FEAR-List Bulletin posted by Brenda Grantland, 1-24-98

Today's Chronicle reports that former Louisiana governor Edwin Edwards won return of $468,000 seized from him in connection with the federal fraud investigation of 49ers co-owner Edward DeBartolo Jr., Edwards, and Edwards' son Stephen. Prosecutors seized the money claiming DeBartolo paid it to former governor Edwards as a bribe, shortly before one of DeBartolo's companies won a hotly contested casino license.

Edwards acknowledged receiving the money from DeBartolo, but said it was a legitimate payment for consulting work.

Edwards filed a motion for return of property in federal court, which forced the government to either show what evidence they had to support the seizure or return the money. On Friday, January 23, the prosecutors returned the money instead. The defense attorneys celebrated it as a victory, but the victory may be temporary.

The U.S. Attorney for Louisiana, Eddie Jordan, said the investigation is still ongoing. DeBartolo and the Edwards may still be indicted. Nothing would stop the government from seeking criminal forfeiture in the indictment. Prosecutors cannot pursue civil forfeiture without first seizing the money (since civil forfeiture is "in rem" or an action against the property itself and seizure is required to confer jurisdiction on the court), but nothing would stop the U.S. Attorney's office from seeking a second seizure warrant from a magistrate judge.

This would not be double jeopardy since double jeopardy no longer applies to forfeiture, according to the Supreme Court. (Also, jeopardy does not "attach" at the pretrial state, and this return would not trigger double jeopardy any way.)

The true advantage of having this money back pending trial (besides the principle that possession is 9/10ths of the law) is that it can be used to pay attorneys fees. Cases like this involving six potential codefendants, and charges of political corruption, can be complex and quite expensive. When the government is able to seize property at the beginning of an investigation -- before anyone is even indicted -- they can deprive the accused of the means to conduct an adequate defense.

FEAR congratulates defense attorneys Michael Fawer (attorney for former governor Edwin Edwards) and Karl Koch (attorney for Stephen Edwards) and hopes that more defense attorneys follow their lead in making aggressive moves like this one to thwart the forfeiture machine.