Where I Stand — Mike O’Callaghan: Congress helps Justice violate rights of Americans

Monday, Jan. 5, 1998 | 10:10 a.m.

THIS COLUMN has, for many years, been harping about the abuse of forfeiture laws by federal prosecutors. It became rather personal when Las Vegan Billy Munnerlyn had his charter jet airplane confiscated by federal agents.

Four years ago, the SUN reviewed the use and abuse of the federal forfeiture laws. We zeroed in on the case of Las Vegans Billy and Karon Munnerlyn, who lost their life savings and work. They lost their charter jet airplane after becoming unwittingly involved with a man accused of transporting drug money.

Munnerlyn was never indicted, but his airplane was seized. Even a jury verdict in his favor was overruled by a federal judge. Years and thousands of dollars later, he recovered the plane.

In 1993, we concluded:

The idea of forfeiture laws is basically good. It separates the criminal from the fruits of his activities. The idea is that if drug dealing doesn't pay, people won't deal in drugs.

But the laws should not punish those not proven guilty. A criminal suspect must be subjected to due process of law before any conviction is possible. Unfortunately, that has not been the case with forfeitures. They have been subject to the whims of prosecutors, rightly or wrongly, and the property owner has had the burden of proof in civil court -- the reverse of criminal cases.

Unrestrained forfeitures also have raised questions as to whether the profit motive is coloring police activities. The purpose of the drug fight is to wipe out drug traffic, not make money. ...

We had great hope the actions of House Judiciary Committee Chairman Henry Hyde, R-Ill., would eventually level the playing field for Americans who become targets of federal agents. In 1993 and 1995, good bills came out of Hyde's committee, but each time, they were gutted by the Department of Justice. The feds have a good deal going for them, as they reel in big bucks they can use for their own operations.

During 1997, it looked like Hyde was going to finally get a statute that protects people from confiscation of property prior to a trial.

Among the provisions: the bill would put the burden of proof with the government, rather than with persons whose property is seized; pay for poor people's legal representation; allow property owners to sue the federal government for negligence in its handling of property; and allow property to be returned to owners if substantial hardship would occur before a case can be decided.

Last week, James Bovard, writing in the Wall Street Journal, tells us why nothing has changed for the better. In fact, the problem has worsened.

"Asset forfeiture laws have been spreading like a computer virus through the nation's statute books. Until a decade or two ago, such laws targeted primarily customs violators, but today more than 100 federal laws authorize federal agents to confiscate private property allegedly involved in violations of statutes on wildlife, gambling, narcotics, immigration, money laundering, etc. The vast expansion of government's forfeiture power epitomizes the denial of property rights in modern America."

So, how did this happen when a powerful champion like Henry Hyde seemed determined to put some control on the system? Bovard writes:

"The Justice Department strongly objected to the bill and lobbied Mr. Hyde to enact sweeping expansions of prosecutors' forfeiture power. The day before marking up the bill last June, Mr. Hyde sidetracked his 15-page reform bill and pledged himself to a new 64-page bill -- with almost all the new material written by Justice Department lawyers. This is like letting burglars write the laws on breaking and entering, since many of the worst forfeiture abuses are committed by Justice Department employees.

"Mr. Hyde pushed the new bill through the Judiciary Committee on June 21 by a 26-1 vote. The lone dissenter, Rep. Bob Barr, R-Ga., a co-sponsor of Mr. Hyde's original bill, says the new bill 'seems to be precisely what the Department of justice wanted.' He adds, "The problem is that it has a good title (the Civil Asset Forfeiture Reform Act) and, with the reputation of Chairman Hyde behind it, that carries a lot of weight.'"

So once more the feds succeeded in doing their own thing, and our hero, Henry Hyde, took a walk on the little guy. Oh, there's going to be a forfeiture case before the U.S. Supreme Court this season, but I don't foresee anything big coming from it. Hosep Bajakajian, along with his wife and two daughters, was stopped June 9, 1994, when boarding a plane at Los Angeles International and relieved of $357,144. It was all legally acquired cash, but the Justice Department argues that the government has the power to seize and keep it, even if Bajakajian is innocent. Just during the year 1996, the U.S. Customs Service took $56 million dollars from outbound travelers.

Bajakajian's money was seized under the Bank Secrecy Act of 1970, because he had not properly declared the amount of cash he was carrying as is required by law. Because of this extenuating circumstance, I will be surprised if he will prevail before the high court. A more clear-cut case might have a better chance, but this doesn't justify the seizure and keeping of all a man's hard-earned cash after making a mistake not uncommon among foreign travelers, who have good reason not to list the cash they are carrying. Corrupt customs officials in other countries have taught them some severe lessons by taking some of the monies. Here, our federal government takes it all under the guise of law enforcement.

Roger Pilon of the Cato Institute said it best when telling the Los Angeles Times: "It brings us face to face with the bizarre doctrine that allows the government to seize property (including cash) on the theory that the property is involved in the crime. It is utterly illogical and archaic, but the government is raking in money because of it."

If only Henry Hyde will produce a new bill that isn't written by the people it's designed to control.