States and Feds Wrangle Over Forfeited Assets

When Arkansas state troopers found $3 million in cash in trucker Roberto Zamarripa’s cargo, they declared the “tainted” money property of the county.

By the time county prosecutors got to court, they found another claimant: the federal government.

As Congress weighs whether to make it harder to seize citizens’ property, federal and local agencies fight in courtrooms throughout the nation over the spoils of asset forfeiture. The disputes reveal this incentive: Cash-strapped law enforcement agencies seek not mere punishment, but money as well, from citizens with property that police think might be linked to crime.

“Forfeiture laws have run amok,” says Steven Kessler, a trial lawyer who once headed the asset-forfeiture unit of the Bronx district attorney’s office. “The focus is no longer on combating crime. . . . It’s on fund-raising.”

In the Arkansas case, Zamarripa made no claim to the money. A local prosecutor sued to recover it from a federal agency that “adopted” the forfeiture from cooperative state police.

Critics say the Arkansas Highway Police wanted the $2.8 million they’d get under a federal forfeiture. Under a state seizure, they’d recoup only $250,000. The yearlong feud ended in March with Crittenden County keeping the cash.

The disputes between governments occur because many states--like Arkansas, Missouri and Kansas--give law enforcement agencies a smaller slice of forfeited money than the 50% to 85% they’d get from Washington. In many states they get only expenses--an officer’s gas or overtime, for example--for their efforts.

Officers who seized Zamarripa’s cash had a good reason for going to the feds, Arkansas Highway Police spokesman Randy Ort says.

“We turned it over to the federal government because it was an interstate case,” he says, noting that the driver was just passing through. “We don’t do that to raise money.”

Arkansas is not the only place where government rivals face off in court.

In Missouri, state law requires that money seized in the state go for education. But local police often turn over forfeited money to the federal government in exchange for a larger slice of the cash, saying the money isn’t actually “seized” until they pass it on to federal agents.

To stop that, the Kansas City Board of Education filed a class-action lawsuit earlier this year that asks Missouri law enforcement agencies to repay all the money they’ve received from federal forfeitures since 1986. Since 1993, with the enactment of new forfeiture laws, police in Missouri took in more than $32 million.

“What they do is engage in an end-run around the legislature’s intentions,” says Roger Pilon, legal affairs director of the Center for Constitutional Studies at the libertarian Cato Institute in Washington. “It signifies the greed that is just below the surface in the entire forfeiture arena.”

In one case last year, a judge fumed that federal agencies were usurping states’ rights. Judge James B. Loken of the U.S. Eighth Circuit Court of Appeals questioned whether federal agencies were “using their extensive forfeiture powers to frustrate the fiscal policy of states such as Missouri.”

Once the federal government gets the money, getting it back can be extraordinarily difficult, even for someone never accused of a crime.

Ask Fernando Marquez.

Pursuing Marquez’s son on gambling charges in 1995, police found two safe-deposit keys in his house in New Rochelle, N.Y. The keys led police to $490,920, which they seized. The elder Marquez went to court, arguing it was his money and his bank box, not his son’s.

When a New York judge ordered the money returned, the district attorney’s office said it had been turned over to the FBI--without the required court order. After 3 1/2 years of court wrangling and mounting legal fees, Marquez agreed to accept half of the sum. After legal fees, he got $177,053 back--about one-third. He was never accused of wrongdoing.

“For an innocent person, it’s like a stickup,” says Marquez, 60, who attributes a bout of alcoholism, a failed reconciliation with his wife and health problems to his fight with the government. “I really appreciate that Congress is taking the steps to correct the situation.”

In June, the House passed a bill requiring the federal government to prove with “clear and convincing” evidence that property was eligible for forfeiture if an owner files a legal challenge. To take Marquez’s money, police needed only to show “probable cause,” the lowest level of proof under the law, that the property was used in a crime.

The legislation, now pending in the Senate, would also:

* Require officers to prove criminality, not simply allege it. Currently, property owners are required to prove they are not connected with the alleged crime;

* Require the government to give owners notice before seizing property;

* Enable a judge to release property to the owner if continued government possession would pose a substantial hardship;

* Allow judges to appoint counsel for poor defendants;

* Let owners sue the government for negligence if their property is lost or damaged;

* Allow some owners of seized cash to receive interest on the amount returned.

The bill would not affect state laws and would apply only to civil, not criminal, forfeitures, although civil forfeitures sometimes follow criminal prosecutions. It would not affect state forfeiture laws.

In a criminal forfeiture case, the accused must be convicted and then the jury must reach a second verdict to forfeit the property.

In a civil forfeiture, it is the property, not the property owner, that is accused of wrongdoing. That’s borne out in the names of lawsuits: $3,166,199 vs. Arkansas Highway Police; United States vs. One 1987 Mercedes Benz; Commonwealth vs. One 1987 Ford Econoline Van.

Police have strong incentive to seize property. Joseph MacNamara, former police chief in San Jose, Calif., recalls asking the city manager why the city budget had no allocation for police equipment.

“He dismissively said, ‘You guys seized $4 million last year. I expect you to do better this year,’ ” MacNamara wrote in a newspaper opinion piece.

It’s no different at the federal level. In 1990, the Justice Department was falling short of the $470 million in forfeitures the agency expected.

“Every effort must be made to increase forfeiture income,” then-Atty. Gen. Richard Thornburgh warned federal prosecutors.