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June 27, 2014
A 22-year-old driving his parents' RV from Colorado to Wisconsin with $50K, pot and a pit-bull gets pulled over in Nebraska...
The title of this post might make for the start of a great joke about modern America circa 2014. But, in fact, it is the factual basics of a fascinating little ruling today by the Eighth Circuit in US v. Nelson, No. 13-1902 (8th Cir. 2014) (available here).
In an effort not to "give away the joke," I am not going to say anything more about this case others that to suggest that those concerned about excessive police powers will be pleasantly surprised by the ending to this story provided by the Eighth Circuit panel's opinion.
June 27, 2014 at 04:17 PM | Permalink
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Comments
The amount of BS required to keep your own legally obtained money is truly extraordinary.
That the government does not need to prove its contentions beyond a reasonable doubt is a small step, but a definite step, towards tyranny. The last time I checked, thieving when either done by government or your typical everyday thieves is still considered stealing. Because of the use of a firearm, it should also be considered armed robbery.
Where are we going with these forfeiture laws? Where is the "intelligent" legal class? Oh Yeah, they can't see the forest for the trees because of obfuscating BS.
Posted by: albeed | Jun 27, 2014 5:46:22 PM
@abreed
"Where is the "intelligent" legal class?"
Oh, the intelligent legal class is alive and well. That 50K was returned to him via his lawyers who no doubt deducted a sizable sum along the way for their efforts both at trial and at the appellate level.
Posted by: Daniel | Jun 27, 2014 6:01:34 PM
Daniel:
Thanks for proving my point by ignoring any comment to the first sentence. As SC would say, that such "rent seeking" was even necessary speaks volumes. Maybe he is right all along?
Posted by: albeed | Jun 27, 2014 11:18:46 PM
The problem isn't rent seeking per se but self-dealing. I have no problem with people being paid an honest wage for honest work. The problem is that the "common law" is one of the great scams in human history, not to mention one of the great marketing ploys. In fact, there is nothing common about the common law considering that it is judge-made law and judges are by definition uncommon.
There is nothing in the legislative law that allows for a suit against money. That is an entirely judge made artifice, as is the presumption that people who carry around large amounts of money are up to no good. Suing money is our modern equivalent of suing pigs and goats for being the devil, a medieval artifice also made up by judges. Medieval culture was obsessed by sin as a portent of eschological gloom and our culture is obsessed by greed as a manifestation of earthly happiness. Same difference.
As we have seen time and time again self-dealing leads to abuses, of which rent seeking is one manifestation. Banning the common law would go a long way towards eliminating this self-dealing.
Posted by: Daniel | Jun 27, 2014 11:43:48 PM
The People need more tyrant’s blood •
Docile Jim Brady , Columbus OH
Posted by: Q ♥ | Jun 28, 2014 6:26:40 AM
"There is nothing in the legislative law that allows for a suit against money."
But see 18 U.S.C. 981, et seq.
Posted by: Jay | Jun 28, 2014 8:30:23 AM
Here in a nutshell is what's become of the legal system since Nixon and his henchmen went to work on it:
Cops/prosecutors acknowledge the boy's money was legally obtained yet fiercely fight to keep it. Judge has their back.
Any other way to see this than conclusive proof the police state is now fully operational?
Posted by: John K | Jun 28, 2014 9:39:24 AM
@Jay.
Yes. And to a certain degree it is understandable why the courts want to allow such suits. If the Executive unjustly takes a private person's money under Congressional authorization should the Judiciary just sit back and watch? In the short term it's easy to see why the individual person who had that happen to them would be delighted to have a chance to argue in court that they should get their money back if for no other reason than some chance is better than no chance. In other words, I'll accept for the sake of argument that judges wish to do Justice in a good hearted and well-meaning way and that if a person comes to them feeling wronged they have a natural inclination to hear the suit.
The problem is that history has shown that whatever the Judiciary's intention such a policy has many deleterious effects. Over time it has undermined our democracy and lead to an increasing reliance on authoritative structures. Further, trying to run a modern industrial country based upon case law is horribly inefficient. Some of the conservatives justices like to complain about the rise of the administrative state but one of the reason this administrative state has become such a behemoth is that our society has responded to increasing complexity by increasing complexity even further, of which the judiciary has been a prime culprit.
My own view is that political participation in this country is woeful and one of the major reasons for this is that as a result of the Civil War the practice of law has become the American version of "politics by other means." This cuckolding of the political process by the legal profession cannot end well. This isn't because the judiciary is filled with bad men...the problem is that it filled with human beings who like all human beings contain a degree of ego, selfishness, and self-dealing.
Phrased differently, the problems with American democracy needs to be solved by more democracy, not more law. Although the court of public opinion can be difficult to move, random in its whims, and sometimes operates like the proverbial bull in a china shop if one believes in democracy then public opinion expressed via the legislature should be the ultimate guide to a society's sense of justice.
Posted by: Daniel | Jun 28, 2014 1:22:43 PM
I am not under the impression the concerns John K cites suddenly arose c. 1969.
Posted by: Joe | Jun 28, 2014 2:12:45 PM
Forfeiture has become a BILLION dollar industry in this country...to see the hundreds of pages of property seized from citizens that the Federal Government has seized and hopes to keep, go to Forfeiture.gov. The Government obtains a seizure warrant...in most cases (but not against real property) begins an administrative action. If you have the nerve to file a claim to get your own property back, it becomes a judicial action---which can take YEARS to sort through. I had property seized from me in 2008! (It is nearing the SIX YEAR ANNIVERSARY of the seizure)--After nearly FIVE years of waiting, I finally did get a ruling from the district court....but it was entirely botched. (imagine getting a ruling that funds in YOUR checking account, clearly under YOUR name, at a bank just up the street from your house, that the court acknowledges are NOT proceeds of a crime are no longer yours because: a. "you have "too many" financial accounts b. you should have figured out that a check you deposited was criminal proceeds....but because you didn't, and those proceeds touched your other money...that other money will now go to the Government, AND depositing that check shows that someone ELSE controlled your checking account...not you (this despite the fact that the GOVERNMENT, at a hearing, put on no evidence or proof that anyone else had any control over your accounts or money...and you TESTIFIED that it was YOUR account and money! (again...the money you are losing is NOT proceeds of a crime!)
This is the insane world I have been living in for nearly six years...I am on appeal to the Circuit...and what does the Gov do? (yes, Due Process (complete lack of it!) is one of my arguments)---they have gotten THREE extensions to file a reply on the appeal....which I initially filed in February. AT this rate, I will not get a proper ruling on these assets until 2015! (I did get a small victory on a small portion of my money...but when I go to ask for interest on the money the Gov has had in its possession (AGAIN since 2008!) the Gov fights me on that! My sister, who prevailed on a piece of real property (again...fighting the Gov since 2008)---asked for her legal fees for prevailing...and what else?...the Gov is fighting HER too. The one thing the forfeiture laws allow is that "IF you substantially prevail, you may recover your legal fees"---(so Nelson should certainly ask for them)---but this is certainly no deterrent to the Gov...when the stats show that 80% of forfeitures go uncontested.
Posted by: folly | Jun 29, 2014 8:14:32 AM
Perhaps not, Joe...but that's about when the War on Drugs was declared. It's also roughly when the Sheriff of Nottingham approach to confiscation (policing for profit) re-emerged as the model for modern day lawmen.
After all, wasn't this 18-year-old's RV adventure in Nebraska just another story in Nixon's drug war?
Posted by: John K | Jun 29, 2014 8:26:29 AM
folly:
Interesting story. I am sure someone on the C&C blog would defend this system and say you deserved it. After all, it is the best system ever devised by dupas. It also helps pay for the continuation of this sad state of affairs.
I am waiting for the time when someone inadvertently deposits a counterfeit $20 bill into their $100,000 + IRA account and the gubermint claims it is all theirs because the account was tainted or contaminated. This WILL happen if we let it!
Posted by: albeed | Jun 29, 2014 9:11:15 AM
Albeed...your comment is exactly what is happening to me...I'm supposed to lose my money because it was "involved" in money laundering. It became "involved" because I UNKNOWINGLY deposited a "tainted" check into MY account. And here's the thing...I went through a Federal trial in 2011 where I was accused of money laundering (and conspiracy to commit money laundering)...and was acquitted by the jury of all charges! At trial, I was accused of using MY accounts to commit money laundering ..but now that I'm acquitted (more than 3 years ago...note!)---I'm now supposed to lose my money because I DIDN'T know about the (supposed) money laundering (I NOW supposedly was NOT controlling my accounts because I deposited the same tainted check! ...the Gov has gotten it "both ways"...I lose my assets if convicted, and I lose my assets if acquitted. The only "difference" is that I didn't go to prison.)
Right now I'm also losing a boat I bought (yes, I was criminally charged for buying a boat)...because I wrote a check to my spouse...and it was repaid with "proceeds" which I then used to pay for part of the boat (along with other money and a loan from a bank). So, even though A JURY found that I didn't know about the crime (knowledge of the crime is necessary for a conviction)the court found it was "not reasonable" for me to have NOT known that the repayment of the loan was from crime proceeds.
Ok...so after the Gov puts on a 3 week Federal trial (having every opportunity to convict me with as much evidence as they like)---and a jury says I didn't know about the crime...the court says I SHOULD have...and now I lose the entire boat? I own the boat...I put a chunk of my own money in....but the court didn't even Acknowledge these facts in the ruling. Instead, again, because I didn't "figure out" there was a crime going on (supposedly)---I pay by losing the whole boat ( It's been sitting in a boat yard for SIX YEARS!)
How can ANYONE be able to avoid having their assets seized by the Gov if the Gov is able to trace ANY criminal proceeds into your account, whether you innocently deposited or not? I mean, being acquitted by the jury of KNOWING doesn't seem to be of any help. The district's ruling would seem to support this proposition...(that the Gov may trace proceeds and then seize whatever account they land in the entirety)
This "involved in money laundering" theory is also an underlying problem in the recent Kaley Supreme Court decision involving forfeiture...after it appeared that Kaleys would have $ for their defense (from the CD secured by their home)---the Gov then re-indicts, saying that criminal proceeds went "into" the home...so any $ pulled OUT of the home is "involved" in money laundering...and IF eventually the Kaleys are convicted, the $ can be forfeited on this basis. The "involvement" theory can sweep up any assets that in any way come into "contact" with criminal proceeds...which again, is what has happened to me...even a jury says you didn't know.
Posted by: folly | Jun 29, 2014 1:54:44 PM
Just curious, folly. What was the potential "trial penalty" -- extra charges or other risks you faced as a consequence of defending yourself at trial instead of taking a deal?
Posted by: John K | Jun 29, 2014 4:57:57 PM
He is travelling through a state which probably does not tolerate pot possession. But he bought the small amount of pot in Colorado, a pot head state where its legal. The state conceded that the money was his and legally obtained. Case should be over right there. There should be no presumption that a sum of money is intended for use in buying pot. The government stole his money.
Posted by: Liberty1st | Jun 29, 2014 10:51:37 PM
Don't get me wrong, I'm glad the court rejected this on a factual matter (and rejected the idea that dishonesty alone can establish guilt - something I'm not sure every jurisdiction agrees with), but I almost wished they rejected the government's theory as a matter of law. It's one thing to take away the proceeds of an illegal transaction. After all, you shouldn't profit from a crime. But it's another to say that any amount of money remotely connected to a crime is suddenly fair game. Even at best, the money isn't at all tainted by any crime.
These widely flexible forfeiture laws have turned it into a for profit business designed to finance its own existence as opposed to serving some useful government objective.
Posted by: Erik M | Jun 30, 2014 10:32:42 AM
Eric:
"useful government objective" is an oxymoron! As far as the government is concerned, stealing is a useful objective.
Posted by: albeed | Jun 30, 2014 1:56:39 PM
An "independent government objective"? While it's easy to be cynical about government, it's never helpful to let them cynicism consume all debate on the subject. Otherwise, nothing could ever change.
Posted by: Erik M | Jun 30, 2014 3:41:28 PM
I think there maybe a generational affect in this. Forty years ago when I first started practicing law, all of the judges in my jurisdiction (50 to 60 years old) were resistant to any forfeiture petition. The legal principal underlying their decisions was "statutes in derogation of the common law will be strictly construed". And they did strictly construe them and dismissed 90% of all forfeiture petitions.
I point this out simply because judges can quickly dismiss forfeiture petitions like the one in this case and order the immediate return of the property. There is nothing stopping them from making detailed credibility assessments. If the prosecution doesn't like it, they can bear the transaction costs of a fruitless appeal. This is no different from a judge not considering acquitted conduct at sentencing. But they don't.
Posted by: Fred | Jul 3, 2014 10:10:48 AM
