Thanks to Mike Horn for sending me a link to this story about a guy convicted of a drug crime for nothing more than carring a lot of cash. Emiliano Gomez Gonzolez was pulled over while driving a rental car. He had a cooler with almost $125,000 in cash in it, which the police claimed was connected to drug trafficking and seized. The 8th circuit court of appeals upheld that seizure last week in an absolutely stunning decision. See the full ruling here.
The government's case here is laughable. When they found the money, they took Gonzolez and the rental car to the police station and had a drug dog sniff it over. The dog indicated that there was drug residue on the money. But studies have shown that over 75% of the bills in circulation have drug residue on them. The cops tested this by having the dog sniff the money found in the car and then sniff a total of 7 bills from police officers, and the dog reacted to the cash found in the car, not to the cash from the police. And that's it, folks. That is the sum total of the evidence against him.
On the other hand, consider that the man had no prior record at all of drug involvement. Consider that three people testified at the trial, and produced documentation, that they had pooled their money and sent the man to Chicago to purchase a refrigerated truck for the produce business they were starting (when he got there, he found out the truck had already been sold). Consider that none of those men had any record of drug involvement either, and that the government could not impeach their testimony at all.
The lower court ruled against the government and for the defendant. The government then appealed and the 8th circuit, in a 2-1 decision, overturned the lower court. The dissenting judge in the case had a rather scathing reply:
"Notwithstanding the fact that claimants seemingly suspicious activities were reasoned away with plausible, and thus presumptively trustworthy, explanations which the government failed to contradict or rebut, I note that no drugs, drug paraphernalia, or drug records were recovered in connection with the seized money," Judge Lay wrote. "There is no evidence claimants were ever convicted of any drug-related crime, nor is there any indication the manner in which the currency was bundled was indicative of
drug use or distribution.""Finally, the mere fact that the canine alerted officers to the presence of drug residue in a rental car, no doubt driven by dozens, perhaps scores, of patrons during the course of a given year, coupled with the fact that the alert came from the same location where the currency was discovered, does little to connect the money to a controlled substance offense," Judge Lay Concluded.
Here's what is most appalling about this case, and many others like it: the standard of evidence is lower. Because the government defines seizures of property as a civil proceeding rather than a criminal one, the standard of proof is not "beyond a reasonable doubt", as in criminal cases, but "a preponderance of the evidence". Thus, they can seize your property, claiming that it was the result of an illegal activity, without ever convicting you of the crime from which it allegedly was obtained.
Gonzolez was not charged with any crime because there was no evidence of any crime, yet they confiscated $125,000 based on the civil forfeiture laws without showing any crime had been committed by anyone connected to the money. This is absolutely outrageous. This case needs to be appealed to the Supreme Court and they need to put a stop to this madness.
- Log in to post comments
I don't really see how that case even meets a preponderance of evidence. I agree - this is totalitarian madness.
It's certainly not the strongest civil forfeiture I've seen, but let's not go nuts about what it means for our society. It isn't totalitarian madness, even if you disagree with the result.
Look at Gonzolez's actions: the money was foil-wrapped and carried in a cooler; he said "Luis" rented the car for him, but it wasn't Luis; he couldn't name the friend who met him at the airport to facilitate the "truck" purchase; he lied about his criminal history. That's all plenty to take this out of the "Omigod, an innocent man was clearly railroaded by overzealous cops" category. Add to that his opportunity to be heard by a federal judge and then to appeal to three more, one of whom agreed with him. That's not totalitarian, and I don't even think it's outrageous.
Maybe this case was wrongly decided, but it isn't out-there crazy. Bottom line in this case: Gonzolez wasn't buying a truck.
Bottom line in forfeiture generally: it was reformed once (CAFRA); I'm sure there are arguments for reforming it again.
Well, how would you carry around $125K in cash? Personally, I wouldn't want to carry that much around at all, but I do understand that some people just don't trust the banking system and use cash as a default. Keeping it out of sight seems like the most prudent way to carry it.
I'm totally new to this one, but was there a conviction underlying this, of either the the Defendant himself, or at least someone else for whom he might plausibly be laundering the money?
And what kind of stupid git doesn't get his story straight before he decides to play mule? Or keep the cooler in the trunk, so the search isn't automatic if he gets stopped for something else? I have lots of questions, so I guess I'll have to break down and look at the opinion. :D
carpundit wrote:
And you know this....how? The government presented no evidence against it. In fact, the lower court said that the testimony in this regard was consistent and made sense. The outrage here is that the government can take the money on the premise that it was the ill-gotten booty of a criminal act without so much as charging someone with a crime connected to it. No, that doesn't mean we've become a totalitarian state. But outrageous? You bet it is.
"Add to that his opportunity to be heard by a federal judge and then to appeal to three more, one of whom agreed with him. That's not totalitarian, and I don't even think it's outrageous."
I'm not sure how relevant it is. It's the foreiture law that's totalitarian, not the judges' interpretation of it (although as I say I really don't think this meets even civil suit evidentiary requirements). I'm not saying that this is an innocent man clearly railroaded by overzealous cops. For all I know he was running drugs. But all we have to back that idea up is the slimmest of evidence. It strikes me as the epitome of totalitarianism to punish someone without even convicting them of a crime.
kehrsam wrote:
Not only was there not a conviction, there weren't even charges filed against anyone connected to the situation. They can't even point to any prior convictions or charges related to drugs.
Ed wrote:
I don't know it. But I've seen enough drug forfeitures to be pretty sure of it. That many inconsistencies, lies, and/or unusual circumstances add up to a preponderance, in my opinion.
Ed wrote:
That's the only thing that gives me pause, but it doesn't overcome the other stuff in a "preponderance" balance.
kehrsam wrote:
The law does not require a person to be criminally charged for property to be forfeited. It is enough that the property facilitates the drug activity, which may be proven by a mere preponderance of the evidence.
And this fact alone dooms the Drug War to become one of the greatest travesties of the U.S.'s history.
carpundit wrote:
But there are perfectly reasonable justificatiions for it. The guy could barely speak English, and he had been told that carrying that much cash was, in and of itself, a crime. That, he says, is why he chose to rent a car and drive back rather than take a plane. And that testimony was supported by 3 other people with no criminal record of any involvement in drugs. Under the circumstances, the fact that he said there was no cash in the car is perfectly understandable. Those are normal, everyday lies told to the cops in such situations. They are every bit as consistent with a guy scared to death of going to jail when he's done nothing wrong as they are with someone trying to hide a crime. And remember, the government has no actual evidence of any crime here. They didn't even charge him with a crime, much less have evidence to convict him of one.
And that, my friend, is the travesty in the entire system. It is an absolute outrage that the government can take someone's property on the grounds that it was involved in a crime without proving the commission of the crime. You cannot punish someone for a crime by depriving them either of their freedom or their property without convicting them of that crime. If you can't prove in court that they committed a crime, you cannot legitimately take away the proceeds from a crime you never proved was committed in the first place.
Carpundit:
Yes, I understand that a conviction is not necessary for forfeiture law to apply. However, the forfeited property needs to be either the "fruits" of illegal activity or an "instrumentality" somehow contributing to the furtherance of illegal activity. Based on my preliminary scanning of the ruling, neither was fully alleged by the police: They had suspicions. That's it.
What the defense says and its credibility is not terribly relevant. The government first has to meet the burden of evidence for the case to go forward, and this they did not do. See Judge Lay's dissent.
This decision is a travesty of justice.
carpundit -- I represented poor Spanish-speaking workers for years (as a legal aid attorney on the Texas/Mexico border). Seriously, I didn't even blink at the truck-buying story. It isn't weird, and the inconsistencies were actually pretty minor. The guy couldn't give the full name of the "friend" who bought the ticket? So? I represented agricultural workers who (after having been screwed by their employer) couldn't name the employer, or the recruiter who got the lame job for them.
I think this opinion is terrible. It makes me sick to my stomach.
It is enough that the property facilitates the drug activity, which may be proven by a mere preponderance of the evidence.
WHAT "drug activity?" If there was no criminal conviction, then, for official purposes at least, there was no criminal activity to "facilitate." And, in this case, there didn't seem to be even a "mere preponderance of the evidence" to indicate or imply any specific illegal activity. (Was it "drug activity," "gun-running activity," or "terrorist activity?") You can't just say "it looks illegal somehow" and conclude from that that there was ilegal activity.
A court can't just convict someone of (for example) "being a child-molester;" there has to be a specific charge that he/she did specific things to specific children at specific places and times. That's why Michael Jackson was acquitted: even though he looked creepy as Hell and was rumored to be a pedophile, the state was unable to prove the specific charges it had filed.
I guess there's one way we could see whether this Gonzolez guy was participating in drug-running: keep the money for, say, a month, and if none of the involved parties gets murdered in that time, there was no illegal activity. Not foolproof, to be sure, but better than what they've done so far.
This case may not be an example of fascism per se, but it is certainly an example of a tool that a fascist state would find especially valuable.
If you can create a situation where every individual is guaranteed to be breaking one law or another at any given time, you can harass and intimidate anyone who represents a threat to the fascist state.
"The guy could barely speak English, and he had been told that carrying that much cash was, in and of itself, a crime."
Which if not the case de jure, seems pretty much the case de facto. This case and ones similar to it pretty well establish that.
Wow, I can't see a reason why anyone would be stupid enough to carry around that much cash, but stupidity isn't a crime.
If you read the history of the Steve Jackson vs. The Secret Service incident ('90 - '93), there's a history of not returning things that's been around for a while now. Neither Jackson nor anybody associated with his company or on the company's public BB were ever charged with a crime, but several pieces of equipment stolen during the raid were never returned.
That was part of the (many) reasons Jackson won the lawsuit, but with the fledgeling EFF on his side, he had the money to do so. There was no appeal, so no precedent could be set.
Melody-my experience is very consistent with yours. Here in California I've had many ineractions with Mexican agriculttural workers and their story could very well be true.
The whole process of civil forfeiture has many unfair (but not unconsitiutional) aspects. But what really, really galls me about this decision is the way the appeals court absolutely ignored the trial court: "The [trial] 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." Huh?
Does the appeal court actually think that after siding with the claimants and finding the testimony "plauible and consistent", that the ctrial court didn't believe the claimants? The appeals court musta been smoking dope. Of course the trial court believed the claimants
The appeals court reaches way out to review this decision and reviews it de novo!. They didn't have the benefit of observing the behavior and demenor of the claimants yet they felt comfortable substituting their judgment of the claimants' honesty for that of the trial court's after simply reading the briefs.
I'd feel comfortable calling the majority here "activist". They really stretched to review this case de novo and substituted their judgment of witnesses' honesty for the trial court's, which was clearly in the best position to evaluate such things. This is one instance where "activist court" actually means something.
When you consider that if I were, for example, a drug dealer and was caught selling drugs at a friends house - without his knowledge, say I was house sitting, that house could be seized, with contents - and it would be merry hell for my friend to get it - or anything in it back. Were it to be pushed, reverse the situation and assume I was buying drugs, for personal use, in the same house while house sitting - they could still take the damn house. That is insane - and the above described situation is just as insane when you really think about it.
How many Braytons can comment on a single post? If Dad could figure out how to do something with his $1700 laptop other than play solitaire, he could jump in here too LOL.
If I understand the civil forfeiture law, the property itself is essentially "charged" in civil court, correct? Don't they still have to charge that the property was either involved in or obtained via a specific crime? That's what really gets me about the case, they didn't even try to claim that there was a specific drug involved, or a specific amount. I suppose I might be willing to consider it an ill-advised ruling on a bad law if they had at least managed to show that his arrival there had coincided with a large shipment of cocaine in the region or some such, especially if they had evidence of a sale for roughly that amount that someone else had planned. But without even showing a specific crime that it might have been involved in, and only alleging that it was intended for unspecified contraband, that leaves too much legal ambiguity:
What amount of cash is considered seizable absent any specific crime, and absent any criminal activity on the part of defendants? If my bank's computers go down, and I have to cash a $1,500 paycheck rather than depositing it, and I'm pulled over on the drive home, could it be seized? It would't matter that I'd have the check stub, they could allege that I was intending to use it to purchase unspecified contraband, according to this ruling. Really now, that seems to be the extent of the evidence here, that it was a large amount of cash. What amount of cash constitutes too large, then?
Or was the preponderance of the evidence not the cash or the amount, but perhaps the ethnicity of the man holding the cash?
If you can create a situation where every individual is guaranteed to be breaking one law or another at any given time, you can harass and intimidate anyone who represents a threat to the fascist state.
A friend of mine was an NOPD officer. He said that there was an ordnance on the books that you can't "block a public thoroughfare." What that meant, in essence, is that you couldn't stop and stand in one place on a sidewalk. Of course, it was rarely enforced, but it gave the cops a reason to search anybody suspected of, for example, selling drugs on a street corner.
There are a lot of laws designed to be that strict so that police can selectively enforce them on anybody who looks suspicious.
There are a lot of laws designed to be that strict so that police can selectively enforce them on anybody who looks suspicious.
Kind of clever how they manage to get around civil rights that way. I have been harrassed through such ordinences in the past. I'ts easy to say, "well, they get criminals that way - can target people likely breaking the law." The problem is that it interfers with our rights. And could easily be used to target those whose politics or religion might differ from the cop's.
How many Braytons can comment on a single post? If Dad could figure out how to do something with his $1700 laptop other than play solitaire, he could jump in here too LOL.
Not bloody likely to happen this century. . .
Another version of the ridiculous civil forfieture laws: crack taxes. Taxes assessed on "unauthorized substances."
One man here in TN last year was assessed about $18,000 in taxes because the police suspected that he was using his car to "run interference" for a drug dealer. No drugs, no connection to the dealer, and no other evidence -- all he did was have the great misfortune to drive behind a drug dealer.
A good state court judge here in Nashville recently struck down TN's crack tax. Of course, that's being appealed.
Well, they had eveidence: a DOG barked! Surely that's a clear sign of narco-terorism if ever one existed!
The fact that the return of the cash was denied on APPEAL is mind boggling. I thought there was a bill that passed Congress to reform this kind of thievery.
Just exactly when do we decide that we've actually slid into totalitarianism? Wiretapping, this kind of crap, "renditions" - what combination of outrages makes us a dictatorship?