New Facts Reveal More Problems with Civil Forfeiture in Wyoming

by Stephen Klein

In the 2015 Wyoming Legislative Session, Senate File 14, or Senate Enrolled Act 1 (SEA 1), would have overhauled Wyoming's drug forfeiture laws to require a felony conviction before alleged drug property (cash, cars, firearms and the like) could be permanently taken by the state. The bill passed the Wyoming Legislature with an initial total vote of 80-9 between both houses before it was vetoed by Governor Mead, then failed to muster the requisite votes to override the veto.

This week the Joint Judiciary Committee of the Wyoming Legislature will convene its first of three meetings in the 2015-16 legislative interim, and will once again consider asset forfeiture under Wyoming law. It will review everything from asset forfeitures by Game & Fish to 2015 House Bill 186, which would add asset forfeiture as a penalty for human trafficking felonies. The main focus, I suspect, will remain the Wyoming Controlled Substances Act (WCSA) and SEA 1.

I lobbied as strongly as I've ever lobbied for SEA 1, and give the Legislature a lot of credit for passing it. Its re-appearance as an interim topic shows you can't keep a good idea down. So, with the zeal of a Code that says to "Always finish what you start," I say with enthusiasm: here we go again!

The basic facts of civil forfeiture in Wyoming have not changed. WCSA forfeiture cases are pursued in civil court, where the government must only prove by a preponderance of the evidence that property is drug related. That is, instead of the state bearing the burden of providing proof beyond a reasonable doubt like in criminal cases, there is just as big a burden on the property owner to prove the property is legitimate as there is on the government to prove it is not. Also unlike criminal court, a property owner is not provided an attorney in civil court if he cannot afford one. Since asset forfeitures cases in Wyoming typically seek around $2,000 worth of property, even if the owner can afford an attorney it is not worth paying for one since the attorney's fees will cost more than the value of the property the owner is trying to get back. Two thirds of WCSA cases end in default, release of the property interest by the owner, or settlement with the state. Most of these cases could be tried successfully in criminal court—indeed, Wyoming law enforcement continues to seize lots of drugs instead of or along with alleged drug-related property. Nevertheless, the state's civil forfeiture system is, quite simply, rigged.

Although the typical WCSA case seeks only around $2,000 worth of property, Governor Mead's veto letter of SEA 1 sang the praises of certain large Wyoming forfeiture cases. In the aftermath of the veto, a letter from Attorney General Peter Michael did much the same thing, focusing concern on "mules" who carry drug cash for owners who cannot be reached by Wyoming law enforcement. Although these large cash cases are rare, it seems law enforcement would like to keep the WCSA unchanged in the event these big cash hauls come up for grabs. There are, in fact, several open cases in Wyoming where the AG is pursuing large amounts of cash with only minor crimes or no crimes at all (not even misdemeanors) relating to each respective case. An examination of these cases only shines a brighter light on the gaping due process problems in the WCSA.

As I discussed in a post last month, one of the largest cases in recent Wyoming history is ongoing, an effort to forfeit $470,040 from a man named Robert Miller. Seized during a traffic stop November of 2013, the AG's office finally filed a case in court nine months later in August, 2014, despite calls by Miller's attorney to begin proceedings in January, 2014. This delay, Miller argues, violated his Fifth Amendment rights to due process, and because of this the case should be dismissed and the money returned.

Counter-arguments against Miller by the AG's office, filed in Uinta County court on March 6 are, to put it mildly, concerning.

Standing: First the Attorney General's office argues that, although the Wyoming Highway Patrol seized $470,040 from Miller's rental car, Miller lacks legal standing to challenge the forfeiture. That is, even though Miller has claimed ownership of the money that was indisputably taken from him by the police, he must prove the money is his (or that he has a "genuine legal interest" in it) even before the court considers the constitutionality of the state's delay in his case. When Attorney General Peter Michael argued before the Senate Judiciary Committee in January that the preponderance of the evidence standard in the WCSA does not amount to guilty-until-proven-innocent, I found it unconvincing. I didn't think at the time that the State would ever go so far as to argue that one is not even entitled to a day in court until, basically, proven innocent.

Lengthy Investigations: Although the WCSA calls for "prompt institution of proceedings" in forfeiture actions, the AG's office interprets a provision of the Wyoming Code of Civil Procedure to allow an entire year between a seizure and a forfeiture action:

(a) Civil actions other than for the recovery of real property can only be brought within the following periods after the cause of action accrues: . . . . (v) Within one (1) year, an action for: . . . . (D) Upon a statute for a penalty or forfeiture, except that if a different limitation is prescribed in the statute by which the remedy is given the action shall be brought within the period prescribed by the statute.

(Wyo. Stat. § 1-3-105) Given that the requirement in the WCSA is only for "prompt" proceedings, this is a largely fair interpretation, but while it may square with Wyoming law it does not square with the Fifth Amendment. It is unreasonable for the government to be able to seize property and sit on it for an entire year before an owner can even get a court date. Furthermore, it is questionable that the AG's office can call a seizure of property a "cause of action" supported by probable cause but then, as it explains in detail in the Miller case (see pages 1-3 of this file), spend the better part of a year building (or, as the Miller case details, trying to find) that cause of action with the help of the Division of Criminal Investigation. I believe that not only should a forfeiture action not begin before a case can plausibly be made, the seizure itself should not happen beforehand, either.

Other Maneuvers: The WCSA does not provide for a preliminary hearing in a forfeiture case (or much procedure at all, for that matter), so it's particularly disturbing that the Attorney General's Office stalls when an owner demands his day in court. An e-mail between Miller's attorney and an Assistant Attorney General drives home the point:

Transcript (this image was captured from a compressed-scan PDF): This email is to confirm our telephone conversation from earlier this afternoon. As we discussed, it is the State's intention to file a complaint for forfeiture of the $470,040.00 that was seized from Robert Miller on 11/18/13. As there is not yet an action pending, there is no case in which you could appear pro hac vice. However, you indicated that you do intend to file such an appearance once the State initiates proceedings and to represent Mr. Miller.

At this time, I would like to extend a settlement offer to your client. The State is willing to return 10% of the funds in exchange for your client's voluntary relinquishment of his claim to the rest of the money. In this case, that would be $47,004.00.

If there is any information that your client is willing and able to provide that might demonstrate a legitimate source of the funds, I am certainly willing to consider it in the course of any settlement negotiations that might occur.

Please inform me of your client's acceptance or rejection of this offer and whether he might be willing or able to provide additional information.

The response to Miller's motion for dismissal from the state reveals that neither the Division of Criminal Investigation nor the federal Drug Enforcement Agency were able to build a criminal case against Miller. It's particularly telling that after this time and effort, with no criminal charges worth filing against Miller, civil forfeiture proceeds anyway. Even though the state is confident he's a drug trafficker, it offers a 10% settlement. Even though the state assures the Judiciary Committee that one is not guilty until proven innocent, it asks Miller to "demonstrate a legitimate source of the funds" to go above its paltry settlement offer. Even though the state claims to follow due process, it acknowledges that seven months after the seizure "there is not yet an action pending" in which Miller's attorney can even represent his client. Much of this is in keeping with legal hard ball, similar to what one could expect by prosecutors in a criminal proceeding or by private lawyers tussling in a civil proceeding. But this does not excuse the fact that these are state prosecutors, publicly funded, pursuing money that is supposedly drug proceeds without any evidence other than what amounts to "cops know it when they see it."

I'm not a betting man, but if I were I'd bet Miller's case—along with the other open large seizure cases where the owners each have legal counsel—will not end well for the state. Even under the highly problematic WCSA, when owners have legal counsel and the state has little-to-no evidence that the owner or property are involved in the drug trade, owners can successfully fight back. But this is little more than a payday for a few defense lawyers in cases that never should have been brought in the first place.

Although a cornerstone of Governor Mead's veto and AG Michael's claims, the big Wyoming forfeiture cases are only further evidence that the WCSA should be significantly reformed, if not as dramatically as SEA 1 then with a bill very similar to it.