Judge Pushes Burden Of Proof Back On DEA Agents Who Seized $11,000 From Traveling College Student

Legal Issues

from the recreational-drug-use-is-not-the-same-thing-as-drug-trafficking dept

Mon, Nov 16th 2015 12:43pm — Tim Cushing

This could be fun.

Last February, DEA agents took $11,000 from college student Charles Clarke. The funds were to be used to continue his education. The DEA, however, had other plans for the money.

Deciding that Clarke's one-way ticket, odor of marijuana smoke and the inability to instantly prove all of the $11,000 was obtained legitimately, the DEA seized it. Good thing it did, considering there were 13 law enforcement agencies expecting a percentage of the take.

Clarke was initially charged with assault because he struggled to prevent DEA agents from separating him from the cash he says he spent five years saving. That charge was dropped. No other charges were brought. No contraband or weapons were found on his person.

In asset forfeiture cases, those whose property has been seized by the government must challenge the seizure and provide proof of its legitimate origin. All the government has to do to keep the money is wait the challenge out. In a large percentage of cases, the seizure is never contested. The government has unlimited resources. Those challenging forfeitures do not. In fact, they have even less to work with, thanks to the government's prior actions, and fighting seizures can be incredibly expensive.

Fortunately for Clarke, a judge has flipped the script.

Clarke’s lawyers asked for documents from the government with the intent to prove there are constitutional problems with the practice and that it gives police a profit-driven motive to seize property and funds.

The U.S. attorneys were not able to give all the documents to Clarke’s team and so they took the issue up with Judge Bertelsman. He decide to split the case into two parts:

First; the U.S. attorneys have to prove they have grounds to keep Clarke’s money. I.e., they have to prove that Clarke made the money from drug dealing.

Second; if the government proves the money came from drugs, Clarke’s team will have to argue against the issue of civil asset forfeiture itself. I.e., arguing that the practice is profit-driven or worse.

The burden of proof has been shifted back to where it always should have been, especially when seizures continue without accompanying criminal charges. The government can no longer simply claim Clarke's ticket, odor and lack of receipts are indicative of illegal activity. It has been ordered to show its work. This will be difficult because, given the lack of charges against Clarke, it most likely has nothing to present to the judge in the way of evidence.

If it somehow manages to round up some evidence proving its "guilty money" theory, it's still not in the clear. It will then have to defend the idea of civil asset forfeiture if Clarke's lawyers sufficiently demonstrate to the court the program's nasty side effects.

But it's the first part that's the most important. Given the fact that government agencies can seize property without securing convictions, orders like this one force the government to come up with better evidence than "one-way ticket" or "marijuana odor." The DEA must now find some way to connect the money it took to criminal activity, something agencies that participate in forfeiture programs don't have much experience in doing.

Asset Proof (PDF)Asset Proof (Text)

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Filed Under: asset forfeiture, asset seizure, burden of proof, charles clarke, civil asset forfeiture, dea

38 Comments

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Anonymous Coward, 16 Nov 2015 @ 12:58pm

The only crime
The only crime it can be connected with, would be its illegal seizure in the first place. I doubt they plan on proving that in court though.
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Anonymous Coward, 16 Nov 2015 @ 1:00pm

First; the U.S. attorneys have to prove they have grounds to keep Clarke’s money. I.e., they have to prove that Clarke made the money from drug dealing.
Frankly, I'm just stunned. And now I'm a little sad, realizing that I'm stunned by the idea of a judge telling the government that they have to prove someone is a criminal before taking his property.
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Quiet Lurcker, 16 Nov 2015 @ 1:03pm

I'll bet the feds are salivating at a chance to try their hands at parallel construction.
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Anonymous Coward, 16 Nov 2015 @ 1:05pm

Re:
On a tangential note, The Guardian says that the US has just hit Number 1000 in this year's "killed by police" count.

(http://www.theguardian.com/us-news/2015/nov/16/the-counted-killed-by-police-1000)
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Anonymous Coward, 16 Nov 2015 @ 1:09pm

"Uhh...wait - we actually have to prove this guy is guilty? But juuudge! It's only $11,000. Can't we do it next time?!"
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Anonymous Coward, 16 Nov 2015 @ 1:11pm

Your honor, the money pointed a weapon as us and resisted arrest. Then our drug dog signalled that it was carrying drugs. If that wasn't enough, it was also causing an obstruction of justice by filming us. That should be justification enough to sieze it.
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AJ, 16 Nov 2015 @ 1:13pm

Re:
I really wish I could say your remark was snarky.... but I hit insightful instead because your probably right... sigh....
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Roger Strong (profile), 16 Nov 2015 @ 1:14pm

Re: The only crime
"Police always observe that criminals prosper. It takes a pretty dull policeman to miss the fact that the position of authority is the most prosperous criminal position available."
- Frank Herbert
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Anonymous Coward, 16 Nov 2015 @ 1:18pm

Re: Re: The only crime
More techdirt-relevant Frank Herbert, this time Children of Dune:

In all major socializing forces you will find an underlying movement to gain and maintain power through the use of words. From witch doctor to priest to bureaucrat it is all the same. A governed populace must be conditioned to accept power-words as actual things, to confuse the symbolized system with the tangible universe. In the maintenance of such a power structure, certain symbols are kept out of the reach of common understanding -- symbols such as those dealing with economic manipulation or those which define the local interpretation of sanity.
Symbol-secrecy of this form leads to the development of fragmented sublanguages, each being a signal that its users are accumulating some form of power. With this insight into a power process, our Imperial Security Force must be ever alert to the formation of sub-languages.
-Lecture to the Arrakeen War College by, The Princess Irulan
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Anonymous Coward, 16 Nov 2015 @ 1:22pm

Re:
Forget the rest of that, I want to see the last bit.

"Your honor, the money was equipped with a small spy camera, and repeatedly ignored my instructions to turn the recording device off."

There. Obstruction of justice, illegal recording of a civil servant (or whatever that charge is).

.... Okay these stories are rotting my brain. Totally unbidden, I pictured the court hearings shifting from civil asset forfeiture... to whether the money has a copyright interest in the recording of police officers...
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Anonymous Anonymous Coward, 16 Nov 2015 @ 1:23pm

Re:
AND, it acted suspiciously and was contemptuous causing us to be fearful for our lives
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Anonymous Coward, 16 Nov 2015 @ 1:48pm

Re:
Or they could just take a page from the Austin Police Chief's book and say that at least the police didn't rape and murder the money.
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Anonymous Coward, 16 Nov 2015 @ 1:48pm

Money is fungible ... and also the defendant!
And as for the money coming from drugs...

Your honor, we can prove that some money, not necessarily the defendant, was loaned to the defendant by this kilo of marijuana. To that end, the defendant is in some portion "drug's money".
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Anonymous Coward, 16 Nov 2015 @ 2:30pm

hey, but paris.
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Sunhawk, 16 Nov 2015 @ 3:33pm

You know, I'm expecting that there'll be a returning of the funds soon.

The worst-case scenario here for the prosecution isn't losing the money in question, but a legally-binding precedent.

So if they don't have proof that the money's from selling drugs (and I don't think they do, considering there weren't any charges), they'll probably go for a "have the money back" settlement offer.

After attempting to get the judge's demands overruled. That's pretty likely too.
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Anonymous Coward, 16 Nov 2015 @ 5:25pm

Evil assets
Depriving criminals of the proceeds of their criminal actions makes sense to me.

What does not make sense is how it is OK for the government to reap the proceeds of criminal actions.

So it's OK for the government to benefit from crime but not OK for me to benefit from crime.

If I ran the government i would encourage crime, a 100% tax rate is a gravy train.
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TC, 16 Nov 2015 @ 5:30pm

Re: Re:
Plus, your honor, we saw the money reaching for its waistband causing further fear for our lives.
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G Thompson (profile), 16 Nov 2015 @ 6:43pm

What's to stop the government returning the money to him in the exact form it was seized (cash) and then IMMEDIATELY searching him and seizing the money again due to reasons?

new case, new seizure, ... rinse & repeat

then we would also have the inevitable appeal too so that the kid might if he loses at appeal also have to give back $11K which would mean he's out 22K + costs.
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Anonymous Coward, 16 Nov 2015 @ 7:15pm

Re: Evil assets
All Monies Seized by the Police, go into a holding account until guilt of the accused is proved, the accused must be allowed to access funds for their defence because "innocent till proven guilty". on determination of guilt, said monies tipped into a "victim compensation fund", this fund excludes police because that aught to be covered by the police employer "workers compensation" fund.

this will stop those ASSETS from contributing to the EVIL of police corruption.
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David, 16 Nov 2015 @ 10:17pm

Re:
they'll probably go for a "have the money back" settlement offer.

More likely "have some money back". That's so unfair: they robbed it fair and square and now they have to give it back? They had to take sacrifices: it takes a lot of dedication to stay away from all sources of learning so that you can fit below the bar on intelligence tests. You have to discipline and starve your mind.

And now they don't get to keep the rewards?
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Klaus, 16 Nov 2015 @ 11:16pm

Re: Re: Re: The only crime
That's fine for Arrakeen, in Europe we find Latin to be more than adequate...

/h
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Anton Chigurh, 16 Nov 2015 @ 11:54pm

Re: Burden of proof
so that explains your user name. very fitting.
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David, 17 Nov 2015 @ 4:52am

Re:
"I mean, we could have just shot this guy and not just could we have kept the money without anybody complaining but also would have earned a paid vacation on top of that. You'd rather we do that next time?"
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JustMe (profile), 17 Nov 2015 @ 4:56am

One way tickets
Recently bought a one way ticket to travel for a relative's surgery. While the surgery date was known, the amount of time for recovery & physical therapy was not so it made more sense to buy a single trip. The destination was also far away from our stomping grounds. It was entirely possibly that we might have taken extra cash, given the paucity of banking options in that part of BFE. That's two of the tree conditions in this case. Thank goodness the government is there to protect us from the government.
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Anonymous Coward, 17 Nov 2015 @ 5:11am

$11,000?
That barely covers one semester.

Maybe it is illegal to sidestep the college loan industry.
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New Mexico Mark, 17 Nov 2015 @ 7:54am

Scenes I'd like to see
1. No realistic evidence is presented to support the confiscation.
2. The judge orders (I know this probably isn't realistic legally, but I'm in wish-land here) the original plus triple damages be refunded to the student and that, just as the student's personal money was confiscated, documentation must be presented that the refund was docked from the personal salaries (and that it will not be compensated in any other way) of all the LEO's directly responsible for trampling on the Constitution.
3. Each person has to present a written report to the judge explaining how that felt.
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musterion (profile), 17 Nov 2015 @ 7:55am

Yeah, right
I look with great skepticism at anything the Guardian says--it's such a leftist rag.
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musterion (profile), 17 Nov 2015 @ 7:58am

Re: Evil assets
This is why there is criminal forfeiture.
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John Fenderson (profile), 17 Nov 2015 @ 8:00am

Re: Evil assets
"Depriving criminals of the proceeds of their criminal actions makes sense to me."

Me too,that's not the problem. The problem is when the cops steal the money before anyone has been found guilty, and then keep it or some part of it even when a conviction fails to materialize.
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Anonymous Coward, 17 Nov 2015 @ 10:31am

Re: Yeah, right
It's pretty easy to verify their list of people killed by police independently. They have a few sociopolitical topics on which they're pretty reliable if you exclude the op/ed articles... and everything else is pretty useful if you're looking for a laugh (Jessica Valenti is comedy gold).
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GEMont (profile), 17 Nov 2015 @ 10:40am

Pictures of Match-stick men...
I sincerely hope that Judge Bertelsman has no underage or gay skeletons in his closet, because I foresee an unmarked plain brown envelope appearing in the dead of night at his home residence soon, containing photo evidence and transcripts of every single misdeed or immoral act he has ever done during his entire life - compliments of the CIAF BINSADOJ.

After all, we cannot have the most lucrative political scam (business model) in 50 years being ended simply due to the sense of justice of one silly non-team-player judge.

Looks like its once again time to put the Five Eyes Surveillance Industry results to work, doing what it does best - blackmail - make that man a team player.

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Anonymous Coward, 17 Nov 2015 @ 10:42am

Re: Re: Burden of proof
OK, this is just confusing. I think I must be missing a subtle joke somewhere...
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Anonymous Coward, 17 Nov 2015 @ 4:54pm

They probably pissed themselves when they saw all of that loot. My guess is they never had to help put someone through college. As for myself I would rather take my chances with a pickpocket.
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Padpaw (profile), 17 Nov 2015 @ 6:22pm

They could always claim "national security" and say it would be a risk to the country if they revealed why
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Veritas, 17 Nov 2015 @ 11:48pm

I always carry my life savings with me when I travel. Doesn't everyone? Nah, this guy wasn't into drugs, despite not having regular employment he accumulated 11,000 over five years, because he's really, really good at stock futures?

No I don't agree with the DEA. But if it walks like a duck, smells like a duck, try telling me its not a duck. And I can put you in touch with a great investment opportunity in Nigeria if only you'll send me 100,000 in cash today.
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Wendy Cockcroft, 18 Nov 2015 @ 5:51am

Re:
It doesn't matter that you may be right, Veritas. We need to live by the rule of the law, not some gut instinct based on flimsy circumstantial evidence.

Per the law you're innocent till proven guilty. We're not supposed to punish innocent people and proof requires that a) the burden of proof lies on the accuser and b) the evidence needs to be substantial and verifiable.

Per common USG and law enforcement practice, if you squint very hard, spin around twice, then stand on one leg, it looks like a duck. I'll leave you with this: https://www.youtube.com/watch?v=yp_l5ntikaU
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John Fenderson (profile), 18 Nov 2015 @ 8:29am

Re:
You could be right, but you could also be wrong. That's why we have courts. I do know that there are times when legitimate people carry large amounts of cash for completely legal reasons. I've carried in excess of $10k myself a couple of times without engaging in anything remotely shady.
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GEMont (profile), 20 Nov 2015 @ 11:21pm

Re:
Always amazing to watch how Government inflicted industrial strength fear can make folks discard all the niceties of civilization like innocent till proven guilty and benefit of the doubt, when they're talking about other people's lives.

Fascists really know their business. Fear really is the killer of trust, decency and humane interaction and paves the way for the introduction of tyranny and corruption.

I'll bet you used to be a champion of other's rights before you became scared shitless of the government bogeymen.

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