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.

I previously blogged the following:

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."

So, something that is never "contraband," such as cash, should never be seized in the absence of criminal guilt. Something that clearly is contraband can, on the other hand, be seized regardless of whether there is ever a conviction or guilty plea. The forfeiture of contraband is a government action that occurs outside and independent of the criminal law. This is not, without more, an affront to libertarian sensibilities.

Keep in mind, however, that whether something is contraband is an entirely different question from whether something ought to be contraband. The latter is where proper indignation lies, not the former.

You may not like the drug laws. I don't like the drug laws. But that doesn't mean that the drug laws don't exist, or that drugs aren't contraband. They are. If you get caught with illegal drugs, then you lose those illegal drugs. No finding of guilt required. Any libertarian outrage must be directed at the drug laws, not the forfeiture laws.

With that in mind, let's review a case study:

The New Hampshire Supreme Court has upheld yet another outrageous seizure of private property. From a [sic] editorial in the Manchester Union-Leader condemning the ruling:

The state Supreme Court ruled on Tuesday that the government can keep and destroy more than 500 CDs taken from Michael Cohen, owner of Pitchfork Records in Concord, in 2003 even though the state failed to prove that a single disk was illegal.

Cohen was arrested for attempting to sell bootleg recordings. But the police case collapsed when it turned out that most of the recordings were made legally. Police dropped six of the seven charges, and Cohen went to trial on one charge. He beat it after the judge concluded that the recording was legal.

However, the police refused to return Cohen's CDs. In the state Supreme Court'd [sic] Tuesday ruling, Chief Justice John Broderick, writing for the majority, reasoned so poorly that it appeared as if he'd made up his mind ahead of time.

Of course, instead of relying on an editorial regarding the case from a tertiary newspaper, one might actually read, um, the case itself (which, at six pages, is hardly a daunting task):

During the hearing, Cohen's attorney stated, "In fact, we concede if the CDs ended up back up in his store, he was selling those CDs again, it would be an entirely new offense." Cohen makes similar concessions on appeal. The trial court denied Cohen's motion, stating, "The items in question were being offered for sale when they were seized. It would be illegal to sell these items knowing that they are counterfeit."
...
Cohen concedes that an innocent party may lose his property under forfeiture statutes.
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That the possession of such compact discs is not illegal under this particular statute does not mean that the discs themselves do not constitute contraband pursuant to other statutes.
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Cohen conceded below, and does again on appeal, that the compact discs were counterfeit. [Underline in original.

The court then proceeds to explain, quite convincingly, how Cohen's CDs clearly violated both state and federal laws regarding counterfeiting and copyright infringement.

They were contraband, based on Cohen's own concessions at trial. They were seized. The fact that no crime was prosecuted is entirely irrelevant.

I have little interest in the copyright laws. Maybe they're oppressive. Maybe we libertarians should spend as much time denouncing them as we spend denouncing the drug laws or Kelo v. New London.

But the forfeiture laws, in this case at least, worked in a perfectly hunky-dory fashion. No harm, no foul.

There are plenty of bad laws, and plenty of abuses of bad laws, to keep libertarians quite busy. We shouldn't be muddying the waters inventing "J'Accuse...!" travesties where none exist.

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The case is State v. Cohen, No. 2005-261 (Supreme Ct. New Hamp., August 22, 2006) (PDF - 6 pages).

You might want to take a moment's break from debating "Blu-Ray v. HD-DVD" to note that DVDs are now essentially considered contraband:

An alliance of film industry groups that includes the Motion Picture Association of America and the Federation Against Copyright Theft has announced the world's first dogs specially trained to detect CDs and DVDs in bags and packages. The idea is that the dogs may be able to alert police to large stashes of pirated movies.

The MPAA says there are currently two DVD-sniffing dogs in the world. They are Labradors named Lucky and Flo working at Stansted Airport in the United Kingdom. The canines have been taught to recognize the unique smell of a compact disc.

Of course, there is no way for a dog to distinguish between a perfectly legal original DVD, a perfectly legal copied DVD, or an illegally pirated DVD:

Customs officials in the U.K. hope one day the dogs will only signal when there are large collections of discs, which would more likely include illegally copied movies. For the time being, Lucky and Flo are working at a FedEx shipping center at Stansted Airport where they are sniffing packages that are shipped around the world. Trainers say the dogs have been notifying customs agents of packages with discs in them. The packages have been opened but so far no pirated movies have been found.

Details, details.

Assume that, someday, the dogs can be trained to alert only for large quantities of discs. So what? Does even that rise to the level of probable cause to conduct a search? Or is the presumption that you automatically consent to a search whenever you ship a box?

More on "when legal becomes contraband" here. More on the fallibility of dog sniffs here.

At least the dogs are cute:


(Via Fark.)

Why am I reading this on Fark and not on libertarian websites?

At the heart of the dispute are what the state calls "damming warrants." The name comes from the procedure that allows state prosecutors to get a court order to "dam" up all wire transfers meeting certain criteria until the person to whom the money is being sent can show that the money is for a legal purpose.

Assistant Attorney General Cameron Holmes said prosecutors use a computer algorithm to review every money transfer sent into Arizona. He said these tend to be in amounts between $800 and $1,500, usually in final payments to smugglers for ferrying people into the United States.

Then, under a court warrant, the funds are put into a special fund. The intended recipient can call a toll-free number to claim them. If no claim is made, the money is forfeited to the state.

But the lawsuit says the actions are far broader, with the state issuing warrants — generally good for 10-day periods — for all transfers exceeding a certain amount.

Attorney Tim Eckstein, who filed the papers on behalf of three individuals whose money was taken by the state, said those warrants originally affected transfers of $2,000 or more. Now transactions of as little as $500 coming from certain states are subject to seizure.

There's a term for such a system: Guilty until proven innocent. And it's a violation of both the Fourth and the Fourteenth Amendments.

--No warrants shall issue, but upon probable cause. So demands the Fourth Amendment. So if there is no probable cause for a particular wire transfer — just seize them all — then what difference does a "warrant" make? These "damming warrants" ("damnable" would be more appropriate) are meaningless, and therefore void. Furthermore, "a lot of money" ($500?) is not probable cause of anything — there must be probable cause of wrongdoing, which is now eliminated under the damming warrants.

--No state shall deprive any person of life, liberty, or property, without due process of law. So demands the Fourteenth Amendment. Does the damming warrant and its presumption of guilt sound like due process?

What would Arizona prefer — that people carry around huge sums of cash rather than use wire transfers? Been there, seized that.

At least in that case a few months ago, where a never-convicted-of-anything motorist lost $127,400 to a drug-related civil forfeiture action, there was still some burden met by the government: "beyond a reasonable doubt" was diluted to "by a preponderance of the evidence." That was outrageous enough. But here we have something far worse: the Great Forbidden — guilty until proven innocent.

It's quite simple really: Money is not a crime. Possessing it is not a crime. Moving it is not a crime. Transferring it is not a crime. More is needed, and more must be proven by the government before it can confiscate someone's money. The government oversteps its authority when it presumes otherwise.

More thoughts from WindyPundit.

"This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence."

So declares Justice Ginsburg in Cunningham v. California, No. 05-6551 (January 22, 2007) (links). The statement is so succinct as to sound rudimentary and even remedial to the point of insulting.

I haven't followed too closely the jurisprudence of sentencing laws or the soap opera over the United States Sentencing Commission and the Federal Sentencing Guidelines (one stray exception here). The Cunningham opinion itself includes a useful review of the saga from Apprendi to Blakely to Booker and now to Cunningham.

My sole hasty stitch from Cunningham is somewhat different. If "any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence," then how, exactly, are civil forfeiture laws constitutional?

To review: The government can and does seize property from people who are never convicted of any crime, on the theory that the government can "sue" the fruits of criminal activity rather than "prosecute" the perpetrator himself. This why these proceedings have such preposterous titles as "U.S. v. $124,700 in Currency."

As you may know, in a civil lawsuit the burden of proof is typically the lower "preponderance of the evidence" standard rather than the higher "beyond a reasonable doubt" standard of criminal trials. Also, far fewer civil defendants are entitled to jury trials than in the criminal court system.

Still, it just doesn't sit well with most people, and certainly not with libertarians: A person can lose his car, or his home, or $124,700 in cash, without being convicted of any crime.

The jurisprudential legerdemain used to sidestep this pesky contradiction is to posit that forfeiture is not "punishment" in the criminal sense. "Punishment" means imprisonment or a fine. Forfeiture is neither, just as restitution is neither or confinement of the insane is neither or deportation is neither. And if forfeiture is not a "criminal" punishment, then Cunningham -- indeed the Sixth Amendment itself -- just does not apply.

That simply cannot be right.

The Fifth Amendment, which goes hand-in-hand with the Sixth, says: "No person shall be ... deprived of life, liberty, or property, without due process of law." Shouldn't Cunningham's simple, elegant Sixth Amendment dictate in fact extend to encompass all three prongs of the Fifth Amendment's protection? Is imprisonment (i.e., denial of liberty) really so different from forfeiture (i.e., denial of property)?

If you believe in the spirit of Cunningham, then you must, by definition, believe that forfeiture -- which is a punishment regardless of how it's pigeonholed within the legal system -- requires a finding, by a jury, of criminal culpability beyond a reasonable doubt.

To review: Asset forfeiture is a tactic by which the government circumvents the traditional "innocent until proven guilty" maxim of justice by relabeling criminal laws as "civil laws," relabeling criminal prosecutions as "civil lawsuits," and relabeling criminal punishments as "civil judgments." All to lower the burden of proof from "beyond a reasonable doubt" to the much lower "by a preponderance of the evidence."

It's all patently unconstitutional -- an insolent violation of due process. One can see the absurdity of asset forfeiture in the laughable case names (e.g., "United States v. $124,700 in U.S. Currency").

And now it may be coming to the Internet:

Top Democrats and Republicans in the U.S. House of Representatives on Wednesday introduced a sweeping 69-page bill that ratchets up civil penalties for copyright infringement, boosts criminal enforcement, and even creates a new federal agency charged with bringing about a national and international copyright crackdown.
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Any computer or network hardware used to "facilitate" a copyright crime could be seized by the Justice Department and auctioned off. The proceeds would be funneled to the agency's budget. The process is called civil asset forfeiture, and typically the owner does not need to be found guilty of a crime for his property to be taken.

The bill is the Prioritizing Resources and Organization for Intellectual Property Act, or PRO IP (H.R. 4279). The civil forfeiture provisions are in Section 202, amending 18 U.S.C. 2318 (which already allows the government to seize counterfeit labels, packaging and documentation).

My position is unchanged:

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.

And so are those politicians who seek to expand such a law to include the Internet.

When it's a slow news day, you can typically rely on finding one of two frequently occurring stories: (a) a questionable tasering, or (b) a questionable asset forfeiture:

Christmas came early last year for a new Kimball County [Nebraska] Sheriff's deputy.

Deputy Chris Engel, 25, had been on the job just two weeks when a routine traffic stop Dec. 20 turned into the biggest cash seizure the Nebraska county has ever seen.
...
The driver's story didn't add up, Engel said, so he did a little more investigating. In the end, $69,040 in cash was taken from the car. Officials suspect the money is connected to a drug-trafficking operation, he said.

The driver was not arrested -- or even ticketed for going 10 mph over the 75 mph speed limit.
...
Investigators don't know if they will be able to connect the money to a drug operation, Hanson said, but the important work already has been done.

"The big thing is he grabbed 69 (thousand dollars) and took it away from them," Hanson said of the money seized. "That's going right straight to the heart of the matter."

I used to think that "the heart of matter" was that no person must ever be "be deprived of life, liberty, or property, without due process of law," and that "due process" clearly means that a forfeiture of non-contraband for an alleged criminal matter be subjected to the criminal process (i.e., proof of guilt beyond a reasonable doubt).

Silly me -- the "heart of the matter" is instead that country bumpkin sheriffs enjoy "Christmas early" by scoring their first major not-quite-arrest for a not-quite-crime. "Now we're up in the big leagues..." I wonder what they'll spend their not-so-hard-earned money on.

The notions that: (a) asset forfeiture is not a criminal penalty, and (b) that the government can circumvent criminal procedural due process by posing as a civil plaintiff and "suing the money" (or the car or the plane or the jewelry or ...) are among the most obnoxious of civil liberties violations -- and in the era of Kelo v. New London, "administrative" searches, Morse v. Frederick (and, of course, "enemy combatants"), that's saying a lot.

"Christmas came early" indeed.

(Via Fark.)