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A House Could Be the Price of a Joint Under Federal Asset-Seizure Law : Drugs: Last year, the government seized $580 million in cash and assets that were allegedly linked to commission of a crime. Critics charge that the penalty is excessive and unfair.

NEWSDAY

Until a sheriff’s deputy and federal marshals came to his house near Dayton, Ohio, Donald Coulter says that he had no concept of the penalties he faced by cultivating a small, back-yard marijuana crop.

Not only was Coulter charged with a felony for growing the 25 plants, the government also wants to seize his $50,000 house in a lakeshore subdivision.

Said Coulter, a federal employee with no prior criminal record: “If I’d known what they could do to me or what they would do to me, I’d have never planted those things.”

The action against Coulter is part of the government’s asset-forfeiture program, a relatively new and, prosecutors say, enormously effective weapon in the war on drugs. Although its deterrent effect cannot be quantified, its financial success can: Last year, the Department of Justice seized $580 million worth of goods and cash. Because of the program’s success, the Bush Administration wants to expand forfeiture penalties--which currently cover primarily drug, gambling and racketeering violations--to crimes such as mail fraud and wire fraud.

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And in mid-April, the department announced that it was considering filing suits to freeze assets of corrupt savings and loans officials prior to any criminal convictions.

“If we put the kingpins in prison for life, it doesn’t do much,” said Cary Copeland, director of the program. “But if we seize the instrumentalities of the drug trade, it’s like shutting down a manufacturing plant.”

Donald Coulter, however, is no drug kingpin. He says he grew the marijuana for his personal use. And pointing to cases like his, criminal defense lawyers and civil libertarians say that the forfeiture laws are sometimes abused. Property seized can be worth far more than normal criminal penalties would be. The owners, some of them not charged with any crime, can wait months to get court hearings to have their property returned. Overzealous law enforcement officers, seeking to increase their budgets through forfeiture, sometimes use dubious methods to seize property, defense attorneys say.

“These people who are growing marijuana, if dragged into state court on a criminal charge, will probably get probation,” said David Smith, an Alexandria, Va., attorney who formerly ran the asset-forfeiture program. “But in the federal civil forfeiture case, they’ll lose their house. It’s a very disproportionately severe punishment for the crime.”

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To begin a forfeiture action, the government seizes a possession based on “probable cause” that it was used in the commission of a crime. A hearing is held later to determine the true ownership of the property, but the government has a lesser standard of proof than is required in a criminal trial. It need only prove its case by “a preponderance of the evidence"--in other words, 51% of the evidence--rather than “beyond a reasonable doubt,” which is required in a criminal case.

Often there are no hearings at all, according to the Justice Department’s Copeland. The owners of seized property usually do not come forward to reclaim their possessions. “The circumstances of the seizure are so incriminating that everybody runs like hell to get away from them,” Copeland said.

And in some cases, there are no criminal charges filed against the owner of the property, sometimes because they cannot be identified and sometimes because sufficient evidence is not gathered against them. In other cases, local jurisdictions merely seize assets and forgo bringing criminal charges that could lead to costly trials.

The concept of civil forfeiture is not new; it is rooted in English Common law. When the U.S. Customs Service was first formed in 1789, it was empowered to seize boats used in transporting contraband.

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But the use of both civil and criminal forfeiture has been expanded broadly in recent years. In the 1970s, Congress authorized criminal forfeiture, which requires a finding of guilt, in cases involving racketeering conspiracies and against drug kingpins. In 1984, Congress expanded the use of civil forfeiture statutes to allow the seizure of real property as well as personal property. Civil forfeiture does not require a finding of guilt.

Since that 1984 amendment, Congress has added to the list of crimes in which forfeiture can be used. And the Justice Department’s asset-seizure fund has increased twentyfold, from $27.2 million in 1985 to $580.7 million last year.

In addition to cash, cars, boat and airplanes, the government has seized real estate, including a brass and aluminum foundry near Milwaukee, a golf course in Kalamazoo, Mich., and a nightclub in Cleveland.

Lured by the booty of drug dealers, states have quickly amended their laws to allow forfeiture actions by local police and sheriffs’ departments, which can then retain all the money rather than sharing it with the federal government.

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One of the most aggressive users of a state asset-forfeiture law is Sheriff Robert L. Vogel Jr. of Volusia County, Fla., which includes Daytona Beach.

Vogel made a name for himself by catching drug dealers while he was a Florida highway patrolman. Then, in 1988, he handily beat four opponents in a countywide election.

Reasoning that if drugs were coming north out of Miami, money must be flowing south via Interstate Highway 95, Vogel established a controversial “currency interdiction program.”

A special team of deputies patrol Interstate Highway 95 (southbound), stopping drivers for highway infractions. Then, the deputies ask to search the cars. Almost everyone consents to the warrantless search, Vogel says.

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Even if there are no drugs in the car, the sheriff’s unit will seize cash if there is “probable cause” to believe it is drug money. Usually, no criminal charges are filed.

Using these methods, Vogel’s office has seized more than $3 million in currency since March, 1989, from about 100 subjects. The amounts seized range from $2,000 to $250,000.

“These aren’t your average vacationers going to Disney World,” Vogel said.

Within 90 days of the seizure, the sheriff’s office files a civil suit to legally keep the money. The owners of the money are notified. Half of them never contest the seizure, Vogel said.

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Dan R. Warren, a former prosecutor in Florida who now defends criminal clients, said Vogel’s tactics are “like Nazi Germany revisited.” He complains that Vogel’s methods violate 4th Amendment rights against unreasonable searches. “I’m not willing to give up my 4th Amendment rights for the drug war,” Warren said.

Generally, the courts, not immune to public sentiment against drug dealers, have upheld the rights of government to seize and keep assets in a wide range of cases.

Coulter still faces a day in court on the civil forfeiture proceedings against his house, which were filed by the Justice Department at the request of local authorities. If the government is successful, most of the proceeds from its sale will go to the Greene County (Ohio) Drug Task Force.

In early April, Coulter went before a judge on the felony charge of cultivating marijuana. His sentence: A $1,000 fine and 100 hours of community service.

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