- Updated C.V. or Resume of Attorney Carl E. Person
- Candidates, Elections, Ballot Initiatives, NYC/Town Attorney General
- My Other Politically-Oriented Websites
- My Antitrust Websites and Book
- My Prosecutorial Abuse and Criminal Law Websites
- Additional Websites for Attorneys and Small Law Firms
- Additional Websites for Small Business
- Miscellaneous Websites
- My 6 Self-Help Pamphlets
- My 3 Paperback Books
- 19 Articles for My Losers Magazine
- My Press Releases
- 11/05/07 Lawmall Index Page - to Compare
Carl E. Person
225 E. 36th St Suite 3A
New York NY 10016-3664
Tel. No. - 212-307-4444
Fax No. - 212-307-0247
Email Address: email@example.com
Here are links to two YouTube 1-hour interviews I had recently with Harold Channer.
Prosecutorial Misconduct Website - To Expose Prosecutorial Corruption
and Related Loss of Constitutional Rights and Explain What Victims Can Do to Fight Back and Change the System
Forfeiture Statutes for Ex Parte Attachment by Prosecutor/Government of Criminal Defendant's Assets Used in
Alleged Criminal Enterprise; Litigation Techniques for Opposing Attachment and Obtaining Return of Attached Family Property
Initial Publication: 9/23/98; Last Update: 12/16/08 21:33pm
Here is a link to the website of attorney Carl E. Person Attorney Carl E. Person's Website Discussing His Legal Representation in Various Types of Legal Matters.
Note: If you want to discuss your own situation, I am available to do this by telephone call, to my telephone number 212-307-4444. I charge $6/minute for my time with you on the telephone, payable in advance through PayPal. For further instructions, please go to my website Instructions for Speaking with Your Telephone Lawyer. Or, call me at any time during 9:00 a.m. to 6:00 p.m. Eastern Standard Time to arrange for the call and the amount of advance fee to be paid (either by PayPal or a credit card as either member or non-member of PayPal, click on the Buy Now (PayPal) Button below:
Part I - HOW YOU AS A VICTIM OF PROSECUTORIAL ABUSE, WORKING ALONE, CAN CHANGE THE ABUSIVE CRIMINAL JUSTICE SYSTEM
After years of working on the problem of prosecutorial abuse, I have come to the conclusion that it is very difficult to overcome in a typical case of abuse. Once in a while, some relief can be obtained, but not often enough. The only way to deal with the problem, as I see it, is political. You need to run for office with the promise to voters that if you are elected you will try to appoint a "Town Attorney General" or "City Attorney General". This is like having a new sheriff in town, not one with a gun, but one with the money and legal authority to go into court to protect the rights of individuals against the ever-increasing loss of many of their rights, including the loss of rights through prosecutorial abuse.
This may be your first time to my website, looking for information to help yourself or a member of your family who is the victim of prosecutorial abuse. Victims of prosecutorial abuse not only include the criminal defendant, but includes the defendant's family members, as well.
What I will ask you to and every other victim of prosecutorial abuse to do is to take the abusive criminal-justice system away from the abusers by you, the victim, in two distinct ways:
FIRST: Create an Email List of Residents and Small Businesses in the Community
Before describing the main event, I want to describe a preliminary event that you can organize, which will help you achieve the primary (SECOND) event described below. This FIRST event is to create a new medium for your community to provide the information to residents and local businesses that the local media do not provide, either because they are owned by the major corporate interests, or because they are afraid of losing advertising they have (or hope to get) from major corporations such as Wal-Mart, other top 100 retailers, and other major corporations.
I can't overemphasize how important it is to create a permissive e-mail mailing list for your community. The list must be "permissive" (i.e., with the explicit permission or authorization of each member of the list - to avoid charges of illegal "spamming", with a link put into each communication enabling them to remove themselves from the list with no hassle). The permissive e-mail mailing list becomes your own newspaper to promote the interests of the community, which generally are not the interests of the persons or corporations which own your local commercial media.
The size of your community is obviously a factor. I am not suggesting that you create an e-mail mailing list for New York City, Detroit, Los Angeles, Tulsa or other large city. Instead, I am talking about towns and villages (even small counties) having a total population of 25,000 or less. I'm currently working with one town of about 12,000 population, and 3,000 homes. If it takes an average of 15 minutes per home, then 3,000 homes would require 750 hours of work. If someone wanted to fund this at a minimum wage level (say, $6/hour), the cost of creating the list would amount to $4,500, a lot less than purchasing the local newspaper for $500,000 or $1,000,000 or more.
This new medium for your community would be a permissive e-mail mailing list consisting of the e-mail addresses for most if not all of the residents and small businesses in your community. The small business addresses can be obtained from the local Chamber of Commerce, or by stripping the addresses from its website. Always remember not to spam, and that you need approval from the business or resident before adding the e-mail address to your community permissive e-mail mailing list.
Obtaining the e-mail addresses of residents is more difficult. Whereas businesses are confined to business areas and can be reached by foot or bicycle within 1-5 days for most communities in the United States, residents are scattered over an area perhaps 20 times the size of the area dedicated to businesses, with much greater time involved in creating the desired list.
My suggestion is to find groups of interested persons, such as unemployed persons, seniors, individuals employed only part-time, persons on public assistance, college students, high-school students, church members (especially churches catering to minorities and the poor). They can do the needed leg work, if they can be shown how the permissive e-mail mailing list can and would be used to further their specialized interests. In other words, try to share the workload by putting together a coalition of interested local groups to provide the people you will need to put the list together.
Before giving you some pointers on what you can do to create the list most effectively, I want you to understand how the list would help to cure the problem that brought you to this website.
Prosecutors are elected through backing by the local press (or a major part of it) and they have ready access to the press after they are elected, so that the local press prints almost anything offered by the prosecutor and his/her office. On the other hand, the victims of prosecutorial abuse are not able to get their story told, for a variety of reasons, but mainly because the disclosure of prosecutorial abuse would make the prosecutor and his/her mouthpiece (the local press) look bad, and cause a major reduction in the ability of the local publications to mislead voters about what is going on in the community.
A permissive e-mail mailing list including the e-mail addresses of most residents and small businesses in the town or village would enable the owners of the list (perhaps you and a coalition of groups discussed above) to create your own "newspaper" or equivalent (really, a weekly newsletter) to send to the list providing information of value to them that the local media ignores. What type of information? Well, how about prosecutorial abuse and the damage that it is causing to your community. You might get a local college professor of economics to estimate the damage done to the community if 20% of the prosecutions are unjustified, and done solely to enhance the political career of the prosecutor and/or his/her assistant prosecutors.
What else could you say in the newsletter? How about explaining to your list members how Wal-Mart's low prices are causing the town and county to see its valuable jobs being transferred to China and other countries with substantially lower wages. How about telling residents and small businesses that they could have FREE broadband service, FREE healthcare coverage, REDUCED real estate taxes (for owners) and REDUCED rent (for tenants). You have never seen anything like that in any of the local media, have you?
The purpose of the permissive e-mail mailing list is to have a way to get a sufficient number of people in your community informed at the same time to be able to get them to take action that would be of benefit to them and the rest of the community. An occasional item in the local newspaper (especially when the item is incomplete, and has no followup) is basically worthless. You need to have control of the medium to be able to provide repeated information about the problem to be able to educate the local community members. There is a saying about advertising, "The more you tell the more you sell!" Also, as to the efficacy of advertising the radio salespersons will tell you that recency and frequency are important factors. You have to keep repeating the message because not everyone understands the message the first time they hear or read it. The first time there may only be 1% of understand the message. The next 2-10 times might bring the understanding level up to 25%, and thereafter with repetition you can bring the understanding percentage to much higher levels, to be able to prevail in a contest (such as election) where those issues are raised.
Also, email will help you identify and motivate candidates for local office; help to market their candidacy to the local residents and small businesses; and help to motivate local voters to vote these candidates into office.
Pointers on Creating the Permissive E-Mail List for Your Community
- Have a written form authorizing the addition of the resident's or businessperson's e-mail address to the list, including the person's name, address, town, ZIP Code, date of authorization, signature line for signature; and instructions for returning the form by email (after being scanned); by mail or given to the person who gave the form to the signer.
- Create a war room somewhere to treat this as a battle, with breakdown of residents and businesses into categories, such as by area, or by being known to specific people, or by having the email address and only need to get permission, or by bicycle route or foot route
- Try to get organizations to use their email list to solicit members for you, which will give you a head start
- Consider raising money to pay unemployed, senior, underemployed or students to gather signatures on the authorization form at so much per signature (after you verify that the email address works, and that there is no demand to be removed from the list after you send the first email to the new subscriber; you might want to pay anywhere between $.25 and $1.00 (perhaps more) per subscriber.
- Try to meet with organizations and encourage each person in the room to get 10 authorizations (subscriptions) for you
- After you have a certain number of names on the list, try to get each member of the list to get 10 additional authorizations (subscriptions) for you
- Work with the owners or editors of the lesser media in the area, or ones that are independently owned, if they are willing to risk loss of advertisers by getting involved with your list-creation efforts
- Go to unemployment and public assistance offices to try to find interested people to subscribe
- Work with local organizations such as churches to have computers, assistance and email addresses for people in the community who lack a computer, email adddress or computer skills - and try to market this through signs in stores owned by persons on your list
- Get college students and high school students a lesson in practical politics by getting them involved; they need to understand Part II, perhaps, to motivate them sufficiently to help out in creating the Part I list.
- Communicate with me, Carl E. Person, for any insight or help I can give to creation of your community "permissive e-mail mailing list; you can reach me by email at firstname.lastname@example.org.
- Look at the first of a series of websites I am creating -- www.myclads.com -- which makes use of permissive e-mail mailing lists to achieve similar political objectives. Myclads.com will keep you abreast of my more recent websites, as they come online.
With this said, now look at my SECOND point.
SECOND: Run or Get Someone to Run for Local Office
The second thing that you can do is to either run for elective office yourself, or encourage the right person (such as a friend, relative, associate or neighbor) to run for local elective office (such as for council, mayor, selectperson or similar office for running of a town or village) in your own town, village or county (or in a nearby town, village or county - even if you don't live there - residency requirements can be overcome in many instances in court).
You should run on the 16 election-issue platform I have set up for this purpose (whether the candidate is you, me, or someone else you can encourage to run). See my website and 16 election issues at Website for Candidates for Local Office - 16 Election Issues.
At your request, I will try to come in to your town (at my own expense) to campaign for you or other person running on my 16-point platform (or a substantial part of my platform, including the "Town Attorney General" part).
Once elected, you or other candidate running on my platform should do what you can with the other members of the town council to have me or another similarly qualified attorney as "Town Attorney General" for your town, village or county. The Town Attorney General is to ensure that the rights of the residents and small businesses of your town are enforced against the major corporations and others that have been systematically depriving your town of its jobs, its services, its higher-paying jobs, its standard of living - and sending the assets of your town to foreign countries. There are legal ways to stop this from occurring and to recover damages for the community for jobs already stolen. The Town Attorney General knows what to do and should be appointed to do his/her job, for the benefit of you and the other residents of your community, including its small businesses.
If this takes places, your town will lose its abusive criminal prosecution system. Abusive prosecutions are, as you known, very costly to the town and its residents, destroying the personal and economic lives of the victims, and imposing huge, wholly needless costs on the community, just to give overzealous prosecutors a win record against victims who have no money to fight, and who are bound to lose because of the prosecutorial advantages that, in New York City, enable federal prosecutors to put their criminal defendant victim (felony defendant) in jail 99.5 to 99.8% of the time. This is not a fair criminal justice system. It is corrupt, abusive, oppressive and can be stopped at the local level of government, by the appointment of a civil prosecutor ("town attorney general") who will sue large corporations for the injuries they have been inflicting upon the residents and small businesses of your town, and to distribute the lawsuit recoveries to the residents and small businesses of your town, to the extent of perhaps $5,000 to $20,000 per year per family on the average or, better yet, to pay for healthcare and dental care and free broadband service to all residents and small businesses in your town. With this wholly predictable consequence for a small town or village that appoints a town attorney general, a criminal prosecutor becomes a relic and had better watch out or the criminal prosecutor may wind up squaring off against the civil prosecutor in his/her role of enforcing the civil rights of you and the other members of your community.
I hope that by now you see the potential of what I'm talking about. The best way for you to fight prosecutorial abuse is to help me get someone into your town who can do what you need to have done, which is to have legal representation to enforce the rights of individuals and small businesses against the illegal conduct of major corporations and others who disregard the law and hurt your community in their never-ending effort to strip your community of its jobs and other wealth, and send the jobs to other, low-wage countries, while asking you to continue buying their high-priced products. This has got to come to an end. Appoint a town attorney general to show you how to protect your town or village from losing whatever jobs it still has, and how to bring back many good jobs to your community. Study my 16 election issues with this in mind. There are things we can do in your town, but we need to get into politics to accomplish what needs to be done. This means that YOU need to run for office on my 16-point program and get the ball rolling.
When we have the first community in the U.S. appointing a town attorney general, and the residents of the town start seeing better jobs, free healthcare, free dental care and free broadband service, you and I know that nearby communities will demand the same thing, and by that time you and I will know that we are on a winning course to taking back our country.
You can make this happen, and I'm here to help.
Please look at my town attorney general website, at My Town Attorney General Website and then look at my election issues website, if you haven't done so already, at My 16-Point Election Issues Website and then look at my website for my first political race in the real world, for New York Attorney General (Green Party) at Website in Support of My 2006 Candidacy for New York Attorney General. [Note: The 2nd Circuit refused to grant an injunction putting me on the ballot.]
Now, I've said what you really need to know, and I invite you to continue reading the rest of my discussion of what you can do to fight the prosecutorial abuse which brought you to my website.
Having said all the above, let me introduce myself. I am Carl E. Person, an antitrust and civil rights litigator in federal and state courts for more than 40 years. I have created the concept of the Town Attorney General, both in a book, Saving Main Street and Its Retailers (www.lawmall.com) and in an Off-Broadway performance (www.townattorneygeneral.com). My picture, in costume for the presentation, is at Carl E. Person in Costume of U.S. Solicitor General and the SEAL for the Office of Town Attorney General (designed by Glen Brandt) may be seen at Seal for the Town Attorney General
Fighting the Prosecutorial Abuse Is Difficult, and Usually Non-Successful
I have outlined in my four related websites (www.lawmall.com/abuse; www.lawmall.com/criminal; www.lawmall.com/forfeit; and www.lawmall.com/pleabarg) the various things which a lawyer could try to fight prosecutorial abuse in a specific case. In actual fact, when tried, the results generally are not favorable, although I strongly suspect that wealthy defendants with power law firms can get greater mileage using the techniques I outline than typical criminal defendants, who have no money and often inadequate or unwilling counsel (burdened with too many cases and the knowledge that whatever they do will probably be a waste of time, and antagonize the prosecutor, who in our new criminal justice system has become the judge and jury for most defendants). But this is not what I want to discuss with you.
How You Can Reduce Prosecutorial Abuse in Your Town
The time you (and your lawyer) spend in trying to overcome prosecutorial abuse is generally wasted, and I recommend that you spend the time trying to change the system which encourages prosecutorial abuse. The criminal prosecutors achieve or expect to achieve fame, fortune and power by racking up criminal-case victories regardless of the guilt or innocence of the accused under existing principles of law. They readily learn that the way to become elected or appointed to Congress, the state or local Legislature, a judgeship, district attorney or U.S. Attorney position or other governmental office, is to get and publicize convictions, and to maintain that they are just in spite of overwhelming evidence to the contrary in too many cases.
The consequences for the overzealous prosecutor is too often the sought-after fame, fortune, power and political position, but the victims (including virtually everyone in the community) are left to pay the bill for wrongful incarceration, excessive criminal proceedings, destroyed families, wrongfully-confiscated property depriving a newly-accused defendant of the funds to defend himself/herself, wrongfully-impoverished families requiring governmental assistance, loss of skilled workers, loss of voters needed to strike a more just political balance in the country, and various other consequences which need to be explored by the press and book authors.
The way of halting this ever-increasing trend of prosecutorial abuse with resulting evils (directed against individuals, I might add, not against corporations which are difficult to put in jail) is to switch the emphasis from criminal to civil, from criminal prosecutor to civil prosecutor or what I have named a Town Attorney General, or "Little Eliot Spitzer". As most of you know, Eliot Spitzer was New York's elected State Attorney General who (until elected and sworn in as New York's newest Governor) was enforcing laws against major corporations that the federal government chose not to enforce. In 2004, Eliot Spitzer brought or threatened lawsuits against various financial corporations and others that resulted in payment to Spitzer's Attorney General Office of $2.3 billion in settlements, or $115 per resident of New York State.
In a small town, a "Town Attorney General", when bringing meritorious lawsuits against corporations that are injuring the town, should be able to have settlements after deducting expenses of litigation amounting to about $5,000 to $10,000 per family in the town, more than enough to provide FREE healthcare and eliminate property taxes for all residents of the town.
If you, as a prospective voter, heard two candidates in your town running for mayor, and one of them said he/she has a plan to obtain FREE healthcare and the elimination of property taxes for all residents in the town, and the opposing Mayor wants to have another Wal-Mart or two to come into town, who would you vote for?
Why not be the candidate for mayor and make your argument as the main part of your campaign that you are going to appoint a Town Attorney General, and move the town into civil law enforcement against invisible corporations rather than criminal enforcement against hapless residents who wind up victims and represent huge present and deferred costs to the community to prosecute, incarcerate, feed, clothe, provide medical care, and take care of the family members who wind up as indigents and problem families for the town.
I have a ready-made campaign and campaign website for you with my 16 election issues, at My 16 Election Issues Website for Local Elections. I'm also willing to help you campaign in your town or village (or even a nearby or distant town or village - we can go into court to strike down local residency requirements in many cases).
By doing this you would be able to fight back against the prosecutorial abuse, and actually have a pretty good chance at getting elected to the town's governing body. Then, you would be in a position to have the town appoint me (or some other antitrust and civil rights litigator) as town attorney general, to start a program of enforcing the various rights of the residents and small businesses of your town that are not being enforced by the federal and state Attorneys General, or any federal or state agency, or even by your town, village or county (because traditionally the enforcement of such rights have been through federal or state officials or agencies). Now, with the federal and state governments being an adjunct to the corporate interests that supply the campaign funds, protection for the residents of your town has got to come from the town itself, through a legal officer I have named and described as the "Town Attorney General".
I can help your candidacy. You can call upon me to come into town and put on my show, Town Attorney General Meeting (at no cost to you, the town, or the audience) to explain what I (or another qualified lawyer) could do for the town as Town Attorney General. I describe this presentation or performance in my Town Attorney General website.
The Town Attorney General, if appointed, will create an economic revolution for your town and relegate abusive, over-zealous criminal prosecutors to a minor role, if not defendants in a civil rights suit to enjoin such conduct. The Town Attorney General will fight to enforce the rights of the residents and small businesses of your town instead of trying to put too many of the residents in jail for excessive sentences, and at excessive, wholly unnecessary costs and injury to the community.
This is what you and I can do to stop prosecutorial abuse.
Carl E. Person, "Town Attorney General" and (unsuccessful) Candidate for NY Attorney General (2006)
Part II - START OF PROSECUTORIAL ABUSE "/FORFEIT" WEBSITE - 1ST PUBLISHED IN 2002
Forfeiture Statutes for Ex Parte Attachment by
Prosecutor/Government of Criminal Defendant's Assets Used in Alleged Criminal
Enterprise; Litigation Techniques for Opposing Attachment and Obtaining Return
of Attached Family Real Estate, Bank Accounts and Other Property; Focusing on
Prosecutorial Abuse and Misconduct
NOTE: AS YOU READ THIS FORFEIT WEBSITE, YOU MUST REMAIN AWARE, AT ALL
TIMES, THAT THE MATERIAL YOU ARE READING CONTAINS ONLY ALLEGATIONS OF FACT, AS
FILED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
OR VARIOUS STATE COURTS IN SUFFOLK COUNTY, NEW YORK, AS DISTINGUISHED FROM
STATEMENTS OF FACT. THE TRUTH OR FALSITY OF EACH ALLEGATION BELOW WILL BE
DECIDED BY A JUDGE OR JURY.
Purpose of Website
The purpose of this website is to:
- offset the major, unfair inherent advantages of prosecutors working for
profit-driven (as distinguished from justice-driven) "White Collar Criminal
Divisions" and an increasingly disabled defense bar (who recognize they are
unable any longer to conduct an effective defense) -- by providing a set of
pleadings and motions (i.e.,, forms) which an accused
together with his/her/its civil and criminal attorneys can use to help
determine the accused's rights and how to go about enforcing them against a
wrongdoing, profit-making prosecutorial enterprise;
- Civil Rights Complaint against District Attorney, Assistant District Attorney, Detective and Complainant for Unconstitutional Ex Parte Attachment of All Assets of Accused and His Family in Support of a Profit-Motivated Criminal Prosecution
- Pro Se Notice of Motion in Criminal Proceeding to Adjourn Criminal Trial; Permit Needed Discovery; Recuse District Attorney; Appoint Special Prosecutor; Stop Destruction by Prosecutor of Evidence of Prosecutorial Wrongdoing; and Require Evidence to be Turned Over to Court to Preserve for Special Prosecutor Being Appointed
- Memorandum of Law in Support of above Pro Se Motion in Criminal Proceeding
- Affidavit of Pro Se Criminal Defendant in Support of above Pro Se Motion in Criminal Proceeding
- Affirmation by Civil Attorney for Pro Se Criminal Defendant in Support of above Pro Se Motion in Criminal Proceeding [exhibits not included]
- Notice of Motion in Ex Parte Attachment and Forfeiture Action to Vacate Stay, Obtain Needed Discovery; Preserve Evidence for Special Prosecutor; Request Appointment of Special Prosecutor; Request Evidentiary Hearing to Recover Seized Assets or, Alternatively, to Obtain Partial Return for Living Expenses, Mortgage Payments for Attached Home, and Reasonable Attorneys' Fees and Expenses in Attachment Action and Related Criminal Proceeding - Motion Designed to Oppose an Unconstitutional "White-Collar Crime Division", Really, a Profit-Making Business, of the District Attorney
- Memorandum of Law in Support of Criminal Defendant's above Motion in Ex Parte Attachment and Forfeiture Action
- Affidavit of Criminal Defendant in above Ex Parte Attachment and Forfeiture Action
- Affidavit of Criminal Defendants' Civil Attorney in Ex Parte Attachment and Forfeiture Action
- provide relevant information to persons whose real property, bank accounts, business assets and other property have been attached under federal or state forfeiture statutes intended originally to deal with "mafia" type enterprises, but which prosecutors have found to be a source of wealth, power and a quick way to prevent an alleged criminal from hiring one of the best defense attorneys and paying for the needed defense;
- provide the text of and convenient access to New York's 44-section forfeiture statute and the statutes of 14 other states which are not readily available to a person whose assets have been secretly confiscated by the prosecutor (in an "ex parte proceeding, without notice) and now has no funds with which to hire an attorney;
- provide a means for a person whose assets were wrongfully seized to analyze the problem and what can be done by such person, if anything, to strike back with an appropriate offense;
- provide citations and principles of law drawn from various judicial decisions to help you see the problems and what you can do about them;
- provide a checklist of things which need to be watched or done to prevent you from forfeiting (i.e., losing through procedural error or lack of understanding) the forfeiture action brought against you;
- helping you to understand that a criminal lawyer may not be suitable to conduct the immediate civil litigation required in tandem with the recently-commenced criminal proceeding;
- Suing a Prosecutor Immediately May Be the Only Available Way a Victim Can Expose and Offset Attachment and Forfeiture Abuse by a Prosecutor
- Advantages of Maintaining a Bona Fide Civil Lawsuit to Fight Prosecutorial Abuse and a Crippling Asset Attachment by the Prosecutor
- If You Don't Sue Now, You May Lose Right to Sue Later, under the Statute of Limitations
- New York's Forfeiture Statute, Forfeiture of Proceeds of a Crime, CPLR Sections 1310-1352
- Use a Civil Rights Lawyer to Sue the Prosecutor
- Legal Research: Whether Legal Fees Can Be Obtained Out of the Attached Property, by Court Order, to Enable the Accused to Properly Defend His/Her Property and Person
- The Best Defense Strategy May Be to Sue the Prosecutor Immediately, Take Advantage of Prosecutorial Wrongdoing and Errors, and Deprive the Prosecutor of the Pot of Gold Which Created the Incentive to Create Criminal Charges against the Defendant in the First Place
- There May Be No Right of Counsel to a Defendant in a New York Forfeiture Action [as a Purported "Civil Action"]
- Related Prosecutorial Abuse Websites
- Checklist of "Rules" to Review When Trying to Offset an Illegal Attachment
- Decisions on the Constitutionality of the New York Forfeiture Statute
- Miscellaneous Forfeiture Decisions
- [UNDER CONSTRUCTION] Websites with Text of Other Forfeiture Statutes
- A Suggestion for Blake's Defense Attorneys - Possibilities of Prosecutorial Abuse to Be Checked Out by the Defense for Robert Blake in the Alleged Murder of Blake's Wife
- Forfeitures Are Used by Prosecutors Only against Small People and Their Family Members, Not against Arthur Andersen and Its 1,700 Partners and Their Family Members
Suing a Prosecutor Immediately May Be the Only
Available Way a Victim Can Expose and Offset Attachment and Forfeiture Abuse by
You would think that somebody is watching the prosecutors, but this is not so. The judges are not kept informed on the work of a prosecutor as it progresses. Legislators are less knowledgeable. The press only knows and publishes what the prosecutors tell them (and disregard what victims have to say about prosecutorial excesses).
Any committee of the courts having jurisdiction to punish a prosecutor for violation of the rules regulation lawyers would generally tell the complaining victim that the matter is currently in litigation (through the criminal proceeding of which the attachment is an important component) and will do nothing until the prosecutor stops beating you up (i.e., until after the criminal case is over because you have been forced into pleading guilty), at which time your guilty plea confirms to the existing supervisory system that the prosecutor did nothing wrong.
Because the victim is coerced into taking a plea to avoid getting a trial and longer sentence, the prosecutorial abuse has no remedy after the guilty plea is entered by an innocent person. The acknowledgment of guilt through an allocution (in which the criminal defendant falsely swears to committing a crime he did not actually commit) together with the rest of the plea agreement which gives the prosecutor most of the victim's assets by contract (coerced though it may be), puts the victim in jail and wholly disabled by agreement and doctrines of law to now say that he/she was the victim of a prosecutorial, felonious mugging.
Accordingly, if a victim does not go into court IMMEDIATELY to oppose the prosecutorial abuse, the victim will probably never have the chance.
So, one "rule" to add to a list of "rules" is for a victim of prosecutorial abuse to sue the prosecutor as quickly as possible, but with the understanding that such action will be considered as extremely hostile action by the prosecutor, who will at all times be considering what type of reprisal could be taken (even though reprisal would be a violation of the federal civil rights act).
The New York forfeiture statute follows, which is a long statute governing attachments and forfeitures of real estate, bank accounts and other property which the government claims was part of a felonious, criminal enterprise.
A person whose property is being attached under the statute should read the statute carefully to develop ideas on how to fight the attachment. This is another "rule" for our checklist.
Advantages of Maintaining a Bona Fide Civil
Lawsuit to Fight Prosecutorial Abuse and a Crippling Asset Attachment by the
Warning! - The first thing to mention is that there are disadvantages to maintaining a frivolous action against a prosecutor, and a defendant should take great pains to ensure that any suit against his/her prosecutor for prosecutorial abuse is not just meritorious, but highly meritorious. Being merely or barely meritorious could be a recipe for disaster, in both the civil and criminal court proceedings. This statement about highly meritorious does not relate to the civil litigation needed to offset the attachment action. Any meritorious defense should be presented, even if the defense is borderline. Actually, with enough substantial defenses, the civil attorney would probably want to drop out the barely meritorious defenses, as unnecessary and which probably would be the focal point of the prosecutor's reply and oral argument.
With that warning out of the way, let's take a look at some of the advantages which a highly meritorious civil action could have for the criminal defendant:
- Bring the prosecutorial misconduct to the attention of the persons in the same office supervising the errant prosecutor;
- Create adverse publicity for the prosecutor, the prosecutor's supervisors, and the top prosecutor (whether District Attorney, U.S. Attorney or other title);
- Create monetary exposure of the individuals named and the government agencies for the wrongdoing, which increases the cost to the prosecutor of maintaining the criminal proceeding against the defendant;
- Create much higher costs in terms of money, paralegal time, attorney time, and supervisory time to defend the action, which is not in the ordinary course of business for the prosecutor's office;
- Such civil action becomes the squeaky wheel which needs attention, preventing or detracting the office of the prosecutor from committing its prosecutorial abuse on the number of persons it would desire to "justice" into favorable publicity, forfeitures, and jail time (often amounting to 98% of the defendants being selected for "justicing");
- Creating a milieu in which the prosecutor has some of the same problems as the defendant, to require the prosecutor to want to settle the matter on terms not as favorable as the prosecutor could otherwise demand and get;
- The filing of the prosecutorial abuse action is an event which is real from the standpoint of the press, because it gives the details in a document filed in court which the press can use to do a story; merely calling a reporter to tell the reporter about prosecutorial abuse has no chance in the world of getting any space or time; but a well-crafted complaint charging prosecutorial abuse has more than a 50% chance of being reported, which is a pretty high percentage;
- Don't forget that the discovery you get as a defendant in the criminal proceeding is delayed, incomplete, and generally meager, with substantial holes or protections from disclosure (such as witness statements, given only a few minutes or hours before the trial commences - remember, for 98% of the defendants, there is no trial, they take a plea, so there is no discovery. Also, there is no discovery of expert witnesses in any way comparable to the discovery available in a civil suit;
- Discovery in the civil action can be most useful in the criminal matter, especially when obtained early enough to be able to encourage a global resolution of all matters;
- Although the prosecutors violate the law all the time (such as the law which prohibits the use of the criminal process to achieve payment of a civil obligation), you and your attorney must be very careful concerning the way in which you present the civil case, and to ensure that you are not representing it as any type of leverage in any other litigation; the existence of all actions will be known to all concerned, but avoid mixing them up, but listen for one word: "global", which usually is accompanied by the word "settlement";
- The existence of civil litigation will allow you to serve subpoenas and take depositions to get at facts which you could not otherwise obtain, useful in the criminal action;
- The existence of civil litigation and related civil liability will cause the defendants to be quite circumspect in their future dealings relating to your case, for fear of confirming the alleged activities, and preventing new activities of the same type from being added to the civil complaint;
- Civil litigation appoints you as a prosecutor of the prosecutor, and there is no other person in the U.S. who has that role; prosecutors have "prosecutorial discretion", which means that they are free to ruin lives at their own discretion, in pursuit of their ambitions, without any reasonable fear that anyone can do anything to stop them, because of the doctrines of (i) prosecutorial discretion; (ii) prosecutorial immunity; and (iii) grand jury secrecy -- all of which makes it difficult in the criminal proceeding to get at the real source of your problem; the civil action will enable you to find out what happened, and allow you to fight back.
The 5th Amendment is not the only interplay between related criminal and civil litigation. The statute of limitations, which prohibits a person from maintaining a claim for money and certain other relief more than so many days, months or usually years after the claim has "accrued". "Accrued" means after one could first bring suit on the claim.
Minors are protected because they have an extended right to sue under statutes of limitations until a period which ends sometime after they reach their majority, so that a cause of action (or "claim") of a 1-year infant against a prosecutor remains viable for two decades or so.
But the same is not true as to the individual claim of the parent(s) against the same prosecutor for the same allegedly unlawful acts. The parents have to sue within a much shorter period, and the period depends on (i) the type of claim under appropriate state or federal statutes of limitations; (ii) the type of defendant (such as a state, local or federal agency, private individual, or union), (iii) the capacity of the defendant (whether as an individual or as a governmental official); (iv) whether the claim is legal (for money) or equitable (for injunctive or other "equitable" relief; and (v) availability of doctrines which extend the statute of limitations, such as (a) lack of notice of facts to understand the cause of action existed, (b) fraud, (c) flight of defendant from jurisdiction to avoid being sued -- just to name three possibilities for extending the statute of limitations.
Thus, it is of the utmost importance to bring suit as soon as possible to prevent loss of all or part of the claims which have accrued by reason of prosecutorial misconduct and abuse.
Thereafter, there may arise issues as to whether the case can be maintained simultaneously with the criminal proceeding, and to the extent a court decides that it cannot proceed at the same time, the court would probably stay such portion while permitting the rest of the civil action to proceed.
It seems important to have a different judge on the civil case, to avoid having all of the criminal and civil issues handled by one judge (especially the criminal judge), and instead to have the opportunity for diversity and competition in the litigation area, so that a judge acting only with the civil case can see the case as a civil one before him/her, and rule appropriately.
This diversity of judges is available, for instance, when the criminal proceeding has been commenced in state court; the related civil case probably should be commenced in a federal district court, which prevents the two cases from being assigned to the same judge.
If, however, the prosecution is in federal court, one should consider bringing the civil action in state court, except that the state court may not have the jurisdiction to handle all the issues to be presented. And in any event, if filing the civil suit in federal court, one should think of selecting a different district court, if possible, and to avoid stating that the criminal and civil cases are "related", which automatically would assign the civil case to the assigned federal judge on the criminal case.
In one of my cases, the prosecutor with full awareness of the previously-existing civil case, commenced its federal criminal cases in the same federal district without stating that the two cases were "related", which is a precedent of sorts, for anyone wanting to use that as a precedent.
In summary, bring your civil suit immediately, and then sort out the arising problems (including 5th Amendment problems) later.
In 1984, the New York legislature enacted a comprehensive statute permitting prosecutors and other government agencies to secretly (without notice to the property owner) attach the property of a person being accused of a crime (even though the accusation is also kept secret).
This procedure, comparable to slipping a prize fighter a knockout drug a few minutes prior to a prize fight, is intended to prevent a person accused of a crime from having the financial resources needed to fight the prosecutors (funded with taxpayers' money and previously confiscated property), so that the accused has no realistic opportunity to do anything but plead guilty.
This has contributed to the United States having the highest rate of incarceration among developed countries, and has created an industry of imprisoned slaves working for pennies an hour for some of the major companies in the United States. I guess we should be thankful that there is a way to keep these jobs in America, because without this form of slave labor the jobs would undoubtedly be sent to some other country which has a comparable labor rate for its own type of slaves.
The New York statute has 44 sections. To have a quick look at the statute, click on New York Forfeiture Statute, CPLR Sections 1310-1352
After all the money a criminal defendant has spent on a criminal lawyer, it will not be easy to get a criminal defendant to decide that a suit against the prosecutor should be brought by another attorney, generally one with experience handling civil rights litigation (which means employment termination cases in most instances).
The reasons for taking on another attorney to do the required job are lengthy, but need to be reviewed, to enable you to understand the lay of the land.
- Criminal lawyers are different from civil rights litigators, in my opinion, because criminal lawyers spend more of their time negotiating guilty pleas and participating in pre-sentencing activities than they do in making motions or preparing pleadings to defend the civil rights of their "criminal clients" (meaning, clients accused of criminal wrongdoing, but not necessarily guilty).
- Criminal lawyers often have many cases pending in the same court involving prosecutors from the same prosecutors' office, which means that at any one time an active criminal attorney may have 10 to 50 criminal cases in various stages of plea negotiations, and any suit by the criminal attorney against one of the prosecutors of such office could prevent the attorney from obtaining any breaks for his clients, and his other clients could well suffer from any such suit.
- Criminal attorneys do not seem to be as aggressive in using motions to represent their clients as civil litigators and perhaps criminal lawyers have lost any edge they may have had back in the days when motions might have had more of a chance for success.
- Properly prepared motions are very costly from the standpoint of legal time and it is fully understandable why a criminal attorney would not spend time preparing motions when there is hardly enough money to spend for other needed elements of the client's defense.
- Criminal lawyers have an expertise in criminal law and, understandably, are less apt to have also an expertise in civil rights and constitutional law litigation.
- The criminal lawyer probably has a conflict of interest if he/she were to sue a local prosecutor (in even the most deserving lawsuit) because of the effect it might have on his clients and his practice.
- Criminal lawyers generally shy away from having their clients sign any affidavits or declarations while under indictment, and with this state of the criminal attorney's mind there is little thought of waging litigation warfare to oppose an unlawful attachment because the client would have to swear that he is not guilty of the alleged crime to get back his wrongfully taken property, and making the affidavit would arguably prevent the defendant from exercising his 5th Amendment Rights against Self-Incrimination, and as a result could be forced to testify against himself during the criminal trial (based on the affidavit or declaration filed to get his wrongfully-attached property back).
- The criminal attorney sees the affidavit or declaration [which by the way
is an affidavit of sorts, used in federal courts, and does not have a notary
public; the declarant merely signs under the penalties of perjury] as another
weapon for the prosecutor to make additional (false charges) against the
accused, such as perjury, compounding a felony and obstruction of justice,
among other possible charges (all of which pretty much eliminate any fair or
just criminal system and leave us all exposed to prosecutorial discretion
unchecked by the courts or due process), in absence of the civil suit which
you may have to commence.
Legal Research: Whether Legal Fees Can Be Obtained Out of the Attached Property, by Court Order, to Enable the Accused to Properly Defend His/Her Property and Person
A reading of the New York forfeiture statute provides a clue as to whether the courts would permit the use of properly attached property to be used to pay for attorneys' fees in defending the accused or his/her property. Section 12 of the statute provides:
12. Property acquired in good faith by an attorney as payment for the reasonable and bona fide fees of legal services or reimbursement of reasonable and bona fide expenses related to the representation of a defendant in connection with a civil or criminal forfeiture proceeding or a related criminal matter, shall be exempt from a judgment of forfeiture. For purposes of this subdivision and subdivision four of section one thousand three hundred twelve of this article, "bona fide" means that the attorney who acquired such property had no reasonable basis to believe that the fee transaction was a fraudulent or sham transaction designed to shield property from forfeiture, hide its existence from governmental investigative agencies, or was conducted for any purpose other than for legitimate legal representation.
Although this provision seems against allowing attorneys' fees out of attached property, the statute does permit attorneys' fees under limited conditions, under an amendment enacted in 1990, as referred to in Morgenthau v. Clifford, 157 Misc.2d 331 (Sup. Ct., NYCo. 1992), which stated:
In keeping with its concern for the hardship that a provisional remedy might impose, the Legislature in Laws of 1990 (ch 655) amended article 13-A in a respect pertinent to the issues at hand. It added subdivision (4) to CPLR 1312: "Upon motion of any party against whom a provisional remedy granted pursuant to this article is in effect, the court may issue an order modifying or vacating such provisional remedy if necessary to permit the moving party to obtain funds for the payment of reasonable living expenses, other costs or expenses related to the maintenance, operation, or preservation of property which is the subject of any such provisional remedy or reasonable and bona fide attorneys' fees and expenses for the representation of the defendant in the forfeiture proceeding or in a related criminal matter relating thereto, payment for which is not otherwise available from assets of the defendant which are not subject to such provisional remedy. Any such motion shall be supported by an affidavit establishing the unavailability of other assets of the moving party which are not the subject of such provisional remedy for payment of such expenses or fees." n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 The introductory clause to this subdivision technically renders it unavailable to defendant Clifford because the provisional remedy of attachment is not yet in effect. A TRO is not included in the list of provisional remedies appearing in CPLR 1312 (1). (1). Nevertheless, this limitation has not been invoked by the plaintiff in opposition and, in the posture of this litigation, with the TRO accomplishing the same result as the attachment, it would be unjust for the court to do so. Consideration is merited by the Legislature of a technical correction of the omission of a TRO from subdivision (4). (Cf., CPLR 1336, 1316.)
A second observation is appropriate in this footnote. The affidavit and financial data of Mr. Clifford have been, with the consent of the plaintiff, supplied ex parte and under seal. The court will not obstruct the procedural path the parties have mapped, but CPLR 1312 (4) does not provide for it.
The solution seems to be in defending against the attachment, but this has problems from the criminal attorney's standpoint, because the defendant has to swear that he is not a criminal, and in doing so loses his 5th Amendment right not to be a witness against himself.
One would wonder how the persons enacting the nation's forfeiture statutes feel about taking away 5th Amendment rights from guilty persons as well as everyone else in the country.
The Best Defense Strategy May Be to Sue the Prosecutor Immediately, Take Advantage of Prosecutorial Wrongdoing and Errors, and Deprive the Prosecutor of the Pot of Gold Which Created the Incentive to Create Criminal Charges against the Defendant in the First Place
I've never been a criminal prosecutor, and I have to write this without any direct experience. It seems to me that prosecutors are trying to find and win big, publicity-type cases, to obtain the varied benefits of prosecutorial success, and along the way they have to cut a lot of corners.
I suspect that at the beginning of a criminal proceeding the prosecutor knows a lot less than the prosecutor will learn along the way, and the rush to attach property will result in attachment papers filled with factual errors which can and should be offset now, instead of some later date, and can result in undoing the attachment.
Under the New York forfeiture law, the "claiming agency" (in our case the prosecutor) has to hurriedly make a motion to confirm the ex parte attachment, and the papers are bound to have a lot of misinformation in them, which can be pointed out in opposing papers by the defendant.
Of course, the defendant runs the risk that his opposing affidavit could be deemed a waiver of his 5th Amendment rights not to testify against himself, and the defendant will have to decide whether 5th Amendment rights of an innocent person allowing him not to testify that he is innocent (for fear of cross examination designed to make the defendant appear to be untruthful) is worth the loss of assets representing 40 years of work.
It's easy for a prosecutor to dash off an affidavit saying that a particular defendant has a lot of money and we don't find evidence that the money was lawfully acquired, and to hope that in the confusion of taking away all of the defendants' money and property the defendant can't come back in a few days with the truth (especially when the prosecutor has taken all of the defendants' files).
It is harder, however, for a prosecutor to prevail when the truth is known, and opposing an ex parte attachment proceeding at least enables a defendant to say what really happened, unlike the criminal prosecution in which 98% of the persons who are indicted (in one federal district) wind up pleading guilty and never get the chance to tell anyone what really happened.
There May Be No Right of Counsel to a Defendant in a New York Forfeiture Action [as a Purported "Civil Action"]
Vergari v. Lockhart, 144 Misc. 2d 860; 545 N.Y.S.2d 223; 1989 N.Y. Misc. LEXIS 483 (Sup. Ct., Westch. Co. 1989) held:
- after plaintiff (claiming agent) makes out a prima facie case, the defendant has the burden to come forward showing a legitimate source for the property at issue;
- an attorney's affidavit is not acceptable; the defendant (or some other person with knowledge) must present an affidavit meeting evidentiary requirements;
- resolution of the criminal matter in favor of the defendant is not dispositive in a forfeiture proceeding [citing 3 cases];
- even a judgment of acquittal or a decision to abandon the criminal charges is not determinative in the forfeiture proceeding as to whether a crime was committed;
- the court must make an independent determination based on a preponderance of the evidence as to whether the seized property is subject ot forfeiture;
- Defendant's proofs must be submitted in probative form, i.e., an attorney's affirmation is insufficient;
- defendant failed to rebut plaintiff's allegations of trafficking with sworn affidavits, as required, and has put forth only an attorney's affidavit having no probative value, in spite of defendant's attorney suggesting that the property could have come from any number of legitimate sources;
- Defendant has not established his personal affairs or needs; and there was no showing that the forfeiture will have adverse impact on innocent persons; Total absence of compelling factors to oppose forfeiture
- There is no 6th Amendment or constitutional right under the laws of New York State to counsel, citing Matter of Smiley, 36 NY2d 433; CPLR 1102 [a];
- As to constitutional right to counsel exists, the issue is under CPLR 1311 (4) whether there has been demonstrated by the defendant (i) hardship, (ii) injustice, or a (iii) prima facie showing of defendant's entitlement to the money to permit the court to release the funds to the defendant under the statutory scheme;
- Court denied relief to defendant because (i) defendant has failed to make financial disclosure; (ii) failed to offer a legitimate derivation for the money; (iii) has been convicted of a crime; and (iv) the government has made a prima facie showing that defendant's conviction for possession is probably and reasonably related to drug trafficking, of which the money is the proceedings, and (v) the alleged criminal activity poses serious threats to the safety of all society and the quality of our lives;
- Defendant without counsel in this forfeiture proceeding is no worse off than impoverished citizens who cannot afford counsel in divorce or eviction proceedings, mortgage foreclosure, or revocation of license proceedings, citing Matter of Smiley, 36 N.Y.2d 433;
- Defendant has a right to counsel in both federal and state criminal proceedings; but federal cases are split on whether attorneys' fees can be taken out of attached property under the federal forfeiture statutes;
- The claiming agency must demonstrate a "substantial probability that it
will prevail on the issue of forfeiture" and otherwise the property may be
"destroyed, removed from the jurisdiction" or "be unavailable for
forfeiture" and "the need to preserve the availability of the property ...
outweighs the hardship on any party", citing CPLR 1312[a],[b];
I invite you to look at these related websites on prosecutorial abuse and misconduct (created by the same author):
- Website Entitled "Criminal Prosecution Reform Website: The Worst Federal Prosecutorial Abuses and Misconduct with Suggested Remedies" - Written to Provide Some Self-Help Opportunities for Persons Being Unfairly Prosecuted
- Plea Bargaining: An Unconstitutional Delegation of Judicial Power to the Executive Branch of Government; a Free-Market Solution to Unconstitutional Plea-Bargaining
- Earlier Website on Prosecutorial Abuse, Entitled "Prosecutorial Misconduct Website - To Expose Prosecutorial Corruption and Related Loss of Constitutional Rights and Report on Relevant Cases Imposing Liability for Prosecutorial Misconduct"
The following things should be considered as part of your agenda to oppose a wrongful prosecutorial attachment:
- Recognize that a defendant's criminal lawyer is more than likely prevented by his/her daily dealings with the prosecutor or prosecutor's office from conducting the related civil litigation needed by the defendant;
- Also, recognize that the defendant's criminal lawyer does not generally have the background or heart to conduct the needed civil litigation because of the tendency during the past 20 years or so for criminal defense work to shift from evidence and trials to legal fees, negotiations and plea agreements;
- Sue the prosecutor as quickly as possible, but with the understanding that such action will be considered as extremely hostile action by the prosecutor and could compound your difficulties in the criminal proceeding, or could result in a more favorable resolution of them; or (which is quite unlikely) could wind up with no effect either way;
- Read the forfeiture statute carefully to develop ideas (for you and your civil rights lawyer) on how to fight the attachment;
- Outline the specific steps and conditions which the prosecutor is required to follow and each of the deadlines involved, and at each step of the way see if the prosecutor has been in default;
- Keep close tabs on all proceedings, stipulations, court dates and deadlines to make sure that everything is done on a timely basis, with no default by you;
- When opposing the attachment, make sure you oppose it with an affidavit by you or another actual witness (and not by an attorney), to provide probative evidence required to overcome the prosecutor's prima facie case of your wrongdoing;
- Make sure you demand an evidentiary hearing (which is a non-jury trial on issues raised in your opposing papers), with which you can probably cross-examine some of the key witnesses against you, and hopefully destroy the prosecution's case against you - THIS IS A MUST FOR YOU TO DO!
- Be prepared immediately to go into court concerning any prosecutor default in the attachment proceeding, and seek to have the attachment vacated when appropriate;
- Use a civil rights lawyer to sue the prosecutor and possibly to conduct the attachment litigation (recognizing the 5th Amendment tension between the two cases and dealing with such problem openly and realistically)
- Only sue a prosecutor when you have a substantial, meritorious case against the prosecutor, because such cases are never looked favorably upon by the prosecutor, criminal court judge or civil court judge; do not believe that the lack of evidence by the prosecution is the standard applicable to suing the prosecutor;
- The Best Defense Strategy May Be to Sue the Prosecutor Immediately, Take Advantage of Prosecutorial Wrongdoing and Errors, and Deprive the Prosecutor of the Pot of Gold Which Created the Incentive to Create Criminal Charges against the Defendant in the First Place;
- Review this entire website for any leads to help you in handling the problem;
- Look at my two related websites on prosecutorial abuse for ideas on fighting prosecutorial abuse Prosecutorial Abuse Website with Specific Suggested Remedies and Earlier Prosecutorial Abuse Website with Relevant Cases Imposing Liability for Prosecutorial Misconduct;
- Consider undoing the attachment before attempting to obtain attorneys' fees or living expenses out of the attached property, especially because opposing the attachment does not require you to disclosue, under oath, the financial status of you and the rest of your immediate family;
- Recognize that full disclosure of all financial matters is required to have any hope of using attached assets to pay the defendant's attorneys' fees and living expenses.
The Appellate Division, Second Department upheld the constitutionality of the New York forfeiture statute (as to a challenge that the attachment without notice was a denial of due process) in Dillon v. Schiavo, 114 A.D.2d 924; 495 N.Y.S.2d 197; 1985 N.Y. App. Div. LEXIS 53971 (2nd Dept. 1985). This decision does not mean that other parts of the statute could or should not be challenged as unconstitutional.
Here are some decisions of interest to persons looking into the legal status of forfeitures:
- Forfeitures (or fines) which not "excessive" are not "cruel or
unusual" punishment under the 8th Amendment. The Second Circuit Court of
Appeals has a "multi-factor test" for determining when a forfeiture is
constitutionally excessive. See All Assets of G.P.S. Automotive
Corp., 66 F.3d 483, 501 (2d Cir. 1995). In United States v.
Milbrand, 58 F.3d 841, **27-28 (2d Cir. 1995), the Second Circuit
explained that a court should consider:
(1) the harshness of the forfeiture (e.g., the nature and value of the property and the effect of forfeiture on innocent third parties) in comparison to (a) the gravity of the offense, and (b) the sentence that could be imposed on the perpetrator of such an offense; (2) the relationship between the property and the offense, including whether use of the property in the offense was (a) important to the success of the illegal activity, (b) deliberate and planned or merely incidental and fortuitous, and (c) temporally or spatially extensive; and (3) the role and degree of culpability of the owner of the property.
- New York forfeiture action under Article 13-A (CPLR Sections
1310-1352) was automatically stayed under Section 1311(1)(b) until
disposition of the underlying criminal matter. Morgenthau v. A. J.
Travis, Ltd., 184 Misc. 2d 835, 839, 708 N.Y.S.2d 827, 829; 2000 N.Y.
Misc. LEXIS 204, ***2 (Sup. Ct. NYCo. 2000). The Court said
"Under CPLR 1312(3), an order of attachment is properly issued if (1) there is a substantial probability that the claiming authority will prevail on the issue of forfeiture, (2) failure to enter the order may result in the property being unavailable for forfeiture, and (3) the need to preserve the availability of the property outweighs the hardship on any party against whom the order may operate. The same criteria apply to an application for a preliminary injunction. (See, Morgenthau v. Citisource, Inc., 68 N.Y.2d 211, 222 (1986)." * * * ... the District Attorney's Office has agreed to a procedure whereby Ms. Guerrero and her children are entitled to, and have already received, a release of funds for reasonable living expenses and attorney's fees. * * * Finally, if adjustments in these accounts need to be made or if the defendants need additional monies, the defendants may apply to the District Attorney's Office for such relief. Apparently, they have already done so on at least one occasion. Whatever hardship the defendants may have as a result of this arrangement is far outweighed by the possibility that the assets in question may become unavailable in the absence of the requested relief."
- Kurlansky v. Bed-Stuy Health Care Corp., 135 A.D.2d 160; 525
N.Y.S.2d 225; 1988 N.Y. App. Div. LEXIS 1663 (2nd Dept. 1988) stated:
"No court has held that the New York [forfeiture] statute permits a claiming authority to reach legitimate paid attorney's fees.
Given these substantial differences between the two statutes, the Federal cases on forfeiture and right to counsel must be considered but cannot be given conclusive effect."
- Dillon v. Bialostok, 136 Misc. 2d 695, 697-698; 519 N.Y.S.2d
186; 1987 N.Y. Misc. LEXIS 2484 (Co. Ct. Nass. Co. 1987) held:
"At this time, there is no factual basis advanced by the defendant for the assertion that the seizure of his property effectively deprives him of his constitutional right to counsel.
"This court need not deal with this thorny issue until such time as a factual basis for the claim is advanced.
"There is nothing in the determination of this confirmation motion to prevent the defendant from applying to this court in the future, for release of his funds, pro tanto, so that his right to counsel will not be thwarted. [emphasis supplied by website author]
* * * Within 10 days after the granting of an order of attachment, the claiming [***6] authority shall file it and the other papers upon which it was based and the summons and complaint or proposed complaint in the action. (CPLR 1318 ) The complaint or proposed complaint has not been filed. Defendant made a demand for service of the complaint pursuant to CPLR 3012 (b) on March 27, 1987. Plaintiff has not filed an affidavit of service and it cannot otherwise be determined based upon the papers submitted and the court file, whether the complaint was served. Pursuant to CPLR 1318 (2), the order shall be invalid if not so filed unless the time for filing has been extended. No such extension has been granted. The order of attachment may be invalid. (CPLR 1318 .) The claiming authority is directed to submit to this court within five days of the date of this order, proof of a timely filing pursuant to CPLR 1318 (2).
This court will consider a motion for an extension, nunc pro tunc, of the time for filing only upon good cause shown within five days of the date of this order.
Morgenthau v. Citisource, Inc., 68 N.Y.2d 211, 222-223; 500 N.E.2d 850; 1986 N.Y. LEXIS 21209; 508 N.Y.S.2d 152 (N.Y. Court of Appeals, the highest NYS court, 1986) held:
Finally, to be balanced in the equation is the adequacy of the procedural safeguards to protect defendants from an erroneous deprivation of their property through the imposition of a provisional remedy. Article 13-A, in what appear to be very carefully and comprehensively drawn provisions, establishes an elaborate array of safeguards against such an eventuality. Although the provisional remedy of attachment can initially be granted ex parte, a motion to confirm the attachment must be made, on notice, within five days of the levy (CPLR 1317). A preliminary injunction can only be granted pursuant to a motion on notice although a temporary restraining order can preserve the status quo pending a hearing (CPLR 1333). In each instance, in order for the provisional remedy to issue, the claiming authority must demonstrate that there is a substantial probability that it will prevail on the issue of forfeiture -- i.e., a substantial probability that there will be a conviction in the underlying criminal proceeding; that the failure to enter the order granting a provisional [***25] remedy may result in proceeds being unavailable in the event of a judgment; and that the need to preserve the property outweighs any hardship on the defendants (CPLR 1312) ). The burden of establishing the grounds for the attachment, the need for continuing the levy and the probability of success on the merits is and remains upon the claiming authority (see, CPLR 1317 ; 1329 ). Where the defendant recovers judgment or succeeds in proving by the preponderance of the evidence that the claiming authority acted without reasonable cause and not in good faith in securing the provisional remedy, [**856] the claiming authority is rendered liable for all costs and damages, including attorneys' fees, sustained by reason of the provisional remedy (see, CPLR 1318 ; 1337).
Additionally, the defendant may move at any time to either discharge the attachment (CPLR 1328) or to vacate or modify the attachment (CPLR 1329) and the court may, on its own motion, dismiss the entire action in the interests of justice if it finds such relief warranted by the existence of some compelling factor, consideration or circumstance demonstrating that forfeiture would not serve the ends of justice (CPLR 1311) ). In sum, the "statutory procedure effects a constitutional accommodation of the conflicting interests of the parties" ( Mitchell v Grant Co., 416 U.S. 600, 607, supra) such that procedural due process is satisfied.
That procedures more protective of the defendants' interests can be imagined or suggested (see, for e.g., United States v Spilotro, 680 F2d 612 [Racketeer Influenced and Corrupt Organizations Act, 18 USC §§ 1961 - 1968]; United States v Long, 654 F2d 911 [Continuing Criminal Enterprise Act, 21 USC § 848]; comment, Criminal Forfeiture: Attacking the Economic Dimension of Organized Narcotics Trafficking, 32 Am U L Rev 227, 247-254; Note, Due Process in Preliminary Proceedings under RICO and CCE, 83 Colum L Rev 2068, 2084-2098) does not in any way undermine this conclusion because the statute as written contains sufficient safeguards to minimize the risk of an erroneous deprivation of a defendant's protected interest and any additional safeguards would not substantially decrease this risk. It is not the role of the courts to rewrite statutes that have been promulgated by the legislative branch of government nor is it our role to comment on the wisdom of the statute ( Sniadach v Family Fin. Corp., 395 U.S. 337, 339). In our limited role of deciding whether a statute as drafted satisfies minimum constitutional requirements, we conclude that article 13-A is not violative of Federal procedural due process requirements.
Defendants' claim that the statute violates their right to counsel is premised on the allegation that because their personal assets are restrained, they cannot afford to hire counsel of their choice. Although a factual scenario may arise where the pre-conviction attachment of a defendant's assets will infringe the ability to hire chosen counsel (see, United States ex rel. Ferenc v Brierley, 320 F Supp 406; but see, United States v Badalamenti, 614 F Supp 194, 196-198), the statutory scheme of article 13-A adequately addresses this potential problem by expressly requiring the claiming authority to prove that the need for the provisional remedy outweighs the hardship on any party against whom the order may operate (CPLR 1312 ). Moreover, the statute allows a defendant to move to vacate or modify the attachment (CPLR 1329) and allows the court, sua sponte, to dismiss the action in the interests of justice upon consideration of "the impact of forfeiture of property upon the person who committed the crime" ( CPLR 1322)  [d] [i]). Thus, on its face the statutory scheme does not violate the right to counsel. n7
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 Defendants also argue in their brief to this court that their "right" not to be compelled to put forward defenses before trial, apparently emanating from the Fifth Amendment right against self-incrimination, is violated by the statutory scheme. This argument was not raised at nisi prius and is therefore not preserved for our review.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
- Morgenthau v. Clifford, 157 Misc. 2d 331; 597 N.Y.S.2d 843; 1992 N.Y. Misc. LEXIS 655 (Sup. Ct., NYCo. 1992) held that the claiming agent had to establish a substantial probability that it would prevail; and said a forfeiture action "will be stayed during the pendency of a criminal action which is related to it, but the claiming authority may pursue any provisional remedy available." Also, the court held that the attached property could not be used to pay for legal expenses of Clifford in defending a federal criminal proceeding, because the New York forfeiture act (CPLR 1310(5)) referred specifically to the New York penal laws.
Under construction: Add links to websites with text of forfeiture statutes other than the NY forfeiture statute.
A Suggestion for Blake's Defense Attorneys - Possibilities of Prosecutorial Abuse to Be Checked Out by the Defense for Robert Blake in the Alleged Murder of Blake's Wife
The Robert Blake murder case could be instructive. If we assume that from the date of the murder, May 4, 2001, to the date of the arrest of Robert Blake, on April 18, 2002, the prosecutor had high suspicions but insufficient evidence.
A prosecutor who could convict Robert Blake on insufficient evidence would be a super-prosecutor indeed.
Almost every prisoner in America doing major time thinks about the game being played in every prison, which is to see who you can put into jail in exchange for a reduction of sentence, and perhaps payment of some money, as well -- irrespective of whether the testimony is truthful or falsified. Because of the high stakes involved - the ability to get a pass out of jail - almost any prisoner is willing to lie, even if someone else (an innocent person) replaces him in his cell as a result.
The prosecutor mentioned on the date of Blake's arrest that it took a year for the prosecutor to go through 150 leads concerning the Blake case. I assume that there weren't 150 persons on the block where the murder took place, and that the 150 persons are mainly prisoners, attempting to get out of jail by lying, and that the prosecutor, to bolster his case, has selected not one but two liars to bolster the prosecutor's weak case.
A lawsuit against the prosecutor and alleged witnesses might be appropriate to show this possible prosecutorial misconduct, and in any event Blake's lawyer should demand to see all leads from prisoners to help prove the alleged misconduct.
Our criminal justice system in America has rules for determining a defendant's guilt, and these rules should not include the purchase of prisoner testimony by a 1-year solicitation of candidates, followed by a candidate selection program comparable to choosing plebes for West Point, with the result of plugging the evidentiary hole in what otherwise might be a non-prosecutable murder case.
Forfeitures Are Used by Prosecutors Only against Small People and Their Family Members, Not against Arthur Andersen and Its 1,700 Partners and Their Family Members
A typical use of the various "criminal-enterprise" forfeiture statutes in the United States is to (i) indict a wealthy businessman (less often a wealthy businesswoman); and (ii) secretly through ex parte attachment (without prior notice) take all of the businessman's real property, vehicles, boats, bank accounts, savings accounts, stocks, cash (if found during the house or office search), and other property of value, to deprive the businessman of the assets, credit and reputation needed to defend himself.
The forfeiture statutes are enacted (or continued) by federal and state legislators as the alleged cure for illegal drug trafficking and anti-terrorist activities, but drafted broadly enough to be used as to any activities which are alleged by a prosecutor to be "felonious".
There are hundreds of different types of "felonies" in New York, and the New York forfeiture statute is applicable to all of them.
A typical use involved the attachment of the real property owned by the accused businessman, the real property owned by his ex-wife, present wife, and two chidren, all of the bank accounts held by the businessman, his current wife, and all of his children, all vehicles leased by the businessman, all savings accounts in the name of the businessman, his current wife and all of his children, all securities accounts in the name of the businessman, his current wife, and each of his children, and all cash which was found by the detectives in the businessman's wallet, office and house.
The combined value exceeded $5,000,000, representing a lifetime's work, all confiscated by the prosecutor before notifying the defendant that he was being charged with a crime (of running a business involving hundreds of customers, but with one dissatisfied customer complaining to the prosecutor). The alleged crime is promising the customer a service which allegedly was not fully performed, similar to the complaints people make against cable companies, telephone companies, banks, credit card companies and others. [But where are the forefeiture activities against them.]
It isn't that major companies aren't engaged in unlawful conduct. For example, every major manufacturer in the United States is violating the Robinson-Patman Act by selling goods at per-unit prices which are substantially lower for Wal-Mart than they are for Wal-Mart's small-business competitor across the street (the same competitor who is apt to have a forefeiture proceeding brought against him if he is accused of selling pirated DVD's).
Selling pirated DVD's is a violation of federal and state laws amounting to felonious conduct; selling to Wal-Mart in violation of the Robinson-Patman Act is a felony under federal law, and also under equivalent legislation in some states.
What about Arthur Andersen? Arthur Andersen was shredding documents to obstruct justice, which is a felony also. Each of Arthur Andersen's 1,700 partners (until recently) was drawing $10,000 per week in salary and/or profits (or $517,000 per year), essentially for permitting Wal-Mart and the manufacturers to avoid detection for their violations of the Robinson-Patman Act and who knows what else? Here is one of the federal "obstruction of justice" statutes, providing a 5-year sentence for violators thereof:
18 USCS Section 1505
Section 1505. Obstruction of proceedings before departments, agencies, and committees
* * *
Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress-- Shall be fined under this title or imprisoned not more than five years, or both. [not cited in the indictment downloaded 3/28/02]
* * *
18 USCS Section 1512
Section 1512. Tampering with a witness, victim, or an informant
* * *
(b) Whoever knowingly uses intimidation or physical force, threatens or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to--
* * *
(2) cause or induce any person to--
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been summoned by legal process; or
* * *
shall be fined under this title or imprisoned not more than ten years, or both.
If you want a little diversion, to see how Wal-Mart, Andersen and Enron are all part of the same problem, take a look at my three related websites, at Don't Cry for Arthur Andersen - Millions of Americans Lost Their Savings and/or Jobs during AA's Auditing Watch; Enron Was a Favorable Event - Issues and Answers to Make Business and Capitalism More Competitive; and How to Stop Wal-Mart (and Other Superstores) from Expanding into and Destroying Your Community; and Stopping "Globalization";
Why don't the prosecutors in New York or other jurisdictions use the forfeiture laws to attach the real estate, cars, boats, stocks, checking accounts, savings bank accounts, and other personal property of each of the 1,700 partners, and their ex-wives, current wives, girlfriends, children, grandchildren, and parents, if forfeitures are such a good thing for the country. After all, what's good for the goose is good for the gander.
The one lone businessman resulted in a $5,000,000 attachment. How much do you think the average Arthur Andersen partner and his family is worth, when earning more than $500,000 per year for an average of 20 years, with superior money management facilities available to them? Perhaps $10,000,000 per partner, including family members, on the average?
Let's see, 1,700 times $10,000,000 is $17 billion, a worthy attachment, but no prosecutor is stepping forward to do what the law requires.
No, the only thing the prosecutor is good for is to pick on someone who is defenseless, to go in for a quick kill, and force the businessman to plead guilty to get some of his property back to take care of his family.
That's one hell of a system!
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