Texan Challenges Civil Forfeiture Law

It was the BMW's missing license plate that led the troopers to the guns, drugs and cash inside the car.

The driver, stopped on I-45 outside Conroe, might have just gotten a citation and been sent on his way that March day in 2011 had he not fibbed to the cop about his criminal record. When the trooper asked 32-year-old Joshua Lee-Michael Watson if he'd ever been arrested, Watson said no. But a quick database check told the trooper otherwise: Watson was in fact on probation for a misdemeanor property theft the year before.

Suspicions aroused, the trooper asked Watson if he could search the silver 2004 BMW. The trooper radioed the nearest constable's office and requested a K-9 unit. The resulting search yielded the following: $33,027 in cash (wrapped in tinfoil and stuffed in a plastic bag); an AK-47 assault rifle with a hundred-round drum magazine; an AR-15 assault rifle with a 30-round magazine; a loaded stockless pump-action shotgun; a loaded .40-caliber pistol; a .45-caliber pistol; and a .22-caliber rifle. Officers also found two plastic bags full of bullets; police and private investigator badges; and a black bag — with the word "POLICE" written in white on the sides — containing gear labeled SWAT but really just made out of plastic. The search also turned up an assortment of morphine and steroid pills. Dude should've just sprung for a license plate.


Watson was arrested and charged in Montgomery County District Court with money laundering, felony possession and misdemeanor unlawful carrying of a weapon. He was facing 30 years in prison.

At Watson's June 2012 trial, his attorney provided an explanation for everything. The guns? Properly registered, and Watson had just been at the firing range. The pills? They were prescribed to him for pain resulting from a car accident and to his mother for pain resulting from cancer eating the bones in her face. The bulk of the cash was a settlement resulting from a lawsuit over that same car accident, and Watson just didn't trust banks. Besides, there's nothing illegal about having cash. The badges and faux-SWAT gear might have seemed a bit odd, sure, but there was no evidence that he had used them to impersonate an officer.

The jury acquitted on all counts in about three and a half hours.

Watson was a free man, but prosecutors weren't giving up so quickly. If the state couldn't get Watson, it could at least go after the seized items.

At the same time prosecutors had filed charges against Watson in criminal court, they filed charges against "$33,027.00 U.S. Currency and Miscellaneous Personal Property" in civil court. This procedure, called civil forfeiture, allows the state to seize a person's property regardless of whether that person has been convicted of — let alone charged with — a crime. After the property is seized, the state may then file a lawsuit against it. Unlike in criminal court, where prosecutors must prove a defendant's guilt beyond reasonable doubt, the burden of proof in civil forfeiture is based on the preponderance of evidence.

If the state prevails, law enforcement gets to keep the cash and, in some cases, auction off the loot. Critics say this gives authorities a profit motive — a true incentive to abuse a law that by its very nature already turns the Constitution on its head.

In April 2012, lawyers in a Harris County civil forfeiture case figured that, instead of just griping about the law, they'd challenge it. In April 2012, they argued the law's constitutionality before the 14th Court of Appeals. While they wait on a ruling, prosecutors throughout Texas are suing stacks of cash, and, the lawyers say, officers are policing for profit.

Here's one reason the civil forfeiture law in Texas is troubling: A person doesn't have to be charged with or even convicted of a crime to lose his money or property forever.

The law was implemented in 1989; prior to that time, according to a 2009 report by the Senate Committee on Criminal Justice, "Law enforcement had to return much of the seized property to the criminal actor and, as a result, the State was basically rewarding criminals by allowing them to keep that which they had garnered from their criminal activities."

And while the law allows a person to assert an "innocent owner" defense, the situation is not comparable to a criminal case, in which the burden of proof falls on the state to prove that a crime occurred. In a civil forfeiture innocent owner defense, the burden falls on the owner of the seized property to prove that the property isn't contraband. (The Senate Committee's report took issue with the burden-shifting, calling it "an unfair advantage," and recommended that the burden fall on the state.)

Prosecutors can clog the process during discovery proceedings, requiring owners to produce ancient financial documents and countless other personal records not even associated with the property. The hope seems to be that the owners will just give up and go away.

Charles "Brad" Frye is one Houston attorney who handles civil forfeiture cases, if only because they really seem to piss him off.

Pointing to what he considers the law's inherently flawed logic, he says, "Contraband can only be property that's associated with a crime, right? Well, the state doesn't have to prove beyond a reasonable doubt that there was a crime."

The aforementioned Senate Committee report notes that "what was once a crime fighting and law enforcement tool has since become a profit-making, personal account for some law enforcement officials...Instances of abuse in both the confiscation and spending of asset forfeiture proceeds have increased at alarming rates."

Examples cited include a party the Montgomery County DA's office threw at the county fair in East Texas in 2005 at which forfeiture funds covered the booze and a margarita maker. A district attorney in West Texas upped the ante, taking his staff and a judge to Hawaii for a so-called training seminar. Another DA "spent thousands of dollars on commercials for his re-election campaign."

Citing these and other flagrant abuses of power, a Virginia-based libertarian legal group, the Institute for Justice, believes the law as written practically begs for corruption.

According to a report the institute issued in 2010, "Texas' lax civil forfeiture laws dangerously shift law enforcement priorities away from the fair and impartial administration of justice and toward the pursuit of property and revenue."

The institute's analysis of Texas law enforcement budgets for 2007 showed that "for the average agency, forfeiture revenue represents 14 percent of its budget."

While the law expressly prohibits agencies from using forfeiture funds to pay salaries, that can be achieved indirectly. For example, the Harris County District Attorney's Office's 2010 audit of forfeiture funds shows that $47,602 was spent on furniture and $250,693 was spent on "office supplies." That frees up money that can be used to hire additional staff.

Most busts don't involve vast fortunes, but there's an almost nonstop stream of hundred- or thousand-dollar busts. When it's combined with the proceeds from vehicles and other property sold at auction, authorities can collect a windfall. Between September 1, 2009, and August 31, 2010, the Harris County District Attorney's Office collected $752,877 in asset forfeiture funds. (In August 2010, the DA's office reported $8.6 million in total forfeiture funds ever collected.)

So institute lawyer Scott Bullock mined court records for the perfect test case with which to challenge the law's constitutionality and drum up public awareness with a sympathetic protagonist. He wound up with Zaher El-Ali as his organization's poster boy.

It turns out he could have done a better job.

Institute literature describes El-Ali as a model citizen, a Jordanian immigrant who came to the States with nothing and eventually built up a successful real-estate and auto-sales portfolio.

He was presented as a squeaky-clean fellow who did a favor by financing a 2004 Chevy Silverado for a guy who later got popped for driving drunk, and now El-Ali was going to lose the truck despite the fact that he held the title and hadn't been behind the wheel.

Here's what happened: In July 2009, the driver, Roberto Faustino, found himself flying down the wrong side of Market Street Road in Jacinto City, heading straight for Jacinto City Police Officer Juan Perez.

Perez swerved off the road and flipped on the overheads and siren, but the truck kept on going for a mile and a half before pulling over. According to court documents, the 51-year-old Faustino was red-eyed and reeking of alcohol. He had an open bottle of Bud Light in one cup holder and a baggie of cocaine in the other. Another baggie of coke was stuffed in the ashtray.

This arrest was DWI number seven for Faustino. While the Harris County District Attorney's Office pursued criminal charges against Faustino, prosecutors also filed a notice of seizure and intended forfeiture. Officially, the case was styled State of Texas v. One 2004 Chevrolet Silverado.

The case got attention in The Economist and Reason; El-Ali even penned an opinion piece for the Houston Chronicle describing his Kafkaesque nightmare.

"Apart from a speeding ticket, I have never been in any trouble with the police, so I was shocked to find out about a system that allows the police to seize my car, sell it and use the money to fund their budget, all without so much as charging me with any crime," he wrote.

For some reason, no one ever bothered to verify El-Ali's claim. If they had, they would have found out he wasn't telling the truth about his past — namely, that he's a convicted wife-beater.

In 2000, he pleaded no contest to misdemeanor assault of a family member. Per the Harris County Sheriff's Office's offense report: El-Ali walked up to his wife while she was washing dishes in the kitchen of their east Houston home, spat in her face and then began choking her with both hands. This happened in front of the couple's three children. He then freed up one of his hands so he could punch her on the left side of her neck, where a doctor had previously found a blood clot. He kept this up until she passed out. As he fled the scene, he shouted, "I killed her. I killed her. I am so happy."

When the Press raised this issue with El-Ali's lawyer, Bullock said he had no idea his client had a record. (El-Ali was in Jordan and unavailable for comment.)

Curiously, institute literature also omits the fact that Faustino — the man El-Ali sold the truck to — wasn't just some stranger; he was a Mexican citizen who had leased a 750-square-foot shack from El-Ali since 1996.

Court records for the forfeiture case hand-selected by Bullock as a perfect example of Texas's abuse of the law show inconsistencies as well: Shortly after authorities seized the Silverado in July 2009, El-Ali wrote a letter to Jacinto City Police Chief Joe Ayala claiming that Faustino still owed him $22,863. However, El-Ali's own bill of sale shows that he charged Faustino only $19,460. In another filing, El-Ali claimed that Faustino owed him $2,350.

While El-Ali's conviction 12 years ago has nothing to do with the civil forfeiture case, it's puzzling that, if there's such prevalent abuse of the law, Bullock selected a case involving a wife-beater who lied about his criminal past and then couldn't keep his story straight in the forfeiture case.

According to Harris County prosecutor Karen Morris, El-Ali's rights as a lienholder were always protected. All he needed to do, she says, was provide documentation showing how much he was owed. Lienholders' interests are protected under the law's "innocent owner defense," which also carves out protections for a person to argue that they had no knowledge, could not have reasonably foreseen or did not purposefully avoid knowing that their property was used in the commission of a crime.

The problem, according to Morris, was that El-Ali kept changing his story. She claims he originally told Jacinto City police that he was owed roughly $300. Then, after going months without an attorney, El-Ali teamed with the Institute for Justice and, along with his innocent owner argument, challenged the law's constitutionality.

Because El-Ali wasn't consistent on the amount he claimed he was owed, prosecutors got serious: They demanded personal and/or business tax returns from 2007 to 2009; all business and residential expenses — including canceled checks, receipts, utility bills and the like — for the same years; documentation of the sale of any vehicles for the previous five years; and other information that appears wholly unrelated to the Chevy Silverado. (Ultimately, El-Ali and the Institute for Justice abandoned his innocent owner claim altogether and proceeded only on the constitutional challenge.)

El-Ali's lawyers saw this as a deliberate attempt to bury their client in paperwork, and they fumed over the state's request that El-Ali admit or deny that he knew, should have known or purposefully avoided knowing that Faustino had a history of drunk driving.

In his piece for the Chronicle, El-Ali wrote, "I never knew I had such a burden to investigate the backgrounds of potential buyers in a business transaction...I felt like the state was trying to intimidate me into not fighting the forfeiture and to get me to just throw in the towel so it could keep the truck."

Morris finds El-Ali's complaint disingenuous. For one thing, she says, El-Ali didn't bother to willingly provide proof of how much he was owed in the roughly six months before the discovery process, in which the state asks the respondent to turn over any documentation related to the seized property.

In fact, the process need not be too painful. Take, for example, the 2010 Harris County case of State of Texas v. One Ford F-250, One 2005 Cadillac Escalade and One 2009 Polaris 850 4-wheeler.

Prosecutors filed a notice of forfeiture for those vehicles in a case involving a criminal mastermind who used fraudulent information to open Home Depot credit accounts. He used the accounts to buy generators, which he then sold in order to make payments on his vehicles. The notice was filed in late March; the vehicles' lienholders provided financial statements by mid-May; the state asked the judge to order the vehicles returned in early June; on June 30, the judge granted the state's motion.

Still, critics point to the discovery process in an innocent owner defense as undue burden-shifting, a contention Morris calls "a harebrained, illogical argument." She says the innocent owner claim is an affirmative defense — akin to a claim of self-defense by a criminal defendant in a homicide case — and as such, the burden naturally falls on the person asserting the claim. Therefore, any fuss about burden-shifting is simply smoke and mirrors.

"I mean, it sounds great; it makes really good news," Morris says. "It makes quite a story and it sounds very inflammatory, but when you get down to the nuts and bolts of the legal explanation, that's when people go, 'Oh, yeah, I can see that.'"

Attorney Frye can't see that.

Despite Morris's example of the self-defense assertion in a criminal case, Frye says the innocent owner defense is not truly an affirmative defense — it's a freak of nature.

"Under Texas law," he says, "'innocent owner' has no analogy."

This is largely because it's the property itself — not a person — that's being accused of a crime, and unless a seized Chevy suddenly becomes sentient, it can't defend itself.

Frye puts it this way: At the time of a seizure, "There has to be probable cause to believe that a crime was committed and the property they're seizing has a sufficient nexus to that crime so as to be considered contraband. So the innocent owner defense isn't an affirmative defense to any of that — I mean, the property can be contraband, the property can be properly seized."

He believes the forfeiture law should be reformed by changing the state's burden from "preponderance of evidence" to "beyond a reasonable doubt." Until then, he says, law enforcement can grab cars and loot simply through "suspicion and supposition and presumption and hunches."

Plus, he says, the state can rely on the fact that it's often not economical for someone to try to recoup their lost property. But Frye says he's had clients who've fought to get their property back, and if they get far enough along in the discovery process, some prosecutors will start to haggle.

"It appears that their policy seems to be to offer you 25 percent of your money back to resolve the case," he says. To Frye, it's "off-putting." Assistant district attorneys morphing into salespeople — rug merchants, bargaining at a bazaar.

There was bargaining, of sorts, in the Watson case.

When he filed criminal charges against Watson, prosecutor Phil Grant believed the evidence clearly showed Watson wasn't using his assault rifles and fake badges for purely recreational purposes.

"The proximity of the money, the way it was packaged, the fact that it was in a vehicle with a significant amount of steroid-related narcotics — and other narcotics — as well as firearms and police-related gear...we felt that the money was clearly associated with narcotics trafficking," Grant says. He adds, "It's not uncommon to see narcotics traffickers with gear that allows them to impersonate police officers."

But Chris Sharkey, who represented Watson in the criminal case, says, "There was no disagreement that he was the proper owner of all of the firearms and that there was no information connecting any of the firearms to any illegal activity."

Sharkey doesn't believe prosecutors acted in bad faith, saying, "With no slight towards law enforcement or any...state prosecutors, it's just been my experience that they view the world different than civilians do, and that anything that doesn't fit into their template of proper civilian behavior requires quote-unquote further investigation."

By Sharkey's estimation, some of Watson's idiosyncrasies shouldn't be that hard to relate to. So the guy didn't trust banks — so what? Are banks really all that trustworthy these days? In one of his more colorful analogies, Sharkey pointed out that Watson owned a nutritional-supplement store and suggested that it really wasn't uncommon for business owners to carry around large amounts of cash — from daily or weekly sales, for example — in bank deposit bags. How that compares to $33,000 wrapped in tinfoil remains unclear.

Although Grant filed a forfeiture case concurrent with the criminal case, the plan was to wait to see how the trial went. And, of course, it didn't go as expected.

Says Sharkey: "I think the thing that was most offensive to the jury was just the very thought that because somebody's quirky or because their grandpa buries cash in tomato cans in the backyard, that that has to be connected with criminal activity."

While Watson didn't testify, his mom did. Sharkey says her tortured physical condition was immediately obvious to jurors. Here was a woman who clearly required morphine.

"She could barely crawl to the witness stand," Sharkey says.

As stunned as Grant may have been by the jury's decision, he had to respect it. He now had to decide if he should go through with the forfeiture.

Certainly, Grant recognized that the Montgomery County District Attorney's Office had been in forfeiture critics' crosshairs, primarily because of forfeiture funds spent on a margarita blender. (The expenditure was not a complete travesty: The DA's office used the blender in a county fair margarita contest and won first place.)

Civil forfeiture watchdogs have gotten remarkable mileage from the seven-year-old Blender Blunder — even some who've written about the Watson case can't help but suggest that every forfeiture case filed in Montgomery County is suspect. This despite the fact that the DA at the time is no longer in office.

Grant says forfeiture funds go toward law enforcement officers' training and equipment and that the office files regular reports with appropriate county and state offices. He adds, "There are sufficient checks and balances to make sure that the state does not overreach when it comes to these types of offenses."

The Watson case, he believes, was definitely not overreaching. But while the state still had possession of Watson's guns, cash and pills, Grant knew that a loss in the forfeiture case would put guns and money back into the hands of a man he considered to be a dangerous criminal.

Watson was trying to get his property back through his wife: Attorney John Paul Hopkins filed a plea of intervention on her behalf arguing that, as Watson's spouse, she was also an innocent owner. (Hopkins declined to comment for this story.)

So Grant and Hopkins came to an agreement: The state would keep the guns and drugs, Watson would get his cash — with its snazzy tinfoil carrying case — and the state would drop the case.

What remains to be seen is whether Watson will spend any of that money on a new license plate.


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