US v. 6 Fox Street, No. 05-2744. This case illustrates the government’s strategy in criminal proceedings where the defendant has assets. Concurrent with the criminal indictment the government commences a forfeiture proceedings. Sure, this probably makes it harder to finance a defense. (But, on the other hand, it makes the defendant eligible for a public defender who is probably better at trial.) Now, forfeiture proceedings are civil in nature, so the parties are entitled to more extensive discovery from each other, or at least more than the paltry amount that is constitutionally required in criminal proceedings. Right? Wrong. The government almost always seeks a stay of the forfeiture proceedings. This is a double-edged sword, because the defendant won’t have to assert his fifth amendment rights at any pre-criminal-trial depositions in the civil case.
In this case, the defendant (a college-educated pot dealer that invested in real estate) was convicted in the criminal case, and in the civil case, the government moved to 1) amend the complaint to include more property; and 2) commence and “interlocutory sale” of the property. The District Court granted the motion. The government moved for summary judgment. The defendant argued for the first time, that the government’s actions were time-barred under 19 U.S.C. §1621. The District Court said the defendant waived the argument by not asserting it in his answer, the First agrees, but notes that the argument was really “forfeited.” The defendant also argues that the government wasn’t forthright as to the facts that started the statute running in the criminal proceeding, and those constituted a “fraud on the court” but he doesn’t provide any evidence of that, and he didn’t submit a FRCP 60(b) motion to the District Court. Strangely, the defendant also argued that he was ineffectively assisted at his forfeiture proceedings, which the First rejects because 1) the right to effective civil assistance really doesn’t exist; and 2) he was effectively assisted enough.
Substantively, the government prevails by showing that the defendant’s land and appliances were used for marijuana storage.
Oh, here is a satellite photo of 6 Fox Street.
Comments