U.S. Seeks Home Used for Legal Fee in Drug Case

Raising the stakes in their battle to halt the flow of drug profits into private havens, federal prosecutors have moved to seize a two-story Chatsworth residence from a well-known defense lawyer who had received it as payment for defending a man accused of trafficking in cocaine.

In an affidavit unsealed this week, prosecutors allege that the attorney, David E. Kenner, should have known simply by reading news articles about his client that the $287,950 house had been purchased with narcotics proceeds.

The complaint seeks a court order to transfer title of the house from Kenner to the federal government.

The forfeiture action, which has already drawn an alarmed response from the criminal defense Bar, is the first of its kind in Los Angeles, and one of the few in the nation in which prosecutors have sought to seize property from an attorney when there had been no previous allegation that it was paid for with drug money.

While prosecutors have long been irritated by wealthy drug barons’ ability to hire expensive lawyers to delay legal proceedings against them, defense lawyers say such forfeiture actions threaten criminal defendants’ constitutional rights to defend themselves and put the government in the position of eliminating undesirable defense lawyers simply by going after their fees.

“The government claims the right basically to pauperize an accused person and to keep them from using their assets in order to hire a defense lawyer,” said attorney Joseph Beeler, who is representing the National Assn. of Criminal Defense Lawyers, the American Civil Liberties Union and other defense Bar groups that have filed friend-of-the-court briefs in two similar forfeiture cases pending before the U.S. Supreme Court.

“If all of a sudden the government has the power to keep powerful advocates out of the courtroom, then they have damaged advocacy and created a monopoly in the marketplace of ideas,” Beeler said.

The cases now before the high court involve government seizures of defendants’ assets before trial, effectively eliminating their ability to hire expensive private lawyers and forcing them to rely on public defenders or court-paid private attorneys.

The Los Angeles case is one of only a few in which the Justice Department has moved to seize an asset--in this case a house--that has already been conveyed to a lawyer as payment of a bona fide legal fee.

The case is also unusual, defense lawyers say, because the government did not claim in its indictment of Kenner’s client, Brian Bennett, that the house was a drug-related asset that was subject to forfeiture.

Bennett was arrested in November, 1988, on an indictment charging him and a co-defendant with operating a cocaine ring that distributed as much as 2,500 kilograms of the drug in a single four-month period last year. He has pleaded not guilty and is awaiting trial.

Tough Position

Kenner, who recently represented ZZZZ Best carpet cleaning entrepreneur Barry Minkow and Scott Roston, a bridegroom convicted of murdering his wife on their honeymoon cruise, said he has been placed in the difficult position of being unable to defend his fees without compromising his client’s case.

“The attempted seizure of the defendant property by the government at this critical juncture of the criminal proceedings against Brian Bennett constitutes a deliberate and callous attempt to disrupt the representation of Brian Bennett . . . and to deny him his Sixth Amendment right to counsel,” Kenner argued in a response filed with the court Thursday.

The government’s forfeiture action, he said, followed a contentious pretrial hearing in which the government was “compelled . . . to apologize” for accusing Kenner of “McCarthy-like tactics.”

Moreover, he said, the action is “more egregious” given the government’s recent notice that it plans to elevate the charge against Bennett to one of principal operation of a continuing criminal enterprise--a charge that carries a mandatory sentence of life in prison without parole.

Gary Feess, chief assistant U.S. attorney, said prosecutors are often unable to trace lawyers’ fees to drug proceeds because they have no information about fee agreements or what money came from where. In this case, he said, there was ample evidence that Bennett had acquired the house from his alleged narcotics activities.

Kenner himself, prosecutors allege, essentially admitted his client’s assets must have come from drug dealing when he admitted in court papers that Bennett had worked at only “odd jobs” in the years before his arrest.

“The contention of the government is that Mr. Kenner took those assets with knowledge that they were the proceeds of narcotics trafficking or with reason to believe that they were the proceeds of narcotics trafficking,” Feess said. “Mr. Kenner does not stand in any better position than any other member of society when he takes property under those circumstances.”