Asset forfeiture – Page 2 – Brenda Grantland

Attorney General Holder’s Asset Forfeiture Policy Limiting Federal Adoption Will Not Stop the Abuses

2015-01-172017-07-20 Brenda Grantland 3 Comments

Download “Atty. Gen. Holder order limiting federal adoption” AGassetforfetureorder.pdf – Downloaded 6786 times – 353.91 KB Download “Atty. Gen. Holder press release re: order limiting federal adoption” DOJpress-release-Holder-policy-Fed-Adoption.pdf – Downloaded 10192 times – 103.42 KB

There was widespread rejoicing yesterday when U.S. Attorney General Eric Holder ordered a new policy governing the Asset Forfeiture Program’s “Federal Adoption” program (often known under the broader term, Equitable Sharing).

Immediately after the order was issued, newspapers, non-profit websites, and people on Facebook were celebrating the demise of civil forfeiture as we know it. Breathless articles were published on the internet and widely reposted, reporting the news based on facts gleaned from other newspaper articles – instead of the policy order itself. [Note: You may download Holder’s policy order and the DOJ press release about it from the Download Attachment links at the top of this page.]

As the story spread, exaggerations grew. By yesterday afternoon, the hysteria on Facebook was spreading faster than I could post comments debunking the misunderstandings. Forfeiture victims were asking if they can get their stuff back now.

The problem began with reporters who misunderstood the legal terms used in the order. For example, the web article Amazing! Holder Ends An Asset Seizure Program, which has since been replaced, 1/ said Holder announced the U.S. “was ending the Federal Government’s ‘Equitable Sharing’ program, otherwise known as civil forfeiture.” Some people took that to mean civil forfeiture had been abolished by Holder’s order – it hadn’t. Equitable Sharing is not the same thing as civil forfeiture. And Holder’s order was not really about the Equitable Sharing program, but the subdivision of that program known as Federal Adoption.

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The way they are enforcing criminal forfeiture laws against third parties is just plain criminal

2014-12-062016-10-27 Brenda Grantland 2 Comments

Today I approved the first comment ever on this blog. I screen all comments to avoid spam and because I don’t want a bunch of comments that don’t contribute substantially to the issue under discussion.

The comment I approved today — posted November 30, 2014 by “Folly” in response to my article “Criminal forfeiture laws need to be reformed too” — is well worth reading. Scroll down to the end of the above linked blog article to read Folly’s comment, describing his/her experience as a third party in a criminal forfeiture case. This comment illustrates exactly why the criminal forfeiture laws need to be amended.

As I understand it, Folly’s assets including his/her residence and bank accounts were seized in 2008. Folly and a codefendant were indicted in 2009. After a 3-week trial in 2011, the jury acquitted Folly and convicted the codefendant. The codefendant appealed. Two years after Folly’s acquittal the judge set a hearing on Folly’s assets. A year after the hearing the court finally ruled on Folly’s third party petition, finding Folly’s assets were still forfeitable despite Folly’s acquittal.

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What we really need in a forfeiture reform bill – part 2A: CAFRA’s attorney’s fees provisions

2014-11-192016-10-27 Brenda Grantland 1 Comment

CAFRA’s attorney’s fees provisions have been eviscerated by the courts; this must be fixed

In my last few blogs about forfeiture reform I told you about CAFRA’s court appointed counsel provisions, allowing some indigent claimants to be appointed lawyers at the government’s expense.

Congress also created “fee shifting” provisions in CAFRA, created to encourage defense attorneys to take on civil forfeiture cases where the claimant was not completely indigent but probably lacks enough money to litigate the case to completion. CAFRA’s fee shifting provisions require the court to order the government to reimburse the claimant for their reasonable attorneys fees if the claimant “substantially prevails.” This sounded like a great provision when the law was first passed, but after a few years it was gutted by court decisions and prosecutor shenanigans.

As a general rule, litigants in the United States must pay for their own attorneys whether they win or lose the case. This is called the “American Rule” – as opposed to the “English rule,” where the losing party pays the winning party’s attorney’s fees as well as his own. There are exceptions to this rule. Congress has enacted over 100 “fee shifting statutes” which create exceptions to the American Rule, requiring the losing party to pay attorney’s fees of the adversary – several of which apply to forfeiture claimants. Under fee-shifting statutes, the court can – or in some situations, must (though they often don’t) – make the loser pay the winner’s attorney’s fees.

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Meaningful punishment…? Puh-lease!

2014-11-172016-10-27 Brenda Grantland Leave a comment

reprinted from Truth and Justice Blog 11/17/2014

A fellow defense attorney sent me a Huffington Post article from November 8, 2014, For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully Convicting an Innocent Man, by University of Cincinnati law professor Mark Godsey, a former prosecutor and editor of the Wrongful Convictions Blog. It begins:

Today in Texas, former prosecutor and judge Ken Anderson pled guilty to intentionally failing to disclose evidence in a case that sent an innocent man, Michael Morton, to prison for the murder of his wife. When trying the case as a prosecutor, Anderson possessed evidence that may have cleared Morton, including statements from the crime’s only eyewitness that Morton wasn’t the culprit. Anderson sat on this evidence, and then watched Morton get convicted. While Morton remained in prison for the next 25 years, Anderson’s career flourished, and he eventually became a judge.

In today’s deal, Anderson pled to criminal contempt, and will have to give up his law license, perform 500 hours of community service, and spend 10 days in jail. Anderson had already resigned in September from his position on the Texas bench….

I agree with Godsey’s statements that most prosecutors and police are ethical and try to comply with their responsibilities under the Constitution – if “most” means at least half. But there is no way to know for sure. I have seen an inordinate number of dishonest, corrupt cops and prosecutors who withhold evidence, fabricate evidence, and lie in court, and bury their wrongdoing until a zealous adversary or reporter uncovers it. It would be impossible to determine how common unethical prosecutors and police are because so few get exposed for their wrongdoing.

I also agree with Godsey’s statement that, when police and prosecutors get caught committing flagrant violations of ethics, law and their constitutional responsibilities, they almost always escape punishment of any kind for it. Read his Huff Po article for some very troubling examples of corrupt prosecutors and cops being coddled and even rewarded.

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What we really need in a forfeiture reform bill- Part IC: Court appointed counsel implemented

2014-11-132016-10-27 Brenda Grantland Leave a comment

CAFRA court appointments are a rarity

In my last blog I discussed the provisions of CAFRA (the Civil Asset Forfeiture Reform Act of 2000) authorizing appointment of counsel for civil forfeiture claimants who are indigent, and the level of funding Congress expected to pay for these defense attorneys. The Congressional Budget Office report for CAFRA stated:

Assuming appropriation of the necessary amounts, CBO estimates that implementing H.R. 1658 would cost $9 million over the 2001-2005 period to pay for additional costs of court-appointed counsel that would be authorized by this legislation.

Apparently that $9 million figure refers only to the projected cost of court-appointed counsel under 18 U.S.C. § 983(b)(1), which authorizes but does not require the judge to appoint counsel for indigent claimants who have charges pending for the offenses that triggered civil forfeiture.

The CBO has a separate estimate for the projected costs of court-appointed counsel for indigent claimants whose primary residence is seized, where the statute requires the appointment of counsel if the claimant requests.

H.R. 1658 also would require the Legal Services Corporation (LSC) to represent certain claimants in civil forfeiture cases and would require the federal government to reimburse the LSC for its costs. CBO estimates that this provision would increase direct spending by $5 million over the 2001-2005 period….

So how much have they actually spent to provide counsel? I have not been able to determine that but I am certain it is a tiny fraction of the amount Congress expected them to spend on providing defense counsel.

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What we really need in a forfeiture reform bill- part 1B: Appointment of counsel for indigent claimants

2014-11-112016-10-27 Brenda Grantland Leave a comment

Appointment of counsel for indigent claimants, part 1B

Yesterday I blogged about the CAFRA provisions which either authorize or require appointment of counsel for civil forfeiture claimants who are indigent, in two very narrow categories of cases, and how they are not being implemented.

Before I go on to part 2 of my list of demands for effective forfeiture reform, I wanted to show you how far short of CAFRA’s goals for providing court appointed counsel — to at least some categories of indigent forfeiture claimants — the actual practices of the courts currently are.

Congress clearly thought the appointment of counsel was very important. This is what the Committee Report of the Committee for the Judiciary said about bill H.R. 1658:

2. APPOINTMENT OF COUNSEL

There is no Sixth Amendment right to appointed counsel for indigents in civil forfeiture cases, since imprisonment is not threatened. This is undoubtedly one of the primary reasons why so many civil seizures are not challenged. As the cochairs of the National Association of Criminal Defense Lawyers’ Forfeiture Abuse Task Force stated before this Committee in 1996: ‘‘The reason they are so rarely challenged has nothing to do with the owner’s guilt, and everything to do with the arduous path one must journey against a presumption of guilt, often without the benefit of counsel, and perhaps without any money left after the seizure with which to fight the battle.’’ This Committee believes that civil forfeiture proceedings are so punitive in nature that appointed counsel should be made available for those who are indigent, or made indigent by a seizure, in appropriate circumstances. H.R. 1658 provides that a federal court may appoint counsel to represent an individual filing a claim in a civil forfeiture proceeding who is financially unable to obtain representation. In determining whether to appoint counsel, the court shall take into account the claimant’s standing to contest the forfeiture and whether the claim appears to be made in good faith or to be frivolous. Compensation for appointed counsel will be equivalent to that provided for court-appointed counsel in federal felony cases. Currently, maximum compensation would not exceed $3,500 per attorney for representation before a U.S. district court and $2,500 per attorney for representation before an appellate court. These maximums can be waived in cases of “extended or complex” representation where “excess payment is necessary to provide fair compensation and the payment is approved by the chief judge of the circuit.”

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What we really need in a forfeiture reform bill- Part 1A: Provisions to improve availability of counsel

2014-11-102016-10-27 Brenda Grantland 1 Comment

As I said in earlier blogs, the pending federal forfeiture reform bills don’t go far enough.

What we really need in federal forfeiture reform legislation is to plug up the loopholes prosecutors and courts have created in the CAFRA 2000 reforms, and to expand the protections to third parties in criminal forfeiture cases.

Here are my major recommendations. I will talk about them in more detail in later blogs.

Provisions to improve availability of counsel

The impediment that most often prevents claimants from having a fighting chance in court is their inability to hire a lawyer to represent them. Some claimants were indigent in the first place, but quite often claimants had substantial assets until the government seized all of them, or so much of them that they don’t have enough left to litigate their forfeiture cases to completion.

The Constitution’s Fifth Amendment and Due Process clauses should prevent the government from taking private property and depriving the property owner of the means to defend it, especially since forfeiture – be it civil or criminal forfeiture – is punishment (implicating the Eighth Amendment).

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Criminal forfeiture laws need to be reformed too

2014-11-042016-10-27 Brenda Grantland 4 Comments

In recent months the mainstream news media has rediscovered the abuses of civil asset forfeiture as an issue of concern. On October 11, the Washington Post published an excellent series of articles on forfeiture abuse “Asset seizures fuel police spending.” Other print media have begun jumping on the bandwagon, publishing their own original stories. See the Forfeiture Endangers American Rights Foundation’s website’s What’s New page for summaries of recent forfeiture articles.

Television has rediscovered the forfeiture issue too, with the most hilarious skewering of civil asset forfeiture ever, by John Oliver on Last Week Tonight, on October 5, 2014. Already, as of today, 3,709,577 people have watched the YouTube video of the episode.

We are grateful for all of the bad publicity civil forfeiture is getting and that people are beginning to clamor for reform, but reforming civil forfeiture (again!) will only cure half the problem.

Criminal forfeiture has become even more abusive than civil forfeiture.

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Are bogus “fraud” and SUA civil forfeiture cases the latest federal forfeiture racket?

2014-05-052016-10-27 Brenda Grantland Leave a comment

In the past few years I’ve seen a lot of bank account seizures based on the allegations that the money was “traceable proceeds” of fraud – or proceeds of Specified Unlawful Activity (“SUA”) 1/– without any criminal charges being filed against the property owner.

In many such cases we have successfully resolved the forfeiture case – and my clients have gotten back most if not all of the money – without any criminal charges ever being filed. How did we do it? It required diligent investigation, aggressive pursuit of discovery, research, and a great deal of effort, but often in the end I found the government just didn’t have a case.

With fraud and white collar crime being such a big problem in the U.S. today, why would the government seize a bank account for forfeiture based on a fraud or SUA proceeds theory and not prosecute the property owner with the underlying crime?

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How to Defend An Asset Forfeiture Case Without Waiving the 5th Amendment Privilege

2014-02-172016-10-22 Brenda Grantland Leave a comment

Back when I was answering questions from callers to Forfeiture Endangers American Rights Foundation, I frequently took calls from forfeiture victims who had already lost their property by default because they were afraid to contest the forfeiture. Many believed, or were told by lawyers, that they couldn’t contest the forfeiture case without giving up their Fifth Amendment privilege against self-incrimination in a parallel criminal case, or that contesting the forfeiture would make it more likely that prosecutors would file criminal charges.

Those assumptions are not entirely true. The Fifth Amendment applies in civil forfeiture cases, and as a constitutional right, it trumps statutory rules and procedures.

If a forfeiture statute truly forced claimants to choose between forfeiting their property and incriminating themselves, the statute would be unconstitutional under a long line of Supreme Court cases beginning over a century ago with Boyd v. United States, 116 U.S. 616 (1886).[i]

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