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Zaputil v. State ex rel. Chris Wilson, District Attorney,
No. 100,279 (Okl.Civ.App., Div. IV, May 17, 2005): Zaputil was convicted of manufacturing meth in his trailer and the State sought forfeiture of a boat, a motor, two cars, and assorted cash and other items. All items forfeited and upheld on appeal except for $40 in cash found in a car. Three locations produced cash: a car, the boat, and the master bedroom. The State did not produce evidence to tie the money in the car with drug activity. Procedural Trap: the State cited only the forfeiture provisions that allow forfeiture of property using illegal drug proceeds; not the other sections that allow for proximity or conveyances. The Court held that Due Process "dictates that a claimant should not have to guess under which provision the State is proceeding." The State must be specific. BUT, claimant must object at trial and failure to do so will waive the issue on appeal. In other words, if the State alleges in the Petition only that the car was paid for with drug money, but at the forfeiture hearing argues that ground and that the car was a conveyance, you must object right then that the State did not allege a conveyance or seek a continuance.
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Clymore v. United States,
No. 02-2264 (10th Cir., July 5, 2005) (Published): Federal forfeiture case in which the panel decides whether sovereign immunity shields the government from a money judgment in a case where the government has destroyed or lost the property forfeited. Noting a circuit split on this issue, the panel sided with the majority of circuits and held that sovereign immunity does bar money damages. Another (yawn) win for the government in taking property from citizens, but mucho style points for Clymore for having the chutzpah to ask for his airplane and cash back after he was arrested in it along with nearly 800 pounds of marijuana.
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United States v. Rodriguez-Aguirre,
No. 02-2340 (10th Cir., July 5, 2005) (Published): Another federal forfeiture case involving a gigantic drug trafficking ring run by Aguirre. Complex discussion of the nuances of Fed. R. Crim. Proc. 41, sharp factual disputes as to what property was seized/forfeited, but bottom line strong policy of not giving property back to criminals.
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United States v. Razmilovic,
No. 04-4543 (2nd Cir., August 17, 2005): Complex discussion of federal criminal forfeiture law and statutes, but holding ultimately that the Government is not allowed to "freeze" assets pre-trial under the statute at issue.
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State v. One Thousand Two Hundred Sixty-Seven Dollars,
2006 OK 15 (Okl., March 7, 2006): Civil forfeiture case involving cash in the claimant's possession that was found in close proximity to controlled dangerous substances. This is an Opala case and thus the anatomy of the litigation is as follows: Claimant plead nolo to Possession with/Intent to Distribute (Crack) after he was stopped on a traffic infraction, ran, and the officer chased him and retrieved the crack. The State filed a motion for Summary Judgment which was granted by the trial court. The Court of Appeals reversed. The Supreme Court held: 1) the trial court did not err in refusing to consolidate for trial two discrete claims for the release of money arising out of separate and unrelated events; 2) the summary process procedure is acceptable in forfeiture proceedings; and 3) the State's evidence, which consisted apparently of the arresting officer's affidavit, was sufficient to support summary judgment. NOTE: It appears that the claimant proceeded pro se in this case and failed to properly object in the trial court but the Court of Civil Appeals raised some grounds for relief for him. Thus, this opinion reads like a rebuke of the Court of Appeals rather than breaking any new ground in forfeiture law (unless I am just missing something in the opinion).
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State ex rel. Campbell v. $18,235.00,
2008 OK 32 (Okl., April 8, 2008): Forfeiture: Police found a "simple possession" amount of marijuana and cash in a vehicle driven by Shawn Gandy. The State filed a forfeiture action against the cash and the trial court denied it, holding that forfeiture of large sums of cash in connection with misdemeanor possession of marijuana violated the excessive fines clause of the Eighth Amendment. REVERSED. The legislature had previously gutted the good case law from the Court construing 63 O.S. 2-503(A)(7) as not allowing forfeiture for simple possession. The Court had not visited these changes until now and went along with the legislature. The questions as stated by the Court in this case are: 1) whether simple possession can support the rebuttable presumption that monies found in proximity to any amount of CDS are forfeitable (it can); 2) whether forfeiture is independent of an in personam criminal charge or conviction (it is); and 3) whether forfeiture is limited by the Excessive Fines Clause of the Eighth Amendment (it is not when the monies are proceeds illegally obtained and thus the person had no right to possess the money in the first place).
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Oklahoma v. Decker,
1998 OK CIV APP 57, 960 P.2d 844: Forfeiture: I was always a little confused about whether a claimant was entitled to a jury trial in a forfeiture case. This case holds that forfeitures proceedings are treated like other civil cases, including the right to a jury.
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Taylor v. United States,
No. 06-60275 (5th Cir., March 29, 2007): Forfeiture: Federal forfeiture case remanded for an evidentiary hearing on the issue of whether the DEA provided proper notice of forfeiture of $13,000 in cash confiscated during a traffic stop in Biloxi, MS. The basic issue is that the DEA escorted the claimant to his home after the traffic stop yet mailed the notice of forfeiture to his mother's home. This opinion contains a good discussion of federal forfeiture law.
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State v. Eighteen Thousand Two Hundred Thirty-Five Dollars in U.S. Currency ($18,235.00),
No. 104,016 (Okl.Civ.App., Div. III, April 20, 2007) (Released for Publication): Forfeiture: Shawn Gandy was stopped by a police officer in the great city of Calera for "an illegal neon light surrounding the license plate of his vehicle." I have lived in Oklahoma all my life and never heard of the town of Calera. I looked it up and it is a community of about 1,700 way down in Bryan County, south of Durant. During the search of the vehicle, the officer found 2.86 grams of marijuana in a cigar box and .21 grams of marijuana loose in a shaving kit packed in an overnight bag. The money was found on Gandy's person and in a plastic sack in the same overnight bag. He was given a warning for unauthorized vehicle light and charged with misdemeanor possession of marijuana. The State sought forfeiture of the money under 63 O.S. 2-503(A)(7) based upon the 2004 amendment which specifically authorized forfeiture of money found in close proximity to ANY AMOUNT of marijuana. Gandy argued that the State could not forfeit the money based on a charge of simple possession and that even if it could, such a forfeiture would violate the excessive fines clause of the Eighth Amendment. The trial judge, the Hon. Trace Sherrill, denied forfeiture and the Court of Appeals, in a 2-1 opinion, AFFIRMED. The Court drew from the Oklahoma Supreme Court's prior decision holding that forfeiture of the vehicle itself based on simple possession is unauthorized. I would imagine this case is headed to the Oklahoma Supreme Court and I do not like its chances of survival there. If you have a forfeiture case use this opinion while you still can.
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United States v. $252,300.00 in United States Currency, More or Less,
No. 06-3164 (10th Cir., April 30, 2007) (published): Forfeiture: In this federal forfeiture case, the panel illustrates just how far it will go to justify seizing cash from a citizen on the most flimsy of evidence. In this case, a Kansas highway patrolman stopped a truck driver and his passenger for a traffic violation on I-70. The trooper obtained consent to search the truck and trailer. During the search, he came upon a locked compartment under the sleeper bed in the back of the cab. Inside, the trooper found two sealed cardboard boxes, both addressed to "Mabel Smith." One contained $60,000 in cash and the other contained a locked briefcase which contained $191,000 in cash (both driver and passenger disclaimed these items and claimed to not know the lock combination). The driver and passenger gave conflicting stories about the money and a drug dog alerted to the money. On appeal, the claimants asserted that the Government failed to establish by a preponderance of the evidence a substantial connection between the currency and a controlled substance. The panel analyzed the following factors: 1) driver's nervousness (minimal probative value); 2) inconsistent statements by driver and passenger regarding the money (significant probative value); 3) concealment of the currency (not particularly significant since people conceal large amounts of cash); 4) known drug route (given no credit since it's of no consequence that a truck driver was driving on an interstate highway); 5) currency amount and wrapping (significant probative value); 6) lack of evidentiary support for source of cash claims (entitled to considerable weight); and 7) odor of marijuana on the currency (strongly probative since the troopers could detect the odor in addition to the dog).
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United States v. Jarvis,
No. 06-2264 (10th Cir., August 28, 2007) (Published): Forfeiture; Waiver: Interlocutory appeal by Jarvis challenging an order denying release of funds. HELD: The use by the United States of the New Mexico lis pendens statute was improper. Reversed and remanded with instructions to order the lis pendens notices removed. NOTE: Jarvis wanted the notices removed so he could sell the property and pay his attorney!
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State of Oklahoma, ex rel. David Prater, District Attorney v. One Hundred Sixty-Nine Thousand, Sixty Dollars and No/100 ($169,06
No. 104,716 (Okl.Civ.App., Div. III, May 29, 2008) (not for official publication): Forfeiture: This forfeiture case follows the familiar pattern of the COMIT officer making the bogus traffic stop (improper lane change), giving the driver back his license, telling him that he his free to leave ("Sir, my business with you is finished"), but then re-initiating contact for a "consensual" encounter on the side of the road. In this case, the driver "consented" to a search of the car and the cash was found in the trunk. The kicker here is that the officer apparently secured a "Disclaimer" from the driver when the driver stated that the money was not his. This was used in the forfeiture action by the State to argue that the driver had no standing. The District Court agreed and so did the Court of Appeals.
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United States v. $92,203.00 in United States Currency,
No. 06-51033 (5th Cir., July 28, 2008): Forfeiture: Summary Judgment to the Government in a forfeiture case is REVERSED on the basis that the only evidence proffered by the Government in support of summary judgment was the affidavit of a police officer.
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