Defense Lawyer Must Pay for Prosecution

In a precedent-setting ruling stemming from the war on drugs, a San Diego lawyer was ordered Friday to pay the government part of the cost of prosecuting his client, although the attorney was never involved in the crime.

U.S. Magistrate Irma E. Gonzalez ordered James J. Warner’s law office to help pay $7,372, part of prosecutors’ costs from a civil trial earlier this year in which the government took the title to a $695,000 ocean-view house belonging to one of Warner’s clients.

Prosecutors went after Steven Elbogen’s Point Loma house after first convicting Elbogen in 1984 of drug and tax charges, Assistant U.S. Atty. Eric Honig said. The house was supposed to serve as security for Warner’s $150,000 legal fee, Honig said.

Honig said he believed the order Friday marked the first time in the nation that prosecutors have been awarded court costs from a defense lawyer following a jury trial in a forfeiture case.

Warner, who has long defended people accused of drug crimes, said he would appeal. Though his specialty might be currently unpopular, it would be ethically improper to accept a ruling that suggested that a lawyer should do anything but be a zealous advocate for a client, he said.

“The government’s attempt in this case to collect costs, and the threat that defense lawyers had better be careful of who they represent, is just that, a threat, and it chills people’s rights to have their day in court,” Warner said.

He added: “The benefit to the whole judicial system of having these cases tried is going to be lost if the government can come in and pound people, through outrageous costs and everything else, when there is in fact good reason why these cases should be tried.”

The forfeiture provisions allow prosecutors to seize assets from people convicted of drug charges, to sell those assets and to use the cash to fight other drug cases.

The law providing for jury trials in civil forfeiture trials has long provided that the losing party pay the winner’s costs of a trial, if the winner demands, Honig said.

The law, however, has received little use before the current emphasis on drug cases because, like other civil cases, most forfeiture cases are expensive to take to trial and are settled before they ever get to court, he said.

The Elbogen case earlier this year involving the Point Loma house was the first civil forfeiture jury trial in federal court in California, Honig said.

U.S. Atty. William Braniff said it illustrated the aggressive approach federal prosecutors in San Diego intend to take in drug cases. “This case serves notice we’re not going to roll over and die,” Braniff said.

Elbogen was convicted in November, 1984, of conspiring to import several tons of marijuana and filing a false 1981 tax return, Honig said. After he was sentenced in 1985 to 30 months in federal prison, prosecutors went after his assets.

In the three-week jury trial that ended in February, prosecutors contended that Elbogen acquired cars and houses in California and New Mexico with little reported income, Honig said. The jury concluded that the Point Loma house was bought with drug money, and should be forfeited, he said.

The house, however, was to be used to pay Warner’s legal fees. For defending Elbogen on the criminal charges, Warner had received a $150,000 trust deed to the two-bedroom house--which featured a waterfall and swimming pool--in 1982, Honig said.

Warner said the timing of the forfeiture case indicates that he is a special target of the U.S. attorney’s office.

About five years ago, Warner was indicted by federal prosecutors in San Diego, and acquitted, of federal charges connected to advice he gave a grand jury witness in another drug case--to plead the Fifth Amendment and seek legal counsel. He said that was proper advice, but prosecutors contended that he had encouraged the witness to lie.

Shortly after his acquittal, prosecutors began the forfeiture proceedings, he said. Then came the request for court costs.

“They know I’m not going to get a fee in this case,” he said. “They seize a $150,000 note plus interest for eight years, and then they go after about $7,000. It appears to me they already have benefited enormously, off my sweat and Elbogen’s sweat, and they’re trying to gloat over $7,000. That seems so unfair, outrageous and malicious.”

The $7,372 it cost the government to win the forfeiture went toward witness fees and travel expenses, Honig said. It did not include attorney’s fees for the prosecutors, because those are not recoverable under the law, he said.

Magistrate Gonzalez ordered that Warner’s office--called Stein and Warner--and Elbogen pay the $7,372, Honig said. He did not say whether she indicated how the bill was to be split.

The Point Loma house, meanwhile, was sold July 27 for $695,000, Honig said. After a bank lien was paid, the government was left with $337,048, he said.

Elbogen was released from prison after serving about 18 months of the 30-month sentence, Honig said.