HAMPTON — Hampton prosecutors are working to settle a forfeiture case involving $80,690 that was confiscated from a New Jersey truck driver on the Eastern Shore in January.
According to three separate sources with knowledge of the case, Hampton police allege that Marcos Terron was on his way to Hampton to buy cigarettes at Blue Water Tobacco — an undercover firm created to catch cigarette traffickers — on Jan. 3 when the cash was seized.
The money is now at the center of a pending asset forfeiture case in Hampton Circuit Court. Both Terron and another New Jersey man, Harvey Acevedo — who wasn't in the truck that day but asserts the cash was his — have interests in the money, according to court documents.
Neither Terron, 36, of Perth Amboy, N.J., nor Acevedo, 40, of Edison, N.J., were arrested or charged with any crimes.
A trial on whether the $80,690 in cash should be forfeited is on the court's docket, scheduled for Dec. 14 before Circuit Court Judge Louis R. Lerner.
But the prosecutor on the case, Hampton Deputy Commonwealth's Attorney Tim Murphy, said the matter is likely to be settled before that time. "We are working toward a mutual resolution," Murphy said. "That we would get 'X' amount, and they would get 'Y' amount."
The percentage that each side will get out of the $80,690 "is still being negotiated," Murphy said, adding that Lerner would also need to sign off on the deal to avoid the trial.
Murphy said the prosecutors' office's interest in settling the case did not arise from publicity surrounding the Blue Water Tobacco cigarette operation nor from concerns over the conduct of officers involved in the sting.
"This isn't an attempt to cover up what happened," Murphy said of the likelihood of a settlement. "This was something that was presented to the defense at the very beginning of the case ... In fact, I was prepared to do depositions with all the guys and put everything on the record."
Among those to be deposed in the forfeiture case, Murphy said, was James Crotts, a former Hampton police lieutenant who retired in April — six weeks after being put on paid leave in February pertaining to the cigarette case.
Another officer who was scheduled to be deposed, Murphy said, was Cpl. Christopher Lyon, another Hampton officer who was once investigated in the cigarette case. Lyon went back to work in July, five months after being put on paid leave.
A seizure of cash
On Jan. 3, Terron was driving south on the Eastern Shore, heading toward Hampton Roads. Then he hit a roadblock: The Chesapeake Bay Bridge-Tunnel was closed to certain traffic — including the box truck he was driving — because of strong winds.
The same night, agents with the Virginia State Police conducted a "consensual" search of the truck about 27 miles north of the bridge, sources said. The truck was searched in a parking lot off Route 13, outside a pizza restaurant in the town of Exmore.
Because the State Police, the Hampton City Attorney's Office and Hampton Commonwealth's Attorney's Office have all denied requests for the police reports pertaining to the seizure, it's still unclear what spurred the State Police to search Terron's truck.
But according to court records, the state officers seized a large amount of cash — $80,690 — in the search, and the case pertaining to that confiscation was soon moved from Northampton County to Hampton.
According to a "Notice of Seizure" filed with the Circuit Court in the Terron and Acevedo case, the cash was seized because it was used in substantial connection with or was the product of "the illegal drug trade," or was used in money laundering, or was "traceable" to the proceeds of an act punishable as a felony in Virginia.
That notice was initially filed on Jan. 5 — two days after the cash seizure — in Northampton County Circuit Court by a Northampton County prosecutor. But in April, the case was transferred to Hampton Circuit Court and the Hampton prosecutor's office.
Neither Terron nor Acevedo could be reached for comment for this story.
But in the civil asset forfeiture proceeding in Hampton, prosecutors have contended the seized cash was derived from felony conduct. Depending on the amount of cigarettes being bought or moved, cigarette trafficking can be a felony crime in Virginia.
Terron has not filed a response with the court, but Acevedo has denied any involvement with illegal activities and has demanded the seized cash be returned to him.
"I deny that the Commonwealth has any right to confiscate ... the currency," according to a court filing on behalf of Acevedo by attorney John R. Fletcher, of the Tavss Fletcher law firm in Norfolk. "If there was conduct giving rise to a lawful forfeiture of this currency, such conduct occurred without my connivance or consent, express or implied, and I did not know or have reason to know of any such conduct."
Fletcher could not be reached Tuesday about the possibility of a settlement.
A seizure with no charges
The Blue Water Tobacco cigarette sting was designed to crack down on cigarette bootlegging — people buying cigarettes in low tax states and selling them in high tax states — and related crimes.
The company would get cigarettes at cut rates from manufacturers, advertise the caseloads online, and sell them from a warehouse off Aberdeen Road. More than $3 million flowed through Blue Water Tobacco's bank account over the course of the investigation, though no arrests were made and no charges were filed.
Police Chief Charles R. Jordan Jr. shut the operation down in January following allegations of misconduct regarding officer spending. Jordan has since resigned, three weeks after being put on paid leave as the internal investigation proceeded.
So can police seize cash from people without filing any criminal charges against them?
The short answer is yes.
Though forfeitures are typically tied to related criminal charges, police can confiscate cash and other property without a criminal charge so long as there's clear evidence that the assets came from criminal activity, said one of the state's foremost experts on forfeiture law, Spotsylvania County Deputy Commonwealth's Attorney Tom Shaia.
In most cases, Shaia said, a criminal charge and forfeiture case proceed simultaneously. But about 15 percent to 20 percent of the time, he said, a forfeiture — which takes place in civil court — takes place without a criminal charge.
"It's maybe not the norm, but I couldn't go so far as to say it's unusual," he said. Criminal cases and civil forfeitures, he said, "are two separate animals."
Shaia said forfeiture law has a basis in antiquity, when kings would seize the property of subjects who committed wrongdoing. In more recent times, he asserted, it's still important that the government has the right to take possession of property linked to criminal activity.
"You can't stop the war involving illegal activity unless you're able to stop people from profiting from it," he contended.
Seizures without related criminal charges are allowed in Virginia, most other states and the federal government, Shaia said.
Shaia also pointed out that there's a lower hurdle for prosecutors to prove a forfeiture case than a criminal one.
That is, someone's money or assets can be seized if there's a "preponderance of the evidence" that it was derived from criminal activity. That's a lighter standard than the "proof beyond a reasonable doubt" needed to convict someone of a crime.
The case involving Terron and Acevedo is believed to be the only forfeiture case pending in the Hampton cigarette sting operation.
Earlier this year, potential prosecutions against cigarette traffickers hit a snag because police officers needed as crucial trial witnesses were themselves the subject of pending internal investigations.
A former Hampton prosecutor, former Senior Assistant Commonwealth's Attorney David Holt, said police brought him about "half a dozen" cases this spring, shortly after Jordan shut the operation down.
Though the cases against the cigarette traffickers were "solid," Holt said he couldn't go forward because of the then-pending misconduct case involving the officers. The Hampton Police Division completed an internal affairs investigation into the operation but has not made the full results public.Copyright © 2015, Los Angeles Times