Computer underground Digest Wed June 30 1993 Volume 5 : Issue 48 ISSN 1004-042X Editors: J

---
Master Index Current Directory Index Go to SkepticTank Go to Human Rights activist Keith Henson Go to Scientology cult

Skeptic Tank!

Computer underground Digest Wed June 30 1993 Volume 5 : Issue 48 ISSN 1004-042X Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET) Archivist: Brendan Kehoe Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Ian Dickinson Copy Editor: Etaoin Shrdlu, Seniur CONTENTS, #5.48 (June 30 1993) File 1--Time to Review Law Enforcement Forfeiture Practices File 2--Reform of Civil Asset Forfeiture Act (HR 2417) Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically from tk0jut2@mvs.cso.niu.edu. The editors may be contacted by voice (815-753-6430), fax (815-753-6302) or U.S. mail at: Jim Thomas, Department of Sociology, NIU, DeKalb, IL 60115. Issues of CuD can also be found in the Usenet comp.society.cu-digest news group; on CompuServe in DL0 and DL4 of the IBMBBS SIG, DL1 of LAWSIG, and DL1 of TELECOM; on GEnie in the PF*NPC RT libraries and in the VIRUS/SECURITY library; from America Online in the PC Telecom forum under "computing newsletters;" On Delphi in the General Discussion database of the Internet SIG; on the PC-EXEC BBS at (414) 789-4210; and on: Rune Stone BBS (IIRG WHQ) (203) 832-8441 NUP:Conspiracy; RIPCO BBS (312) 528-5020 CuD is also available via Fidonet File Request from 1:11/70; unlisted nodes and points welcome. EUROPE: from the ComNet in LUXEMBOURG BBS (++352) 466893; In ITALY: Bits against the Empire BBS: +39-461-980493 ANONYMOUS FTP SITES: UNITED STATES: ftp.eff.org (192.88.144.4) in /pub/cud uglymouse.css.itd.umich.edu (141.211.182.53) in /pub/CuD/cud halcyon.com( 202.135.191.2) in /pub/mirror/cud AUSTRALIA: ftp.ee.mu.oz.au (128.250.77.2) in /pub/text/CuD. EUROPE: nic.funet.fi in pub/doc/cud. (Finland) ftp.warwick.ac.uk in pub/cud (United Kingdom) COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing information among computerists and to the presentation and debate of diverse views. CuD material may be reprinted for non-profit as long as the source is cited. Authors hold a presumptive copyright, and they should be contacted for reprint permission. It is assumed that non-personal mail to the moderators may be reprinted unless otherwise specified. Readers are encouraged to submit reasoned articles relating to computer culture and communication. Articles are preferred to short responses. Please avoid quoting previous posts unless absolutely necessary. DISCLAIMER: The views represented herein do not necessarily represent the views of the moderators. Digest contributors assume all responsibility for ensuring that articles submitted do not violate copyright protections. ---------------------------------------------------------------------- Date: Thu, 30 May 1993 22:51:01 EDT From: CuD Moderators Subject: File 1--Time to Review Law Enforcement Forfeiture Practices The "hacker crackdowns" of 1990, along with other more recent cases such as the Akron/Munroe Falls BBS "porn" bust, Rusty & Edie's, and similar incidents, resulted in the removal of computer and other equipment of the persons raided by law enforcement. In most cases, little (if any) of the equipment was returned. When it was, as in the cases of Steve Jackson Games or Len Rose, some was damaged or "lost." The equipment that was not returned, while not necessarily forfeited in the legal sense, was certainly forfeited in the conventional sense of the term. It was given up involuntarily never to be seen again. Some victims, such as "Doctor Ripco" of Ripco BBS, were neither accused nor suspected of criminal activity. In the Akron/Munroe Falls case, the computer equipment was reportedly "retained" by local law enforcement officials because it was defined as a burglary tool. In the Akron/Munroe Falls case, one law enforcement official allegedly taunted the computer owner's mother by boasting how helpful the new equipment would be for the department. These cases represent a broader law enforcement trend in which agents seize the property of citizens who may or may not be involved in a crime. Such seizures, arising especially out of RICO (the Racketeer Influenced and Corrupt Organizations Act) and "tough-on-drug" laws have become a revenue-generating enterprise, and one national law enforcement magazine advocated confiscations as a way of easing department fiscal crunches. According to an editorial in The Toledo Blade (reprinted in the Chicago Tribune 28 June, '93: p 13), the inventory of seized property exploded from $33 million in 1979 to $2 billion in 1992. The Toledo Blade editorial notes: All too many suspects--individuals who ultimately are not convicted of a crime--are seeing the government seize their belongings. Already, in fact, Atty. Gen. Janet Reno has ordered a review of seizure guidelines, and the Supreme Court has acted to modify some of the U.S. policies. ............... The specter of wealthy drug dealers throwing big bucks around has been a potent image that has rallied support for seizure policies. But an equally potent image should be a greedy federal bureaucracy grabbing all the property it can to fill its treasury. Even the conservative Chicago Tribune has raised questions about seizure practices. In a 30 June,'93 (p. 18) editorial, the paper noted two U.S. Supreme Court cases this week that limited forfeiture and added: Innocent until proved guilty? Not if your house is taken by the feds, who leave it to you to prove the guiltlessness of you and your home. Proof beyond a reasonable doubt? Hardly. Police need only a loose claim of "probable cause" to take possession of your property. There is growing feeling that the law enforcement-seizure business has gone too far. Rep. Henry Hyde (R-Ill.), not generally noted for his criticism of law enforcement, and the ACLU are pushing for federal legislation that would curtail government seizures. Although the impetus of the the Bill (HR 2417) derives primarily for seizures in drug cases, the ramifications extend to the less dramatic world of computer users as well. In addition to Hyde's legislation, Rep. John Conyers (D-Mich) also plans to introduce legislation curtailing seizure. The following file provides a summary of Hyde's HR 2417. It strikes us as still excessively narrow and not going far enough to protect against the type of seizures we have seen in some of the recent computer incidents, and we welcome comments. We also encourage readers to write Rep. Hyde at: Rep. Henry J. Hyde 2262 Rayburn House Office Building Washington, DC (20515-1306) Voice: (202) 225-4561 / Fax:(202) 225-1240 Contacting John Conyers would also help: Rep. John Conyers 2426 Rayburn House Office Building Washington, DC (20515-2201) Voice: (202) 225-5126 / Fax: (202) 225-0072 ------------------------------ Date: Sun, 27 Jun 93 11:30:17 -0700 From: ygoland@HURRICANE.SEAS.UCLA.EDU Subject: File 2--Reform of Civil Asset Forfeiture Act (HR 2417) From--mattair@sun44.synercom.hounix.org (Charles Mattair) Newsgroups--comp.org.eff.talk Subject--HR 2417 - Civil Asset Forfeiture Reform Act Representative Henry J. Hyde (R-Illinois, 6) has filed the Civil Asset Forfeiture Reform Act (HR 2417). The bill is expected to be taken up before Ways and Means (I don't know which subcommittee if any). Attached is an analysis made by the Hyde's office and a paper mailed out which goes into more detail as to the justifications for the changes. I'll post the actual text of the bill if anybody asks - it's not included here for two reasons: (1) the analysis is more understandable and (2) my scanner does not like the fonts they use in a bill - I have to type it in :-(. All material is as prepared by Hyde's office - all typos are mine. If something doesn't make sense - send me Email and I'll check against the originals. Contact your congresscritters. SECTION-BY-SECTION ANALYSIS OF THE CIVIL ASSET FORFEITURE REFORM ACT OF 1993 AS INTRODUCED BY U.S. REP. HENRY J. HYDE Section 1. Short Title Section 2. Limitation of Customs and Tax Exemption under the Tort Claims Procedures The U.S. Code at Title 28, sec. 2680(c), provides that the federal government may not be sued for torts arising from "the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer." The Act modifies this section to ensure that claims can be brought if "based on the negligent destruction, injury, or loss of goods or merchandise (including real property) while in the possession of any officer of customs or excise or any other law- enforcement officer." Thus, property owners are given the right to sue for property negligently damaged after being seized in ultimately unsuccessful civil forfeiture proceedings. Section 3. Longer Period for Filing Claims in Certain In Rem Proceedings Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims states that "[t]he claimant of property that is the subject of an action in rem shall file a claim within 10 days after process has been executed . . . ." The Act extends this period in which a property owner can contest a seizure the customs laws to 60 days. Section 4. Burden of Proof in Forfeiture Proceedings The U.S. Code at Title 19, sec. 1615, allocates the burden of proof in civil forfeiture proceedings brought pursuant to the customs laws. "[T]he burden of proof shall lie upon [the] claimant . . . . [p]rovided, that probable cause shall be first shown for the institution of such suit or action [by the government]." The Act provides that the burden of proof shall not switch to the claimant, but shall at all times remain with the government. The government must "establish, by clear and convincing evidence, that the property was subject to forfeiture." Section 5. Claim after Seizure The U.S. Code at Title 19, sec. 1608, provides that: [A person contesting a civil forfeiture under the customs laws must] at any time within twenty days from the date of the first publication of the notice of seizure file . . . a claim stating his interest therein. Upon the filing of such claim, and the giving of a bond to the United States in the penal sum of $5,000 or 10 percent of the value of the claimed property, whichever is lower, but not less than $250 . . . such customs officer shall transmit such claim and bond . . . to the United States attorney for the district in which seizure was made, who shall proceed to a condemnation of the merchandise or other property . . . . The Act modifies section 1608 in three ways: 1) The Act extends the period under which a claim has to be filed from 20 to 60 days, to make it consistent with section 3 of the act. 2) The Act eliminates the cost bond requirement. 3) The Act adds a subsection to section 1608 providing that court appointed counsel shall be provided to claimants who are "financially unable to obtain representation of counsel." Compensation shall be equivalent to that provided for court-appointed counsel under 18 U.S.C sec. 3006A -- up to $3,500 for representation before a trial court and up to $2,500 for representation before an appellate court. Section 6. Release of Seized Property for Substantial Hardship The Act specifies that property can be released if continued possession by the government would cause the claimant substantial hardship. However, conditions may be placed on release as are appropriate to preserve the availability of the property or its equivalent for forfeiture should the government eventually win. Section 7. Justice Assets Forfeiture Fund The Act provides that funds to pay court-appointed counsel under section 5 of the Act shall come from the Justice Assets Forfeiture Fund. Section 8. Clarification Regarding Forfeitures Under the Controlled Substances Act The U.S. Code at Title 21, section 881(a)(7), provides that real property used to commit or to facilitate a federal drug crime is forfeitable unless the violation was "committed or omitted without the knowledge or consent of [the] owner." This is meant to protect innocent owners. However, a number of federal courts have seriously eroded the provision's protections by ruling that the owner must have both had no knowledge of and provided no consent to the prohibited use of the property. The Act would clarify the meaning of this provision by changing the applicable language to "either without the knowledge of th[e] owner or without the consent of th[e] owner." Section 9. Applicability The Act applies with respect to actions filed on or after the date of enactment. Long paper describing abuses with civil forfeiture follows. Hit N if you don't want to read it. INCIDENTS * Willie Jones is the black owner of a landscaping service who paid for an airline ticket in cash. This "suspicious" behavior caused the ticket agent to alert Nashville police. (1) A search of Jones and his luggage yielded no drugs. However, he did have a wallet containing $9,600 in cash on which a police dog detected traces of drugs (apparently true of 97% of all currency now in circulation). The cash was promptly seized despite protestations that it was intended for the purchase of shrubbery from growers. No arrest was made. However, the seizure nearly drove Jones out of business. He is unable to purchase the $960 bond necessary to mount a challenge. (2) * Jacksonville University professor Craig Klein's new $24,000 sailboat was subjected to a fruitless drug search by U.S. Customs Service Agents. In their 7-hour search, the boat was damaged beyond repair. The engine was chopped up with a fire axe, the fuel tank was ruptured and 30 holes were drilled in the hull. Mr. Klein sold the ship for scrap. (3) * Billy and Karon Munnerlyn owned and operated an air charter service. In October 1989, Mr. Munnerlyn was hired to fly Albert Wright from Little Rock, Arkansas to Ontario, California. DEA agents seized Mr. Wright's luggage and found $2.7 million inside. Both he and Mr. Munnerlyn were arrested. Though the charges against Mr. Munnerlyn were quickly dropped for lack of evidence, the government refused to release the airplane (The charges against Mr. Wright, a convicted cocaine dealer, were eventually dropped as well.). Mr. Munnerlyn spent over $85,000 in legal fees trying to get his plane back. Though a Los Angeles jury awarded him the return of his airplane -- he had no knowledge that he was transporting drug money -- a U.S. District Judge reversed the jury's verdict. Munnerlyn was forced to declare bankruptcy and is now forced to drive a truck for a living. He eventually spent $7,000 to buy his plane back. However, the DEA caused about $100,000 of damage. The agency is not liable for the damage, and there is no way (4) that Mr. Munnerlyn can raise the money to re-start his business. * A 61-year old California man, Donald Scott, was shot dead in front of his wife when 30 local, state, and federal agents attempted to serve him with a search warrant enabling them to inspect his 200-acre ranch in Malibu for cultivated marijuana. He had brandished a handgun during the confusion of the early morning raid. The Ventura County District Attorney's office found that: Upon receiving information from the informant, [Los Angeles County Sheriff's Deputy] Spencer originally thought that thousands of marijuana plants might be growing at the ranch. Efforts to confirm the presence of marijuana were unsuccessful. He was unable to see marijuana from the top of the waterfall and the Border Patrol did not see any plants during two attempts to do so. [DEA Special] Agent Stowell claimed to see only a relatively few plants, based solely on their color, but was unwilling to be the basis for a search warrant without corroboration. It is inherently unlikely that Agent Stowell could see marijuana plants suspended under trees in a densely vegetated area through naked-eye observations from 1000 feet. His failure to take photographs is unexplained,and when the warrant was executed, no evidence of cultivation was found. Based on all of the evidence, it is the District Attorney's conclusion that there was never marijuana being cultivated on the property as reported by Stowell. Real property used to cultivate marijuana may be forfeited under federal law. "It is the District Attorney's opinion that the Los Angeles County Sheriff's Department was motivated, at least in part, by a desire to seize and forfeit the ranch [adjacent to the Santa Monica Mountains National Recreation Area] for the government." (5) * Police found five hundred marijuana plants growing on a retiree's 37-acre farm. Delmar Puryear, who had retired with a disability and could not farm, insisted that he knew nothing about the plants. A jury apparently believed him, finding him innocent of state criminal charges. Despite this acquittal, the federal government refused to drop its efforts to seize the farm until Puryear agreed to pay $12,500. (6) * Michael Sandsness owned two gardening supply stores in Eugene and Portland, Oregon. Among the items sold were metal halide grow lights, which are used for growing indoor plants. The grow lights can be used to grow marijuana, but it is not illegal in itself to sell them. Because some marijuana gardens which were raided by the DEA had the lights, the agency began setting up a case to seize the business. The DEA began sending undercover agents to the stores who tried without success to get employees to give advice on growing marijuana. Finally, agents engaged in a conversation with an employee, and asked him for advice on the amount of heat or noise generated by the lights, making oblique comments suggesting they would want to avoid detection and making a comment about High Times magazine but never actually mentioning marijuana. The employee then sold the agents grow lights. The DEA then raided the stores, seizing inventory and bank accounts. Agents approached the landlord of one of the stores and told him that if he did not evict the tenant, the building would be seized. The landlord reluctantly evicted them. While the forfeiture case was pending, the business was destroyed. Sandsness was forced to sell the inventory not seized in order to pay off creditors. (7) WHAT IS CIVIL ASSET FORFEITURE? Civil forfeiture descends from a medieval English practice whereby an object responsible for an accidental death was forfeited to the king, who "would provide the [proceeds, the "deodand"] for masses to be said for the good of the dead man's soul . . . or [would] insure that the deodand was put to charitable uses."(8) The forfeiture is based on the legal fiction that inanimate objects can themselves be "guilty" of wrongdoing. All the government need show to justify a seizure is probable cause that the property is subject to forfeiture. Unlike criminal forfeiture, civil forfeiture requires no antecedent criminal conviction of the property owner. Even the acquittal of, the property's owner does not bar its forfeiture. (9) Today, 80% of those who lose property to the government through civil forfeitures are never charged with any crime. (10) Since civil forfeiture does not threaten deprivation of liberty, the government need not adhere to the constitutionally required safeguards of criminal prosecutions. In fact, if the erstwhile property owner sues the government to get the property back, he or she has the burden of proving that it is not subject to forfeiture. In essence, the standard is guilty unless proven innocent! Rarely used in America until recently, forfeiture has flourished as a weapon in the war on drugs. However, there are over 100 different federal forfeiture statutes, both criminal and civil. They range from the forfeiture of animals seized from animal-fighting impresarios (11) and cigarettes seized from smugglers (12) to property gotten from violations of RICO (the Racketeer Influenced and Corrupt Organizations Act). (13) The Comprehensive Drug Abuse Prevention and Control Act of 1970 contains the federal anti-drug civil asset forfeiture provisions: (The Act provides for the forfeiture of] all controlled substances which have Open manufactured, distributed, dispensed, or acquired (14) . . . [,] all raw materials, products, and equipment . . . which are used, or intended for use, in manufacturing . . . delivering, importing, or exporting [such] controlled substance[s] (15) . . . [all] property which is used, or intended for use, as a container for forfeitable controlled substances (16) . . . [, and] all conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment [of such controlled substances.] (17) In 1978, the Act was amended to provide for civil forfeiture of "[a]ll moneys . . . or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance . . . [, and] all proceeds traceable to such in exchange. (18) In 1984, the Act was amended to provide for civil forfeiture of "all real property . . . which is used, or intended to be used, in any manner or part, to commit or to facilitate the commission of a violation (of the Act)." (19) HOW MUCH MONEY DOES THE GOVERNMENT TAKE IN? Prior to 1984, the money realized from civil forfeiture was deposited in the general fund of the United States Treasury. Now it primarily goes to the Department of Justice's Asset Forfeiture Fund (with some going to the Department of the Treasury's Forfeiture Fund). (20) The money is then used for forfeiture-related expenses and law enforcement purposes. The amount deposited in the Department of Justice Assets Forfeiture Fund has increased from $27 million in fiscal year 1985 to $531 million in 1992. (21) Of the amount taken in 1992, $362 million was in cash and $114 million was in proceeds of forfeitable property; $230 million of the total was returned to state and local law enforcement agencies who helped in investigations. (22) And $30 million in forfeited property was pressed into official use by federal law enforcement agencies or transferred to state and local law enforcement agencies. (23) The Department now has on hand an inventory in excess of 32,400 properties valued at more than $1.8 billion. (24) The U.S. Customs service seized property with a value of over $708 million in fiscal year 1992. (25) WHAT DOES THE CIVIL ASSET FORFEITURE REFORM ACT DO? 1) Switches Burden of Proof Currently, it is the property owner, not the government, who is assigned the burden of proof when he or she sues to try to get property back. All the government needs do is make an initial showing of probable cause that the property is "guilty;" the property owner must then establish by a preponderance of the evidence that the property is "innocent" or otherwise not subject to forfeiture. "This probable cause standard for seizure allows the government to dispossess property owners based only upon hearsay or innuendo -- 'evidence' of insufficient reliability to be admissible in a court of law." (26) While it has been argued that civil forfeiture is criminal (punitive) in nature and therefore should require the government to prove its case, courts have not accepted this argument. (27) The Civil Asset Forfeiture Reform Act puts the burden of proof where it belongs. The government would have to prove by clear and convincing evidence that the property is subject to forfeiture -- that the unlawful act on which the forfeiture is based actually occurred and that there is a sufficient nexus between the property and the unlawful act. (28) The standard of clear and convincing evidence is that standard used by the state of New York in its drug forfeiture law. (29) And it is the standard that the Supreme Court of Florida ruled was mandated by the Florida Constitution's due process clause: In forfeiture proceedings the state impinges on basic constitutional rights of individuals who may never have been formally charged with any civil or criminal wrongdoing. This Court has consistently held that the [Florida] constitution requires substantial burdens of proof where state action may deprive individuals of basic rights. (30) 2) Provides for the Appointment of Counsel for Indigents Currently, there is no constitutional right to appointed counsel in civil forfeiture cases. (31) This is one of the reasons why so few forfeitures are challenged. The Civil Asset Forfeiture Reform Act would provide representation of counsel for whomever is financially unable to obtain representation to challenge a federal civil forfeiture. 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 (equivalent to the maximums for appointed counsel in federal felony cases)." (32) These figures could 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." (33) Money will come from the Justice Assets Forfeiture Fund. 3) Protects Innocent Property owners Real property used to commit or to facilitate a federal drug crime is forfeitable unless the violation was "committed or omitted without the knowledge or consent of (the) owner." (34) This is of course meant to protect innocent owners. However, a number of federal courts have seriously eroded the provision's protections by ruling that the owner must have both had no knowledge of and provided no consent to the prohibited use of the property. (35) Such an interpretation would mean that property owners such as Jesse Bunch would be out of luck. (36) Mr. Bunch owned a bar and residential apartments in a highly active drug trafficking area. He did know of drug selling activity, but took many steps to prevent it. He fired two bartenders after they were arrested at the bar for drug violations, evicted two residents following their arrests, restricted use of the restrooms, posted signs advising patrons that they were subject to search and seizure, restricted the bar's hours of operations and periodically called police to report drug activity in the vicinity of his property. However, drug activity continued and the government seized the property. Luckily for Mr. Bunch, the court ruled that he was protected by the innocent owner defense because of his lack of consent to the illegal drug trafficking and his reasonable efforts to put it to an end. "Mr. Bunch, who was trying to eke out an income from a business located in a drug-infested area that posed great risks to the safety of him and his family . . . fulfilled his legal obligation." (37) This is only fair, and should be the proper interpretation of the innocent owner defense. The Civil Asset Forfeiture Reform Act would clarify that lack of consent to (including reasonable efforts to prevent) illegal activity is a valid defense to forfeiture by a property owner. 4) Eliminates the Cost Bond Requirement Currently, a property owner wanting to contest the seizure of property must give the court a bond of the lesser of $5,000 or 10% of the value of the property seized (but not less than $250). (38) This money will go to cover court and storage costs should the government win. The cost bond requirement is unconstitutional as applied to indigent claimants (39) and serves little purpose in other cases: There is no reason why a person whose property is seized by the government should have to post a bond to defray some of the government's litigation and storage expenses in order to have the right to a day in court to contest the forfeiture. Currently, over 80% of federal forfeitures are not being contested. One reason why so many forfeitures are not contested is the high cost of retaining counsel to defend a forfeiture action. The cost bond requirement is simply an additional financial burden on the claimant and an added deterrent to contesting the forfeiture . . . . (40) The Civil Asset Forfeiture Reform Act would abolish the cost bond requirement. 5) Provides a Reasonable Time Period for Challenging a Forfeiture Currently, if a property owner wants to challenge a forfeiture, he or she must "file his claim within 10 days after process has been executed." (41) This time period is woefully inadequate: Even assuming that notice is published the next day after process is executed, the reader of the notice will have a mere nine days to file a timely claim. Most local rules require that notice be published for three successive weeks, on the assumption that interested parties will not necessarily see the first published notice. But by the time the second notice is published, more than ten days will have elapsed from the date process was executed. Thus anyone who misses the first published notice will be unable to comply with the exceedingly short time limitation for filing a claim. (42) Even though this time limit is sometimes ignored in the interests of justice, failure to file a timely claim can result in judgment in favor of the government. The Civil Asset Forfeiture Reform Act would lengthen this period to 60 days. 6) Provides a Remedy for Property Damage Caused by Government Negligence Currently, the federal government is exempted from liability under the Federal Tort Claims Act for damage caused by the negligent handling or storage of property detained by law enforcement officers. (43) Property awaiting forfeiture often devalues in value: Seized conveyances devalue from aging, lack of care, inadequate storage, and other factors while awaiting forfeiture. They often deteriorate -- engines freeze, batteries die, seals shrink and leak oil, boats sink, salt air and water corrode metal surfaces, barnacles accumulate on boat hulls, and windows crack from heat. On occasion, vandals steal or seriously damage conveyances. (44) Vacant and boarded-up real property is especially subject to deterioration. And sometimes, government agents utterly destroy property in futile searches for contraband. The Civil Asset Forfeiture Reform Act would simply allow property owners to sue the government for negligence. 7) Allows for the Return of Property Pending Final Disposition of a Case Currently, customs law does allow for the release of property pending final disposition of a case upon payment of a full bond. (45) However, a property owner who cannot afford to secure such a bond is out of luck. Especially when the property is used in a business, its lack of availability for the time necessary to win a victory in court can force an owner into bankruptcy. often, the property owner must settle with the government for some sum to get property back despite the government having an extremely weak case. The Civil Asset Forfeiture Act specifies that property can be released if continued possession by the government would cause the claimant substantial hardship. However, conditions may be placed on release as are appropriate to preserve the availability of the property or its equivalent for forfeiture should the government eventually prevail. DOES THE CIVIL ASSET FORFEITURE REFORM ACT AFFECT STATE FORFEITURE LAWS? At least 45 states have adopted their own forfeiture laws. The Civil Asset Forfeiture Reform Act would not directly affect these statutes. However, the bill would discourage the practice known as "adoptive forfeiture." Under adoptive forfeiture, state law enforcement officers seize property under state law and bring it to a federal agency for federal forfeiture (provided that a violation of federal law has occurred and the property is forfeitable under federal law). The feds then return 85% of the net proceeds to the state or local agency that initiated the case. Adoptive forfeiture is often relied upon to circumvent state laws allocating forfeited assets to non-law enforcement uses. For example, in Missouri, all forfeited funds go to the state's general fund. (46) Since the Civil Asset Forfeiture Reform Act would make the procedural going rougher for the government in federal court, many state official would presumably decide to stick with their state courts. The result would be more money going to education, drug treatment, and other services funded by forfeiture under state laws. Enactment of the Civil Asset Forfeiture Reform Act would also take away the ability of state law enforcement officials to seize property under federal law to get around state procedural safeguards. = = = = = = = = = Footnotes = = = = = = = = = = 1 The Drug Enforcement Administration routinely pays out 10% of any money seized in reward of tips such as this. In 1990, the Justice Department paid out a total of $24 million. See Government Seizures Victimize Innocent, Pittsburgh Press, Aug. 11, 1991. 2 Id. 3 See Florida Man's Plight Sparks Customs Service Bill, United Press Inter., March 13, 1992; Marston, Customs Destroys Boat and a Dream, St. Petersburg Times, Feb. 5, 1993. Mr. Klein was later awarded $8,900 through private legislation introduced by Representative Charles Bennett. 4 Related by Brenda Grantland of Mill Valley, California. Ms. Grantland is general counsel to FEAR (Forfeiture Endangers American Rights). See also Miniter, Property Seizures on Trial, Insight, Feb. 22, 1993, at 10, 33. 5 See Office of the District Attorney, County of Ventura, State of California, Report on the Death of Donald Scott (1993). 6 See Police Work or Piracy?, Louisville Courier-journal, Oct. 6, 1991. 7 Related by Brenda Grantland, supra note 4. 8 Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 681 n.16 (1974). 9 In United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), the Supreme Court ruled that a civil forfeiture action following a criminal acquittal does not constitute double jeopardy. 10 See Government Seizures victimize Innocent, supra note 11 See 7 U.S.C. sec. 2156. 12 See 18 U.S.C. sec. 2344. 13 See 18 U.S.C. sec. 1963. 14 21 U.S.C. sec. 881(a)(1). 15 21 U.S.C. sec. 881(a)(2). 16 21 U.S.C. sec. 881(a)(3). 17 21 U.S.C. sec. 881(a)(4). 18 Psychotropic Substances Act of 1978 (found at 21 U.S.C sec 881(a)(6)). 19 The Comprehensive Crime Control Act of 1984 (found at 21 U.S.C. sec. 881(a)(7)). 20 See 28 U.S.C. Sec. 524(c)(4). 21 See U.S. Department of Justice, Asset Forfeiture Fact Sheet (1993). 22 See U.S. Department of Justice, Assets Forfeiture Fund Statement of Income and Expenses (1993). 23 See id. 24 See Fact Sheet, supra note 21. 25 See U.S. Customs Service, U.S. Customs Update: 1992 22. 26 Reed, American Forfeiture Law: Property Owners Meet the Prosecutor 3 (CATO Institute Policy Analysis No. 179, 1992). 27 See Stahl, Asset Forfeiture, Burdens of Proof and the War on Drugs, 83 J. Crim. L. & Criminology 274 (1992). 28 The bill amends 19 U.S.C. sec. 1615. Most federal forfeiture statutes rely on this provision of our customs law to set the burden of proof. 29 See N.Y. CPLR sec. 1311(3). 30 Department of Law Enforcement v. Real Property, 588 So.2d 957, 967 (Fla. 1991). 31 Before Lassiter v. Department of Social Services, 452 Ii. S. 18 (1981), a constitutional right to appointed counsel was only recognized in cases where a litigant might lose his or her physical liberty. While Lassiter set up a balancing test in other situations, the Alaska Supreme Court in Resek v. State, 706 P.2d 288 (Alaska 1985), rejected the argument that counsel should be appointed in civil forfeiture cases. 32 See 18 U.S.C. sec. 3006A(d)(2). 33 18 U.S.C. sec. 3006A(d)(3). 34 21 U. S. C. sec. 881 (a) (7) . 35 See, e.g.. United States v. Lot 111-B. Tax Map Key 4-4-03-71(4), 902 F.2d 1443 (9th Cir. 1990). 36 See United States v. All Right, Title & Interest in Property Known as 710 Main St., Peekskill, N.Y., 744 F. Supp. 510 (S.D.N.Y. 1990). 37 United States v. All Right, Title & Interest in Property Known as 710 Main St., Peekskill, N.Y., 753 F. Supp. 121, 125 (S.D.N.Y. 1990). 38 See 19 U.S.C. sec. 1608. 39 See Wiren v. Eide, 542 F.2d 757, 763-64 (9th Cir. 1976). 40 Letter from David Smith to Ms. Kathleen Clark, Senate Judiciary Committee (Aug. 19, 1992). 41 Supplemental Rule of Civil Procedure for Certain Admiralty and Maritime Claims C(6). This is the date when a U.S. court takes possession of the property through "arrest" by a federal marshall. It is not the date when it is initially seized by a law enforcement officer. 42 Smith, Prosecution and Defense of Forfeiture Cases sec. 9.03(1). 43 See Kosak v. United States, 465 U.S. 848 (1984). 44 United States General Accounting office, Better Care and Disposal of Seized Cars, Boats, and Planes Should Save Money and Benefit Law Enforcement ii (GAO/PLRD-83-94, 1983). 45 See 19 U.S.C. sec. 1614. 46 See Mo. Ann. Stat. sec. 513.623. ------------------------------ End of Computer Underground Digest #5.48 ************************************

---

E-Mail Fredric L. Rice / The Skeptic Tank