Please send us the citations and/or links to
important
forfeiture decisions that you come across. If you have decisions that
are
not yet posted on the internet, send them in hard copy to FEAR Website,
20 Sunnyside Suite A-419, Mill Valley, CA 94941, or e-mail them to lawyerservices@fear.org.
Important Court Decisions on
Forfeiture
Last Update April 8, 2004 by Brenda Grantland
Note: This section of our website hasn't been updated in a long
time, except for the few cases added today. As I have time I'll
add other cases to this collection, but it will take a lot of work to
make this section useful. If anyone would like to help with this
task of updating the list of important forfeiture decisions, please
volunteer!
I have deleted some cases I know to be no longer good law (or no longer
the best law on the issue,) but please do your research before
relying on an old case (prior to 2000) cited below. As we add new
cases to this page, we will upload the actual opinions to a new section
of the FEAR website, accessible to FEAR members with passwords
only.
Today I've added a new section on Drug Dog
Sniffs, because of a new FEAR member/victim who recently was nabbed
by a forfeiture trap in Texas, like the ones they used to have in
Volusia County, Florida. The Justice Department lobbyists
would have you believe that forfeiture scams like this are a thing of
the past, now that the Civil Asset Forfeiture Reform Act of 2000
("CAFRA") is in effect -- but it this case shows it's still business as
usual in .
Appeals of Forfeiture
Judgments
U.S. v. $10,000, 52 F.3d 329 (7th Cir. #94-2637, 4-11-95) (held:
Claimant
who moved to vacate default judgment, and then waited until denial of
the
motion to vacate to appeal underlying default judgment lost the right
to
appeal merits of underlying judgment)
Attorneys Fees
U.S.
v. Douglas, 55 F.3d 584 (11th Cir. #94-8621, 6-21-95) (held: third
party in criminal forfeiture case entitled to attorneys fees under
Equal
Access to Justice Act)
U.S.
v. Land in Shelby County, Alabama, (11th Cir. No. 93-6519, decided
February, 1995) (held: award of attorneys fees was not available under
Equal Access to Justice Act to lienholder who prevailed under innocent
owner defense; because property cannot be a "party," it can't be a
prevailing party.) [Note: Attorneys fees are now available
to successful civil forfeiture claimants under CAFRA.]
Certificate of Reasonable
Cause
U.S. v. One 1986 Ford Pickup, 56 F.3d 1181 (9th Cir. #93-55367, 6-8-95)
(held: before issuing a certificate of reasonable cause, court must
make
fact finding that there was probable cause that the property was
involved
in a violation of the specific forfeiture statute it invokes.)
Conveyances
U.S. v. Indoor Cultivation Equipment from High Tech, 1995 WL 317665
(7th
Cir. #93-2817, 5-26-95) (Ray Pollard, pro se) (held: default judgment
was
void as to conveyances, where government filed complaint after 60 day
statutory
period had run; pick up truck, boat and trailer ordered returned)
Corporation as Claimant
U.S. v. Route 2 Box 472, [cite] (11th Cir. No. 94-8158, Aug. 1995)
(held:
where corporate employee engages in criminal activity beyond the scope
of his employment, and there is no benefit to the corporation from the
employee's illegal activity, employee's actions are not imputable to
corporation)
U.S. v. Parcel, 7326 Hwy. 45 N., Three Lakes, Oneida County, WI, 95
F.2d 311 (7th Cir. 1992) (held: when an agent/co-owner of corporation
who acted beyond the scope of his authority when he commited illegal
act
with the property, his actions were not imputed to corporate
stockholders.)
Counsel, Right To
U.S. v. $292,888.04, 54 F.3d 564 (9th Cir. No. 93-16751, decided May
24, 1995) (held: trial court decision re: whether claimant had right to
court-appointed counsel in civil forfeiture case -- is reviewed de novo
on appeal; 6th Amendment right to counsel doesn't apply to civil
forfeitures,
and appointment of counsel under indigency statute, 28 U.S.C. Sec.
1915(d),
is discretionary with judge)
Criminal Forfeiture
U.S. v. Saccoccia, 1995 WL 373441 (1st Cir. #93-1618, 93-2208 &
94-1506, 1st Cir., 6-28-95) (analyzes roots of modern criminal
forfeiture
and concludes criminal forfeiture is part of punishment, not a separate
substantive charge for purposes of extradition clause)
Default Judgments
U.S. v. $10,000, 52 F.3d 329 (7th Cir. #94-2637, 4-11-95) (held:
Claimant
who moved to vacate default judgment, and then waited until denial of
the
motion to vacate to appeal underlying default judgment lost the right
to
appeal merits of underlying judgment)
Drug dog sniffs
cases
in which dog sniffs were ruled non-probative of drug trafficking:
United States
v. $53,082.00 in
U.S. Currency, 985 F.2d 245, 250, note 5 (6th Cir.1993)
(as much as 96 percent of currency has narcotics contamination)
United States
v. Carr, 25 F.3d 1194,
1214-1218 (3rd Cir.1994) (Becker, J., concurring in part and
dissenting in part) cert. denied, 513 U.S. 1086
(1995)
United States
v. $639,558.00 in
U.S. Currency, 955 F.2d 712, 714, note 2, (D.C.Cir.1992)
(90 percent of currency contains sufficient quantities of
cocaine to
alert a trained dog)."
United
States v. $506,231, 125 F.3d 442, 453 n. 8 (7th Cir. 1997) ("As
Attorney Komie pointed out at oral argument, an American Bar
Association
Journal article described how
Attorney General Janet Reno was subject to a canine-sniff and the bills
in her purse
triggered the dogs' response. See
Courts Reject Drug-Tainted Evidence, 79 A.B.A. J. 22
(Aug.1993). The record in this case
also contains the memo of a Drug Enforcement Agent chemist
which states that the Federal Reserve rollers have been contaminated by
cocaine,
making the usefulness of dog sniffs limited.")
United
States v. $30,060.00, 39 F.3d 1039, 1041-43 (9th Cir.1994) (noting
widespread contamination and concluding that "the probative value of a positive
dog alert in currency forfeiture cases
in Los Angeles is significantly diminished")
Excessive
Fines Clause
Fugitive Disentitlement
Doctrine
Informants
U.S. v. Solorio, unreported decision 53 F.3d 341 (9th Cir. #93-50507.
50508,
4-26-95) (held: informant's contingency fee agreement was found not to
be contingent on conviction, therefore not "outrageous government
conduct"
that would invalidate conviction.)
U.S. v. McMahan, [cite] (criminal defendant who agreed to cooperate
as informant and reveal his assets was sentenced to 60 months. Later he
was found to have withheld information about some of his assets and
about
involvement of 3 coconspirators. Court found he breached plea agreement
and sentenced him to 292 months.)
Innocent Owner Defense
U.S. v. $124,813, 53 F.3d 108 (5th Cir. #94-20866, 5-30-95) (held:
Calero-Toledo
did not create a general innocent owner defense where statute has none)
U.S.
v. Real Estate, 6640 S.W. 48th St., Miami, 41 F.3d 1448 (11th Cir.,
Jan. 1995) (held: owner who acquires interest in property after
tainting
activity knowing of the illegal activity cannot be innocent owner;
knowledge
is measured at time of transfer of ownership)
Jury Trial
State
of New Jersey v. One 1990 Honda Accord, Superior Court of New
Jersey, Appellate Division, #A-6880-95T2, (June 16, 1997) (held: owners
of property seized under N.J.S.A. 2C:64-l are entitled to a jury trial
on demand, pursuant to article 1, paragraph 9 of the New
JerseyConstitution;
the summary disposition procedure in the statute does not pass
constitutional
muster. This is the forfeiture case of long-time FEAR member Lois
McDermott.)
Landlords as Claimants
U.S. v. Real Property Located at 3756 W. 106th St., Inglewood, CA,
940
F.2d 1537 (9th Cir. 1992) (retired couple Melvin and Alice Hanberg lost
their rental property because jury found they had not done enough to
prevent
drug dealing by their tenant. 9th Circuit rejected their
proportionality
defense (this was before Austin) but remanded for new trial on whether
Mr. Hanberg was the agent for his wife so that his negligence is
attributable
to her.)
Legal Fictions
U.S.
v. Land in Shelby County, Alabama, (11th Cir. No. 93-6519, decided
February, 1995) (held: award of attorneys fees was not available under
Equal Access to Justice Act to lienholder who prevailed under innocent
owner defense; because property cannot be a "party," it can't be a
prevailing
party.)
Notice
Weng
v. United States - 2nd Cir. No. No. 96-2918 (February 24, 1998)
(held: notice
of forfeiture sent to a prisoner at the place where he is believed to
be
incarcerated will only be effective if actually received by him).
Privilege Against
Self-Incrimination
U.S. v. Real Property & Premises, 4003-4005 5th Ave., Brooklyn,
1995
WL 302501 (2nd Cir. #94-6149, 5-18-95) (held: where claimant had
refused
to comply with discovery, claiming privilege against
self-incrimination,
until confronted with government motion for summary judgment, court did
not err in prohibiting claimant from withdrawing privilege and
submitting
evidence to rebut summary judgment)
Speedy Trial
U.S. v. $292,888.04, 54 F.3d 564 (9th Cir. No. 93-16751, decided May
24,
1995) (held: trial court decision re: denial of speedy trial is
reviewed
de novo on appeal; 30-month delay not excessive under circumstances)
Summary Judgment
U.S. v. 3 Parcels in La Plata, 53 F.3d 341 (9th Cir. #93-16633,
16642,
16873, 5-2-95) (held: a claimant's self-serving testimony is enough to
withstand summary judgment; summary judgment is inappropriate even
though
claimant did not record his deed until after government filed lis
pendens)