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How to survive a forfeiture case with your sanity intact

(c) 2017 Brenda Grantland.com
posted 3/26/2017

 

It is terrifying when police seize your property and you have to fight to get it back.

They may be trying to take your home. At least you’ll get to use it while the case is pending.

Maybe they took your car. They usually get to hold onto cars pending trial. The federal statute allows you to ask the judge to release your car pending trial if you can show substantial hardship, but those motions are not always granted.

They may have taken your bank account, crippling your finances and your ability to hire a  lawyer to defend your forfeiture case.

Unfortunately, those things may only be part of the nasty fallout from a forfeiture case.

You may have separate criminal charges brought against you, and even if you are not arrested initially, you may be later. The statute of limitations is generally five years on federal crimes, so you may be sweating bullets for years. After a few years of no charges the chances that charges will be brought dwindle, but you won’t be completely rid of them until the statute of limitations runs. Every time you see a police car coming down your street your heart will skip a beat.

To compound your problems the IRS may audit you, especially if it is a financial crime. Make sure your tax returns are filed and your taxes are paid – even if you have to borrow money to do that.

There are also some other commonly seen, horrific, side-effects of forfeiture cases:

Friends and co-workers may shun you

When the government files a forfeiture case against your property, many people assume you must have done something wrong or the government wouldn’t have gone after your property.

Unfortunately, the general public is blissfully ignorant of the wide reach of asset forfeiture laws and their ability to target totally innocent people for someone else’s crime. They are blissfully ignorant because they want to believe they could never be a target. So if they hear you were targeted they may assume you did something illegal so they can continue believing it won’t happen to them.

The reality is that forfeiture laws were designed to help police forfeit property more easily by taking away due process from property owners. Law enforcement has a very powerful lobby. They usually get what they want from the legislatures, especially when there is no organized opposition. Law enforcement wrote most of the forfeiture laws, with little input from defense counsel – because defense counsel cannot afford to lobby. Law enforcement sends paid employees to lobby for new forfeiture laws and oppose any reforms that benefit citizens.

The diabolical designers of these laws built it into the law that property owners do not have to be involved in the crime to have their property seized and forfeited. Civil forfeiture is an in rem proceeding — against the property itself — and the issue is whether the property is guilty. The government does not have to prove that the owner did anything wrong. The Supreme Court has held that the Constitution does not protect truly innocent owners from forfeiture. Whatever rights innocent owners have depend entirely on what the statutes create, the Supreme Court said.

You, or another affected family member may lose your job over it

When breadwinners miss work because they are in jail, their employer may fire them. That is understandable, but sometimes the forfeiture victim-employee did not get arrested, but they lost a job or were threatened with loss of the job — anyway, because of innuendos and assumptions arising from the forfeiture case.

Sometimes police go to your employer and ask questions in such a way as to imply guilt. Imagine if they interrogated your boss or co-worker the way they interrogate suspects on television, trying to elicit a certain answer by asking a loaded question that suggests the answer. Example: Did you have any indication that he/she was selling drugs at work? That implies that you were selling drugs elsewhere. Maybe you were not selling drugs anywhere, but when the police ask it that way it suggests that they know you were selling drugs. A person who is susceptible to suggestion may falsely volunteer their damaging suspicions that aren’t even true. You see how unfair this is?

This is really police misconduct, in my opinion, but most people feel too intimidated to complain or only suspect that is what happened because their co-worker won’t tell them.

Why do people believe the police over a person they have known and worked with for years? It’s human nature. Some people naturally assume the police would never lie because they were brought up to believe the police are honest. But it is part of the cop’s job to lie. Lying to suspects is an approved interrogation method. Unscrupulous cops sometimes apply those techniques to co-workers and other witnesses to get damaging accusations against forfeiture victims to build their forfeiture case.

If you get fired or threatened with firing because you were arrested or because of something the police said to them, ask for a conference with your boss and find out what the police told them. Ask your coworkers too. They may not say that the police told them you were selling drugs etc., because they didn’t actually tell them that, they just suggested it in their loaded questions. So ask them what the police asked them, and how they asked the questions. If you get the feeling that the employer now believes something false about you, find out what it is. Calmly tell your employer or co-worker that it is a common police tactic to ask loaded questions that suggest criminal conduct even when they have no evidence of it. That is how they get people to confess or give information about others. If you calmly discuss this with your boss and calmly get them to admit that the police poisoned their opinion of you, then you have the opportunity to undo the damage. Your employer has known you for X years and has worked closely with you every day. Ask them, “do you really believe I would do such a thing? What have I ever done which would make you believe that?” Remind them of how your patterns of behavior in the past are completely inconsistent with what the police are suggesting you did.

You may be able to talk them into giving you your job back.

When either of these things happens what do you do about it?

1. Stand up for yourself and refuse to be shamed

Maybe your husband or child was arrested and that triggered the forfeiture. That doesn’t mean you did anything wrong. Don’t let them shame you. They cannot take away your dignity and self-esteem unless you let them.

Stand up straight, look them in the eye and tell them that you did nothing wrong, and they shouldn’t blame you. This is what people expect an innocent person to do.  Defend yourself! Isolating yourself from their prying eyes makes you look guilty to them.

Whether or not you have pending charges you should not talk about the details of your case with anyone other than your attorney – not even a family member. If anyone asks for details, tell them your attorney has advised you not to give any details. But you can still respond to the questions in a way that difuses unwarranted suspicions. Get your attorney to help prepare a statement you can recite to family and acquaintances. For example: “I’m not allowed to talk about my case to anyone, but I can just tell you that I plan to fight back. I have confidence in my attorney, and I believe I will win.” If you can honestly say you were not guilty it may be okay to tell people that you plan to rigorously defend your innocence – but ask your attorney first.

How you act around people who may be called as witnesses could well determine whether they will be witnesses for you or against you. Don’t skulk around and avoid people who were your friends just because they are asking about your case. Be especially careful what you say to your friends, because if you are used to confiding in them, you may forget and tell them something confidential. Remember you can’t talk to even your own witnesses about the facts of your case. If they are called as witnesses they can’t refuse to tell what you told them because the Fifth Amendment doesn’t allow someone to assert the privilege against self-incrimination to avoid incriminating another person. (That’s why it’s called “self-incrimination.”

2. Refuse to be paralyzed by it

Sometimes forfeiture victims are so stressed out that they are paralyzed and can’t think straight. You have to do whatever it requires to get over that. Try meditation, yoga, exercise, listening to music, self-hypnosis, burying yourself in work, etc. — whatever works to get your mind off it for a while until you gather your composure.

You can’t afford to be falling apart when everything you worked for all your life is at stake. Get to work!

You will need to summon your inner strength and give your undivided attention to putting together your case with (or for) your lawyer.

3. Gather and organize your records

Find out what the elements of the forfeiture statute and your defenses are, and then brainstorm about what evidence you need to gather to prove those things. Make lists of witnesses and evidence you will need and add to it as you think of new things.

If the case is based on allegations of financial crimes like fraud, money laundering, or allegations that proceeds of crime went into your property, immediately order bank statements and copies of cancelled checks covering the period. Do that right away because banks destroy those items after a certain number of years and you won’t be able to get them after that.

Also order credit card statements. Those are often full of evidence of where you were on a particular date. Order cellphone records. Those may also show where you were on a particular date, but they will also show who you talked to and when. Find your calendars. Find your receipts for the things they are trying to forfeit, and contracts showing how you paid for the property. Get your tax returns for all the relevant years and maybe the years proceeding that if they show where you got money that you later invested in the property.

If you corresponded with any potential witnesses in the case by letter or email, gather all of those letters and emails and save those to folders too. See if you can get your text messages from your cellphone provider if there may be relevant texts there.

Some of these things may not be necessary in your particular case. I just wanted to give you an idea of the wide range of places where you leave trails of evidence behind – including defense evidence that the government will not have unless you give it to them. Go over these suggestions with your lawyer and they may be able to limit the amount of work you have to do.

Organize all of this into folders or a notebook as you find them – or scan them in and put them in folders on your computer. If you scan them in, name the files for the type of record and the date, for example: BoA2015-June for your Bank of America statement for June 2015. I recommend renaming the files with this format YYMMDD-subject (where “subject” is the source of the record, such as BoA, Visa, Phonebill, etc.)

Once you’ve organized them this way you’ll easily be able to see what is missing and you can order them before the records are destroyed. If you double click the top of the list of filenames for that directory it will automatically sort chronologically.

As you put those together, draw up a timeline of important events in your case, in a Word document on your computer. Use your records to determine the exact date things happened and put a reference to those records/files in your timeline. For example you might note [150601-BoA] for your Bank of America statement for June 1, 2015.

Add the events alleged in the Complaint or Indictment to your timeline and put references to those documents as well, again with the date first in the reference and file name.

Compiling a timeline this way will allow you to see that the complaint or indictment has the wrong date for an event, or that the alleged crime occurred after you bought the property, so it couldn’t be purchased with proceeds.

Yes these things are very time consuming and it is very tiring. But if you are spending your day brooding about your case anyway, you might as well be working on it. Organizing your records and putting the evidence into a timeline will give you a sense of hope, because as you comb through your records you will find evidence that will help your case.

Find an experienced forfeiture lawyer

Don’t just hire the lawyer who did your will or your divorce. Even a highly experienced civil or criminal lawyer will probably know nothing at all about asset forfeiture defense. That is because forfeiture is a mixture of civil and criminal law with its own set of quirky procedures, and nobody learns them unless they have to.

Forfeiture statutes are complicated, and a lawyer who does not know forfeiture law my cause you to lose your case in the very beginning by missing an important step or overlooking an important defense, or inadvertantly waiving a jury trial by not demanding one in the Answer. Even when the lawyer quotes a very reasonable fee, you may be making an expensive mistake if you hire a lawyer inexperienced in forfeiture law. At the very least, he or she will have to learn forfeiture law as they go – as you pay them by the hour. Worst case scenario is they might lose your case because they miss something crucial.

Before you hire a lawyer, shop around. Ask them how much experience they have had defending forfeiture cases, what kinds of forfeiture cases they have handled (state or federal), whether they have had any cases based on the same alleged offense as yours, and how the cases were resolved. A lawyer who has handled six state cases, all ending in settlement after a few months, probably doesn’t have enough experience to handle your complex federal forfeiture case.

An experienced forfeiture defense lawyer may be difficult to find. In some areas there no lawyers who regularly practice forfeiture law. You might have to go out of town or even out of state to find an experienced forfeiture lawyer. Lawyers who regularly practice forfeiture law often handle cases in other states. Lawyers are allowed to practice in federal court in another state pro hac vice (“for this case only”) but they have to get the court’s permission. The courts usually require that you hire a local lawyer to act as local counsel. If the local lawyer won’t be doing much except allowing the out-of-state lawyer to practice there, it may not cost much to retain the local counsel. They will have to sign a few pleadings at the beginning and often they don’t have to do anything else. They are still good to have around because they can advise your lead counsel about the backgrounds and personality of the prosecutor and judge. And your lead counsel may need them to stand in for them in court for minor hearings to save you travel costs.

Make sure your lawyer listens to you and pays attention to your concerns. An attorney who acts like he/she doesn’t believe you will not work hard for you. They may take the easy way out and settle, maybe for much less of a deal than you deserve. If you feel that your lawyer is not doing an adequate job, find another lawyer before it is too late.

On the other hand if you know the prosecution’s case is strong, be realistic. At some point you may need to cut your losses and settle to avoid losing at trial, or because the cost of litigating to trial is too high for the value of the property at stake. But make sure your attorney determines that the government has a case first. Get discovery and look over it carefully with your lawyer to see what they have.  You may be able to explain away some of the suspicious elements.

In your settlement letters, make sure your lawyer presents solid arguments, supported by evidence and law, showing your case is strong, and use those arguments and evidence to get better settlement offers. If they go in and just bat figures around you will end up with less than you are entitled to.

Don’t be afraid to make counter-offers. And don’t be afraid to be bold in making a counter-offer. In one settlement letter I told the prosecutor that they should give my client’s property back with my client paying nothing in exchange, and maybe the government wouldn’t have attorneys fees awarded against it. Needless to say, I supported that 25 page letter with copious documentation and cites to authorities. I would not have been so bold, except that I truly believed we would win, and I explained why in the settlement letter. The letter laid out what would have been a winning motion for summary judgment if I just put it into motion form. Obviously my letter convinced the prosecutor. After contemplating it for six weeks the forfeiture prosecutor made a counter-offer. The government would give back the house, worth in the mid-six figures, and keep the 10-year old Mercedes which had been impounded five years and probably wasn’t operable.

Some practical suggestions to keep you sane during this process:

1. Get involved in trying to change the law

Vent your frustration with the process to your state or federal legislators. Don’t tell them about the confidential things in your case, but tell them what an ordeal you are being put through and any unfairness you see in the system that they could fix by changing the law. This will serve several purposes. Getting outside yourself and trying to improve things for everyone will help you cope – and empower you. If you get involved in a grass-roots effort to reform the law you may meet new friends in the same boat who will empathize with you – and that makes your plight less terrifying. One of my clients told me that the whole ordeal of being a forfeiture victim was almost worth it for the great friends he met through FEAR (Forfeiture Endangers American Rights). He became one of our most powerful volunteer lobbyists.

2. Forgive and let it go

This may sound crazy, but forgive the police and forfeiture prosecutor. Don’t forget what they did, but forgive them and let the hostility and anger go. It is easier said than done, but it is worth the effort to try.

That anger and resentment could become a weakness they will exploit if you have to confront them in court. You don’t want to give them a trigger that can make you go unhinged whenever they pull it. More than once when my clients have faced off with the prosecutor without anger and hostility, they won the enemy over to their side. I have had cases where the agent sided with my client and asked the judge for leniency. More often they do the opposite though – so don’t let down your guard. Just let the animosity go. It will keep you awake at night and make you sick.

3.  Turn the case off daily

Take time away from thinking about your case – every single day. Think of it as a job that you don’t bring home on the weekend or evenings. Tell your worried spouse “it’s after five. Case is closed.”

Unless you have to work on your case then, spend the evenings and weekends doing fun and relaxing things with the people you love and trust. This will help you sleep well at night, and nothing will weaken you faster than losing sleep over your case. As one forfeiture survivor named Sunni always said, “living well is your best revenge.”

4. Tune out your negative friends or family

If friends or family have turned against you because of their prejudiced attitudes about your case, let them go. Try not to think about them. Make new friends to replace the faux friends who deserted you in a time of need.

5.  Stop thinking of yourself as a forfeiture victim

Even while your case is pending, start thinking of yourself as a forfeiture survivor. And that is what you will become.

Your House Is Under Arrest, 2nd edition Brenda Grantland, Esq.

  • (c) 2017 Brenda Grantland, Esq. published 1/11/2017 96,285 words. 245 pages in the full sized pdf edition. Interactive Table of Contents. Indexed, with footnotes. $14.99
    NOTE: If you purchased a copy of this ebook in pdf format and it did not have pages numbers, please go back to the download page and download a new copy - or email us and we will send you a new one. The new version also has bookmarks marking every chapter. This is the new, expanded Second edition of Brenda Grantland's first book - Your House Is Under Arrest - published in 1993. Back in 1993, federal forfeiture procedure had fewer Due Process protections and more obstacles for forfeiture victims ("claimants") trying to defend their property. After eight years of lobbying, our forfeiture reform bill, CAFRA was enacted in 2000. Some of the abuses came to an end, but new abuses cropped up. Now 16 years after CAFRA reformed the law, things are as just as bad - or even worse than before. Because there are now 200 more federal forfeiture triggering offenses, forfeiture is more widespread. Forfeiture revenue is up dramatically - from $500 million in federal forfeiture revenue in fiscal year 2001 to $5 billion in fiscal year 2014. Today, average law abiding investors have even more to fear from asset forfeiture. This book is written to educate investors and give helpful tips for avoiding forfeiture.
  • Brenda Grantland
  • 2017-01-11
  • 246 pages

Will recusal fix AG Jeff Sessions’ Russian problem?

 

(c) Brenda Grantland, 2017
published 3/5/2017 on brendagrantland.com
reprinting permitted with attribution

A brouhaha has arisen over brand new Attorney General Jeff Sessions’ testimony under oath during his Senate confirmation hearing.

When Senator Al Franken asked him whether there was

any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign?

Sessions replied:

I’m not aware of any of those activities. I have been called a surrogate a time or two in that campaign and I did not have communications with the Russians, and I’m unable to comment on it.

Sessions later admitted that he spoke to the Russian ambassador, Sergey Kislyak, twice during the Trump campaign.

According to Fox News, one of the meetings occurred in Session’s Senate office. The Justice Department — over which Sessions is now boss — said Sessions was conducting that meeting in his capacity as a member of the Senate Armed Services Committee.

His second meeting with Kislyak occurred after a Heritage Foundation speech, when Sessions met with Kislyak and a group of other ambassadors.

Sessions has sort of suggested he may recuse himself from any investigation of the connection between the Trump campaign and the Russians. Many think that is not enough. Some are calling for Sessions to resign as Attorney General. Others call for appointment of a special prosecutor to investigate the matter.

Is recusal enough to cure Sessions’ problem?

Recusal from any investigation of alleged contacts between the Trump campaign and Russian officals during the campaign might help address Sessions’ conflict of interest in investigating Russian influence on the Trump election — a serious conflict if Sessions was involved in the dialog between Russia and the Trump campaign.

Clearly letting Sessions be the big boss overseeing that investigation would be akin to letting Attorney General Loretta Lynch investigate the alleged interference of the Hillary Clinton campaign (for which Bill was a surrogate) with the FBI investigation of Hillary. During the FBI investigation of Hillary Clinton, when Bill sprinted to Lynch’s airplane on the tarmack and had a private conversation with her and was caught by the press, Loretta Lynch recused herself from Hillary’s FBI investigation, delegating her authority as Attorney General to the FBI chief, a delegation some said was not enough to cure the problem.

Taking his cue from Lynch’s reaction, this week Sessions offered to recuse himself from that investigation, sort of, saying “I would recuse myself on anything that I think I should recuse myself on. That’s all I can tell you.”

No doubt Sessions may try to follow Loretta Lynch’s lead in delegating his prosecutorial oversight as Attorney General to the FBI chief. To most of us, that didn’t cure the conflict with Lynch and it won’t with Sessions because the FBI chief is an underling of the Attorney General. Having the Attorney General delegate his/her power to a subordinate doesn’t cure anything. Subordinates are subject to the control of their bosses, whether overt or subliminal. Who would dare defy their boss on such a matter, especially a controversy which impugns his boss’s integrity?

Recusal won’t solve Sessions’ problem for another reason as well — it doesn’t address the question of whether he lied under oath, as House Minority Leader Nancy Pelosi charged. Because Sessions made that statement in his sworn testimony to Congress, if he lied under oath, he may have committed perjury, a felony, carrying a sentence of up to 5 years in prison.

Is Sessions’ statement perjury?

Under federal law, perjury occurs when anyone:

“having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true…”

18 U.S. Code § 1621(1). The Ninth Circuit’s jury instruction breaks that criminal offense down into these elements — whether:

  • the person was under oath?
  • the testimony was false?
  • the false testimony was material to the matter under inquiry in the proceeding?
  • the person acted wilfully and with knowledge that the testimony was false?

Clearly the statement was made under oath. It occurred during Sessions’ Senate confirmation hearings for the office of Attorney General.

Was the testimony false?

According to the 1815 Congress of Vienna,

“ambassadors are diplomats of the highest rank, formally representing the head of state, with plenipotentiary powers (i.e. full authority to represent the government).”

Can there even be a shadow of doubt that the Russian ambassador is a Russian official?

Did Sessions know the statement was false?

Having served in the U.S. Senate for 20 years, he had to have known that the man he met with, Sergey Kislyak, was a Russian ambassador and that an ambassador is the highest ranking diplomat in the U.S. representing a foreign government.

The issue boils down to one question:

Was Sessions’ statement material to the matter under inquiry?

So what was the matter under inquiry?

Sessions was applying for a job as Attorney General, the top prosecutor in the country. Senator Franken was asking whether anyone affiliated with the Trump campaign had any contact with Russian officials during the campaign — because there were ongoing allegations from the Hillary Clinton campaign that Russia “hacked the election,” causing the election of Trump instead of her. That accusation is still being hurled by Hillary surrogates as her excuse for losing the election, and the controversy likely won’t die down until there is an official investigation that lays it to rest. And an investigation that the public trusts as being thorough and unbiased.

Senator Franken thought that issue was important enough to ask Sessions the general question, to which Sessions went further and replied that he himself “did not have communications with the Russians.”

Had Sessions not unequivocally denied it, but admitted that he had several meetings with the Russian Ambassador during the Trump campaign, Frankin would no doubt have asked follow-up questions about whether Sessions’ meetings included any mention of the Trump campaign, for which Sessions was currently serving as a surrogate.*

By denying any such communications, Sessions cut off that line of inquiry.

Former White House Ethics Lawyer Richard Painter pointed out that, now that the cat is out of the bag about the meetings, we need to know a lot more — “we don’t know for example what was being discussed with the Russian ambassador.”  According to Fox News,

“Franken said he was troubled that Sessions’ response to his question was ‘at best, misleading.’ He said he planned to press Sessions on his contact with Russia.”

Richard Painter, who served in the George W. Bush White House, also questioned “why a member of the Senate Armed Services Committee was having unilateral discussions with the Russians,” and called for Sessions to resign.

Clearly there is bipartisan concern about this alleged perjury.

Was Sessions’ statement just a white lie, a slip of the tongue, a nothingburger?

Numerous right wing blogs are calling this a “nothingburger.”** Just a few months ago Hillary supporters were calling Hillary’s FBI investigation a nothingburger, perhaps not using the same quaint term.

But is it trivial, much ado about nothing? The DOJ’s explanation that he was acting in his role as a member of the Senate Armed Services Committee doesn’t overlook the fact that his actual words unequivocally stated, all in the same sentence, that he had been called a surrogate of the Trump campaign and that he did not communicate with the Russians in the course of the campaign.

When I hear Sessions’ words in his characteristic Southern drawl — “I did not have communications with the Russians” — I can’t help hearing another Southerner drawl “I did not have sexual relations with that woman.”

There are some important parallels here. Meeting with the Russian ambassador is not a crime. Neither is having sexual relations with a consenting adult, even if you are president and the woman is your intern and you do it in the oval office.

The important question is, did he commit perjury when he lied under oath?

That question cannot be answered without knowing the content of the discussions Sessions had with the Russian Ambassador, because the question still remains whether Sessions’ false statement was material. Further testimony is required.

Recusing himself from heading the investigation into the Trump-Russian connection and his own conduct won’t cut it.

Even a member of his own party, Senator Lindsay Graham (R- S.C.) called for a special prosecutor — sort of — saying:

“If there’s something there that the FBI believes is criminal in nature, then for sure you need a special prosecutor.”

Of course if Sessions’ FBI is charged with deciding whether the Russian-Trump connection or what Sessions did is something “criminal in nature” — that will be the end of the investigation. No FBI chief would dare oppose the Attorney General, as FBI Chief Comey has already shown. At least Comey had the integrity to come forward voluntarily and correct a mistaken statement he had made in his Congressional testimony, an act he caught hell for from Hillary.

This brings us to the bigger questions:

1. Should perjury be a crime?

I think everyone will agree it should be. Otherwise, trials and Senate hearings would have no way of enforcing factual integrity.

2. Should there be two different standards: one for public officials and one for the public?

Let’s face it. Much of the government corruption that the American people are yammering on and on about today is about the double standard. Well connected government officials, powerful political candidates and party officials, and powerful political party donors like the banksters who caused the banking collapse and recession and yet got bailed out with taxpayer money — got different treatment from the rest of us. “Justice for just us” does not sit well with Americans who lost their jobs or life savings due to the banking collapse.

The public outcry about Sessions’ lie to Congress and the conflict of interest that it possibly uncovered should not be squelched, or drowned out by  a new red scare focused on the Russians or claims that the Democrats did the same thing, but should instead be focused on cleaning up the corruption in both parties.

Allegedly lying to Congress right out of the box during his confirmation hearing means Sessions may well lack the legal ethics chops to serve as Attorney General. The Attorney General is the nation’s top prosecutor. This position requires a high degree of legal ethics and ability to apply the law fairly and without bias. Standard 3-2.1 of the ABA Standards for the Prosecution Function say that a public prosecutor “is a lawyer subject to the standards of professional conduct and discipline.” Lying to the court, or Congress impugns ones honesty. It is an act of moral turpitude that can lead to disbarment, even for the country’s top prosecutor.

Incidentally, Bill Clinton’s lie about sex with an intern did not turn out to be a nothingburger. That lie led in 1998 to perjury charges and impeachment by the House of Representatives, ending in Bill Clinton’s acquittal in the Senate after a 21 day trial. Clinton was also held in civil contempt for lying about the Lewinsky affair in testimony in the Paula Jones case and was fined $90,000 by that judge. Clinton’s license to practice law was suspended in Arkansas for five years, and has never been reinstated, and he was also disbarred from appearing in front of the US Supreme Court.

This is not a nothingburger but a really big deal.

One or more independent prosecutors should be appointed to thoroughly investigate and report to the American people on whether there was any illegal meddling or manipulation in the entire 2016 presidential election — primaries and all — by the Russians, the DNC/Hillary campaign, or any other forces.

Making it a bipartisan inquiry could help ensure that the selection of the independent prosecutors is not biased in favor of the political party in control of both houses and the Presidency. It will also put to rest the claim that the Clintons did it first, therefore it is okay.

_______________

* Sessions was well connected to the Trump campaign all along. A July 2016 article in the Washington Post said “in the party of Trump, Sessions is at the center of the action. He was an early backer of the real estate mogul’s candidacy, when most Republican officials were denouncing Trump’s comments about Mexicans and his promise to build a wall on the southern border.”

** In case you are curious, the term “nothingburger” was apparently coined in 1984 by Ann Gorsuch, Ronald Reagan’s appointee as EPA Director. She took the position with the avowed purpose of dismantling the EPA, and succeeded in cutting its budget by 22%, relaxing EPA regulations, reducing the prosecutions of polluters, downsizing its employees, and hiring new staff from the industries that the EPA regulated. Eventually, after prolonged public outrage, she resigned her EPA post under pressure of a Congressional investigation of her alleged mishandling of the $1.6 billion toxic waste Superfund. Ronald Reagan promised Gorsuch another job in his administration. When he appointed her to a three year term as chair of an advisory committee on oceans and atmosphere (where she could have learned from experts on the panel about the effects of pollution on global warming and ocean level rise), she called that position a “nothingburger,” prompting both houses of Congress to pass resolutions asking Regan to withdraw her appointment. She then declined the job.

Neil Gorsuch — Ann Gorsuch’s son — is Trump’s nominee to the Supreme Court.

Yikes – Sessions was confirmed as Attorney General!

(c) Brenda Grantland, Esq., Feb. 8, 2017

We are in deep water now.

Alabama Senator Jeff Sessions was confirmed as Attorney General today!

Much of the progress that our country has made in recent decades in attempting to restore some due process in forfeiture cases, civil rights, and protection against police misconduct will likely be reversed beginning now.

In my blog from February 4 I explain why I thought Sessions should not be appointed Attorney General. Add to all of my reasons the letter written in 1986 by the late Coretta Scott King, widow of Martin Luther King, to the Senate urging them to oppose Sessions’ appointment as a federal judge.  Senator Bernie Sanders read her letter into the record today in this Twitter video.

 

For more information about asset forfeiture and how your property may be vulnerable, see my ebook, Your House Is Under Arrest.

Your House Is Under Arrest, 2nd edition Brenda Grantland, Esq.

  • (c) 2017 Brenda Grantland, Esq. published 1/11/2017 96,285 words. 245 pages in the full sized pdf edition. Interactive Table of Contents. Indexed, with footnotes. $14.99
    NOTE: If you purchased a copy of this ebook in pdf format and it did not have pages numbers, please go back to the download page and download a new copy - or email us and we will send you a new one. The new version also has bookmarks marking every chapter. This is the new, expanded Second edition of Brenda Grantland's first book - Your House Is Under Arrest - published in 1993. Back in 1993, federal forfeiture procedure had fewer Due Process protections and more obstacles for forfeiture victims ("claimants") trying to defend their property. After eight years of lobbying, our forfeiture reform bill, CAFRA was enacted in 2000. Some of the abuses came to an end, but new abuses cropped up. Now 16 years after CAFRA reformed the law, things are as just as bad - or even worse than before. Because there are now 200 more federal forfeiture triggering offenses, forfeiture is more widespread. Forfeiture revenue is up dramatically - from $500 million in federal forfeiture revenue in fiscal year 2001 to $5 billion in fiscal year 2014. Today, average law abiding investors have even more to fear from asset forfeiture. This book is written to educate investors and give helpful tips for avoiding forfeiture.
  • Brenda Grantland
  • 2017-01-11
  • 246 pages

Expect forfeitures to skyrocket now that Sessions is confirmed as Attorney General

Jeff Sessions taking oath before making opening statement to the Senate, photo from The Hill

by Brenda Grantland, Esq., 2/3/2017, updated 2/8/2017
(c) 2017 Brenda Grantland

Hold onto your house, cars, and bank accounts. Senator Jeff Sessions was just confirmed as Attorney General! Sessions is not only a staunch supporter of the Drug War, but an aggressive advocate for expanding asset forfeiture and resisting due process reforms.

Back in the 1990s I spent years lobbying for reform of forfeiture laws on behalf of the nonprofit organization Forfeiture Endangers American Rights (“FEAR”).  Senator Jeff Sessions was one of our worst enemies of forfeiture reform. After 8 years of lobbying, our ideal forfeiture reform bill HR 1658 – sponsored by the late Rep. Henry Hyde (R-Ill.) and Rep. John Conyers (D-Mich) – passed in the House of Representatives in June 1999, by a vote of 375 to 48.

Before Rep. Hyde could get a Senate version of HR 1658 introduced, the DOJ got Senator Jeff Sessions to introduce a competing bill to counter the reforms of the Hyde bill. Senate Bill 1701 was the DOJ’s dream bill – it was most likely written by the DOJ. It started with some of the provisions of the Hyde bill but watered down the Hyde bill’s reforms, creating huge loopholes so that most people did not qualify for the due process reforms. Some of Sessions’ bill’s provisions were worse than current law. For FEAR’s point by point comparison of the two bills see this link.

The sponsors of S-1701 were Senators Jeff Sessions (R. Ala.) and Charles Schumer (D. N.Y.). The cosponsors are: Strom Thurmond (R. S.C.), Joseph Biden (D. Del.), Jesse Helms (R. N.C.), Diane Feinstein (D. Cal.) and Max Cleland (D. Ga.). All of the cosponsors other than Helms and Cleland were on the Senate Judiciary Committee, through which our forfeiture reform bill would have to pass.

These seven senators forced a compromise between the Hyde bill and the Sessions bill which watered down the Hyde reforms and added hundreds of new forfeiture triggering offenses. The compromise bill passed both houses and became CAFRA, which is still in effect today.

Now that Sessions is Attorney General, expect forfeiture enforcement – and forfeiture legislation – to get worse. And he will have stauch pro-forfeiture allies in both houses of Congress. The 1999 Sessions’ bill’s other sponsor, Chuck Schumer, is now Democratic leader of the Senate, and cosponsor Diane Feinstein is now ranking member of the Senate Judiciary Committee.

Sessions has not softened his stance in the 17 years since CAFRA passed. As Forbes Magazine reported, during a May 2015 Judiciary Committee hearing on civil asset forfeiture,

Sessions … declared that he was “very unhappy” with criticism of civil asset forfeiture. He went on to say that he thought “taking and seizing and forfeiting, through a government judicial process, illegal gains from criminal enterprises is not wrong.” Furthermore, he declared, “95 percent” of forfeiture cases involve criminals who’ve “done nothing in their lives but sell dope.”

Sessions Has No Problem With Civil Asset Forfeiture — And That’s A Problem, by George Leef, 1/2/2017, Forbes Magazine.  Sessions’ claim that 95% of forfeiture cases involve criminals who have done nothing but sell dope is patently false. First of all, only a fraction of forfeiture cases involve drug offenses. There are over 400 forfeiture triggering offenses now, thanks largely to Sessions and the Senate Judiciary Committee compromise of CAFRA. Secondly, civil forfeiture does not require a criminal conviction, or even any criminal charges before property can be targeted – so these are not necessarily “criminals” who are losing their property. The vast majority of forfeiture victims are not charged with any crime. A comprehensive 10-month survey conducted by the Pittsburgh Press determined that “80 percent of the people who lost property to the federal government were never charged.” “Presumed Guilty, the Law’s Victims in the War on Drugs,” a series of articles by Andrew Schneider and Mary Pat Flaherty, beginning August 11 – December 22, 1991 in the Pittsburgh Press. More recent articles in other newspapers are still quoting that 80% figure, although it is impossible to verify because the DOJ doesn’t keep track of the correlation between civil forfeiture claimants and criminal cases.

In the 2015 interview Sessions disputed the claim that allowing police to keep the property they seize and forfeit creates a conflict of interest, saying there is “nothing wrong with having the money be given to the officers who helped develop the case.”  Most citizens would disagree with him. Allowing the police to profit from the property they seize creates a conflict of interest, and a very serious one, especially now that police agencies  depend on asset forfeiture as a funding source.

Asset forfeiture laws allow the government to strip forfeiture victims of their assets before trial, including the funds needed to defend themselves. With over 400 forfeiture triggering offenses to choose from, and no requirement of even any criminal charges, this creates a very devastating weapon which government agents can use arbitrarily to target virtually anyone.

For more about asset forfeiture abuses and how your property is vulnerable, see my new ebook, Your House Is Under Arrest, 2nd edition, published 1/11/2017.

Your House Is Under Arrest, 2nd edition Brenda Grantland, Esq.

  • (c) 2017 Brenda Grantland, Esq. published 1/11/2017 96,285 words. 245 pages in the full sized pdf edition. Interactive Table of Contents. Indexed, with footnotes. $14.99
    NOTE: If you purchased a copy of this ebook in pdf format and it did not have pages numbers, please go back to the download page and download a new copy - or email us and we will send you a new one. The new version also has bookmarks marking every chapter. This is the new, expanded Second edition of Brenda Grantland's first book - Your House Is Under Arrest - published in 1993. Back in 1993, federal forfeiture procedure had fewer Due Process protections and more obstacles for forfeiture victims ("claimants") trying to defend their property. After eight years of lobbying, our forfeiture reform bill, CAFRA was enacted in 2000. Some of the abuses came to an end, but new abuses cropped up. Now 16 years after CAFRA reformed the law, things are as just as bad - or even worse than before. Because there are now 200 more federal forfeiture triggering offenses, forfeiture is more widespread. Forfeiture revenue is up dramatically - from $500 million in federal forfeiture revenue in fiscal year 2001 to $5 billion in fiscal year 2014. Today, average law abiding investors have even more to fear from asset forfeiture. This book is written to educate investors and give helpful tips for avoiding forfeiture.
  • Brenda Grantland
  • 2017-01-11
  • 246 pages

The government’s latest forfeiture abuse: criminal forfeiture of property not owned by a criminal defendant

(c) 2015 Brenda Grantland
reprinted from Truth and Justice Blog, 10/29/2015

As I have stated in previous blogs, third parties in criminal forfeiture cases are often treated worse than civil forfeiture litigants. 1/

In criminal forfeiture cases forfeitability of the property is determined in the criminal trial or guilty plea, and third parties are completely excluded from those processes. 2/  As a result:

  • (a) they have no right to intervene in the criminal case to raise a defense that is not being raised by the criminal defendant; 3/
  • (b) they have no right to confront and cross-examine prosecution witnesses in the government’s case in chief against their assets;
  • (c) they are never allowed discovery about the basis for the government’s forfeiture case;
  • (d) third parties are generally not permitted to file suppression motions (a right afforded civil forfeiture litigants); 4/
  • (e) they are not allowed to object to the criminal defendant’s plea bargain agreeing to forfeit their property;
  • (f) even when they get to their third party hearing process, third parties are not allowed to challenge the factual basis (“nexus”) for the forfeiture at all; and
  • (g) even if they win, they may not be entitled to attorney’s fees under CAFRA, though they may be entitled to attorneys fees under the Equal Access to Justice Act.

In short, third parties have their property tied up in court for years while the criminal defendant litigates his/her case.  They are forced to wait until after the defendant is convicted, and after their property is forfeited, and after the criminal defendant is sentenced before they have any right to participate in any court proceedings at all.

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What we really need in a federal forfeiture reform bill – part 3A: an overhaul of the criminal forfeiture third party process

(c) 2015 Brenda Grantland
from Truth and Justice Blog, 4/11/2015

While we are going through the effort to try to reform civil asset forfeiture laws we need to take a look at criminal forfeiture as well. Third parties in criminal forfeiture cases are often treated worse than civil forfeiture litigants.  They certainly are not afforded the same level of due process protection.

I have previously reported on various abuses of criminal forfeiture process, especially as it affects third parties who are not charged with any crime.  See my November 30, 2014 blog, Criminal forfeiture laws need to be reformed too, and my December 6, 2014 blog, The way they are enforcing criminal forfeiture laws against third parties is just plain criminal.

Let’s face it, criminal procedure is designed to provide criminal defendants with their constitutional rights while aiding prosecutors and courts in efficiently prosecuting cases and forfeiting assets.  It was not designed to protect the rights of people who are not parties.  Victims of the crime and third parties who own interests in the property being forfeited frequently see their interests tied up for years in a process in which they do not get to participate, and in which their Due Process rights are ignored because they are not parties.

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What we really need in a forfeiture reform bill – Part 2B: Fixing the holes in CAFRA’s attorney fees provisions

(c) 2015 Brenda Grantland
from Truth and Justice Blog, 3/19/2015

In a previous blog, What we really need in a federal forfeiture reform bill – part 2A, I talked about how the next round of forfeiture reform should repair the gaping holes the courts have gouged into CAFRA’s reforms, particularly those affecting the availability of counsel.  One CAFRA reform that clearly did not hold is the provision requiring the government to pay the attorney’s fees of claimants who substantially prevail.

A Lexis search conducted this week turned up only 23 reported civil forfeiture cases in which CAFRA fees were granted, and 8 civil forfeiture cases where CAFRA fees were denied.  And that was for the entire 15 years since CAFRA was enacted.  That is less than two cases per year! Tens to hundreds of thousands of federal civil forfeiture cases have been litigated in that 15 year period.

Clearly CAFRA’s fee-shifting provisions did not work as planned.  This is another of CAFRA’s reforms that the government has effectively nullified in practice, persuading  courts to interpret the statutes restrictively and illogically to avoid awarding  fees.

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Surprise, surprise… DOJ admits Holder policy will have little impact

(c) 2015 Brenda Grantland
from Truth and Justice Blog, 2/6/2015

An article by Matt Sledge and Ryan J. Reilly, posted last night on Huffington Post, corroborates my initial reaction to Attorney General Holder’s policy order limiting Federal Adoption.  The article, Justice Department Budget Projects Some Asset Forfeiture Payments Will Rise Despite Reforms, Huffington Post, 2/5/2015, quotes Justice Department deputy assistant attorney general Jolene A. Lauria Sullens as saying Federal Adoption “wasn’t a big revenue for the asset forfeiture fund” and “it was a very small amount of cases that were adopted.”

The Justice Department estimates payments shared with city and state police will actually increase to $500 million in the current fiscal year, which began in October, from $487 million in the previous fiscal year. The department projects these “equitable sharing” payments will fall to $476 million in fiscal 2016.

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The truth about multi-jurisdictional drug task forces

(c) 2015 Brenda Grantland
from Truth and Justice Blog, 2/2/2015, updated 10/15/2016

Attorney General Eric Holder’s Policy Order limiting a tiny aspect of the asset forfeiture program — federal adoption — is a hot topic in the news lately.   In reality the policy change will not make a dent in federal adoptions because of the multi-jurisdictional task force exemption. A multi-jurisdictional task force is made up mostly of local and state cops, with a federal agent or two to give it that federal connection.  See the DEA website page DEA Programs: State & Local Task Forces. Be sure to click on the interactive map on that page to see the multi-jurisdictional task forces operating  in your state.

The Holder policy order was partially a clever ploy to appease those clamoring for forfeiture reform. It was also a Trojan horse because it encourages state and local police agencies to form multi-jurisdictional task forces with the federal government if they want to preserve their previously abundant Equitable Sharing revenue streams.

Task forces are governed by contract between participating police agencies.  State and local police agencies are created and regulated by statutes and/or ordinances, and answer directly to the local or state government which created them, and the agency’s chain of command answers to the top official of the agency, with internal checks and balances to ensure that they enforce the law they were hired to enforce. The state or local legislature controls their purse strings and that is a big motivator to get them to obey the applicable state or local law.

The fact that the federal government could override that statutorily established chain of command, substituting federal law for the law of the state, county or city that hired them is questionable in itself.  That state and local officers’ chain of command could be supplanted by a board of directors created by private contract between law enforcement agencies is a topic of grave concern that warrants discussion.

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

(c) 2015 Brenda Grantland
from Truth and Justice Blog, 1/17/2015

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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