Customs Seizes, Destroys House Used in Smuggling

National Guard bulldozers toppled a bedraggled old house on a hill at the U.S.-Mexico border Wednesday, the well-choreographed demolition culminating a legal case that is the first of its kind in the state, federal prosecutors said.

Prosecutors and the U.S. Customs Service sued last year to confiscate the property on Monument Road in semi-rural San Ysidro.

They alleged that the landlord was aware of rampant drug and immigrant smuggling there and did nothing; they reached a settlement in which the owner retains the land but must provide access to law enforcement and refrain from building anything there.

“This is a real victory,” Customs Service Commissioner Carol Hallett said Wednesday, flanked at a press conference by officials of the Border Patrol, Drug Enforcement Agency and Mexican federal police. “As long as people are willing to allow this kind of rampant crime on their property, whether or not they are directly involved in it, they must be prepared to be taught that crime does not pay--for anyone.”

There was a voice of discord at the media event, however. It came from Julius Hofer, a feisty, 69-year-old dairy farmer in a down vest, who owns the 48 acres and feels the government bulldozed his rights along with the house.

“I don’t see what they want to blame me for,” Hofer said. “What am I supposed to do, control the border?”

Unlike most property forfeitures, which are the result of civil proceedings against defendants also being charged criminally for offenses such as drug dealing or money laundering, Hofer was not charged with a crime.

Instead, the Customs Service and U.S. attorney’s office alleged that he should have known about the rampant criminal activity and did not take basic steps to combat it. He did not check the backgrounds of tenants and was the target of complaints of neighbors who said his rundown property was a main source of trouble in the area, the government alleged.

This unique use of a civil “constructive notice” statute was questioned by some legal experts.

The statute refers to circumstances in which it is reasonable to believe a landlord had knowledge or “notice” that crime is occurring on his property. Experts said it represents a troubling expansion of the government’s already expansive power to seize property.

“What’s troubling about it is, what’s the landlord’s legal responsibility for knowing what goes on on his property?” said Erwin Chemerinsky, a constitutional law professor at the University of Southern California. “Forfeiture seems quite harsh. . . . If there’s not a crime, it’s wrong to punish.”

Federal officials said they are merely taking advantage of a potent weapon against negligent landlords who tolerate crime.

“We don’t go out and seek innocent owners,” Assistant U.S. Atty. Leah Bussell said. “We only go after landlords when they knew and should have known.”

Law enforcement officials find it hard to believe that Hofer did not know what was going on in an area where the Border Patrol plays a never-ending, high-speed game of human chess with illegal immigrants and drug smugglers.

The three houses Hofer rented out on Monument Road had became part of Border Patrol lore over the past 10 years, according to spokesman Steve Kean. During the last two years, agents arrested 800 illegal immigrants and seized 1,600 pounds of marijuana at or near the property, he said.

The sophisticated smuggling operation started with bales of marijuana being tossed over the border fence and stashed in the houses, officials sad. Men with walkie-talkies and binoculars monitored Border Patrol vehicles, sometimes telephoning false reports of illegal immigrants crossing the border fence in order to divert agents and then send vanloads of drugs north.

The drug and immigrant smuggling operations were run by the same people, Kean said. This is somewhat unusual. Although drugs and illegal immigrants are often lumped together as border problems, many activists and some law enforcement experts on both sides of the border say the two tend to function separately.

About 33% of the illegal immigrant smugglers in Immigration and Naturalization Service files are also in DEA files, Kean said. In any case, the seizure proceedings were based exclusively on drug crimes; vehicles used in immigrant smuggling can be seized by the government, but no such statute applies to houses where illegal immigrants are sheltered, officials said.

Bussell said Hofer had been told several times by the Border Patrol and Customs about his tenants before civil proceedings were initiated against him in 1990.

But his lawyer, Bob Klitgaard, said Hofer was never formally informed that the government was contemplating action against him and said there were limits to what Hofer could do.

“A landlord can’t just walk into rented premises and search them,” he said. “The drugs were not known by him. Even in their pleadings they kept using drugs and illegal aliens as synonymous terms, and that isn’t fair. . . . You put that to a jury, and maybe some jury is going to say he should have known.”

Hofer agreed to the settlement on the eve of going to trial, partly because of mounting legal expenses and partly because he did not want to risk losing the property, Klitgaard said.

“You go to court, you better have a lot of money,” said Hofer, who also owns a farm across the road.

Only one house was bulldozed Wednesday because the other two have been torched by vagrants.