez] Gonzolez to pull over his rented Ford Taurus on Interstate 80. The trooper intended to issue a speeding ticket, but noticed the Gonzolez's name was not on the rental contract. The trooper then proceeded to question Gonzolez — who did not speak English well — and search the car. The trooper found a cooler containing $124,700 in cash, which he confiscated. A trained drug sniffing dog barked at the rental car and the cash. For the police, this was all the evidence needed to establish a drug crime that allows the force to keep the seized money.

Associates of Gonzolez testified in court that they had pooled their life savings to purchase a refrigerated truck to start a produce business. Gonzolez flew on a one-way ticket to Chicago to buy a truck, but it had sold by the time he had arrived. Without a credit card of his own, he had a third-party rent one for him. Gonzolez hid the money in a cooler to keep it from being noticed and stolen. He was scared when the troopers began questioning him about it. There was no evidence disputing Gonzolez's story.

Bottom line, since asset forfeiture laws apply the lower "preponderance of the evidence" standard, a person never convicted of any crime can still have their non-contraband assets seized as the "instrumentalities" of that crime (which, again, was never proven to have actually occurred).

That simply cannot be right.

Say what you want about civil litigation and the propriety of the "preponderance" standard in that context. For a defendant to be penalized by the government — whether you call it "punishment" or "forfeiture" — for a purported criminal act, the government should, one would hope, be required to obtain a finding of criminal guilt (i.e., guilt beyond a reasonable doubt), either by guilty plea or conviction at trial.

To the extent the law allows otherwise, the law is a ass.

The case is — get this — U.S. v. $124,700 in U.S. Currency (such Kafkaesque case names are all too common in forfeiture actions), No. 05-3295 (8th Cir., August 18, 2006) (PDF - 10 pages). The law in question is the Civil Asset Forfeiture Reform Act of 2000, 18 U.S.C. 983(c)(1).

Via Hit & Run. More thoughts at Unrepentant Individual, Crime & Federalism.