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Under the Comprehensive Forfeiture Act of 1984 and other federal crime laws, any monies a defense attorney receives from a client can be confiscated — either before or after trial — if the government alleges they were the proceeds of an illegal transaction.
In March 1992, the Securities and Exchange Commission froze all of the assets of the nationally renowned law firm of Kaye, Scholer, Fierman, Hays and Handler.
With all of their assets frozen, Kaye, Scholer couldn’t pay salaries, rent, or even an electric bill. Faced with imminent bankruptcy, in a matter of days Kaye, Scholer agreed to make a deal. In exchange for “voluntarily” paying the SEC a $41 million fine, their funds were unfrozen.
What was Kaye, Scholer accused of? The government claimed that they had “concealed information” from government prosecutors about their clients, Lincoln Savings and Loan and Charles Keating.
For 200 years, the confidentiality of the attorney-client relationship has been a bedrock principle of our legal system. That’s history. Our government now says that unless your attorney spies on you for the state and helps prosecutors prepare a case against you, all of your attorney’s assets can be frozen or confiscated without trial or even indictment.
Few attorneys even take drug cases anymore. To destroy the defense in any criminal case, prosecutors now only have to hint that the money used to pay an attorney is “tainted” and could be confiscated. Unless your attorney is independently wealthy or a philanthropist, he probably won’t be able to defend you. No wonder less than 3% of criminal cases now result in a jury trial.
Arresting Your Property
Civil-asset forfeiture is based upon the legal fiction that property — not individuals — can be guilty of criminal acts. Since your property has no rights, once police confiscate it, your property is presumed guilty, and you must prove its innocence to get it back.
Since your property — not you — is charged, you have no right to a court-appointed attorney, you have no right to confront your accusers, and hearsay evidence can be used against you. If you want to fight confiscation, you will somehow have to beg or borrow the funds to pay an attorney — who typically will want at least $10,000 up front for these cases. Furthermore, the government requires you to pay a 10% bond before you can contest asset confiscation. The cost bond pays for government attorneys investigating you, questioning you, and prosecuting you. Any information you provide in answering hundreds of interrogatories will be perused by the IRS and other governmental agencies to identify crimes they can charge you with.Finally, since property is charged, the constitutional protection against double jeopardy doesn’t apply. And even if you win in the trial court, the government can appeal endlessly, until legal fees alone force you to quit or make a deal with the government — such as splitting the value of your house with them.
Killing Innocent People During Confiscation Raids
Increasingly, confiscation raids are turning deadly. On the night of March 12, 1988, Tommie C. Dubose, a civilian naval instructor, was relaxing in his living room in San Diego. Without warning, the police broke down his front door and shot him dead.
The police were acting on a tip that drugs were sold at his house. No drugs were found. And people who knew Dubose said he was strongly opposed to drug use.
In 1992, “Annie Rae Dixon, 84, bedridden with pneumonia in Tyler, Texas, [was] shot to death by police in a 2 a.m. raid last January. An officer said his pistol accidentally went off when he kicked down her bedroom door. No drugs were found.” (USA Today, January 11, 1993, page 1.)
On October 2, 1992, “Multimillionaire rancher Donald Scott, 61, was shot to death when 26 DEA agents, LA County sheriffs deputies and National Park Service officers raided his 200-acre Malibu spread looking for marijuana they never found.” (USA Today, January 11, 1993, page 1.)
The National Park Service had unsuccessfully tried to buy Scott’s ranch to incorporate it into a surrounding national park. A Sixty Minutes report of April 2, 1993, uncovered police planning documents for the raid that make it clear that police were searching for evidence to justify confiscating Scott’s ranch.
Legalized murder is becoming legalized mass murder. In May 1993, heavily armed Bureau of Alcohol, Tobacco, and Firearms (BATF) agents and Federal Bureau of Investigation agents attacked the compound of the Branch Davidians in Waco, Texas, to serve a search warrant for illegal firearms. The 51-day siege ended with eighty-six men, women and children being burned alive after an FBI tank drove through the front door of the compound. According to branch members, the FBI tank crushed a large bottle of propane fuel and knocked over lit, kerosene lanterns. Attorney General Janet Reno said, “I sent in the tanks to avoid more violence.”
If police have a valid search or seizure warrant for your house, that now means they have a virtual license to kill you, your spouse, or your children. The courts have ruled that police can use any force they deem necessary to protect themselves during a raid. It is nearly impossible to get prosecutors to indict police who kill — unless your relatives are politically powerful or there is a very loud, public outcry.
There was no indictment in the Don Scott case, and the FBI agents who killed scores of innocent women and children in Waco, Texas, are being hailed as heroes.
Becoming a Victim of Asset Confiscation
In America today, anyone can become a victim of a police confiscation raid. Every state police department — and most local ones — are now confiscating property. Financially strapped states and municipalities are now making next year’s planned confiscations a growing item in their budgets. As government regulation and taxation destroy productive enterprise, government at all levels will rely more and more on direct confiscation of property for revenue.
There are now over 200 federal, state and local confiscation laws on the books, and more are passed every month. There are hundreds of provisions in the tax code alone, which can be used to justify confiscation of your car, home, bank account, and business without trial.
Confiscating Property for Personal Use
State and federal asset-forfeiture laws allow police and government agencies to appropriate confiscated property for their own use so long as it is in “the line of duty.”
A whole industry is evolving around asset confiscation. Police and government agencies love it because it is a cheap and easy way to increase their revenues. Informants and crooks love it — some of them now make up to $780,000 a year entrapping and turning in neighbors and former friends. Judges love it because they typically get 20% of the forfeited property for their courts. Sheriffs and DEA agents love it because they get first pick of confiscated assets.
More and more police chiefs these days are driving around in confiscated Jaguars, BMWs and Mercedes. Confiscated country clubs have been turned into “police training facilities.” Confiscated cash and expensive stereos and TVs tend to disappear quickly from police lockers.
It not surprising that civil-asset confiscations are now doubling every year. In 1985, the government seized $27 million in property. In 1992, they seized $1.2 billion. That’s an increase of 4,400% in seven years. At the current rate of growth of confiscations, all property in America will belong to the state within seventeen years.
Beginning of the End of Justice in America
Civil-asset forfeiture is the harbinger of a police state in America. When police and government agencies can loot from innocent citizens at will, it is the beginning of the end of justice and liberty. Increasingly, police are focusing their energies upon what assets can be confiscated rather than what actual crimes have been committed. And, even worse, more asset-forfeiture laws are being proposed and enacted.
The 1992 Omnibus Crime Act — vetoed by former President Bush for being “too soft on crime,” and strongly supported by Bill Clinton — increases from 6 months to 6 1/2 years the time government agencies have to return improperly seized assets. (How much would your car or house be worth after six months without maintenance or repairs?)
Pending federal medical-forfeiture legislation allows the government to confiscate all of the business or personal assets of doctors who “overcharge” or who prescribe “unnecessary treatments” — with the government defining after the fact what is a proper price and a necessary treatment.
The Crime Control Act of 1993, now before Congress, allows the government to confiscate homes, cars and bank accounts of individuals and groups whose publications, speeches or assemblies might encourage violence or “coerce legislation.” A similar law has also been introduced in Arizona.
Modeled on existing drug laws and asset-forfeiture laws, under the new political-forfeiture legislation, all the government would need to confiscate your property is to “suspect” that you or your organization tend to encourage violence. You are then presumed guilty, your property would be confiscated, and you, penniless, would have to prove your innocence.
Fighting Back
As appalling as the present situation is, there is some cause for hope.
In the fall of 1992, Representative John Conyers of Michigan held congressional hearings on aspects of civil-asset forfeiture. He pledged to oppose some of the more invasive aspects of forfeiture.
In February 1993, the Supreme Court rejected the Department of Justice’s position that the government could confiscate the assets of innocent people if some of the money used to purchase the asset came (in whole or part) from illegal activities. In June, the Court rejected the Department of Justice’s contention that confiscation is not punishment and said that the Eighth Amendment’s prohibition against unreasonable search and seizure does apply to confiscation cases.
If civil-asset forfeiture is not stopped, it will mean the end of justice in America . . . the end of liberty . . . the end of America as we know it. By fighting against asset forfeiture, you are fighting for your property, your liberty, and your life. It is a battle you cannot avoid; it is a battle we must win.
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