Minnesota High School Mock Trial 2007: State of Felonia v. W81925 Oxford Road A First Look

1. 1 Minnesota High School Mock Trial 2007: State of Felonia v. W81925 Oxford Road A First Look Kyle J. Kaiser Winthrop & Weinstine, P.A. Minneapolis, MN

2. State v. W81925 Oxford Road • Defining Civil Forfeiture • Identifying Unique Aspects of Civil Forfeiture Litigation • Applying Concepts to State v. W81925 Oxford Road • Other Unique Aspects of State v. W81925 Oxford Road • Questions 2

3. State v. W81925 Oxford Road:Defining Civil Forfeiture Civil Forfeiture??? 3

4. State v. W81925 Oxford Road:Defining Civil Forfeiture Civil Forfeiture??? 4

5. State v. W81925 Oxford Road:Defining Civil Forfeiture Civil Forfeiture It may be frightening… It may be unfamiliar… But it is Important! 5

6. State v. W81925 Oxford Road:Defining Civil Forfeiture Civil Forfeiture is Important Because • It is regularly used. • In 2000, State Highway Patrols recovered more than $212 Million in drug forfeitures. • In 2006, $703 Million was recovered by United States Attorneys through asset forfeiture. (Source: Bureau of Justice Statistics, Criminal Sourcebook of Criminal Justice Statistics Online (2006 ed.); Bureau of Justice Statistics, Law Enforcement Management and Administrative Statistics (LEMAS), (2000) • The U.S. Customs Service seizes and forfeits billions annually. 6

7. State v. W81925 Oxford Road:Defining Civil Forfeiture Civil Forfeiture is Important Because • It can have serious consequences above and beyond a criminal conviction. • See, e.g., United States v. Dodge Caravan SE / Sport Van, 387 F.3d 758 (8th Cir. 2004) • Mrs. Clemons, a van owner, used van to pick up phony prescriptions for hydrocodone using one pharmacy’s drive-up window. • Pleaded guilty to possession of controlled substance by fraud under Nebraska state law. • Federal Government sought to forfeit her automobile, as the vehicle “facilitated” the commission of the offense. • Eighth Circuit held that forfeiture was proper; sending back on secondary issue. Forfeiture of property may be more of a “penalty” than the punishment issued in a criminal case 7

8. State v. W81925 Oxford Road:Defining Civil Forfeiture What Is Civil Forfeiture? “The divestiture without compensation of property used in a manner contrary to the laws of the sovereign.” United States v. Eight Rhodesian Statues, 449 F. Supp. 193, 195 (C.D. Cal. 1978)) The confiscation of property because it has been used in violation of the law or because it is the fruit of illegal conduct. (United States v. Ursery, 518 U.S. 267, 284 (1996)) 8

9. State v. W81925 Oxford Road:Defining Civil Forfeiture What Is Civil Forfeiture? • A civil action brought by a governmental entity to acquire property, money or chattels (things) forfeitable pursuant to statute. • Property, money, or chattels are kept, destroyed, or sold, and the money is kept by the Government and used for a variety of purposes. • Victims’ compensation, police investigation expenses, etc. • Money creates incentives for forfeiture. In Minnesota: 70% to seizing agency 20% to county attorney 10% to State’s general fund 9

10. State v. W81925 Oxford Road:Defining Civil Forfeiture What Is Civil Forfeiture? • Action is usually in rem. • Latin: “Against a thing.” • Defendant is the property under the legal fiction that it is “guilty.” • Interested parties (“Claimants”) may file to recover their interest, or prove the property (res) is not forfeitable. 10

11. State v. W81925 Oxford Road:Defining Civil Forfeiture What Property Is Forfeitable? (i.e. Why is the property “guilty”?) • Contraband (controlled substances, precursors, etc.) • Proceeds of illegal activity (or property traceable thereto). • Property that was used, intended for use, or facilitated, illegal activity. See, e.g., Minn. Stat. § 609.5311 (controlled substances); 18 U.S.C. § 981 (general, financial crimes); 21 U.S.C. § 881 (controlled substances) Most Contentious! 11

12. State v. W81925 Oxford Road:Defining Civil Forfeiture Are there other methods of forfeiting property? • Administrative Forfeiture • Criminal Forfeiture • Other Types of Civil Forfeiture (Minn. Stat. § 609.5314; Minn. Stat. § 169A.63; Minn. Stat. § 609.5312) 12

13. State v. W81925 Oxford Road:Defining Civil Forfeiture Who Are the Parties in a Civil Forfeiture Action? • The Plaintiff Government • The Defendant Property (Fiction) • Claimants • People who have a legal interest in the property • Owners, lienholders, other governments / agencies, future interest holders, banks, relatives…. • “Innocent Owners” 13

14. State v. W81925 Oxford Road:Defining Civil Forfeiture What Is a Typical Procedure for a Civil Forfeiture Action? • The Government files a civil complaint against the defendant property. • The Government seizes the property or provides notice. • The action is served/published on those who may have an interest. • Claimants answer the Complaint. • The case is litigated like any other civil action. 14

15. State v. W81925 Oxford Road:Defining Civil Forfeiture What does the Government have to prove to win its case? • (Jurisdiction, Venue, Statutory Formalities Complied with) • Property: • Is Contraband • Constitutes proceeds of illegal activity (or traceable thereto) • Facilitated, in whole or in part, the exchange of contraband * • Value of Goods / Underlying Crime • Not unconstitutional? 15

16. State v. W81925 Oxford Road:Defining Civil Forfeiture What can a claimant do to win? • Disprove the Government’s prima facie case • Prove an affirmative defense • Excessive Fine • Cruel and Unusual Punishment • Double Jeopardy • Innocent Owner • Statute of limitations 16

17. State v. W81925 Oxford Road: Applying Civil ForfeitureRules to State v. W81925 Oxford Road 17

18. State v. W81925 Oxford Road:Applying the Rules • Plaintiff: State of Felonia • Defendant: • Real Property Located at W81925 Oxford Road • [A/k/a Red Fairfield’s House] • Claimants: • Jefferson Bank, N.A. • Mortgage • Severed from Case • Red Fairfield • Owner of Property • In prison 18

19. State v. W81925 Oxford Road:Applying the Rules • Witnesses • Government • Kelly Just – Officer • Darby Flook – Snitch • Jo Staid – Accountant • Claimant • Red Fairfield – Claimant • Pat Little – Roommate • Kim Rodriguez -- Counselor 19

20. State v. W81925 Oxford Road:Applying the Rules • Plaintiff’s Burden • Clear and Convincing Evidence • Retail value of controlled substance exceeds $1,000. • Property used or facilitated the exchanging of contraband or a controlled substance. • Not unconstitutional? * • Defendant’s Burden * • No clear and convincing evidence • Unconstitutional 20

21. State v. W81925 Oxford Road:Applying the Rules Strategies:Plaintiff • Was the Marijuana Brick Inside Red Fairfield’s House? • (Does it matter?) • Does the sale to Flook make the property forfeit? • How Does Red’s History Affect • Red’s credibility? • Red’s drug dealing? • Red’s protection of the brick? • Jo Staid’s Evidence 21

22. State v. W81925 Oxford Road:Applying the Rules Strategies:Defense • Where’s the “Clear and Convincing Evidence…” • That the brick was in the house? • That this wasn’t just a one time deal? • Statute of Limitations • This isn’t (Constitutionally) Fair! • Elements • Statutory minimum and maximum fine that may be imposed for the underlying criminal act • Value of property to be forfeited • Strength of the nexus between underlying criminal act and property • Any other factors • Punished enough • Vengeful Officer • House was clean. 22

23. State v. W81925 Oxford Road:Case Quirks • Terminology • Get past the funny terms • Plan to educate your judges, who may have never heard of civil forfeiture. • Case Balance There is always a question about whether the case is balanced. This case should be dependent upon the credibility of each witness. Because of the flexible legal standards to be applied, there will be some judges who say “the drugs were on the property; that means it’s forfeit” and others who say “even if the drugs were inside, that had nothing to do with the drug transaction for which Fairfield was arrested, so the house is not forfeit.” 23

24. State v. W81925 Oxford Road:Case Quirks • Volume of Information • Is Red Fairfield’s Criminal History Relevant? • Kelly Just’s? • All months of Fairfield’s bank statements? • Character of Each Witness (403, 404, 607, 608, 609)? 24

25. THANK YOU! Kyle J. Kaiser Associate Winthrop & Weinstine, P.A. 225 South Sixth Street, Suite 3500 Minneapolis, MN 55402 (612) 604-6585 25