Seizure of Assets Leaves Casualties in War on Drugs : Narcotics: People who were never arrested, much less convicted, have had property taken. State sets hearings.

If the effort to eradicate illegal drugs is a war, then Pat and Bud Untiedt are a pair of its civilian casualties.

On March 6, 1989, the U.S. government seized P.B.’s Casa de Groom ‘n Feed, a pet grooming shop the Untiedts once owned and in which they still had an interest. The property, agents said, was being used by a Ventura County drug dealer to sell cocaine.

The Untiedts were not accused of wrongdoing. They had sold the shop a year earlier and had not been inside it for months before its seizure. Their only connection to the property was that they held a second mortgage; Dennis Alamillo, who was accused of dealing cocaine, paid them $690 a month, but otherwise had little contact with the couple.

Innocence has not helped the Untiedts. Even though the federal government kicked Alamillo out of the shop, it would not let the Untiedts back in and it would not take over Alamillo’s payments. The Untiedts have not received a cent in more than three years since the seizure.

“I believe that people who are selling drugs to these kids ought to be hung up by a rope and have parts cut off them with a hot knife,” Pat Untiedt said. “But what the government has done to us, it’s stealing, it’s just stealing.”

The Untiedts are not alone. Scores of California residents--some convicted drug traffickers, others who have never been arrested, much less convicted--are paying the price for a widely used weapon in the government’s anti-drug arsenal. It goes by the deceptively bland title of “asset forfeiture,” and it has emerged as one of the most effective but controversial developments in the history of fighting drugs.

Using federal and state forfeiture laws, governments annually seize millions of dollars in property that prosecutors say has been used in drug transactions or purchased with drug money. That money then funds drug enforcement, making the programs extraordinarily popular with police.

Hearings have been scheduled for Oct. 28 so that the Legislature can review California’s forfeiture powers and the sessions promise to be volatile. Advocates want the state law, which expires next year, toughened so that more property can be seized. Opponents, led by Assemblyman John Burton (D-San Francisco), chairman of the Public Safety Committee, also want changes, but they are moving in the opposite direction.

“It’s the Wild West out there,” said Paul Gabbert, a Santa Monica defense lawyer who has handled forfeiture cases. “The government is licensed to commit economic blackmail. . . . This is extortion, blackmail, legalized theft.”

From lawyers, court records and dozens of interviews come a slew of examples of Californians who say they have been wronged by state and federal forfeiture laws. Among them:

* Juan Jose Gonzalez, an Anaheim resident whose uncle was suspected of involvement in a 1991 drug case. Although Gonzalez was not arrested, the state government seized his life savings, $9,993. It took him six months and $3,300 to get the money back. He was never charged with a crime.

* F. E. (Bud) Miller, a retired California Highway Patrol officer accused of conspiracy to grow marijuana. Sheriff’s deputies seized more than $168,000 in bank accounts belonging to Miller and his wife under the state forfeiture law. The Millers, who live in Northern California, spent two years and more than $50,000 before getting their money returned. All charges against Miller were dropped.

* Msgr. Dino Riccomini, a parish priest from Wasco, a small town near Bakersfield. Two years ago, the monsignor watched in amazement as FBI agents seized his Mercury Grand Marquis because they mistakenly believed it belonged to a local drug smuggler. The government kept the car for about three months before admitting that a mistake had been made and giving it back.

“It’s like a big bull in a china shop,” said Riccomini, who also was never charged. “They just come in and take your property.”

Forfeiture proponents concede that there have been instances when property was seized from innocent people, but they say those represent a fraction of the total. The majority of property seizures are uncontested, which proponents cite as evidence that most owners realize they have been caught red-handed.

“That’s not to say that from time to time, some property hasn’t been snared that shouldn’t have been,” said Gary W. Schons, formerly the director of the state attorney general’s Asset Forfeiture Program. “But we deal with those cases and the property is returned.”

The concept of forfeiture dates back centuries and was used to corral smugglers and their ships in the early days of the republic. But it was rarely invoked until the mid-1980s, when Congress passed a series of laws to arm the government in the war on drugs.

“Forfeiture is an old remedy with a new vitality,” says the 1991 annual report of the Department of Justice Asset Forfeiture Program. “It has proven to be a highly effective weapon against drug trafficking, money laundering, racketeering and other organized criminal activity.”

There is a certain poetic justice in the programs: Because the assets are used to fight drug trafficking, drug dealers end up paying to drive themselves out of business.

The amounts are staggering. In the last seven years, more than $2 billion has been seized under the federal forfeiture program.

California’s law is more restrictive than its federal counterpart, but it too has reaped large sums. The state law sets minimum amounts of drugs to qualify most property for seizure, while the federal version allows agents to seize any property where there is probable cause of drug involvement. Also, state prosecutors must persuade a judge or jury that the property is tainted. In federal court the burden is on the owner.

Nevertheless, California’s forfeiture law has brought in more than $130 million since 1988.

“This is the most effective tool we have in the war on drugs,” said California Atty. Gen. Daniel E. Lungren, who sponsored the federal law while he was a member of Congress and is now the chief supporter of the state version. “This allows us to go after organized crime and drug kingpins where it hurts.”

Both state and federal laws have been upheld in court, though aspects of them continue to be challenged. Tuesday, the U.S. Supreme Court heard arguments in a New Jersey case regarding the rights of property owners who receive gifts of money that later become the subject of a forfeiture case.

Even critics of forfeiture concede that there is great appeal to using the tools and profits of the narcotics trade to fight drug trafficking. Where they differ with the government is on how assets should be seized and how owners should be protected.

For the government to put a person in jail, it must prove “beyond a reasonable doubt” that the suspect committed a crime. For the government to take that same person’s house, car or life savings, prosecutors only need to convince a jury that a “preponderance of the evidence” favors their case.

That is because prosecutors do not need to file criminal charges to seize property. The property is alleged to have broken the law, and the seizure is a civil matter, not a criminal one.

That subtle legal distinction has enormous implications. In addition to making it easier for prosecutors to prevail in court, it also means that a person trying to recover seized property is not entitled to a lawyer at government expense--even though that right is granted to all indigent criminal defendants.

Juan Gonzalez fought the government when it seized his life savings, a bank account containing $9,993. And though he eventually got his money back--minus $3,300 that he paid his attorney--the lawyer said he would never take a case like it again.

“At the lowest rate charged by competent attorneys, $150 an hour, it would have cost $30,000 to recover $9,993.99,” lawyer Michael H. Metzger said in an open letter to Gonzalez. “That is precisely what the police and district attorneys count on.”

In fact, Metzger and other forfeiture critics say that is the real reason why so many property seizures are uncontested. Property owners cannot afford to fight back, they say, because in many cases the cost of contesting a seizure exceeds the value of the property.

Lawmakers could allow all indigent property owners the right to be represented by public defenders, but so far they have refused to do that. The law also could require that the government pay the legal bill of a person who prevails in a forfeiture suit, another step that has not been taken.

“If the government provided the right to counsel, it might cut into the money it’s making,” said Nashville lawyer E. E. (Bo) Edwards, chairman of the Forfeiture Abuse Task Force of the National Assn. of Criminal Defense Lawyers. “That takes all the fun out of it.”

Besides questions of procedure, there are complaints about proportionality--with critics maintaining that seizing a person’s property can be a vast overreaction.

Take the case of Robert Harris, a quiet, philosophical man who in early 1990 was running for City Council in Woodland, a small town near Sacramento. In the middle of the campaign, police received a tip that Harris was growing and selling marijuana.

They searched his house and found 24 marijuana plants, four of them mature. Harris was charged with cultivating marijuana and possessing it for sale--though the latter charge was dropped. Police also said his house was being maintained for the purpose of using, selling or giving away drugs.

“I maintain this property to brush my teeth and to sleep and to write philosophy and to take a bath,” Harris said before he was evicted from his Victorian home. “But they say that because I grew marijuana in the basement, that’s what I maintained the property for. What that means is that if you use marijuana, you cannot own property in California.”

Prosecutors are unsympathetic. “This is not considered a penalty,” Yolo County Deputy Dist. Atty. Mark J. Jones said of Harris’ case. “This is an action against the house.”

Critics dismiss the premise--that taking a person’s house punishes the property, not the owner. Behind it, they say, is an erosion of the protections that characterize other aspects of the legal system.

Before they can seize property, agents must persuade a judge that there is probable cause it is involved in a drug crime--the same standard needed to obtain a search warrant. But the owner has no say at that hearing, and some of those owners complain that overzealous investigators have stripped them of their legal assets.

Dino Riccomini says that is just what happened to him.

The Wasco priest had traded in his car for a Mercury Grand Marquis in early 1989. The dealership where he got the car was owned by one of his parishioners, Baldemar T. Salinas.

Salinas had another business on the side: He and several associates ran a major cocaine and marijuana smuggling organization. But Riccomini didn’t know that and agents never accused him of involvement. They merely showed up at St. John’s Catholic Church one day and took his car.

Riccomini said he had a copy of the pink slip to the vehicle, but agents were not interested in looking at it. They gave him 10 minutes to remove his belonging, so Riccomini grabbed his golf clubs from the trunk and the agents drove away. Three months later, after some friendly parishioners came to Riccomini’s aid, he convinced the government that the car belonged to him, not to Salinas.

Assistant U.S. Atty. Marsha R. Stroup, who signed the forfeiture complaint against Riccomini’s vehicle, acknowledged that the incident “was embarrassing for him, and I feel bad about that.”

But she stresses that once officials reviewed Riccomini’s paperwork, the vehicle was returned. Riccomini first had to sign a standard form in which he agreed not to sue the FBI for taking his car.

Stroup said all forfeiture complaints are reviewed by prosecutors and a magistrate before property is seized, but admitted that “the system’s not perfect every time.” Still, she added: “We’re not interested in running roughshod over people. We’re trying to enforce the forfeiture law.”

Bud Miller, a 67-year-old retired CHP officer, knows how hard it is for police and prosecutors to fight drug trafficking. He’s sympathetic, but he has his doubts about forfeiture.

It was May, 1989, when Humboldt County sheriff’s deputies raided property where Miller had a couple of four-wheel drive vehicles. A portion of that property was being used to grow marijuana, and an informant had implicated Miller.

Within days, authorities had seized the vehicles along with bank accounts containing more than $168,000 belonging to the Millers.

“They didn’t leave me enough to write a check for groceries,” Bud Miller said.

Miller fiercely proclaimed his innocence, refusing to plead guilty even in exchange for a promise that he would not go to jail. In September, 1990, a day before Miller’s case was to go to trial in federal court, all criminal charges were dropped.

But the state government still had his bank accounts, and it did not release them just because he was no longer charged criminally. Miller and his wife fought for five more months before the government relented and gave him back everything but the two four-wheelers. Miller’s lawyer, Ron Sinoway, said it was just too expensive to keep fighting.

All told, it took Miller and his wife nearly two years to get their money back, and Miller estimates that they spent more than $50,000 on lawyers and accountants. Officials with the Humboldt County district attorney’s office, which handled the forfeiture case, say they think Miller got off easy--they still believe he was guilty, even though neither they nor the U.S. attorney ever proved it.

That enrages Miller. More than a year later, talking about the experience still works Miller into a boil and makes him question the drug laws he was once sworn to enforce.

“You have no idea how degrading it is to walk into the bank and have them say: ‘Sorry, the sheriff seized your money,’ ” Miller said. “I’m not against these guys doing their jobs, but damn it, there’s a right way and a wrong way, and this is the wrong way.”