Federal Appeals Court: Driving With Money is a Crime.
August 20, 2006 10:37 PM   Subscribe

Federal Appeals Court opinion "We respectfully disagree and reach a different conclusion... Possession of a large sum of cash is 'strong evidence' of a connection to drug activity." Even if no evidence of a drug related crime is provided, you are guilty until proven innocent. BTW, they wont return the money.
posted by IronWolve (103 comments total) 1 user marked this as a favorite

 
Seems like a rip.
posted by Meatbomb at 10:52 PM on August 20, 2006


Yes, and hopefully an appeal is underway.
posted by owhydididoit at 10:53 PM on August 20, 2006


Well, with the deficit like it is, it's about time they legalized robbery!
posted by Matt Oneiros at 10:56 PM on August 20, 2006


Eighth Circuit Appeals Court ruling says police may seize cash from motorists even in the absence of any evidence that a crime has been committed.

That's outrageous!

The trooper found a cooler containing $124,700 in cash, which he confiscated.


Associates of Gonzolez testified in court that they had pooled their life savings to purchase a refrigerated truck to start a produce business...

Yesterday the Eighth Circuit summarily dismissed Gonzolez's story. It overturned a lower court ruling that had found no evidence of drug activity, stating, "We respectfully disagree and reach a different conclusion... Possession of a large sum of cash is 'strong evidence' of a connection to drug activity."


That is insane! And so wrong!
posted by nickyskye at 10:58 PM on August 20, 2006


if you read the court opinion (linked at the bottom of that page)...the decision is somewhat more understandable. the guy's story is spotty at best, and in court, he still wouldn't/couldn't name some of the people to fill gaps. that's sketchy. and a "plausible" story is not the same as a convincing one.

that said: the statute in question requires a preponderance of evidence in order to confiscate these assets, and I really, really don't think they've got it. the dissenting opinion raises wayyyy too many points.

this will get appealed, but who knows if the supremes will grant certiorari. my hunch is no, sadly--it doesn't appear to raise a significantly new question of law, and judging by the other opinions cited, there's no circuit split here--this circuit is essentially following precedents (unfortunate as that may be.)

even if this guy isn't as pure as the driven snow, it still looks like he got hosed.
posted by theoddball at 10:59 PM on August 20, 2006


That seems like a horrible decision; I hope it's appealed. Also curious to see what, if anything, my fave legal bloggers will have to say about the majority's rationale. In the meantime, I went looking for quick info about the Eighth Circuit and found this:

The Eighth Circuit is the most Republican Court of Appeals in the nation, with 9 of its 11 active judges (82%) appointed by Republican Presidents...

The Eighth Circuit is also one of only two Courts of Appeals in the nation to have a majority of its judges appointed by a single President. George W. Bush has appointed 6 of the Court's 11 alloted judges since assuming office in 2001. All six appointees came in his first term.


Can't say I'm surprised at those tidbits.
posted by mediareport at 10:59 PM on August 20, 2006


"Protect and Serve" is now
"Generate Revenue and Destroy Liberties"
posted by IronWolve at 11:04 PM on August 20, 2006


"A trained drug sniffing dog barked at the rental car and the cash. For the police, this was all the evidence needed..."

Wow watching that testimony in court must have been fun!
posted by Mutant at 11:16 PM on August 20, 2006


Although the linked article and the FPP have excised rather important evidence to make a rather biased point, a reading of the actual decision leads me to believe that the decision is more a case of "kicking it upstairs".

Note that Gonzalez did not claim that any of the money was his, nor that he was on trial for any crime.
posted by mischief at 11:17 PM on August 20, 2006


A pile of cash could just as easily be evidence of being on one's way to Vegas to play high stakes poker, or evidence of having stored cash under one's mattress for decades. This is a bullshit ruling.
posted by solid-one-love at 11:17 PM on August 20, 2006


George W. Bush has appointed 6 of the Court's 11 alloted judges since assuming office in 2001.

Bingo.
posted by homunculus at 11:18 PM on August 20, 2006


And where is that magic word "intent"? Isn't hauling around large sums of cash, at most, evidence of distrust in the FDIC?

When they're passed on in exchange for drugs, doughnuts, or ugly ass souvenir spoons at Nebraska gift shops, then you got a crime.

From the PDF: "The court did observe that the explanations of the claimants were “plausible and consistent,” but this is different from a finding that the court actually believed the testimony."

We like you and we want to believe you. But we like your money more and I do believe we'll take it. Welcome to Neverland.
posted by hal9k at 11:27 PM on August 20, 2006


What I want to know is how $125,000 wrapped in foil got through the detectors on his initial flight to Chicago.
posted by mischief at 11:35 PM on August 20, 2006


On a somewhat tangential note, why is it "United States of America, v. $124,700, in U.S. Currency?" I've never seen anything like that (though IANAL). It would seem logical that any defendant in any legal case would have to be an individual, a group of individuals, or a business entity (which is represented by a person or persons). Guess not.

From the decision (PDF link):
The totality of these circumstances – the large amount of concealed currency, the strange travel pattern, the inability to identify a key party in the purported innocent transaction, the unusual rental car papers, the canine alert, and the false statements to law enforcement officers – leads most naturally to the inference that Gonzolez was involved in illegal drug activity, and that the currency was substantially connected to it.
This is one of the (many) things about asset forfeiture law that just kills me. I know the judges have to rule based on the law, but it's the law that I just can't stomach. Habeas corpus is satisfied because the money smells like drugs to a dog? Whether or not the guy lied about every single detail of his story seems irrelevant. There's no proof that a crime has been committed at all, beyond circumstantial evidence and speculation.

I'm wondering how often this kind of thing is going on in this country. I find it to be rather chilling.
posted by Brak at 11:52 PM on August 20, 2006


I'd have told them that I was the First National Bank of Gonzolez and offered them a free toaster for opening a checking account. Which way to the FDIC to get this shit insured, fellas?
posted by BitterOldPunk at 12:00 AM on August 21, 2006


"the large amount of concealed currency, the strange travel pattern, the inability to identify a key party in the purported innocent transaction, the unusual rental car papers, the canine alert, and the false statements to law enforcement officers – leads most naturally to the inference that Gonzolez was involved in illegal drug activity..."

Ever get the eeeery feeling Hunter S. Thompson is sending us a message?
posted by hal9k at 12:03 AM on August 21, 2006


Brak : "I'm wondering how often this kind of thing is going on in this country."

I dunno. I know that as long as I've been living overseas (10 years?) it's been policy that the US government can confiscate any money transfers in excess of $10,000 to the US for suspicion of drug/terrorist involvement, without being required to provide evidence for said suspicion. I dunno how often that happens, but it isn't a recent development.
posted by Bugbread at 12:11 AM on August 21, 2006


Gomez, Morgan and Gonzalez are claimants. Also, habeas corpus does not apply here, because no one was charged with a crime; it's a civil matter.

I agree, though, this law sucks. Hopefully this will be the case that nullifies it.
posted by mischief at 12:12 AM on August 21, 2006


A pile of cash could just as easily be evidence of being on one's way to Vegas to play high stakes poker.

No one in their right mind would carry $124K in cash to Vegas. Especially one with prior convictions.
posted by milnak at 12:14 AM on August 21, 2006


No one in their right mind would carry $124K in cash to Vegas.

Ever watch "High Stakes Poker" on GSN? Some of those guys don't live in Vegas, at least one is an ex-con, and they're carrying around bags with considerably more cash than this guy had.
posted by solid-one-love at 12:18 AM on August 21, 2006


milnak: I guess you did not know that Vegas is a major distribution hub for illicit drugs from Tijuana to the Midwest.
posted by mischief at 12:19 AM on August 21, 2006


Mischief, not that it matters, but the PDF says $40k was Gonzolez's.

140 $100 bills, 999 $50 bills, 2,932 $20 bills, 208 $10 bills and six $5 bills (From)

Yup, that's how most people stash cash when they don't have a bank account... 50's and 20's wrapped in foil, in plastic bags. And if I were gonna buy a $120,000 truck, I'd make the guy selling me the truck count 3000 $20 bills, and 1000 $50 bill, too. (I'd tell him it was a practical joke, then laugh really, really loud.) My bet's solidly on drug money. That said, though, I don't think the government proved its case for forfeiture.
posted by CodeBaloo at 12:20 AM on August 21, 2006


Yeah, I caught that about 5 minutes ago. I personally would have bought a cashiers check.
posted by mischief at 12:24 AM on August 21, 2006


Here's one little question I have regarding this: how is it justified for the government to seize your assets under the assumption that it was acquired criminally if you haven't been accused of any crime?

I guess this is just a way of getting around that whole burden of proof thing.

"Innocent until proven guilty, but we will take all your fucking money."
posted by [expletive deleted] at 12:26 AM on August 21, 2006


A trained drug sniffing dog barked at the rental car and the cash.



Most $1 bills have traces of cocaine, research finds
posted by oncogenesis at 12:27 AM on August 21, 2006


X Deleted: Yeah, I was always under the assumption that these forfeitures were secondary to a drug conviction.
posted by CodeBaloo at 12:30 AM on August 21, 2006


Oncogenesis: The canine alerted to Gonzo's cash, but not control cash.
posted by CodeBaloo at 12:31 AM on August 21, 2006


I know of several people who've carried around this much cash briefly for legit reasons and I'm not exactly a high roller. People or businesses with bad credit who needed to make large purchases. That's why it's cash

I guess it would have been OK if it was gold bullion?
posted by fshgrl at 12:33 AM on August 21, 2006


People or businesses with poor credit can still buy a cashiers check.

I doubt these guys would have had this problem if they had just identified the guy who was selling the truck. That's a MAJOR hole in their story.
posted by mischief at 12:45 AM on August 21, 2006


People or businesses with poor credit can still buy a cashiers check.

For now. At least until purchasing a cashiers check over a certain dollar amount becomes a pretext for forfeiture.
posted by Blazecock Pileon at 12:56 AM on August 21, 2006


Why would that happen, Blazecock? Buying a cashiers check for that amount is already a reportable transaction.
posted by mischief at 1:05 AM on August 21, 2006


People or businesses with poor credit can still buy a cashiers check.

And if they don't they should have their cash stolen by the government?

Look it's pretty obvious this guy's story is probably fishy, but this is America. Innocent till proven guilty is a good thing; it's part of what makes justice just, without that it's just armed thugs with badges. A little bit of drug money going unconfiscated isn't worth destroying that trust.
posted by aspo at 1:12 AM on August 21, 2006


This is simply legalised theft. It's as simple as that.
posted by kaemaril at 1:13 AM on August 21, 2006


As I said, this law sucks.

Regardless, flying across the country and then driving back with that kind of money is stupid, especially if their business was legitimate. It doesn't take a law degree nor even a high school diploma to know that local police and the feds are going to cast a suspicious eye at $125K wrapped in tin foil.

People doing stupid shit = the government doing stupid shit.
posted by mischief at 1:20 AM on August 21, 2006


Where the hell is dios when I need an actual lawyer's opinion? On the surface this seems to be on the take-to-the-streets-with-torches-and-pitchforks level of outrages. But I imagine dios or monju might have a semi-reasonable explanation for this that makes it seem at least slightly less insane.
posted by Ryvar at 1:36 AM on August 21, 2006


IANAL, so perhaps this is a silly question, but how can the government act as a plaintiff in a civil case?
posted by clockzero at 2:11 AM on August 21, 2006


CAFRA has, for all intents and purposes, corrected this unfair advantage and now imposes upon the government the burden of proving, by a preponderance of evidence, that the property should be forfeited. Congressman Hyde and other members of Congress were actually pushing for a much more stringent burden of proof, that is, by "clear and convincing evidence", however, this effort fell victim to compromise.
Prior to the Civil Asset Forfeiture Reform Act of 2000 (introduced by Henry Hyde (R)), the federal government did not even have to meet 'preponderence of evidence'.

President Clinton (D) opposed this reform and supported instead a bill that would have lowered the burden of proof, making civil forfeitures easier not more difficult.

Civil forfeiture has a long and interesting history (for those interested in a little research).
posted by mischief at 2:31 AM on August 21, 2006


I'd imagine there is more to this case than we can see from the ruling. For example, it may not hold up legally, but personally, I'd be curious to find out if the claimants looked generally more like this guy or this guy; or driving this Taurus, or this one.
posted by CodeBaloo at 2:47 AM on August 21, 2006


An illuminating paragraph from an old reason.com article:
Under civil asset forfeiture law, inanimate objects are accused of wrongdoing -- regardless of whether the object's owner is blameworthy in any way. Most of the protections afforded to defendants under criminal law, such as the right to counsel, the presumption of innocence, and the requirement of proof beyond a reasonable doubt, do not apply in forfeiture cases. According to one analysis, 80 percent of people whose property is seized under federal law are never even charged with a crime.

This is getting more and more interesting.
posted by CodeBaloo at 3:01 AM on August 21, 2006


By acting civilly, the government seeks to remedy a harm, through the fiction of the property's "guilt."

Heh, "acting civilly". Cornell Law background on forfeiture.
posted by mischief at 3:14 AM on August 21, 2006


The cops let him live. He should be grateful.
posted by dansdata at 3:51 AM on August 21, 2006


bugbread wrote: I know that as long as I've been living overseas (10 years?) it's been policy that the US government can confiscate any money transfers in excess of $10,000 to the US for suspicion of drug/terrorist involvement, without being required to provide evidence for said suspicion.

Cite? A $10k limit on international wire transfers is completely insane. How would one immigrate to the US? Gold bullion in your carry on luggage?

For comparison, my bank limits domestic ACH transfers to $100k per day. I've always assumed wire transfers were limited only by available funds.
posted by ryanrs at 3:54 AM on August 21, 2006


CAN confiscate, ryan, not WILL confiscate.
posted by mischief at 4:09 AM on August 21, 2006


Oh. Then I suppose it follows that $9k transfers CAN'T be confiscated, right?
posted by ryanrs at 4:14 AM on August 21, 2006


ryanrs : "Cite? A $10k limit on international wire transfers is completely insane. How would one immigrate to the US? Gold bullion in your carry on luggage?"

The closest I can get to a cite is this, which basically indicates that $10,000 is the limit at which banks have to report the transfer to the federal government. It may be the case that, basically, the same structure is in place as in this case: that pretty much any amount can be confiscated if suspected by the government as being involved in money laundering/terrorism/drug smuggling, even if there is no evidence of those. If amounts under $10,000 are unreported, then it's possible (though my understanding was then inaccurate) that, while legally any amount can be confiscated, realistically amounts over $10,000 are the only ones which the government will know of, hence it's the effective cutoff point at which the government can confiscate the money. So, legally, perhaps even $1 would qualify, but the government wouldn't know of anything under $10,000, hence practically $10,000 is the cutoff point.

Also, I think you've misinterpreted me. I'm not saying there's a limit of $10,000, merely that that's the cutoff point at which confiscation may occur. Confiscation isn't legally required by any means, just justified if, for whatever reason, they decide to do so. This is why I said "I dunno how often it happens", because it certainly isn't automatic or at all frequent.
posted by Bugbread at 4:16 AM on August 21, 2006


ryanrs : "Oh. Then I suppose it follows that $9k transfers CAN'T be confiscated, right?"

Sorry, I was typing that while you wrote your question.

My guess (guess only) is that $9K can be confiscated, but wouldn't be, because the government would never know about it.

I'm obviously not speaking from a point of authority, here. I probably should have phrased my first comment as "I believe that as long as I've been living overseas (10 years?) it's been policy that the US government can confiscate any money transfers in excess of $10,000 to the US for suspicion of drug/terrorist involvement, without being required to provide evidence for said suspicion. I dunno how often that happens, but as far as I know it isn't a recent development." Bad phrasing on my part.
posted by Bugbread at 4:19 AM on August 21, 2006


Hasn't it been this way for quite a while?

Mefite localroger wrote a series of essays about being a card count for a long time. The drug war basically brought an end to that. Now any time you won big money you had to fill out a tax form with your name (so the casinos had to know who you were, before you could play anonymously) and not only that, they kept getting their winnings confiscated by the police.
posted by delmoi at 4:20 AM on August 21, 2006


Habeas corpus is satisfied because the money smells like drugs to a dog?

No no, habeas corpus is satisfied because money doesn't have rights. You pointed out that the case was against the money itself, which doesn't have the same rights as a human.
posted by delmoi at 4:25 AM on August 21, 2006


delmoi : "Hasn't it been this way for quite a while?"

If what I'm thinking about (the $10,000 thing) is the way I think, then according to Wikipedia, it's been that way since 1970. Of course, the 1970 part is just the "must report all transfers of over $10,000 to the government" part, dunno if the "can be freely confiscated" part has been that way the whole time or not.
posted by Bugbread at 4:25 AM on August 21, 2006


For any lawyers in the house--does this case apply at all? It seems to rest on the "excessive fines" portion of the Eighth Amendment, and I think you could certainly make a case that the fine in Mr. Gonzolez's case was excessive.
posted by EarBucket at 4:27 AM on August 21, 2006


President Clinton (D) opposed this reform and supported instead a bill that would have lowered the burden of proof, making civil forfeitures easier not more difficult.

God, Clinton was absolutely terrible with respect to civil liberties. In terms of civil liberties de jure anyway. Bush just breaks the law, rather then changing it.
posted by delmoi at 4:33 AM on August 21, 2006


Yet another reason to avoid travel to the US AFAIC.
posted by clevershark at 4:35 AM on August 21, 2006


I worked in a bank (briefly) and just want to clarify something. Banks have to report transactions over 10,000 dollars, but they also have to report things like a guy who makes a $5000 transaction in cash every day for a week, or a guy who makes a $9999.99 transaction - since these also count as "suspicious" transactions.
Anything that looks like an attempt to get around reporting has to be reported.
posted by bashos_frog at 4:35 AM on August 21, 2006


Earbucket:

Not a lawyer, but no. In the case you're looking at, the court looked at the monies extracted as a fine to be paid for not reporting monies that were uncontested as being legally gained, but not properly reported as the person was leaving the country. In the case here, if the money is due to drug activity, then it was entirely illegal profit in the first place.
posted by parliboy at 4:38 AM on August 21, 2006


bugbread, it sounds like large transfers just need more documentation. Which is reasonable.

Note that the wikipedia article you referenced pertains to domestic currency transactions (ie. cash deposits). The table lists some other countries that have similar cash reporting regulations.
posted by ryanrs at 4:45 AM on August 21, 2006


bashos_frog, the reporting requirements only apply to cash transactions, correct?
posted by ryanrs at 4:47 AM on August 21, 2006


I'd imagine there is more to this case than we can see from the ruling. For example, it may not hold up legally, but personally, I'd be curious to find out if the claimants looked generally more like this guy or this guy; or driving this Taurus, or this one.

I understand the curiosity but we've already surmised the intent of the defendant solely by color*.

Personally, I find the groovy shades on that ol' justice-is-blind statue quite fetching. We're lucky they're not adding earplugs and a ball gag.

* green, actually, as in United States of America, v. $124,700, in U.S. Currency
posted by hal9k at 4:48 AM on August 21, 2006


Most $1 bills have traces of cocaine, research finds

A point raised by a Supreme Court decision that was quoted in the dissent here.
posted by mediareport at 4:56 AM on August 21, 2006


What I want to know is how $125,000 wrapped in foil got through the detectors on his initial flight to Chicago.

You can carry more than $10,000 in cash or "cash instruments", but you have to declare it. Failure to do so can result in confiscation of the money.

The reason for this was tracking cash leaving the country, for tax purposes. The War on Some Drugs aspect came later.

However, all you have to do is declare it.

Clinton was absolutely terrible with respect to civil liberties.

Maybe for the first 42 Presidents. But I'd trade Shrub for Clinton any day. Clinton at least gives you access to the courts.

I suspect this ruling will stand, and possession of large sums of money (large being determined by the officer, of course) will become de facto illegal. The current administration would much rather you use trackable forms of payment, so they certainly won't fight the ruling.

The canine alerted to Gonzo's cash, but not control cash.

Wait, what is this control cash? Did they take a random sample of the local cash and test it? Or are they keeping some nice new money in a clean room and letting a dog sniff this.

If the control cash is treated in any special manner, it isn't the control, it is the experiment.
posted by eriko at 5:18 AM on August 21, 2006


hal9k - Agreed, but note I referred to the claimants not the defendants.
posted by CodeBaloo at 5:41 AM on August 21, 2006


Austin v. United States has a good legal and historical overview of civil asset forfeiture.

Without knowing more about this, it seems like the best chance for cert here would be on the Eighth Amendment question, or maybe on the interpretation of the 2000 Civil Asset Forfeiture Reform Act. There's nothing in the opinion itself that indicates a circuit split, though.

The most outrageous aspect of the Eighth Circuit's opinion is how it reversed the district court's finding on credibility simply because it used the word "plausible" rather than "believe":

"The district court’s opinion includes no finding as to the credibility of Gonzolez and the other two claimants. The court did observe that the explanations of the claimants were “plausible and consistent,” but this is different from a finding that the court actually believed the testimony. “Plausible” means “apparently acceptable or trustworthy (sometimes with the implication of mere appearance),” see
Shorter Oxford English Dictionary 2238 (5th ed. 2002), and we thus read the district court’s opinion to hold that given a “plausible and consistent” explanation from the claimants on one side of the balance, the government’s countervailing proof was not strong enough to meet its burden of showing a substantial connection by a preponderance of the evidence."
posted by footnote at 6:07 AM on August 21, 2006


I always check the comments on these threads (as well as threads on dodgy-sounding medical or scientific issues) because MeFi is one of the places where you really do get Linus's Law to work properly; there is usually an expert MeFier who can answer questions of fact.

I have already seen a banker weigh in (thanks bashos_frog!) but haven't yet clearly seen the opinion from a lawyer or two -- anyone care to self identify, so that I can figure out the experts from the opinionated?
posted by blahblahblah at 6:23 AM on August 21, 2006


You can carry more than $10,000 in cash or "cash instruments", but you have to declare it. Failure to do so can result in confiscation of the money.

I'm almost positive that restriction only applies to customs declarations, not domestic travel.
posted by justkevin at 6:26 AM on August 21, 2006


Most $1 bills have traces of cocaine, research finds

You can't snort coke through a $1 bill!
posted by ryanrs at 7:04 AM on August 21, 2006


The "War on Drugs" was (is) the "War on Terra" version 1.0, in which we learned that the police are always right, individual citizens have no rights that might be inconvenient for the state, alleged thought crimes are adequate to get you denied due process, mere association with a person or persons suspected of a "crime" makes you a conspirator, persons of a certain ethinicity are adjudged guilty until proven innocent, and defendants are preemptively stripped of assets necessary to mount a defense. We were numbed to this for 20 years because they mostly went after poor people and people of color and because we were told -- nay propagandized -- about how drugs were a terrible scourge on our society, and in the meantime the police-state infrastructure came to rely on the collection of revenues through asset forfeiture.

Welcome to America 2.0: The Police State (requires a pentium processor and at least 512MB of RAM to play).

It is, seriously, time to form an underground resistance movement. An armed one.
posted by fourcheesemac at 7:14 AM on August 21, 2006


To clarify, $10k is the amount that gets reported to the IRS, and as someone noted, it's the amount the govt could confiscate. You have to figure that there are literally thousands of over-$10k transactions wired into the US on a daily basis.

And I would wager that the number of individuals who keep over $10,000 in currency at their homes on a regular basis and that aren't involved in some black market is in the very low single digit percentage of the population. And most of those people are rich.

From the PDF: "The court did observe that the explanations of the claimants were “plausible and consistent,” but this is different from a finding that the court actually believed the testimony."

We like you and we want to believe you. But we like your money more and I do believe we'll take it. Welcome to Neverland.
posted by hal9k at 2:27 AM EST on August 21 [+] [!]


Please read the f'ing link people. The cops asked him if he had large amounts of cash in the car and he lied. The "control" cash was cash borrowed from other troopers, i.e. regular money in regular circulation.

He's fron Nevada, driving a rental car on behalf of someone else, but neither of them are on the rental agreement.

It's just stupid to drive around with this much cash, and the presence of it in a rental car not rented by the driver or the guy he claims to be driving it for and after lying to the cop about it implies some shady business. Don't forget we are hearing about this case after the defendant put on his best defense. Home many people drive rental cars three or more people removed from the renter on one-way trips across half of North America? If he had a legitimate use for $127k, it should have been easy enough to prove - where's the guy who was going to sell him the truck, where's the paper trail or phone records trail showing that it was negotiated? Where's evidence of the truck itself?

The story is "plausible" because it is conceivable that it could be true. It is possible that people pool money together from friends and family to buy a refrigerated truck and start a business. But plausible stories have to check out. Most lies people tell are plausible.

It's innocent until proven guilty, but if you want to improve your chances of winning, you might want to put on a defense better than the hearsay testimony of a bunch of your friends and relatives. Duh.

And, as an aside, this has to be the stupidest way to move that much cash across the country. Sometimes criminals are criminals because they are too stupid to make money legitimately.
posted by Pastabagel at 7:29 AM on August 21, 2006


Lawyer here.

The basic idea is the established legal fiction that the government is taking civil action against the bad thing itself, in this case the "tainted" drug money, but it could just as easily be a crack house, poppy field, or smuggler vehicle, in order to protect the public from that thing, and not against the person who has the bad thing. Thus, to address Brak's question, the name of the case is United States of America, v. $124,700, in U.S. Currency.

Since, by this fiction, it's a civil action against a thing and not a criminal action against a person, the ordinary protections for a criminal defendant, i.e., the right against excessive fines, the government's obligation to prove its case beyond a reasonable doubt as opposed to a preponderance of the evidence, etc., don't come into play. The unfortunate result, then, is that, armed with this fiction, the government can extract more from a person -- and more easily -- than it could in a criminal context.

The reason this fiction provokes such a negative gut reaction is that most people understand intuitively that, when it comes to money especially, the effect of causing a person to forfeit the "bad" thing to the government is functionally identical to causing a person to pay a fine in a criminal context.
posted by Toecutter at 7:34 AM on August 21, 2006


It's just stupid to drive around with this much cash, and the presence of it in a rental car not rented by the driver or the guy he claims to be driving it for and after lying to the cop about it implies some shady business.

A lot of things are just stupid, including things many Americans do every day. A lot of things "imply" shady business. Being stupid is not a crime. The point of a doctrine of probable cause is that we don't deal in subjective "implications" as a basis for criminal prosecution.
posted by fourcheesemac at 7:40 AM on August 21, 2006


we were told -- nay propagandized -- about how drugs were a terrible scourge on our society, and in the meantime the police-state infrastructure came to rely on the collection of revenues through asset forfeiture.

They are a scourge. Go to any city ER at night and count how many people come in with drug related injuries, OD's, etc.

On the other hand, we could legalize them all and tax the hell out of them. That'd be nice, because then I could buy stock in Philip Morris or whoever would sell all those legit drugs. And as a non-drug user, I'd reap all the benefits of a govt. flush with drug-tax cash balancing it's budget reinvesting in infrastructure, healthcare, etc.

But then everyone would advocating suing those companies for knowingly selling dangerous products. Because, surprise! Drugs actually are bad for you.
posted by Pastabagel at 7:40 AM on August 21, 2006


Brak writes "On a somewhat tangential note, why is it 'United States of America, v. $124,700, in U.S. Currency?'"

Because it is the money that is being sued. Gonzolez committed no crime, his money did. If you think that's fucked up, your right.

CodeBaloo writes "And if I were gonna buy a $120,000 truck, I'd make the guy selling me the truck count 3000 $20 bills, and 1000 $50 bill, too. (I'd tell him it was a practical joke, then laugh really, really loud.) My bet's solidly on drug money."

10 years ago I bought a house for $65K. The vendor, for whatever reason, insisted on cash. It took me over two weeks to acculmulate the money from my bank, in hundreds, fifties, and twenties (even then $1000 bills were fairly rare, I could only get three). Apparently most banks don't have that kind of cash on hand anymore. Counting it out for the final transaction made for very impressive display on my kitchen table. I so wish I'd taken a picture as I'm unlikely to ever have that kind of cash ever again.

[expletive deleted] writes "how is it justified for the government to seize your assets under the assumption that it was acquired criminally if you haven't been accused of any crime?"

Because the property committed a crime, in this case by getting toegether with 125 thousand of his buddies.
posted by Mitheral at 7:42 AM on August 21, 2006


Toecutter -- the Eight Amendment prohibition against excessive fines may apply -- US v. Austin, 509 U.S. 602 (1993). The Sixth Amendment right to counsel probably doesn't, but federal law does provide a right to counsel for some claimants.
posted by footnote at 7:45 AM on August 21, 2006


if you read the court opinion (linked at the bottom of that page)...the decision is somewhat more understandable.
posted by theoddball at 12:59 AM CST on August 21


Oh, come on. This is Metafilter. You can't expect that. We like to kvetch about legal opinions based on one line summaries as if they are the end of civilization. Reading it or trying to understand the law takes all the fun out of that.
posted by dios at 7:47 AM on August 21, 2006


dios, have you even read the thread? Most of the comments are genuine efforts to understand or explain the opinion.
posted by brain_drain at 7:57 AM on August 21, 2006


Here's a question for fellow lawyers: U.S. v. Austin says to apply the 8th Amendment proportionality test to weigh whether a forfeiture is unconstitutional. How can you do this if there is no underlying criminal conviction, as here? Anyone know any cases?
posted by footnote at 8:00 AM on August 21, 2006


A lot of things are just stupid, including things many Americans do every day. A lot of things "imply" shady business. Being stupid is not a crime. The point of a doctrine of probable cause is that we don't deal in subjective "implications" as a basis for criminal prosecution.

The defendant lied to the cop about the previous DUI and the money. And then he consented to the search that proved he was lying. There's probable cause, maybe not for an arrest for drug trafficking, but maybe for stelaing a car, stealing the money, any number of other things.

Jesus, read the decision. The defendant said that he lied about the money because he thought carrying that much cash around was illegal. By his own admission, he thought he was breaking the law and wanted to conceal his law-breaking from the cop.

The dissent is more interesting because it focuses on whether there is enough evidence of a controlled susbstance offense. In theory, the defendant could have been involved in human trafficking or industrial espionage. The easy defense then is for the defendant to admit to some non-drug crime to keep them money, but of course then he goes to prison for the other thing.
posted by Pastabagel at 8:02 AM on August 21, 2006


Where the hell is dios when I need an actual lawyer's opinion? On the surface this seems to be on the take-to-the-streets-with-torches-and-pitchforks level of outrages. But I imagine dios or monju might have a semi-reasonable explanation for this that makes it seem at least slightly less insane.
posted by Ryvar at 3:36 AM CST on August 21


Well, whether this is reasonable depends on your view of the law--that is, the statute. If you find it is reasonable for the government to seize as forfeiture monies which were related to drug activity, then this opinion can be seen as reasonable (even if it is incorrect). If you find such action by the government inherently unreasonable, then you surely find this opinion so.

Assuming you accept the seizure of funds related to drug activity, the question then becomes whether this was a proper application of the law. It is arguable (there is a dissent) that the law was properly applied here. And if it is improperly applied, there is still further review (and you can't ignore that the case was remanded). But whether it was properly applied depends on whether you accept the following views: taking together in a totality of circumstances, large sums of money, suspiciously carried by people with criminal background who lie to cops is some evidence that there may be a violation of the statute. The difference here is whether that is just "some evidence" like the dissent finds or *enough* evidence like the majority finds. The majority opinion suggests that it is sufficient to show a prima facie case by a preponderence of the evidence. They reached that by weighing the facts against the reasonableness of his explanation.

In a case like this, the evidence is outcome-determinative. All of the odds parts of his stories led to a conclusion. But here is the thing: in cases so heavily dependent on the facts, the opinion itself is not stong precedent. That is, this isn't establishing law for the rest of time. It's just a ruling in this case. And it may be wrong. But given the imperfectability of man and the best efforts our legal system, in the long run, I find it very hard to get upset about this one case based on this one opinion.
posted by dios at 8:09 AM on August 21, 2006


Sorry for typos. Typing fast and not proofreading is my bad habit.
posted by dios at 8:10 AM on August 21, 2006


Dios - The reason this case is upsetting is because it is so highly fact dependant, but the appeals court nevertheless did not properly defer to the trial court. Instead, it looked at the evidence de novo because the trial court failed to state the magic words "I believe the claimant."
posted by footnote at 8:12 AM on August 21, 2006


Me, I don't think these asset forfeiture laws go far enough.

Why don't we just declare cash itself illegal? Let's face it, if you can pay for a McDonald's meal with a debit card, there's no longer any need to pay for things in cash. If you're using cash, you must be trying to buy dope, duck taxes, buy from a vendor on the street, or something equally shady and unAmurrican.

Every financial transaction should be electronic and trackable.
posted by jason's_planet at 8:42 AM on August 21, 2006


Ironically enough, I just got out of my first law school class. *sigh*

Anyway, off to torts.
posted by craven_morhead at 9:01 AM on August 21, 2006


Why don't we just declare cash itself illegal?

This will never happen, the economy cannot sustain the loss of its various cash-only industries.

However, carrying cash can be made illegal and then enforced as selectively as one likes.
posted by sonofsamiam at 9:06 AM on August 21, 2006


Why don't we just declare cash itself illegal?

How would corporations pay migrant workers under the table?
posted by Blazecock Pileon at 9:14 AM on August 21, 2006


Scrip redeemable at the company store.
posted by ryanrs at 9:28 AM on August 21, 2006


Pastabagel: The defendant lied to the cop about the previous DUI and the money. And then he consented to the search that proved he was lying. There's probable cause, maybe not for an arrest for drug trafficking, but maybe for stelaing a car, stealing the money, any number of other things.

Jesus, read the decision. The defendant said that he lied about the money because he thought carrying that much cash around was illegal. By his own admission, he thought he was breaking the law and wanted to conceal his law-breaking from the cop.

So? They have zero evidence that ties this money to drugs or another crime. There is no actual reason to take the money other than an authoritarian, unconstitutional statute that claims vauge suspicion as 'legally' actionable evidence. The statute is simply to get around rights of the accused.
posted by spaltavian at 10:23 AM on August 21, 2006


They have zero evidence that ties this money to drugs or another crime


You're forgetting the presence of the money itself! The prosecution rests, your honor.
posted by sonofsamiam at 10:28 AM on August 21, 2006


They don't have zero evidence -- they have circumstantial evidence and (very questionable) direct evidence from the drug-sniffing dog.
posted by footnote at 10:28 AM on August 21, 2006


But given the imperfectability of man and the best efforts our legal system, in the long run, I find it very hard to get upset about this one case based on this one opinion.

i don't find it hard at all ... it's a clear abuse of power, whatever the legalities may be

if this kind of thing goes far enough, we won't have any choice but to get ourselves another government
posted by pyramid termite at 10:29 AM on August 21, 2006


i don't find it hard at all ... it's a clear abuse of power, whatever the legalities may be

Careful, you'll upset the lawyers with that kind of talk.
posted by Blazecock Pileon at 10:36 AM on August 21, 2006


Thanks for the clarification, Footnote -- I was writing off the top of my head from first year Civil Procedure :) so my comment was a pretty rough outline.

Anyway, my basic objection to the civil forfeiture regimen still stands: the legal fiction that the action is against the bad thing and not the person results in absurdity. Here's how:

Suppose John is growing pot on land he owns. If that land is a bad thing and subject to civil forfeiture without regard to the separate issue of John's criminal liability, then it remains a bad thing if John sells the land and pot patch to Bill -- even if Bill didn't know about the pot because, to keep logically consistent, the forfeiture is about the bad thing, not about the owner's culpability.

Now this may be defensible to some to eradicate a crop of weed (a sad waste if you ask me) or tear down a crack house. Fine. But apply this reasoning to money and the absurdity becomes more apparent. If the money is the bad thing, it should stay the bad thing even after the person spends it. And after the next person spends it -- because it's about the "badness" of the money not the spender.

I read somewhere that some huge percentage of American money has traces of cocaine on it. Well, by the logic of the forfeiture statutes, it's all snatchable.

Now don't get me wrong, I'm not saying that the statutes actually say that forfeiture applies to everything however far downstream from the actual drug trade. As the citations in this thread indicate, there's a fairly mature body of case law outlining the contours of what is and is not subject to forfeiture -- various caveats and this and that. But the whole forfeiture regimen relies on a legal fiction that if taken to it's logical conclusion results, as I said, in absurdity.

Civil forfeiture is really a way for the government to have it's cake and eat it too. It's a way to punish perceived wrong doers without having to jump through all the procedural hoops that a criminal case requires. And therefore it's wrong in my opinion, regardless of the outcome of this particular case.
posted by Toecutter at 11:10 AM on August 21, 2006


Because, surprise! Drugs actually are bad for you.

Yes, and all use = abuse!

I've a got a great idea. Let's declare "war" on all the things that are bad for usyou, because you are obviously are not smart or mature enought to take responsibility for your own decisions.

Twinkies? Banned! TV? Banned! Voting? Banned!
posted by oncogenesis at 11:28 AM on August 21, 2006


They have zero evidence that ties this money to drugs or another crime. There is no actual reason to take the money other than an authoritarian, unconstitutional statute that claims vauge suspicion as 'legally' actionable evidence. The statute is simply to get around rights of the accused.
posted by spaltavian at 1:23 PM EST on August 21 [+] [!]


Well, as footnote noted, they have some evidence. But more to the point, there is no accused here that has any rights. The def. wasn't charged with anything. So who is the accused?

Civil forfeiture is really a way for the government to have it's cake and eat it too. It's a way to punish perceived wrong doers without having to jump through all the procedural hoops that a criminal case requires. And therefore it's wrong in my opinion, regardless of the outcome of this particular case.

I understand this point, the problem is that without this law, drug trafficking gets a loophole. The perceived wrongdoer in this case probably isn't the defendant, because if he was conducting a drug transaction, the money probably belongs to someone else. So without this statute, all drug traffickers would have to do would be to conduct their business and then hire couriers to shuttle money around who have no personal knowledge of the deal.

The law let's the govt. get the money even if the courier didn't break the law (and he gets to go free after all). Hell, without this law, they could just use FedEx.
posted by Pastabagel at 12:07 PM on August 21, 2006


drug trafficking gets a loophole.

What is the "loophole"?
posted by sonofsamiam at 12:22 PM on August 21, 2006


"The 12-year civil war [in el Salvador] claimed the lives of 75000 people"

12 years = 144 months.

75000 / 144 = approx. 520 deaths per month.

Civilian deaths due to violence in Iraq, in June: 3,149. In July: 3,438. Average over both months: 3294.


But Iraq has more people that El Salvador, right?

El Salvador's population at the end of the civil war (1992 census figure): 5,118,599.

Iraq's population in 2006, according to the CIA: 26,074,906.


Average deaths per one thousand people per month in June and July in Iraq: ( (3,149 + 3,438 ) / 2 ) / ( 26,074,906 / 1,000 )
= 0.13

Average deaths per one thousand people per month in El Salvador's civil war: ( 75,000 / 144 ) / ( 5,118,599 / 1,000 )
= 0.10


So clearly, as long as 0.10 is greater than 0.13, no civil war in Iraq!

El Salvador: civil war.

Iraq: last throes of dead-ender foreign terrorists.
posted by orthogonality at 12:56 PM on August 21, 2006


Eh, wrong thread.
posted by orthogonality at 1:00 PM on August 21, 2006


I think I'd rather have the loophole for drug traffickers than allow even one person to have their property or valuables confiscated without a criminal conviction.
posted by bz at 1:45 PM on August 21, 2006


Also, I wonder: Had he instead been found with $125K in bearer instruments other than cash would they too have been confiscated?
posted by bz at 1:46 PM on August 21, 2006


Are taxes theft?

Maybe this is a tax on a very specific kind of stupidity: that of hauling the big cash bucks around without excellent documentation.

Hmmm.

Nope, it's theft. I mean, shit, there should be at least some evidence that this was illegally obtained. How hard would it be to prove the guys were dealers, or growers, or lackeys for same? Surely the "bad guys" have actual connections to bad things.
posted by five fresh fish at 1:54 PM on August 21, 2006


Eh, wrong thread.

I think my brain is running out one of my ears now.
posted by oaf at 3:27 PM on August 21, 2006


oncogenesis writes "Yes, and all use = abuse!

"I've a got a great idea. Let's declare 'war' on all the things that are bad for usyou, because you are obviously are not smart or mature enought to take responsibility for your own decisions."


Er, you do realize that the person you quoted there supports legalization of drugs, right? You did actually read what he wrote, right?

Pastabagel writes "I understand this point, the problem is that without this law, drug trafficking gets a loophole."

I understand this point, the problem is that with this law, money gets taken without establishing that it's related to drug trafficking, which means people (see, for example, delmoi's link) who aren't trafficking drugs can and have had their money seized by the government despite doing no wrong.
posted by Bugbread at 3:33 PM on August 21, 2006


Geez, how could the judge fail to recognize that large amounts of cash on hand are also a sure sign of participation in legitimate political activity.

Just one example, Google's got plenty of them:

http://www.vpap.org/donors/pac_onhand.cfm
posted by hank at 4:31 PM on August 21, 2006


I think my brain is running out one of my ears now.

Sorry about that.
posted by brain_drain at 4:42 PM on August 21, 2006


But more to the point, there is no accused here that has any rights. The def. wasn't charged with anything. So who is the accused?

Yeah, that's the point. This statute is a way to get around the rights of the accused- they are paying a huge civil fine without there being probable cause, due process or fair trial- by claiming that they are 'confiscating' money tied to illegal activities.

When questioned what evidence they have to suspend someone's rights they turn around and do exactly what you did- "we don't need evidence because they aren't punishing anyone".

I understand this point, the problem is that without this law, drug trafficking gets a loophole. The perceived wrongdoer in this case probably isn't the defendant, because if he was conducting a drug transaction, the money probably belongs to someone else. So without this statute, all drug traffickers would have to do would be to conduct their business and then hire couriers to shuttle money around who have no personal knowledge of the deal.

Poor cops, their jobs are hard! Let's make a law that lets them skip all that tricky due process!
posted by spaltavian at 6:44 PM on August 21, 2006


I want to know, if they're suing the money itself, who defends it? Does the money get a court-appointed lawyer? Who will speak for the money, when it obviously cannot speak for itself? And doesn't any accused have the right to participate in their own defence? :)
posted by kaemaril at 7:40 PM on August 21, 2006


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