From: hofmeist@theory.lcs.mit.edu (Scott Hofmeister)
Subject: Re: Supreme Court and Forfeiture Law
Organization: MIT Laboratory for Computer Science
	<1992Apr7.174346.4247@henson.cc.wwu.edu>
	<1992Apr7.193851.9037@zip.eecs.umich.edu>
Date: Wed, 15 Apr 1992 18:32:56 GMT


   kenneth@ducvax.auburn.edu writes:

   >There was a thing on "60 Minutes" about the 1984 Seizure Law.
   >Apparently, the police have the right to take anything and everything
   >they want to at any time if they _suspect_ drugs are in any way involved.
   >They don't even have to charge you with a crime, and they can keep what
   >they've seized.  One guy had to buy back his own seized jet at a gov't
   >seizure auction.  That is bullshit.  I suspect that this law may be 
   >ruled unconstitutional, go to the Supreme Court, and be ultimately upheld
   >by the ultra right-wing court.  Maybe, maybe not.  But it is a very bad
   >law.  

   jwh@citi.umich.edu writes:

   My understanding from the information presented in the story was that
   the law had already been challenged and found to be constitutional.
   Does anybody know what the test case was and what rationale was used
   to determine the constitutionality of the seizure law?  Is the 
   decision online somewhere?


I believe that there has been only one case having to do with RICO
that has gone to the supreme court, and that was the case of United
States vs. Charles Dunn (802 Federal 2d Series 646) docket#86-1189.
In 1987 the supreme court decided to deny the request to overturn the
lower court ruling, but issued no opinion.

In this case the issue that was at hand was that Charles Dunn had two
amounts of money seized by the government as being drug money ($4,000
and $28,500).  When his criminal case went to trial the jury convicted
Dunn of possessing cocaine with intent to distribute and determined
that the $4,000, but not the $28,500, was subject to forfeiture.  The
government then begin civil proceedings against Dunn for the $28,500.

Dunn argued that because he had been acquitted in criminal court that
the government could not begin civil proceedings against him because
congress had intended civil and criminal forfeiture to be mutually
exclusive (the district court agreed but the federal court
overturned).  The federal court ruled that although the law did not
say you could do both, the implication was that civil and criminal
proceedings were not mutually exclusive.  That it is not
unconstitutional to have both criminal and civil proceedings against
someone was decided by the supreme court in 1939(?) in Helvering vs.
Mitchell, 303 U.S. 391.

As for the general issue of RICO, the part about seizing property
through civil proceedings that the district attorney believes was
involved in criminal activity is something that has been a part of
federal law since the late 1700's, hence I don't think one can cry
that the law is blatantly unconstitutional.  The problem here is two
fold, one is that the burden of proof has been shifted onto the person
whose property has been seized to prove by a "preponderance of the
evidence" that s/he had nothing to do with the alleged crime (this is
constitutional since it is a civil proceedings, and further in U.S.
vs. Santoro 866 F.2d 1540 the courts ruled that even seizing someone's
house for a very small number of drug sales was not "so punitive that
the forfeiture cannot be treated as civil").  The other issue is that
in 1984 congress made it possible for the local law enforcement agency
to profit from seizures, and this has led to a substantial abuse of
the intent of the law.  Hence on balance although clearly there is a
problem I believe it rests more with corruption and abuse at the law
enforcement level as opposed to the actual wording of the law.  There
are a lot of laws on the books that if the local police department
decided to push to the absolute maximum, they would make 60 minutes,
fortunately the system is constructed so that in most cases it is not
in the financial interests of a given officer or office to enforce
certain laws.

--
Xref: sparky misc.legal:9405 talk.politics.drugs:3010 alt.drugs:7839 alt.society.civil-liberty:3528