forfeiture reform – 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.

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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.

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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.

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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.

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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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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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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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