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Title: The Justice Department Didn't Charge Him With a Crime. It's Going to Take $39,000 from Him Anyway.
Source: Reason
URL Source: https://reason.com/blog/2018/08/06/ ... ce-department-didnt-charge-him
Published: Aug 7, 2018
Author: Scott Shackford
Post Date: 2018-08-07 05:49:12 by Deckard
Keywords: None
Views: 56
Comments: 3

It's not a crime to travel with lots of cash. But you still might be treated like a criminal.

In order to get back any of the money that the New Hampshire State Police took from him, Edward Phipps has agreed to let federal prosecutors keep most of it, even though he has not been charged with any crimes.

The cops took the cash during a traffic stop in 2016. Phipps wasn't even in the car at the time.

The police pulled the driver over for tailgating and for going one whole mile per hour over the speed limit. A search turned up a bag full of $46,000 cash in the trunk. Police then brought in a drug-sniffing dog, which came up empty.

Though they have presented no evidence of any criminal act, police took the money and federal prosecutors declared their intent to force the forfeiture of the funds, so they could keep it. Phipps came forward in July 2017 to indicate that the cash was his, and he said it was obtained legally.

We took note of this case back in March, and it looks like the Justice Department succeeded in getting its way. As part of a settlement, Phipps has agreed to give the Department of Justice $39,000 of the $46,000 seized.

This is was a case of civil asset forfeiture, where law enforcement officials take and keep people's assets that they suspect are connected to criminal activity. Often, they can do this without convicting or even charging any person with a crime. Instead the property itself is accused of being linked to misconduct. The "defendant" in this settlement is the cash itself; the Department of Justice is suing a sack of money.

This weird quirk matters because the burdens of proof in civil courts are often lower than the "beyond a reasonable doubt" required to convict a person. So it's easier for prosecutors to win, and it flips presumption of innocence on its head: Phipps has to hire a lawyer and prove his money isn't connected to criminal activity.

As part of the settlement, Phipps not only agrees to give up everything but $7,000 (which will probably have to go to his legal fees). He agrees never to request that the money to be returned, and he furthermore agrees never to attempt to assert any claim that the government did not have "probable cause" to make him forfeit the money. I'm highlighting that part of the story to show how much lower the legal threshold is to take somebody's stuff and keep it. "Probable cause" is the amount of evidence police need for a search warrant, not nearly enough to convict somebody of a crime. (A note here: Both a Justice Department official and a reader contacted me to point out that the legal threshold for federal civil forfeiture is "a preponderance of the evidence," a more restrictive requirement than "probable cause." This is true, but the settlement uses the term "probable cause" to describe the justification for the seizure and forfeiture, not the stricter legal requirement.)

This wasn't supposed to happen. New Hampshire reformed its civil asset forfeiture laws in 2016 to require a criminal conviction before police or prosecutors could force people to forfeit money or property. Unfortunately, the state's reform did not close a loophole that lets local police partner with the feds in a program called Equitable Sharing. In this system, local police use the federal asset forfeiture program instead of their own and then the Justice Department distributes most of the forfeited money back to local law enforcement.

That's why the Department of Justice is involved here. The state police can't seize Phipps' money on their own. So they went to the feds to arrange the forfeiture, and then the Equitable Sharing program lets the Justice Department funnel the funds right back to local law enforcement. It's not money laundering when it's the government.

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#1. To: Deckard (#0)

(A note here: Both a Justice Department official and a reader contacted me to point out that the legal threshold for federal civil forfeiture is "a preponderance of the evidence," a more restrictive requirement than "probable cause." This is true, but the settlement uses the term "probable cause" to describe the justification for the seizure and forfeiture, not the stricter legal requirement.)

The author is confused.

In Civil Asset Forfeiture the police need probable cause to seize the asset and hold it until there is a trial.

At the trial, the prosecution needs only to prove a preponderance of the evidence, a lower standard than proving beyond a reasonable doubt since the asset is on trial, not a person.

misterwhite  posted on  2018-08-07   8:29:24 ET  Reply   Trace   Private Reply  


#2. To: misterwhite (#1)

The "defendant" in this settlement is the cash itself; the Department of Justice is suing a sack of money.

“Truth is treason in the empire of lies.” - Ron Paul

In a Cop Culture, the Bill of Rights Doesn’t Amount to Much

Deckard  posted on  2018-08-07   9:24:20 ET  Reply   Trace   Private Reply  


#3. To: Deckard, misterwhite (#0)

The Justice Department Didn't Charge Him With a Crime. It's Going to Take $39,000 from Him Anyway.

No person has been alleged to have committed a crime, so such argument remains irrelevant no matter how may times it is repeated. Much or most of cash seized as contraband is not claimed as the potential claimant/owner has difficulty providing evidence of income, and taxes paid on that income.

The cash (or other property) is seized as contraband. Anyone can come forward to assert ownership of the money and petition for its return to his possession. His burden is to show, based on a preponderancce of the evidence, that the money is rightfully his and not involved in criminal activity.

From the Settlement:

(A) Phipps consents to the forfeiture of all of his right, title and interest, if any, in $39,000.00 of the defendant in rem $46,000.00 in U.S. Currency. $7,000.00 of the defendant in rem, less any debt owed to the United States, any agency of the United States, or any other debt in which the United States is authorized to collect, shall be released to Brian Silber, Esquire, counsel for Phipps.

From Black’s Law Dictionary, 6th Ed.

In rem. A technical term used to designate proceedings or actions instituted against the thing, in contradistinction to to personal actions, which are said to be in personam.

“In rem” proceedings encompass any action brought against person in which essential purpose of suit is to determine title to or to affect interest in specific property located within territory over which the court has jurisdiction. ...

18 U.S.C. § 981 Civil Forfeiture

(b)(1) Except as provided in section 985, any property subject to forfeiture to the United States under subsection (a) may be seized by the Attorney General and, in the case of property involved in a violation investigated by the Secretary of the Treasury or the United States Postal Service, the property may also be seized by the Secretary of the Treasury or the Postal Service, respectively.

(2) Seizures pursuant to this section shall be made pursuant to a warrant obtained in the same manner as provided for a search warrant under the Federal Rules of Criminal Procedure, except that a seizure may be made without a warrant if—

(A) a complaint for forfeiture has been filed in the United States district court and the court issued an arrest warrant in rem pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims;

(B) there is probable cause to believe that the property is subject to forfeiture and—

(i) the seizure is made pursuant to a lawful arrest or search; or

(ii) another exception to the Fourth Amendment warrant requirement would apply; or

(C) the property was lawfully seized by a State or local law enforcement agency and transferred to a Federal agency.

18 U.S.C. § 983. General rules for civil forfeiture proceedings

(c) Burden of Proof.—In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property—

(1) the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture;

(2) the Government may use evidence gathered after the filing of a complaint for forfeiture to establish, by a preponderance of the evidence, that property is subject to forfeiture; and

(3) if the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.

(d) Innocent Owner Defense.—

(1) An innocent owner's interest in property shall not be forfeited under any civil forfeiture statute. The claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence.

(2)(A) With respect to a property interest in existence at the time the illegal conduct giving rise to forfeiture took place, the term "innocent owner" means an owner who—

(i) did not know of the conduct giving rise to forfeiture; or

(ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property.

18 U.S.C. § 984. Civil forfeiture of fungible property

nolu chan  posted on  2018-08-07   12:45:46 ET  Reply   Trace   Private Reply  


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