Pubdate: Thu, 08 Sep 2011 Source: Missoula Independent (MT) Copyright: 2011 Missoula Independent Contact: http://posting.bigskypress.com/missoula/SubmitaLetter/Page Website: http://missoulanews.bigskypress.com/ Details: http://www.mapinc.org/media/1534 Author: Jessica Mayrer Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal) Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture) THEIRS FOR THE TAKING Montanans Confront a Dubious Weapon in the War on Drugs On the morning of March 14, Chris Williams set out on foot with his two dogs for the 2.5-mile walk to his East Helena-based medical marijuana business, Montana Cannabis. After a long winter, the weather was finally warmer. The hound and the pit bull nipped at one another and pulled on their leather leashes. Pigeons cooed from a trestle above him. Williams's mellow mood turned to curiosity when he saw a sheriff's car leading a line of unmarked cars down Euclid Avenue. "I thought, 'Oh well, maybe it's a funeral," he recalls. When several more cars joined the caravan, Williams saw that their business looked more urgent. "Then it registered with me, when my employee comes driving back the other way on the road: 'Oh shit, they probably just raided us.'...My worst worry was that they hurt someone." Williams arrived at Montana Cannabis to find Drug Enforcement Administration agents in tactical gear, armed with handguns. His staff was restrained with plastic handcuffs. Federal agents carried patient files and computers from the office. From the front-room retail space, they took marijuana, pot butter, and money and loaded it into the unmarked cars. In the greenhouse, 1,000 yards from the showroom, law enforcement agents wore respirators while cutting down plants that Williams had nurtured for years. Each of Montana Cannabis's four operations--dispensaries in Missoula and Billings as well as Helena, and a small grow operation in Miles City--were raided March 14 as the federal government, assisted by state and local law enforcement, executed 26 criminal search warrants for cannabis operations across the state. The U.S. Department of Justice took $38,000 from Montana Cannabis, Williams says. The authorities seized more than cash: Agents also towed away a 2008 Ford pickup and a 2006 Chevy Trailblazer. Montana cannabis had a shooting range behind the greenhouse at the Helena dispensary; among other items taken were several weapons, including six owned by a Montana Cannabis employee, a gun manufactured in Germany in 1913 and a weapon Williams's business partner inherited from his grandfather. Williams says the items taken, not including marijuana plants and cannabis products, were worth about $50,000. Williams was angry after the raid. He was operating legitimately under Montana law, he believed. He became more incensed in May when the DEA and the Bureau of Alcohol, Tobacco, Firearms and Explosives told him they were keeping the cars, cash and guns. Williams's Montana Cannabis partner, Richard Flor, 67, was arraigned June 30 on multiple charges including intent to distribute marijuana, possession of firearms during a drug trafficking offense and money laundering. But Williams has not been convicted or even charged with a crime. The government notified Williams in May that it had initiated civil asset forfeiture, a mechanism that enables authorities to take and keep possessions without a criminal conviction. There are two key differences between a civil action and a criminal one in this context. In the criminal justice system, a defendant must be proven guilty beyond a reasonable doubt before she's punished. With civil forfeiture, a property owner must demonstrate before a judge in civil court that the items seized haven't been used in conjunction with or to perpetrate a crime. In order to get property back, owners must illustrate, for instance, that it was purchased with money earned through employment or inheritance. The defendant's property is essentially guilty unless and until it's proven innocent. The second key difference in a civil proceeding is that a defendant isn't entitled to legal representation if he can't otherwise afford it. For someone like Williams, who has had his assets seized and business destroyed, leaving him in no position to pay an attorney, proving property innocent isn't easy. Law enforcement representatives say civil forfeiture is an important tool to deter crime. Yet the United States Department of Justice in Montana declined to comment for this article or even say how many people in the state are now being subjected to civil asset forfeiture. Interviews conducted by the Independent, however, indicate that a growing number who had participated in Montana's ostensibly legal medical marijuana industry are losing their belongings to civil forfeiture. And that's leading more Montanans to question the procedure, joining an already diverse group that includes the American Civil Liberties Union, the Cato Institute and the Montana Shooting Sports Association, all of whom say civil forfeiture is too often unjust. "That someone can come and take all of your firearms from you in this country with no charges filed against you, with no due process, with one judge signing a warrant on evidence--we can't even see the full scope of that yet," Williams says. Attorney Chris Lindsey served as in-house legal counsel for Montana Cannabis until December 2010. He's now in private practice in Missoula, specializing in cannabis cases. Lindsey contends that initiating forfeitures without convictions in the cases of medical marijuana caregivers flies in the face of the state's 2004 Medical Marijuana Act, which says that designated marijuana providers cannot be subject to forfeiture unless they are proven guilty of a crime. Lindsey also points to a memo written in October 2009 by Deputy U.S. Attorney David Ogden, which stated that the federal Department of Justice would not pursue individuals or caregivers who were acting in compliance with state medical marijuana laws. "We really took that to heart and thought that if we're compliant with state law, then that's good," Lindsey says. Lindsey isn't currently representing Williams. But he has two clients who have had their possessions seized and kept, and neither has been charged with a crime. It's tough for some to believe that people can have their assets taken without being proven guilty of any charges, Lindsey says. "When you start getting into forfeiture, you get into an area that not a lot of people really know very much about. But when they start to learn how it works and where it came from and how it's used, it's the kind of thing that people will be surprised by--'Gee, I didn't know it was that way. And is that the way we want it to work?'" Talkin' 'bout a revolution As the sun sank over Boston Harbor on a spring night in 1768, crewmen aboard John Hancock's sloop Liberty quickly unloaded a cargo of Portuguese wine. They had reason to hurry: Their boss was trying to skirt a tax on the Madeira. It wasn't the first time Hancock caused trouble with British customs officials. He was a shrewd businessman and a known smuggler with no love for Great Britain or the taxes it imposed. When the British got wind of Hancock's antics, they moved to make an example of him. On June 10, 1768, the Crown seized the Liberty, raising a fury among Bostonians already fed up by hefty import duties and conscription into the armed forces, among other thorns. As historian Benson J. Lossing writes, "A mob followed the custom-house officers, pelted them with stones and other missiles, and broke the windows of their offices. The mob seized a pleasure-boat belonging to the collector, and after dragging it through the town, burned it on the Common." The incident cemented Hancock's reputation as a rebel. It also fueled the growing resolve among colonists to fend off Britain's overarching power. Yet, despite the fury generated by the Liberty affair, the first American Congress in 1789 enacted civil statutes authorizing the seizure of ships and cargos involved in criminal activity. Now that the British no longer ruled from afar, the new American government wanted to take the boats of owners who fled to avoid piracy or slave-trafficking charges. Civil forfeiture ensured property couldn't be used to commit another offense. It also provided a mechanism to recover duties owed on smuggled goods. American jurists have struggled to reconcile forfeiture with constitutional protections. A particularly tricky question came before the Supreme Court in 1920, when a car driven by J.G. Thompson was apprehended transporting 58 gallons of distilled spirits. Law enforcement seized the car because Thompson had skirted the tax owed to the feds for the booze. However, Thompson still owed money on the vehicle. And the Grant Company, which held title on the Hudson, valued at $800, wasn't keen on having its property taken. The company filed suit, asserting that seizing and not returning an innocent third party's property violates the Fifth Amendment, which states, "no person shall...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Supreme Court Justice Joseph McKenna said in the court's 1921 opinion in J. W. Goldsmith, JR.-Grant Co. v. United States that there was streng! th in the plaintiff's argument. However, he wrote, the laws governing civil forfeiture already were "too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced." Civil asset forfeiture got a considerable boost in 1970, 1978 and 1984 when Congress enacted a series of laws that corresponded to increasing efforts by the federal government to police drug crimes. Those laws dramatically broadened the scope of forfeiture law. The 1984 Comprehensive Crime Control Act made a significant change in how forfeiture proceeds were distributed, creating two federal forfeiture funds. The 1984 legislation also included a provision that gave forfeiture proceeds to local law enforcement agencies that helped seize assets. In 1993, as the war on drugs set its sights on more fronts, Supreme Court Justice Clarence Thomas, in an opinion, joined jurists like McKenna in voicing misgivings about civil forfeiture. The case, United States v. James Daniel Good Real Property, involved a forfeiture action taken against a convicted drug dealer's home. "I am disturbed by the breadth of new civil forfeiture statutes, which subjects to forfeiture all real property that is used, or intended to be used, in the commission, or even the facilitation, of a federal drug offense," Thomas wrote. Critics of forfeiture such as Eapen Thampy of Americans for Forfeiture Reform say that the mechanism today perpetuates America's war on drugs by funding it with an infinite stream of seized assets. It's ironic, Thampy says, that the government is engaging in the same type of behavior that sparked the American Revolution 225 years ago, in order to disarm nonviolent marijuana sellers. "It's really crazy...that after people fought a war to rid themselves of these laws--and of what I term mercenary law enforcement--we've returned to the same state of affairs." 'Law enforcement just has to call' Chris Williams, who has white hair that makes him look older than his 37 years, says the past 12 months have been tough on him. After the March bust of Montana Cannabis, he had no income. He defaulted on the lease securing his Helena home, put his belongings in storage and went fishing for a couple of weeks with his 15-year-old son. Williams has struggled with depression. The business he worked for two years to build was destroyed, and he has had no idea if criminal charges against him are imminent. When he and his son returned from their fishing trip, they stayed at friends' homes. One of those friends is now putting up his son, Sage, in a spare room while Williams often sleeps in his camper-topped pickup truck. Williams, along with Tom Daubert, Richard Flor and Chris Lindsey, grew Montana Cannabis into a multi-million-dollar enterprise, one of the largest dispensaries in the state. (Both Daubert and Lindsey say they cut ties with Montana Cannabis last winter.) Williams says that throughout the company's two years, its operators consistently worked to be transparent. They gave tours to legislators, Montana DOJ officials and local law enforcement. "I told them all, 'Oh yeah, we have an open-door policy. Law enforcement just has to call,'" he says. "And it's funny, they did just have to call, but that's not what they wanted. It seemed like they wanted to stop us from doing business." Authorities continue to take medical marijuana caregivers' belongings. On June 23, Missoula Police stopped 38-year-old William George for rolling past a stop sign. George co-owned Helping Hands Caregivers, on West Broadway. The dispensary was in the process of selling the remainder of its pot before new restrictions on medical marijuana took effect July 1. George says he had just delivered an ounce to a patient when he was pulled over. Police cited him for having no license and no insurance. They searched the car and seized roughly an ounce of marijuana and $588. They also took the car, a black 2005 Mazda 6 Sport valued at about $6,700. "I even told them I was trying to use up my product," George says. The state initiated civil forfeiture against George in July. It intends to keep the car and the money. Chris Lindsey is the former caregiver's attorney. Lindsey surmises that law enforcement believed George was somehow acting unlawfully under the state's medical marijuana act. But the civil complaint does not expressly state why police seized the car and George hasn't been charged with a crime. So the two men remain unsure exactly why the car is being forfeited. Lindsey says since March, there have been more raids on medical marijuana providers in Montana than there were in California in eight years under George W. Bush, Lindsey says. That's ironic in light of the fact that when President Barack Obama campaigned for office, he promised that, if elected, he would direct the U.S. DOJ to back off prosecutions of medical marijuana providers. "It's almost getting personal, considering how small the community is," Lindsey says. On Aug. 12, the DOJ moved to keep $78,000 from a bank account belonging to Christopher Durbin of Four Seasons Gardening, in Columbia Falls. The DOJ says in its civil forfeiture filing that Four Seasons was intentionally evading federal reporting requirements on proceeds generated from illegal marijuana sales. DOJ says the company worked in conjunction with two other Columbia Falls businesses: Good Medicine Providers, a cannabis dispensary, and Northern Lights Medical, a medical marijuana clinic. Law enforcement searched all three businesses March 14. In addition to the cash, agents seized bulk marijuana, 224 plants, cash and growing equipment. These Montana raids and forfeitures seem distinctly aggressive when examined in a national context, alongside other states that have legalized medical marijuana, Lindsey says. "It does appear that what's happening in Montana is fairly unique, that they have targeted people who were in compliance with state law." Those targeted in the March raids say the timing was suspicious. The raids occurred on the same day the Montana Legislature debated a bill that aimed to reverse the state's voter-approved medical marijuana law. "It was more like a vendetta or a political action then it wastrying to protect and serve the public," Williams contends. The bill didn't pass, but marijuana caregivers got the message nonetheless: law enforcement is not keen on allowing a large, for-profit medical marijuana industry to grow in Montana. Lindsey believes there could be a monetary incentive for the federal government to run roughshod over state law. "You know," he says, "you don't make money by going out and breaking up a couple in a partner-family member assault situation. But you do make money if you can take somebody's rig and take all the cash that they have on them, and sell their gun and anything else." Wanna buy a Picasso? Drug dealers usually don't leave calling cards. When an agent stops a car with heroin in the trunk, chances are the driver will claim he didn't know the drugs were there, says Federal Law Enforcement Officers Association President Jon Adler. Convictions on cases like that are tough to get. "You can identify the crime but not the criminals," Adler says. "So what you're left with is the loot, if you will, of the crime." Seizing assets is "another way of disarming a criminal." Adler's organization represents more than 25,000 federal law enforcement officers in 65 agencies nationwide. They police crimes such as fraud, identity theft and terrorism--all of which, Adler points out, do tangible and lasting harm. Civil forfeiture is an effective weapon to thwart those crimes, he says. "When one engages in wrongdoing and, in the process amasses a considerable amount of wealth, it makes sense for us--not just from a financial perspective, but from a tactical perspective--to target those assets in consideration of forfeiture." Once items are forfeited, the property is sold, placed into official use, destroyed, as is often the case with weapons, or transferred to another agency. The United States Marshals Service administers the Department of Justice's Asset Forfeiture Program. Its website currently lists multiple items for sale, including a yellow 43.51-carat diamond, a Picasso, a 2001 Lexus SUV, a duplex on New York's Park Avenue, and 10 acres of undeveloped land, for $79,000, in Helena. Criminal and civil forfeitures of cash and property brought more than $2.5 billion into federal coffers last year. Compared to states like Florida and New York, Montana is not a significant breadwinner. Federal prosecutors in New York secured nearly $650 million in criminal and civil forfeitures last year; Montana collected $207,904 in the same period. Money generated through forfeiture is used to fund local, state and federal law enforcement efforts and to compensate crime victims. According to the DOJ, the agency returned $400 million in 2008 to people harmed by financial crime. The federal government last year paid out more than $500 million in what's called "equitable sharing" to more than 8,000 partnering law enforcement agencies last year, the Wall Street Journal reports. That marks an increase of 75 percent from a decade ago. In Missoula, Police Chief Mark Muir says the majority of MPD's forfeitures are through the state, which typically engages in criminal forfeiture, meaning a suspect must be convicted of a crime before his assets are taken. Muir estimates that this year the federal government has awarded about $10,000 of equitable sharing to the Missoula High Intensity Drug Task Force, which includes city and county law enforcement and the Missoula County Prosecutor's Office. Muir, who chairs the drug task force's executive board, says that during the past 10 years, the partners have collected about $150,000 from forfeited assets. State and federal forfeiture proceeds in Missoula pay for drug prevention education, SWAT team crisis negotiator training and the care and feeding of the city's drug dog, Ryker, among other things. Muir is able to draw from the funds to offset the costs of equipment. Forfeiture funds aren't considered a reliable funding source, Muir says, so any equipment purchased with them must be considered a one-time investment. Money generated through forfeitures helps his department, Muir says, but it's not an incentive to hyper-aggressive policing. "A lot of people don't like the asset forfeiture because they think it makes folks a target of law enforcement, to go after them for funding and so on. But we've never found that to be a compelling reason to do it--nor is it fruitful enough." Adler, of FLEOA, says the burden of proof is on the government to show that items seized were more likely than not involved with criminal activity. It's not as though the government tiptoes up behind unsuspecting individuals to take their cars and their homes, he maintains. "It doesn't work that way. And it shouldn't work that way. That's not what our whole judicial system is about." The meaning of fighting back On a recent sunny summer day, Tim Baldwin talks on a cell phone in front of the Flathead County Justice Center, in Kalispell. His accent is distinct, betraying a Pensacola, Florida upbringing. It's a slow drawl that only deepened during his time at Cumberland School of Law in Birmingham, Alabama. The 32-year old author and attorney moved to Montana last September. He opened a private law practice in Kalispell in January. Less than a month later, Baldwin landed his first medical marijuana case. "It just sort of snowballed from there," he says. Baldwin's father instilled in him a passion for politics and law. Chuck Baldwin, a Baptist pastor, is a former leader in Jerry Falwell's Christian evangelical lobbying group, the Moral Majority. Chuck, like his son, enjoys shaping civil discourse. He ran for president on the Constitution Party ticket in 2008 and garnered the endorsement of libertarian icon Ron Paul. Father and son co-authored a recent book, Romans 13: The True Meaning of Submission, that uses biblical teachings to tackle political issues. Nearly the entire Baldwin family moved to Montana in the past year. Chuck is starting a ministry in the Flathead Valley. Tim seems to think he's landed in the right place at the right time to take a stand against what he sees as federal meddling in state business. Among Tim's clients is Chris Williams. Baldwin filed suit in May against the federal government on behalf of Williams and other plaintiffs who were raided this spring. None of them have been charged with a crime. Many face civil forfeiture. "To be shut down essentially overnight by the federal government and to have to prove your innocence before you can have your property back, it just strikes at the heart of constitutional violation of due process," Tim says. Civil forfeiture, he adds, "is unconstitutional, and it's a dangerous tool." Forfeiture is just a symptom of a broader problem, he continues--the federal government perpetually expanding its power. "Since the turn of the 20th century, there has been such a strong push and even a change in ideology regarding what the federal government's role is. For more than 100 years, the federal government's impact and its influence and its reach have grown more and more and more beyond what the constitutional limits allow. You can take just about any subject and show where this is taking place." Asset forfeiture, Baldwin says, "is just the latest one within the state of Montana--maybe a more obvious one that people can see." The 10th Amendment says powers not delegated to the federal government or prohibited by the Constitution are left for the states to decide. Baldwin argues in the suit that because the U.S. Constitution doesn't specifically grant the federal government the power to regulate medical marijuana, it is violating the 10th Amendment by overruling Montana's medical marijuana law. The suit aims to reassert the right of Montanans to make their own decisions when it comes to health care. Baldwin says if it's successful, it could have broader implications for federal education mandates and even gun laws. "For me, it's not about marijuana," he says. "It's about following the Constitution...When they come into a state and start arresting people and destroying property, making you prove your innocence before they're going to give you the protection of the law, that's a serious problem." Won't back down Chris Williams is traveling in the Midwest on a recent late summer day. The trip marks his launch of a new national effort, the Rights Restoration Movement, in which Williams aims to educate citizens about their constitutional protections. The former medical marijuana caregiver feels compelled to fend off what he sees as a gross overstep on the part of the federal government. "I can't imagine what an uproar there would be if a logger logged without the (government's) approval and they came and took all of his equipment, took everything that he used to make a living and never charged him with a crime," he says. "I see this as similar. It's just a different commodity." Williams predicts that there will be a lingering impact from law enforcement's recent actions against Montana's medical marijuana community. He says he already sees changes in his son, Sage--the 15-year-old has become increasingly mistrustful of government as he watches it destroy his father's business and strip his possessions. The impact doesn't end there, Williams says. Many of his former employees lost their homes when Montana Cannabis was shut down. They too have children. "Those kids, these people, are going to grow up and they're not going to view our government like my parents did or I did." Lately Williams has been writing bits of the Declaration of Independence on Facebook, but replacing "The King" with "The Government." His Facebook friends like the modern take on old principles. Now that his business is gone, he stays busy picking up odd jobs, but he says he still doesn't sleep well. He could yet be charged with a crime. Williams's former Montana Cannabis partner Richard Flor is facing decades in prison. Williams keeps that in mind when he talks to his son, always punctuating plans with "that's if they don't lock me up." Williams says he's called the DOJ twice to ask if he's going to be charged. "I've said, 'Hey, this is ridiculous. They should have come with charges immediately after they had a search warrant'...It doesn't make sense to me that they wouldn't have a case together by now." Some of Williams' peers from what's left of Montana's medical marijuana industry declined to comment for this article, saying they're worried that telling their stories publicly will make them more vulnerable to prosecution. Despite the fact that drawing attention to himself could exacerbate Williams's legal problems, he says he won't stay mum. "I was taught that if someone hits you or tries to hurt you, that you don't take it lying down--and you let them know that you're never going to stop." - --- MAP posted-by: Jay Bergstrom