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

(c) 2014 Brenda Grantland
Truth and Justice Blog, 11/13/2014

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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The Administrative Office publishes an annual report but it does not contain a breakdown of payments for court appointed counsel or statistics on the number of appointments. The annual report for 2013 indicates there were budget cuts affecting all court appointments under the Criminal Justice Act, so we can assume that any burgeoning attempt to appoint counsel for civil forfeiture claimants probably suffered setbacks too.

In 2005, when FEAR was attempting to obtain funding to provide training materials for the court appointed attorneys who would be handling civil forfeiture cases for the first time, I contacted the Office of Defender Services and never was able to get figures on how many such appointments had been made or how much was paid for such appointments.  I tried again today. So far no one knew, but a very nice lady called me back and said she would try to track down those figures for me. When I get those figures I will post them in a later blog. [10/19/2016 update – she never responded with an answer.]

The statutory provision requiring counsel for indigent claimants whose primary residence has been seized is administered by the Legal Services Corporation.  My contact there was too busy to give me an update this week, except to say “LSC receives very few requests for appointments.”

Shortly after CAFRA passed I contacted Legal Services Corporation and learned that they had no idea how they could fund the appointment of counsel. LSC does not have any lawyers who represent clients.  It is a corporation created by Congress to distribute funds to non-profit legal aid providers nationwide, who generally litigate in state courts, and their typical caseloads involve landlord tenant, child support and similar issues; they were not equipped to handle federal civil forfeiture cases. Even worse, LSC had a statutory restriction preventing them from funding certain kinds of litigation. Congress had not appropriated any money to implement 983(b)(2).  Still LSC made a valiant effort, and when forfeiture claimants would contact them requesting assistance they tried to locate pro bono counsel for them.  Of course that is a completely impractical plan for the long run.

In 2005, I contacted Legal Services Corporation for an update, and learned they had devised an ingenious plan, that was working to satisfy the very few requests they got for court-appointed counsel.  They persuaded the government to agree to pay the court-ordered fees (after the judge approved the amount of the voucher) out of the Assets Forfeiture Fund.  In 2005, a LSC spokesman told me that he only knew of about $4,000 to $5,000 in fees that had actually been paid out to court appointed counsel as of that date – five years after CAFRA was enacted.  The Congressional Budget Office had expected that figure to be “about $1 million each year.”  H.2047.

I found evidence in the CBO report for CAFRA which supports LSC’s reasoning that the attorneys fees were supposed to be paid out of the Asset Forfeiture funds.

If Congress had created this statute mandating appointment of counsel and had not appropriated the funds to pay for it, that would have been an unfunded mandate.  But the CBO statement in the Congressional Record said:

H.R. 1658 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA), but CBO expects that enacting this legislation would lead to a reduction in payments to state and local governments from the Assets Forfeiture Fund and the Treasury Forfeiture Fund….

The only way payments to compensate court appointed defense counsel would lead to reduction in payments to state and local law enforcement is if Congress intended the money to come out of the DOJ and Treasury Asset Forfeiture Funds before those agencies made discretionary payments to state and local law enforcement under the Equitable Sharing program.

Anecdotally, I know that these appointments are still extremely rare, even today, 14 years after CAFRA took effect.

In 2010 I had a civil forfeiture case in Los Angeles in which the clients had run out of money and could not afford to pay me, and I could not afford to represent them without pay, so I asked the court to appoint a lawyer under § 983(b). The court appointed Los Angeles attorney, Eric Honig. Later when Mr. Honig filed a motion seeking interim payment, the government opposed it, submitting as an exhibit prosecutor Steven Welk’s affidavit.  [Download the Welk Affidavit using the Download Attachment link above.] On page 33 (p. 4 in the pdf) Welk  describes emailing all of the asset forfeiture coordinators in the U.S. asking about their experiences with Sec.  982(b)(2) appointments.  He received responses from 7, and four of those reported more than one such appointment in their district.  This was 11 years after CAFRA passed, and only eleven or so appointments were known to the U.S. Attorney’s Offices! Granted, there may have been other districts in which counsel was appointed and the coordinator just didn’t respond, but other evidence suggests appointments are actually this rare.

When I filed a motion for a court appointed attorney for one of my two claimant clients in Fresno, California in 2011, I was told that they had never appointed counsel before in that court.  I had heard the same thing from the Los Angeles court in 2010 when I sought appointment of counsel for those clients.  Sacramento’s first forfeiture appointment was roughly 2011 or 2012 as I recall.

Today I conducted a Lexis search for all federal cases citing 18 U.S.C. § 983(b) and it produced only 32 cases.  A number of those cases did not involve a request for appointment of counsel, but merely cited the section in passing or for some other reason.

In all the cases I found on Lexis, 14 years after CAFRA took effect, only ten cases said counsel had been  appointed under § 983(b). 1/ In one other, the district court opinion reported that the court of appeals had reversed the district court’s order granting summary judgment because the court had improperly denied appointment of counsel.  On remand the district judge again granted summary judgment for the government. 2/  In one additional case counsel was appointed only for the limited purpose of advising the client of his Fifth Amendment rights. 3/

In four cases involving requests under § 983(b)(2), making  appointment mandatory if the claimant’s primary residence is seized, the district court denied counsel because the claimant currently was not staying in his/her home. 4/ These cases are absurd because the claimant was currently staying away from his/her primary residence out of necessity.  Three were incarcerated pending trial, and had no reason to not consider their homes their permanent primary residence.

In five cases, counsel was denied because the claimant did not qualify under the statute. 5/ In one additional case, the motion was denied without prejudice because the claimant had not presented  evidence of indigency. 6/

Suggestions for reform

1. “Primary residence” must be liberally construed

Clearly, legislation is needed to close the loophole the courts have created denying counsel when the claimant is not currently staying in his primary residence.  Someone’s primary residence remains their primary residence even if they are forced to go out of town temporarily on a job, or for other reasons not within their control.  It is absurd to deny counsel on that basis.

For a court to deny a criminal defendant bail and then deny his request for court appointed counsel in the parallel civil forfeiture case against his residence because he is incarcerated is simply outrageous!

Similarly, my Fresno client – a senior citizen who spoke little English — was rendered destitute by the government seizures of her home and car and recent identity theft that had wiped out her bank accounts, and could not afford to continue to live in her primary residence. She rented it out temporarily and moved in with her daughter, son-in-law and their infant daughter in a two-bedroom apartment.  She couldn’t refinance to pay attorneys fees because the government had put a lis pendens on her house. Nevertheless, the court denied appointment of counsel saying her home of 30 years — which was purchased during her first marriage and was all that she has left of her lifelong savings — was not her primary residence. [Download this order from the Download Attachments link above.]

Why would Congress mandate court-appointed counsel to defend one’s primary residence and then define primary residence so narrowly as to allow the government and court to incarcerate claimants pending trial and thereby deny them counsel to defend their homes?

2. Expand the categories of property forfeitures for which counsel may be appointed

Even when property owners previously were well off, the government can seize everything they own with just a simple forfeiture complaint, and the property is held for years pending trial, generally with nothing being released until the case was over years later.  This allows the government to instantly render a person indigent, prevent him from mounting an adequate defense.

When the government has seized enough of a person’s worldly possessions to render them indigent and unable to afford counsel to defend their property, that claimant should be entitled to court appointed counsel.  Due Process should require it.

3. Require the court to advise claimants they may qualify for court appointed counsel

Clearly, once the measures are in place to actually deliver on the promise, the court should be required to inform claimants that they may qualify for court appointed counsel and how to apply. The burden should not be on the lay claimant to discover their rights.

When the court denies a motion for counsel, the claimant should have an immediate right to appeal that decision, and whether they appealed or not, a denial of the right to counsel should invalidate any judgment obtained without assistance of counsel.

4. Build a pool of trained defense attorneys to take these cases

Another major obstacle to full implementation of CAFRA’s appointed counsel provisions is the lack of experienced civil forfeiture attorneys willing to be appointed in these cases.  Legal Services Corporation has contacted me at least twice asking me to take on court appointed cases hundreds of miles away because they did not know any forfeiture defense attorneys in the area.  I no longer oblige them.

Clearly the solution will require offering forfeiture defense training courses to criminal defense attorneys on the CJA panel in every jurisdiction.  Because CJA pays so little, along with its other drawbacks such as not being able to bill until the case is over, CJA panel attorneys are often attorneys who are just starting out after passing the bar. Very quickly they have to start bringing in paying cases, because it’s virtually impossible to live on the income from CJA cases alone.  The hourly rate for CJA work is quite often ½ to 1/3 of the going rate for defense attorneys in the community. Most experienced forfeiture lawyers would not be willing to take a CJA forfeiture case.  Clearly the only way to keep a steady pool of qualified lawyers able to take civil forfeiture appointments is to offer training to the CJA panel in each jurisdiction.  FEAR tried to launch a project which would do just that – the Gideon project – but the project was never funded.

The mechanism to pay court appointed counsel fees, to fund civil forfeiture training for CJA panel attorneys and any other CAFRA reforms that require funding, should come from the confiscated forfeiture revenue itself.  Congress should mandate that the government set aside a specific proportion of overall forfeiture proceeds each year, so that the ability to provide court-appointed  counsel increases at the same rate as the growth in forfeiture profits for the government.

Empowering claimants to fight back by giving them court appointed counsel would rein in the government’s embarrassingly huge and growing confiscation frenzy.  That was another consideration Congress had in passing CAFRA.  They thought the empowerment of claimants would reduce overall forfeiture revenue, and rein in the practice.

The only feasible way to right this imbalance is to require a certain percentage (perhaps 25%) of all forfeiture revenue to be set aside to provide funding for court appointed counsel.  Some of those funds should be earmarked for training, to create a steady pool of qualified lawyers.

The government can certainly afford it.

Recent news reports show forfeiture revenue has grown exponentially since CAFRA was passed — to upwards of $4 billion per year.  Clearly this system is out of balance and will just continue to get further out of balance unless and until a portion of the funds are diverted away away from the cops to fund defense counsel, allowing forfeiture claimants the means to fight back.

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Endnotes:

1.  Cases in which counsel was appointed. United States v. Land, 491 Fed. Appx. 18 (11th Cir. Ala. 2012) – (counsel appointed initially but court denied reappointment later);  United States v. Real Prop. at 130 High Rock Acres Drive, 2007 U.S. Dist. LEXIS 59601 (W.D.N.C. Aug. 6, 2007) (counsel appointed for 2 minor children under 983(b)(2)); United States v. 500,000 in United States Currency, 271 F. Supp. 2d 1255 (S.D. Cal. 2003) (court appointed the court appointed criminal defense lawyer, not the civil forfeiture lawyer claimant sought.); United States v. One 2000 Wells Cargo 24 Foot Long Trailer, 2002 U.S. Dist. LEXIS 6554 (D. Or. Mar. 22, 2002) (counsel was appointed in civil forfeiture case but claimant was later allowed to fire him.); United States v. 777 Greene Ave., 609 F.3d 94, 95 (2d Cir. 2010) (court appointed counsel under 983(b)(2)); United States v. $19,985.99 in United States Currency, 2013 U.S. Dist. LEXIS 70554 (C.D. Cal. May 13, 2013) (my former case in L.A. – court-appointed counsel awarded “$66,412.50 in fees and $317.93 in costs.”); United States v. A Savage Westpoint Rifle, 2012 U.S. Dist. LEXIS 170333 (S.D. Ohio Nov. 30, 2012) (counsel had been appointed pursuant 18 U.S.C. § 983(b)(2)(A)); United States v. Real Prop. at 5590 E. Garland Avenue, 2012 U.S. Dist. LEXIS 90864 (E.D. Cal. June 29, 2012) (counsel appointed under 983(b)); United States v. Real Prop. Located at 1251 Pleasant Grove Rd., 2011 U.S. Dist. LEXIS 102710 (E.D. Cal. Sept. 9, 2011) (counsel appointed under § 983(b)(1)(A)); United States v. Counterfeit Merch., 2011 U.S. Dist. LEXIS 47804 (N.D. Cal. May 3, 2011) (court set aside default and appointed counsel under 983(b)(1) for claimant who spoke only Mandarin).

2/  United States v. Real Prop. Located at 7199 Grant Road, 2008 U.S. Dist. LEXIS 60086 (W.D. Wis. Aug. 1, 2008).

3/  United States v. Chavez, 2014 U.S. Dist. LEXIS 33188 (D.N.M. Mar. 6, 2014) (attorney who had moved to withdraw for lack of payment was appointed under CJA for criminal case, and for representation in ancillary matter (civil forfeiture) only to advise him of Fifth Amendment rights).

4/ Ghali v. United States, 455 Fed. Appx. 472, 477-478 (5th Cir. Tex. 2011) – defendant didn’t qualify for appointment of counsel under 983(b)(2) (because he was incarcerated so his home was not his primary residence, and was not entitled under 983(b)(1) because he had already been sentenced, so he no longer had a court appointed criminal attorney);  United States v. Real Prop. Located at 700 N. 14th St., Springfield, Ill., 2013 U.S. Dist. LEXIS 147282 (C.D. Ill. Oct. 11, 2013) (appointment of counsel denied because claimant wasn’t staying at the property so it wasn’t her primary residence);  United States v. Real prop. Located at 6415 N. Harrison Ave., Fresno, 2011 U.S. Dist. LEXIS 107423 (E.D. Cal. Sept. 20, 2011) (my case in Fresno where appointment was denied because client was not currently staying in her home; seizure of her house and automobile and recent identity theft which drained all her bank accounts forced her to stay with her daughter in another town); United States v. 90-23 201st St., 2009 U.S. Dist. LEXIS 40607 (E.D.N.Y. May 14, 2009) (appointment denied where claimant was represented by retained counsel in related criminal case and incarcerated pending trial therefore he didn’t live in his home and it wasn’t his primary residence).

5/  United States v. $7,877.61 United States Currency, 2012 U.S. Dist. LEXIS 69332 (W.D.N.Y. May 17, 2012) (claimant didn’t qualify for court appointed counsel under § 983(b), appointment denied); United States v. $103,000.00 in United States Currency, 2010 U.S. Dist. LEXIS 116825 (D. Neb. Oct. 28, 2010) (motion to appoint counsel denied, claimant didn’t have CJA counsel in a criminal case); United States v. 90-23 201st St., 2009 U.S. Dist. LEXIS 46859 (E.D.N.Y. June 4, 2009) (appointment of counsel denied); United States v. Duran-Moreno, 638 F. Supp. 2d 1302, 1306 (D.N.M. 2009) (appointment denied – surety bondsman didn’t qualify); United States v. Approximately $ 73,562 in United States Currency, 2009 U.S. Dist. LEXIS 24980 (N.D. Cal. Mar. 17, 2009) (claimant didn’t quality for court-appointed counsel since she didn’t have court appointed counsel in a related criminal case.)

6/ United States v. 6,357.00 in United States Currency, 2011 U.S. Dist. LEXIS 69979 (W.D.N.C. June 21, 2011) (motion for appointment of counsel denied without prejudice because claimant hadn’t stated whether he was represented by court appointed counsel in a pending criminal case.)

Brenda Grantland

Brenda Grantland is a lawyer in Mill Valley, CA, who handles primarily asset forfeiture defense, crime victims’ rights, and federal civil and criminal appeals. She is also the author of several books on asset forfeiture and other subjects.

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