In August of 2012, one of my clients was stopped in Carson County for speeding. He was headed west on Interstate 40 to his home in Arizona. During the course of the traffic stop, the state trooper asked for consent to search the vehicle. My client gave consent to search. During the course of the search, law enforcement officers found approximately $45,000.00 in United States currency. The money was found inside luggage located in the passenger compartment of the vehicle.
My client was arrested and subsequently charged with money laundering. The State also filed a civil forfeiture action seeking to forfeit my client’s vehicle and the $45,000.00 found in the luggage.
In March of this year, the State dismissed the criminal charges and the civil forfeiture action. The vehicle and the $45,000.00 were returned to my client.
Although my client had an extensive criminal history, we were able to show the money was obtained lawfully. Factors that made these cases challenging for the State were: (1) no illegal drugs were found in the vehicle; and (2) there was no attempt to hide the money.
As of October 24, 2012, the distribution scheme in Carson County for monies acquired by civil forfeiture of U.S. currency in State court resulting from seizures made by the Texas Department of Public Service is as follows:
- Forty Percent (40%) – Texas Department of Public Safety
- Thirty Percent (30%) – State of Texas General Revenue Fund
- Thirty Percent (30%) – Carson County District Attorney’s Office
Hundreds of thousands of dollars are forfeited to the State of Texas every year in Carson County.
Over the last few months I have noticed a change in how civil forfeitures of U.S. currency are being handled in Carson County. During a recent conversation with someone in the know I learned that if the authorities believe the underlying criminal case is strong, the civil forfeiture case will be filed in State court. If the criminal case is believed to be weak, the forfeiture case will be filed in federal court. It is easier for the government to win in federal court due to proof issues placed on the claimant.
I wanted to post an update to the status of my interesting new case I mentioned in my June 11 post – the Judge granted my motion to transfer venue to the District Court for the Northern District of Texas, Amarillo Division. We now get to try this case in Amarillo. The government lawyers will have to travel from the Dallas area to prosecute this case – better than me traveling there to defend it.
I have an interesting new case – a civil forfeiture case in federal court. I find it interesting not because of the facts of the case but because of where the case was filed by the federal government’s lawyers.
My client was stop by law enforcement officers near Amarillo in Potter County, Texas. During the course of the traffic stop, the officers found a large sum of United States currency. The money was seized and an administrative forfeiture proceeding was initiated to forfeit the money to the federal government. I help my client file a claim in the administrative proceeding requesting a judicial determination of the case. The government lawyers then filed a complaint seeking to forfeit the money in the United States District Court for the Eastern District of Texas – Sherman Division in Sherman, Texas. Sherman is about 350 miles east of Amarillo just north of Dallas, about a six hour drive from Amarillo.
Why would the government want to try this case in the United States District Court for the Eastern District of Texas – Sherman Division?
Potter County is located in the area served by the United States District Court for the Northern District of Texas – Amarillo Division. The seizure took place near Amarillo in Potter County. Except for my client, all of the witnesses to the traffic stop and subsequent seizure live in the Amarillo area. It would certainly be more convenient for the witnesses if the case were tried locally. Not to mention that federal law says that venue (where the case should be tried) is proper in federal court in Amarillo.
My guess is that the government lawyers did not like their last experience in federal court in Amarillo when we tried another forfeiture case there last year.
I plan on filing a motion to transfer the case to the federal court in Amarillo. We will see what happens next.
Following up on my January 15 post, the state has dismissed the money laundering charges against one of my clients. The asset forfeiture case associated with the criminal case has also been dismissed. All of my client’s money has now been returned to him.
When I took this case, I didn’t believe the state would be successful in this prosecution — they gave up without much of a fight.
In recent years, confiscating “drug money” has become an ever-increasing priority of the Texas Department of Public Safety. According to a recent two-part series in the Amarillo Globe-News, between January 1, 2005, and June 30, 2010, about $14.6 million in U.S. currency was seized by the Highway Patrol on the 178 mile stretch of Interstate-40 that runs through Texas.
The articles are a great read and give some insight into asset forfeiture and the big money grab.
Cashing In: Who Benefits Most from Seized Currency?
Cashing In: Sheriffs’ Offices Join the War on Drugs
Seizure and forfeiture of contraband in Texas is governed by Chapter 59 of the Texas Code of Criminal Procedure.
Under Texas law, contraband is defined as (1) any property that is used or intended to be used in the commission of certain crimes; (2) the proceeds gained from the commission of certain crimes; (3) any property that is acquired with the proceeds of certain crimes; and (4) any property used to facilitate or intended to be used to facilitate the commission of certain crimes. Generally speaking, money laundering and drug trafficking crimes trigger the seizure and forfeiture laws of Texas.
Although provided for in the Code of Criminal Procedure, a forfeiture action is actually civil in nature. All parties must comply with the rules of pleadings as required in civil suits. Forfeiture cases proceed to trial in the same manner as other civil cases. And the State has the burden of proving by a preponderance of the evidence that the property is subject to forfeiture. Texas Code of Criminal Procedure, Art. 59.05(a),(b).
In The State of Texas v. $30,660, 136 S.W.3d 392 (Tex.App.—Corpus Christi 2004, pet. denied) the Thirteenth Court of Appeals stated:
To succeed in a forfeiture action, the State must prove by a preponderance of the evidence that the property is subject to forfeiture. The State does this by establishing that the property is contraband as defined by [CCP] art. 59.01(2). Although ch. 59 specifies no additional evidentiary requirements for forfeiture beyond proof that the property is contraband, the supreme court has held that the State must also show probable cause for seizing a person’s property…. Probable cause in the context of forfeiture statutes is a reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute. Thus probable cause to seize is not the same as the probable cause necessary for the lawful search, lawful arrest, or lawful search incident to arrest required by [CCP] art. 59.03(b)(4).
— State at 407-408
If the State of Texas is able to prove that the seized property is contraband, it will be forfeited to the State.