David C. Tryon, Esq.
8659 Jenna Drive
Broadview Heights, Ohio 44147
216-443-2560 (W)
440-503-7877 (C)
Re:S.B. 236 and H.B. 347
Chairman William Coley, Chair of Ohio Senate Government Oversight and Reform Committee; I am an attorney and practice with the law firm of Porter Wright Morris & Arthur LLP. However, my opinions are my own and do not necessarily reflect those of my law firm.
Thank you for allowing me to testify in support of S.B. 236 and H.B.347, which would repeal the Ohio’s Civil Forfeiture law. I believe that Ohio Civil Forfeiture law has been misused and abused and that the state can properly confiscate criminal tools and property used in the commission of a crime through the Criminal Forfeiture Laws.[1]
The government has a well-recognized incentive to overreach in civil forfeitures. A 2008 study on Asset Forfeiture explained:
“The Need for Forfeiture.For many years law enforcement agencies around the nation have faced shrinking budgets. . . . Though it is an enforcement tool, asset forfeiture can assist in the budgeting realm by helping to offset the costs associated with fighting crime. . . .
Sherri Bevan Walsh, Summit County Prosecuting Attorney, in addressing the Ohio Patrolmen’s Benevolent Association advocated the usage of Civil Forfeiture over Criminal Forfeiture stating:
“If the burden of proof seems too high for criminal forfeiture, civil forfeiture statutes exist and are successfully used by this office.”
Some of the abuses of civil forfeiture have been documented in the following article:
I have had a few experiences trying to help clients recover property improperly seized under Ohio’s Civil Forfeiture laws. I will give one example below.
Summary
In November 2013 a local government in N.E. Ohio (the “Government”) used Ohio’s civil forfeiture laws to seize over $150,000 in property from two individuals with no pre-seizure notice and no explanation of why it was seizing the property. The individuals personal inquiries to the Government were largely ignored. (Indeed, when asked where some of the assets were, the Government lawyer refused to answer; saying it was a “secret”!) The individuals had to hire attorneys (the undersigned and another attorney) to try to get their property back. Even though the Ohio Revised Code required a prompt hearing on the retention or return of the property, the Government neither conducted the hearing nor returned the property.
Seven months later, the individuals’ attorneys, filed a demand for a hearing in the Court. The Government refused the hearing and instead filed frivolous criminal charges against one of the individuals as leverage to keep the property. Rather than fight a criminal charge (which could result in jail) and incur attorney’s fees which they could not afford, the individuals eventually agreed to waive their rights to their property in exchange for the criminal charges being dropped. This is a common procedure: - take the property and wait for a challenge – then file criminal charges and negotiate dropping the criminal charges for the surrender of the property. This is an abuse which merits repeal or modification of the Civil Forfeiture Laws. The details of the specific case above are set forth below.
Facts
In November 2013, Jane Doe (an individual)entered into a purchase agreement with a Cleveland area Mercedes dealership (the “Dealership”) to purchase a Mercedes GL350 (the “Mercedes”)with a purchase price of nearly $80,000. Jane Done was acting as an agent for John Roe who was paying for the vehicle. The Dealership, however, never delivered the Mercedes to Jane Doe. Instead, soon after the purchase agreement was signed, the Dealership contacted Jane Doe and informed her that it could not deliver the Mercedes to her. No further explanation was given.
Around the same time, Jane Doe receivednotice from her bank (the “Bank”) that her bank account was being seized by the Government pursuant to an“Order to Preserve” (the “Jane Doe Order to Preserve”)the Bank had received from the Government. Asa result of theJane Doe Order to Preserve, about $8,000of her money was seized by the Government.
Around the same time, John Roewas informed that the funds in his bank (“Bank 2”) were frozen. As a result of John Roe’s accountat Bank 2 being frozen, the Government seized about $70,000 from John Roe. John Roe never was served with an Order to Preserve or any other seizure notice. Eventually, months later, the prosecutor handling this matter gave a copy of the Order to Preserve to John Roe’s attorney pursuant to which Roe’s bank account was seized.
Eventually, it was also learned that the Mercedes had been seized and was in the State’s possession – but in a “secret” location. All told, the State seized over $150,000.00 in assets belonging to Claimants (and the Dealership) without any notice and/or justification for the seizure.
This was all done with no due process, no opportunity to challenge the seizure and no disclosure of what John Roe and Jane Doe had done to merit the confiscation of their property.
Over seven (7) months after the seizures, therehad been no indictment, information, or complaint seeking forfeiture of the property filed by the State. Moreover, since the date on which the Orders to Preserve were entered, no further orders had been issued further restraining the Seized Property.
The undersigned had several calls over two months with the County Prosecutor’s office. The undersigned asked about the location of the Mercedes, and was told it was “secret.” That’s right, two American citizens were not even allowed to know what the Government had done with their property because it was a secret. When asked the theory for retaining the property, the undersigned was told “multiple.” The Government refused to identify any of the “multiple” claims. The undersigned also called the Judge’s chambers which issued the Orders. They claimed they had no record of the Orders and no memory of the Orders. The undersigned presented the Court with copies of the Orders. The Court then stated that the judge had signed them but there was no case assigned to them and therefore, that judge could not hold the required hearing on them.
Finally, when discussions reached a stone wall, the Claimants filed a motion with the Court (which was difficult without an actual case number), demanding a hearing. In response, the County Prosecutor filed criminal proceedings[2] without ever responding to the civil forfeiture challenge as required by the statute!
The Current Civil Forfeiture Law.
The two Orders to Preserve explicitly states that the Seized Property was bring preserved pursuant toOhio’s Civil Forfeiture law Ohio Rev. Code Ann. § 2981.03(B)(2) – not Ohio’s Criminal Forfeiture law. Notably, however, Ohio Rev. Code Ann. § 2981.03(B)(2) provides that:
Except as otherwise provided in division (B)(3) of this section, the court shall make an order under division (B)(1)(b) of this section effective for not more than ninety days, . . .
Section 2981.03(B)(3) goes on to state that:
A court may issue an order under division (B)(1) of this section without giving notice or a hearing to a person known to have an interest in the property if the prosecutor demonstrates that the property is subject to forfeiture and that giving notice and a hearing will jeopardize the availability of the property for forfeiture.
If the seizure is withoutnotice, it expires in TEN (10) days! Section 2981.03(F) provides, in part, that:
If the property seized includes property alleged to be a mobile instrumentality or includes personal, business, or governmental records, the civil forfeiture actions shall be brought within thirty days of seizure. Otherwise, the action shall be brought within sixty days of seizure.
Therefore, pursuant to the express terms of Sections 2981.03(B)(2) and (3), the Orders to Preserve were only good for ten (10) days because the Orders to Preserve were done without giving notice or a hearing to the individuals (hereafter the “Claimants”). The Government ignored this requirement and the requirement for a hearing within 30 days. In fact, the Government never contacted the Claimants, never explained the rationale for the seizures and never explained how they could challenge the seizure. Instead, they had to hire counsel to force the Government to do its job.
Conclusion/Recommendation
This is just one example of the Government’s abuse of the State’s Civil Forfeiture laws. The undersigned counsel has been involved with other similar cases where the State has abused its civil forfeiture laws and then used the threat of criminal prosecution in order to avoid the required post forfeiture hearings. The undersigned counsel believes that Ohio’s civil forfeiture laws need to be repealed. While some may claim that a complete repeal is an overreaction and that it would eliminate a significant enforcement tool for law enforcement, in fact the Government will still have the procedures available to it under the Criminal Forfeiture laws. The Government just does not like that law because it is more rigorous.[3]
If not repealed, these laws should be revised to penalize the government and its agents for failure to follow the required procedures and be penalized for using these laws if the civil forfeiture is ultimately unsuccessful. The penalties should be the immediate return of the property, payment of any attorney’s fees and a waiver of any criminal charges against the owners which are the basis of the civil seizure.
Thank you
/s/ David C. Tryon
1
CLEVELAND/450742v.1
[1]Criminal forfeiture requires the State to prove beyond a reasonable doubt that the person’s property belongs to the defendant and that it is tied to the charged crime and that the crime was committed. That is fair. In Civil Forfeiture , the owner of the property does not even need to be charged with a crime. Someone else entirely may have possession of your property and used it in a crime. It is seized even if you are innocent of a crime. Also, the burden for the State to keep it is merely preponderance of the evidence. The Criminal Forfeiture statue is fair – that is what the Government should be required to utilize before seizing private property.
[2]No doubt the committee will be curious about the charges. The conjured charges are irrelevant to the State’s refusal to follow the Civil Forfeiture Statute and failure to provide a hearing. If there had been anylegitimate criminal charges, they should have been brought before or immediately following the property seizure. Instead, only after many months of holding the property and concealing its location did the Government create criminal charges to intimate the claimants. The Government claimed that John Roe and Jane Doe illegally conspired to buy cars and export them and thereby make a profit thereon. There are no laws prohibiting this activity. The dealership had claimed that this resale/export breached a non-export contract it had with the buyer; but a breach of contract is not a crime. So why would the Government seize the property? As with many civil forfeiture cases, the State has a great incentive to seize assets. It is an easy way to get money and property for the police without tax increases.
[3]Criminal forfeiture still allows forfeiture when the property is connected to a criminal offense connected to a person accused and then convicted. Civil forfeiture allows the Government to take your property even if you are not convicted of a crime.