Drug crime doesn't pay, or does it?

0 Comments | Insight on the News, June 19, 1995 | by Gayle M.B. Hanson

An appellate-court decision on asset forfeiture has opened a Pandora's box of legal loopholes.

A ruling last fall by the 9th U.S. circuit court of Appeals may effectively provide a "get out of jail free" card to hundreds of convicted drug dealers who are tying up the federal courts with petitions for release.

In September, three inmates at California's Lompoc Federal Prison successfully argued that prosecuting them for drug dealing and separately seizing their assets amounted to double jeopardy. Although the three remain imprisoned, the court ruled that $405,000 in assets must be returned to them.

That decision is being appealed, but the ruling has thrown a significant wrench into the wheels of law enforcement. According to a highly placed Justice Department official, asset seizures are down in the 9th Circuit -- which encompasses the western United States, Hawaii and Guam -- as field agents grapple with the ambiguity of the law. "The ruling has had an enormous impact," the official tells Insight. "We're already in a position where we are having indictments dismissed. And the issue is probably going to have to go to the Supreme Court in order to be resolved."

More than 300 cases are pending in which felons are petitioning for their release or defendants are seeking dismissals of charges. In Anchorage, Alaska, a convicted drug dealer was set free after the court found he had been punished enough when police confiscated his watch. In Northern California, a federal judge dismissed all but a single money-laundering charge against a defendant accused of running a heroin ring. U.S. District Judge Vaughn Walker in San Francisco, taking his cue from the 9th Circuit decision, ruled that authorities had punished alleged smuggler Pius Ailemen enough when they confiscated $4,900 in cash and his 1991 Alfa Romeo.

"Asset seizure came into effect in 1984, and its basis came out of the thinking that drug dealers and other criminal individuals shouldn't be able to profit from their illegal activity," says U.S. Attorney Michael Yamaguchi, who prosecuted Ailemen. "In my region alone, which consists of 13 California counties, we took in $9.3 million in seized assets in fiscal year 1994."

Confiscated cash and money raised from the sale of forfeited assets were funneled to local law-enforcement agencies and prevention programs. Justice Department sources say that hundreds of millions of dollars may have to be returned to convicted drug lords if the 9th Circuit ruling stands. "Right now we have $34 million in cases pending as a result of the 9th Circuit ruling," says Yamaguchi.

The dismissal of charges against Ailemen was a slap in the face to law-enforcement officials who had spent six years investigating the case. Ailemen had been arrested in 1989 on suspicion of trafficking in heroin and making false statements on a passport application. He was tried in 1990 and acquitted of everything but the passport charge. In December 1993, undercover agents arrested him in Washington, D.C., and brought him to San Francisco, where he was indicted on 43 courts of drug trafficking, money laundering and conspiracy. If convicted of the single remaining charge of money-laundering, Ailemen could serve a maximum sentence of 20 years, but no minimum sentence is in effect.

In handing down his decision, Walker all but predicted that the Supreme Court would overturn it. "We are not talking about constitutional semantics or hairsplitting," he said during the San Francisco hearing. "Double jeopardy here would bar prosecution for offenses that the government regards as very serious because of the forfeiture of property that could be considered very modest."

In the months following the 9th Circuit decision, several other appellate courts have dealt with similar cases; none has followed the 9th Circuit's ruling -- enough, in itself, to ensure that the Supreme Court will confront the issue. In the interim, however, the Justice Department and law-enforcement agencies must look for other ways to confiscate the illegally gotten gains of convicted criminals.

"From a legal point of view, we can seize things two ways," says Mike Heald, the Drug Enforcement Administration's San Francisco spokesman. "We can either seize and adjudicate in civil court, where the standards of law are lower, or we can seize the assets and try them in conjunction with the individual in criminal court." Heald stresses that the primary thrust of the DEA remains that of arresting individuals. "Most of the agents here at DEA are looking primarily at getting the guy who is selling dope and putting him in jail " he says. "We also want to send a message that he won't make money selling drugs. Because of the ruling, agents are going to have to make sure they've done their homework. You've got to make sure your ducks are in a row."

According to one Justice Department official, there no longer is any clear guidance for handling busts. "There are ways to deal with the ruling that are fairly straightforward " he says, "but in many cases there is no straightforward way to do things. It's tough to give definitive directions on how to handle things. And that's just the current cases. We are working with a backlog of cases now that are going back 10 and 15 years."