Asset Forfeiture

More asset forfeiture problems in Texas, plus a typical weekly rogues' gallery of dirty cops. Let's get to it:

In Austin, Texas, a former Brooks County sheriff is being investigated by the state attorney general's office over his lavish use of forfeited assets seized from drug and weapons suspects. The Corpus Christi Times details the allegations against former Sheriff Balde Lozano as well as a broader investigation into asset forfeiture in Texas in a series of reports. A state auditor has questioned Lozano's spending on new cedar paneling for his office, 18 vehicle purchases and sales, and $80,000 in credit card transactions.

In Los Angeles, a jailer at the LA County Jail was arrested last Monday on charges he was smuggling cocaine into the jail. Jailer Remington Orr, 24, was caught carrying the drugs when he went to work at the Men's Central Jail. He is charged with possession of a controlled substance with intent to sell, transportation with intent to sell, and bribery. He was jailed on $1 million bail. Three sheriff's guards have been convicted and a fourth fired in recent years for smuggling or attempting to smuggle narcotics into jail for inmates.

In Athens, Ohio, a local police chief was arrested last Wednesday for peddling pain pills. Buchtel Chief of Police Kelsey Lanning went down after Athens County sheriff's deputies did a controlled buy at his home. Lanning is accused of buying the prescription medication to give to someone who was working with the sheriff's Narcotics Enforcement Team.

In Oklahoma City, an Oklahoma City police officer was charged last Friday with tipping off a drug suspect of an impending raid. Sgt. Mari Christina Cervantes is charged with a misdemeanor count of obstructing police officers. In November 2010, police raided two locations, including the home of one of Cervantes' snitches. Police found text messages from Cervantes on his cell phone, including one telling the informant to "stay away," another hoping police wouldn't find anything, and a third saying, "They are supposed to be kicking in the door, but you didn't hear it from me."

In Fort Lauderdale, Florida, a Miramar police officer was sentenced last Friday to two years' probation for searching the apartment of a drug suspect without a warrant and lying about it. Officer Jean Paul Jacobi, 39, was found guilty in December of official misconduct, falsifying records, and criminal mischief and could have gotten up to five years behind bars. The state asked for two years, but the judge gave him probation, and if he keeps his nose clean, with deferred adjudication, his felony record will be wiped clean. The search in question occurred after police arrested a drug suspect in a traffic stop and seized his vehicle. The keys ended up with another Miramar police officer, who gave them to Jacobi, who used them to enter the apartment without a warrant.

Colorado US Attorney John Walsh last Thursday sent letters to 23 medical marijuana dispensaries and their landlords across Colorado warning that they must shut down within 45 days or "action will be taken to seize and forfeit their property." The letter was sent to dispensaries operating within 1,000 feet of a school.

"Those who do not comply will be subject to potential criminal prosecution and civil enforcement actions by the United States Attorney's Office for the District of Colorado and the Drug Enforcement Administration," the US Attorney's Office elaborated in a press release.

The letters are of a kind with letters sent out by US Attorneys in California beginning in October. In both states, federal prosecutors are targeting dispensaries that trigger enhanced federal penalties by being within a 1,000 feet of a school, which does not violate state law in either state, but does result in enhanced penalties in federal prosecutions. The California threat letters have led to the closure of numerous targeted dispensaries, as well as the closure of dispensaries that were not directly targeted, but were intimidated by the signals emanating from the feds.

"When the voters of Colorado passed the limited medical marijuana amendment in 2000, they could not have anticipated that their vote would be used to justify large marijuana stores located within blocks of our schools," Walsh said in the release. The letters are "merely a first step to address this issue, and the office will continue to insist marijuana stores near schools shut down."

The Colorado dispensary scene exploded after then-Deputy Attorney General David Ogden issued an October 2009 memo saying federal prosecutors should not use their resources to target patients and providers in compliance with state laws. But in June 2011, Ogden's successor, James Cole, issued another memo clarifying that state laws do not provide protection from federal prosecution.

Colorado dispensaries are taxed and tightly regulated, and had previously been relatively free of federal interference. It looks like that is changing now.

Since 2004, when veteran musician Jimmy Tebeau brought the 350-acre rural property in central Missouri and turned it a camping and concert venue, Camp Zoe has been Deadhead central in the Show Me State. A member of the Grateful Dead tribute band The Schwag, Tebeau has hosted numerous Schwagstock and Spookstock festivals, as well as other concerts and events, drawing nationally known acts and thousands of fans for weekends of outdoor fun in the sun.

But the DEA and the Missouri Highway Patrol harshed Camp Zoe's mellow vibe last November, when they rolled into the venue early in the morning and searched the site. A week later, they announced that they were initiating federal civil asset forfeiture proceedings against the property because of alleged rampant drug use and Tebeau's failure to put a halt to it.

According to a complaint filed November 8 in the Eastern Missouri US District Court, the feds alleged that "over the past several years law enforcement agents have specifically observed the open sales of cocaine, marijuana, LSD (acid), ecstasy, psilocybin mushrooms, opium and marijuana-laced food products by individuals attending the music festival and made multiple undercover purchases of illegal drugs."

Tebeau and other Camp Zoe staff members "were in the immediate area" when drug deals were going down and "took no immediate action to prevent the activity," the complaint continued. It added that "undercover purchases have been made as recently as September 2010," when Schwagstock 45 was held, but noted that the investigation stretched back to 2006 and included evidence from "surveillance, undercover operations, source information, bank records, and interviews."

Most critically, the complaint alleges that Camp Zoe was "knowingly opened, rented, leased, used, or maintained for the purpose of manufacturing, distributing or using controlled substances." In other words, the feds are arguing that the purpose of Camp Zoe was not to be a concert venue, but a drug den, and it could thus be lawfully seized, along with nearly $200,000 in cash they seized from the site and various bank accounts.

The case pitting a local counterculture icon and his property against the power of the federal government has stirred considerable interest in Missouri, as well as among members of the peripatetic Deadhead set. (In fact, I had a conversation about the case with a dreadlocked young woman at a Northern California music festival last weekend.) It has also excited the attention of asset forfeiture reformers and critics of overweening governmental power.

But wait, it's even worse. The feds upped the ante further just a couple of weeks ago. After stalling the asset forfeiture proceedings for seven months -- leaving Camp Zoe silent and vacant and Tebeau without his primary source of income -- and seeing that Tebeau was not about to roll over for them, federal prosecutors last week sought and got a criminal indictment charging that Tebeau "knowingly and intentionally profited from and made available for use, with or without compensation, said place for the purpose of unlawfully storing, distributing, or using controlled substances."

"This is the sort of things Soviet thugs did and that continues to happen in Russia under Vladimir Putin," said Eapen Thampy, executive director of the Kansas City-based Americans for Forfeiture Reform. "They take a businessman, take his money, and take him to jail. I see this as an attempt by rich and powerful law enforcement agencies to acquire property or money they can turn into salaries or equipment."

"The Camp Zoe situation is really interesting," said Dave Roland, a St. Louis-based attorney who is director of litigation for the libertarian-leaning Missouri Freedom Center. "The federal government has recently come back and said they will charge him with maintaining the property for the purpose of facilitating drug transactions, but that seems like an after the fact justification for their attempt to seize the property. The more likely explanation is that the government was embarrassed by the fact people kept saying how can you take this property without alleging he's doing something illegal in the first place," he ventured.

"There was no one engaging in violence at Camp Zoe, there were no allegations of harm or injury," Roland continued. "That the government is concentrating on these sorts of victimless crimes demonstrates misplaced priorities. Especially in light of the financial crunch, we ought to be reallocating resources to deal with real threats to the health and safety of the community and not these drug witch hunts."

But there's the rub. Missouri law enforcement agencies profit handsomely from asset forfeiture, especially when they do an end run around state asset forfeiture law and partner with the feds. Under a 2004 asset forfeiture reform law, funds seized by state and local law enforcement agencies are supposed to go to the state education fund, but that's not what happened.

The state auditor's reports on asset forfeiture activity show a quick learning curve by state and local law enforcement. While, after the 1994 reforms, schools got 27% of seized funds in 1996 and 1997, in 1998, that figure fell by half to 14%. There was no audit done in 1999, but in 2000 and every year since, schools have gotten 2%, with that figure dropping to 1% in 2008 and 2009. Meanwhile the Justice Department and state and local cops have raked in millions of dollars, gobbling up the vast majority of funds that were supposed to go to Missouri's schools.

"Asset forfeiture abuse is rampant all over the country," said Roland. "Here in Missouri, the state made an effort to improve its statutes a decade ago, but the problem is that law enforcement agencies find alternative ways to accomplish the same end. Now, you see state and local law enforcement handing cases over to federal agencies because they get a kickback from the asset forfeitures. There is an actual financial incentive to assist federal agencies in the unconstitutional use of asset forfeiture laws."

"Missouri has laws that say how asset forfeiture should be conducted and where the money should go, but they aren't being followed," said Thampy. "When you put this into that context, these abuses are way more serious," he said, adding that he believed 90% of Missouri counties were not in compliance with the law.

Neither Roland nor Thampy were impressed with the criminal charges now being brought against Tebeau. Nor were they aware of other cases of "maintaining a drug premise" being brought against other concert venues. That law is widely known as the "crack house" law.

"The government has a pretty steep hill to climb to prove that Tebeau was operating this camp so that people could buy illegal drugs," said Roland. "I'm very skeptical that the government is going to be able to carry its burden of proof."

"That charge is complete bullshit," Thampy responded bluntly. "If they wanted to charge him with drug trafficking or drug possession, those would be appropriate charges if they could prove them. But charging him with running a drug premise says that he got this land for the sole purpose of conducting drug transactions. It would be putting it mildly to say this is an abuse of prosecutorial power."

"To the best of my understanding, this is not a commonly used statute," said Roland. "I don't recall ever seeing it used in the context of a concert venue owner. They're alleging that the property is being used for the purpose of facilitating drug transactions simply because Tebeau didn't take some unspecified affirmative action."

Now facing criminal charges as well as the seizure of Camp Zoe, Tebeau is still refusing to roll over and cut a deal. With his income-producing property shut down and his bank accounts seized, Tebeau is at a real disadvantage, but thanks to his fans and followers and continuing gigs as a musician, he has so far been able to raise the funds to defend himself.

"A just outcome would be dropping the charges and dropping the attempted asset forfeiture," said Roland. "If we're not going to legalize drugs, the government needs to at least focus on the people and activities they're really worried about. Jimmy hasn't been charged with actually being involved, and it's unjust to target him for a criminal action because someone else was doing something illegal. That's manifestly unjust."