Asset forfeiture – Brenda Grantland

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

2015-04-112016-10-27 Brenda Grantland Leave a comment

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.

[CLICK THE TITLE TO READ ENTIRE ARTICLE]

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

2015-03-192016-10-27 Brenda Grantland Leave a comment

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.

[CLICK THE TITLE TO READ ENTIRE ARTICLE]

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

2015-02-062016-10-27 Brenda Grantland Leave a comment

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.

[CLICK THE TITLE TO READ ENTIRE ARTICLE]

The truth about multi-jurisdictional drug task forces

2015-02-022016-11-10 Brenda Grantland Leave a comment

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.

[CLICK THE TITLE TO READ ENTIRE ARTICLE]

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.

[CLICK THE TITLE TO READ ENTIRE ARTICLE]

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.”

[CLICK THE TITLE TO READ ENTIRE ARTICLE]

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).

[CLICK THE TITLE TO READ ENTIRE ARTICLE]

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?

[CLICK THE TITLE TO READ ENTIRE ARTICLE] Read More

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]

[CLICK THE TITLE TO READ ENTIRE ARTICLE]

How our criminal justice system got so out of whack

2013-11-222016-10-27 Brenda Grantland Leave a comment

(c) 2013 Brenda Grantland
reprinted from Truth and Justice Blog, 11/22/2013
When I graduated law school and began my legal practice I had starry eyed notions about the adversary system and believed that it really worked the way it was supposed to.

On the one side there was a relatively conscientious and ethical prosecutor and the other side a relatively conscientious and ethical defense attorney, with a judge who would be relatively fair and unbiased and would follow the law most of the time.

Theoretically these systems would all mesh together into a system of checks and balances that should ensure that citizens are treated fairly and ethically by the criminal justice system, and that the results are equitable under the true facts and established law.

But it doesn’t work that way in real life.

After three decades practicing law, mostly in the criminal justice and asset forfeiture system, with the federal government as my opponent, I can see the system is way out of whack. It’s even worse under state law, where fundraising through lucrative asset forfeiture cases is used to supplement budget shortfalls.

Asset forfeiture has corrupted the criminal justice system and disrupted the system of checks and balances that previously kept law enforcement corruption and unjust prosecutions more or less under control.

[CLICK THE TITLE TO READ ENTIRE ARTICLE]