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JEFFREY KAYE: In 1992, Charles Wesley Arlt and James Eli Wren were convicted of violating federal drug and money laundering laws. Prosecutors charged that over a 15-month period, their ring transported 36 tons of chemicals to Southern California, then distributed chemicals to makers of the illegal drug methamphetamine. Arlt and Wren pleaded “not guilty” and claimed the chemicals were used in a gold mine Arlt owned in the California desert. The men were sentenced to life in prison, but the government deprived them of more than their liberty.
CHARLES ARLT: They took everything we had. We didn’t hide a dime. Every transaction was done by the law.
JAMES WREN: The government took vehicles, automobiles. They took aircraft.
JEFFREY KAYE: After the men were indicted on criminal charges, the government filed a civil forfeiture suit in order to confiscate their property. Wren’s lawyer, Shawn Perez, says the government punished the men twice for the same crime. That was double jeopardy, says Perez, a violation of the Constitution’s Fifth Amendment. The Ninth Circuit Court of Appeals agreed.
SHAWN PEREZ, Attorney: I see nothing wrong with punishing a person once, and the Constitution says, yes, we can punish you once, but we cannot punish you twice for the same offense in two separate proceedings. Arlt and Wren were punished twice by the forfeiture of their property. After they had already been prosecuted and convicted and sentenced to life imprisonment, the government came back and said, we’re taking everything you own. It resulted in a second punishment.
JEFFREY KAYE: Government prosecutors appealed the case to the U.S. Supreme Court. They would not discuss the case on camera because Arlt is being retried on the criminal counts. To get the government perspective, they referred us to former federal prosecutor Laurie Levenson. Levenson, an associate dean at Loyola Law School in Los Angeles, says the government contends double jeopardy does not apply.
LAURIE LEVENSON, Former Federal Prosecutor: There might have been two separate proceedings, but what the government argues is that really they’re just two halves of one proceeding. There’s one proceeding to convict the defendant, put him in jail, and another proceeding, the civil forfeiture, to take away his ill-gotten gains.
JEFFREY KAYE: The assets confiscated by the federal government were worth close to a million dollars. They included this shrimp boat, as well as a helicopter and a plane. There was a pleasure boat, eleven cars, a hundred and thirty-eight silver bars, and more than half a million dollars in cash and in bank accounts. The government maintains confiscating this property wasn’t punishment since the defendants never legally earned it.
LAURIE LEVENSON: Civil forfeiture is actually seen as remedial, saying to the drug dealers, uh- uh, you don’t get to keep the profits of your trade. But it’s not the same as putting you in jail. And the government argues that’s what jeopardy refers to.
JEFFREY KAYE: What does remedial mean?
LAURIE LEVENSON: Remedial basically means starting back to ground zero before the drug dealers were involved in the crime. Before they were involved in the crime, they didn’t have their boats, and they didn’t have their houses, and they didn’t have their gold. This is taking them back to square one, but it’s not punishing them the way it is to send them to jail.
JEFFREY KAYE: In order to put the men in jail, the government had to prove its case beyond a reasonable doubt. That’s the standard required for a criminal conviction. But to seize assets in civil proceedings, authorities need only prove there is probable cause connecting the crime to the property.
SHAWN PEREZ: Well, it’s much easier in a civil proceeding to take one’s property. They are not–they do not have to reach the same standard of proof. Their proof is nothing more than, uh, preponderance. Actually, it’s just probable cause that this particular property is the fruits of a crime, or that it was used to facilitate a crime.
LAURIE LEVENSON: I don’t really know that it is more difficult for the government to put it altogether in a criminal case, yes, there’s a higher burden beyond a reasonable doubt, but if you think about it, if a jury is willing to send the defendant to jail and convict him, they’re probably willing to forfeit the property as well.
JEFFREY KAYE: Many defense lawyers claim law enforcement has been too eager to seize property since they get to use the proceeds. In the last decade, the U.S. Justice Department has seized more than $4 billion worth of assets.
SHAWN PEREZ: That’s an awful lot of money, and most of the money is distributed to a variety of police departments and other arresting agencies.
JEFFREY KAYE: Uh-huh.
SHAWN PEREZ: So they do have something to lose, but it’s like I said before, they can still pursue forfeiture actively in the criminal indictment.
JEFFREY KAYE: Already, as a result of the Arlt and Wren case, prosecutors trying to seize property are now doing so as part of single criminal indictments. That way they can avoid claims of double jeopardy arising from separate civil and criminal proceedings. And convicts who say they have been punished twice are filing appeals, hoping to either get their property back or to get out of prison.