Pubdate: Thu, 08 Sep 2011
Source: Missoula Independent (MT)
Copyright: 2011 Missoula Independent
Author: Jessica Mayrer
Bookmark: (Cannabis - Medicinal)
Bookmark: (Asset Forfeiture)


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 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 

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