>Courts continue to deny Siegelman discovery on Leura Canary's 'recusal', pointing to a widespread cover-up<
Beneath the surface, and somewhat buried in Land's 31-page opinion, was an issue that is much darker and potentially explosive. In fact, it points to a cover-up of criminal behavior that, if fully exposed, could rock our democracy. (See opinion at the end of this post.)
We're talking about discovery, specifically an inquiry into the supposed recusal of Leura Canary, the U.S. attorney over the Middle District of Alabama, where the Siegelman case was held. On page 3 of his order, Land states that discovery on the Canary recusal is one of three issues Siegelman raises on appeal--then the judge waits until the final four pages to address it, stating that "the Court leaves the most difficult issue for last."
Why is it the most difficult issue? Because Leura Canary clearly had a financial interest in the outcome of the Siegelman case; her husband, Bill Canary, had served as a paid consultant for Siegelman's political opponents. That violates Siegelman's fundamental due-process rights under the Fourteenth Amendment. Specifically, it deprived Siegelman of his right to a disinterested prosecutor, which Land addressed as follows:
It is indisputable that a defendant in a criminal prosecution is entitled to an impartial, disinterested prosecutor who does not have a personal financial interest in the prosecution. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 803-04, 809-10 (1987).
The reason is fundamental to our system of justice:
"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done."
Berger v. United States, 295 U.S. 78, 88 (1935); accord 18 U.S.C. § 208(a) (prohibiting federal prosecutors from representing the Government in any matter in which they or their family members have a financial interest).Siegelman presented evidence that Leura Canary had a financial interest in his case. Thanks to whistleblower Tamarah Grimes, he presented evidence that Canary did not abide by her announced recusal. Part of Siegelman's case before Land was a request to conduct formal discovery on the issue of Canary and her failure to fully recuse. By my unofficial count, Land became the sixth judge to deny such discovery.
And there is little doubt that Siegelman is entitled to discovery under the law. As his lawyers wrote in a 2013 brief:
Even if these manifestations of Canary’s continuing involvement were not, by themselves, sufficient to warrant reversal, the district court erred by refusing to order further discovery. When discovery is sought in support of a motion for a new trial, discovery should be ordered “where specific allegations show reason to believe that the [defendant] may, if the facts are fully developed, be able to demonstrate that he is entitled to relief.” Arthur v. Allen, 459 F.3d 1310, 1310-11 (11th Cir. 2006) (quoting Bracy v. Gramley, 520 U.S. 899, 908-09 (1997)).
A district court’s failure to order discovery is an abuse of discretion if it is “too soon to declare out of hand that the new evidence” might support the defendant’s new-trial claim. United States v. Espinosa-Hernandez, 918 F.2d 911, 914 (11th Cir. 1990); see id. at 913 (“The District Court abused its discretion in denying [the defendant’s] motion for discovery into [the government’s] alleged misconduct and in denying the motion for a new trial without first conducting an evidentiary hearing.”).Both U.S. Supreme Court and Eleventh Circuit precedent indicate Siegelman is entitled to discovery regarding Canary and her recusal. He is entitled to evidence that might show that his due-process right to a disinterested prosecutor was trampled?
The answer, in our view, is that discovery regarding Leura Canary would reveal that the Siegelman case was, in fact, a political prosecution. And it would reveal who was pulling Leura Canary's strings, to help ensure that the case ended with a conviction.
Who might those persons have been? We don't know, at the moment, but they probably go to very high levels of the federal government, at the time. And that probably is why federal judges, including Clay Land, are so invested in a cover up.
We will say this for Judge Land. His opinion hints that he does have a conscience, and he is troubled at the way the Siegelman case has been handled. Consider this from the opinion, on the subject of discovery:
Defendant has been prevented from making the record more robust. Thus, he faces an unenviable conundrum. He is told: “You have not produced enough evidence to support your claim.” And when he responds, “but all of the evidence is in your control and not available to me, so let me have a chance to see it ,” he is told, “too bad, you don’t get to see it because you have not produced enough evidence to support your claim.” It sounds like an unsolvable riddle: “To win, A must prove “X.” B is in control of the evidence relevant to “X” and will only give A a peek at that evidence if A first proves “X.” How does A win? Impossible--unless C, who has authority to order B to allow A to see evidence relevant to “X,” intervenes.Land then comes real close to saying that he believes the trial and appellate courts have gotten it wrong on the issue of discovery:
The Court finds that a substantial question exists as to whether the district court erred by denying Defendant the opportunity to engage in discovery to support his prosecutorial misconduct claim.That wasn't enough for Land to order Siegelman's release. But it should tell the public that something deeply troubling is going on--and at least one judge pretty much admits it, although he apparently lacks the courage to fix it.
In the Courts, of the WESTERN DIVISION, UNITED STATES DISTRICT [USDC], STATE OF WASHINGTON, ROBERT J. BRYAN, and in the DIVISIONS OF CHIEF JUSTICE ANN L. AIKEN, MEDFORD, MARION, PORTLAND, ET AL, USDC OREGON (JOHN V. ACOSTA, GARR M. KING, MICHAEL W. MOSMAN, ET AL), in the EASTERN DIVISION, USDC STATE OF WASHINGTON, R.M. PETERSON, and in the NINTH CIRCUIT COURT OF APPEALS, CALIFORNIA, ALEX KOZINSKI, JAY S. BYBEE, ET AL, AND IN THE COUNTY OF COWLITZ, SUSAN I. BAUR, ATTORNEY REPRESENTING BAUR, KURT M. BULMER: DUE PROCESS RULE OF LAW IS A FOURTEENTH AMENDMENT RIGHT, AND THEN THERE ARE SO MANY RIGHTS' THAT THE COURTS DENIED ME IN THE YEARS BEGINNING IN 2003-2005.
WHEN ATTORNEYS AT LAW DO NOT PRACTICE THE DUE PROCESS RULE OF LAW THE JOB ISN'T OF AN ATTORNEY AT LAW: ITS' A TECHNOBOT FOR THE TECHNOCRATS.
THE STOCK PORTFOLIOS ARE FILLED WITH HOME FORECLOSURES AND THIS SHOULD NEVER HAVE BEEN IN THE LAND OF THE U.S. CONSTITUTION, AND WERE THE DUE PROCESS RULE OF LAW HONORED THEN HONORABLE WOULD BE THE LAND OF THE FOURTEENTH AMENDMENT AND
Criminal Forfeiture (In Personam)
What is it?Criminal forfeiture is a punitive action by the government against the offender. Typically, it occurs as part of a sentence following a conviction. 18 U.S.C. § 982, through cross-referencing, creates a framework of offenses and procedures governing this type of forfeiture, as does 21 U.S.C. § 881. The statute provides for the forfeit of "any property, real or personal, involved in such offense, or any property traceable to such property." In addition, Rule 32.2 of the Federal Rules of Criminal Procedure governs criminal forfeiture proceedings in fedreal court. Depending on the crime, U.S. Customs procedures from Title 19 may also control.
The nature of the proceeding assures that the defendant is protected by the procedural rights embodied in the Fourth and Fifth Amendment. The property must be identified in the indictment in order to serve notice to the defendant, and opportunity must be given to contest the forfeiture.These notice and due process procedures are spelled out in Rules 32.2 of the Federal Rules of Criminal Procedure. The property must be identified in the indictment in order to serve notice to the defendant, and opportunity must be given to contest the forfeiture. After December 1, 2009, Rule 32 will require the government to also include a forfeiture notice in its presentencing report. Although the conviction requires the government to prove guilt "beyond a reasonable doubt," the forfeiture is subject to a lower burden--preponderance of the evidence. Furthermore, the burden shifts to the defendant once the government shows that the defendant acquired the property around the time of the crime, and no other likely source existed.
What about third parties?Criminal forfeiture only severs the defendant's interest, so the property rights of third parties (co-owners, banks, and the like) are theoretically unaffected. However, third parties may be unaware of the forfeiture and the property's subsequent disposal. To protect third party interests, the government must provide notice and a hearing to all interested parties. At the hearing, the party must assert and prove their interest by preponderance of the evidence.
What defenses exist?Since the forfeiture acts "against the person" and requires conviction of a crime, the first line of defense is against the conviction. A convicted defendant must shoulder the burden of proving the property did not have the necessary relationship to the crime in order to avoid the penalty.
Civil Forfeiture (In Rem)
What is it?Unlike criminal forfeiture, civil forfeiture proceeds against the property, not the person. In theory, civil actions are remedial, not punitive like criminal proceedings. By acting civilly, the government seeks to remedy a harm, through the fiction of the property's "guilt."
The same statutes apply--18 U.S.C. § 981 (parallels 18 U.S.C. § 982) and 21 U.S.C. § 881. To complicate matters, these statutes incorporate by reference Customs procedures from 19 U.S.C. § 1602 involving searches, seizures, administrative procedure, holding, and disposal. When the government learns of a crime, establishes probable cause of the property's involvement (usually as an instrumentality), it may seize the property by executing a warrant. A criminal charge or conviction is not required to seize. Notice occurs through presentation of the warrant and publication in a newspaper. If a party files a claim within the answer period, a civil hearing commences. In uncontested situations, the forfeiture may be handled administratively.
Due to its civil nature, the roles of the parties change. Instead of prosecutor versus defendant, the hearing concerns a plaintiff, the United States in the case of Federal forfeitures, and a defendant, the property in question. The owner is effectively put in the position of being a third party claimant. Furthermore, civil hearings involve a more lenient burden of proof than "beyond a reasonable doubt." Once the government establishes probable cause that the property is subject to forfeiture, the owner must prove by "preponderance of the evidence" that it is not.
Since the government determines which form of forfeiture to use, it is not surprising that most are carried out using the civil (in rem) procedure.
What defenses exist?Unless provided in statute (as in 18 U.S.C. § 981(a)(2)), innocence of the owner is typically not a defense. Furthermore, courts interpret the statutory defenses stringently. For instance, courts may apply an objective standard to determine if the owner should have had knowledge of the property's illegal use, rather require proof of actual knowledge. The owner may argue that no crime ever occurred, that the government lacked probable cause, or that the property is not closely enough connected to the crime to be considered an instrumentality or proceeds.
Should any of these defenses succeed, the government need simply return the property to the owner. It is not liable to the owner damages caused by the property's detention, including damages resulting during the original seizure or a failure to look after the property while in government custody.
What would happen if H.R. 1658 were passed?The whole character of civil forfeiture under Federal law would be fundamentally altered. Most importantly, the federal government would have to show by a "clear and convincing evidence" standard that the property in question was eligible for forfeiture. A property owner would be given 30 days to challenge the forfeiture, not 10 days as currently allowed, and would not be required to put up a 10% bond as precondition to the challenge. Judges would have the authority to appoint counsel for indigent plaintiffs, and could release the property to the owner if the owner could show that the loss would be a substantial hardship for him or her. Furthermore, the government would be liable if they negligently lost or damaged the property, and some owners of seized cash could also receive interest if they recover the money.
References and Suggested Readings
- The Palmyra, 25 U.S. (12 Wheat) 1 (1827). An early case in which the Supreme Court applies an in rem theory to seize property without a criminal conviction of the owner.
- One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965). The Exclusionary Rule applies to block evidence obtained illegally in forfeiture cases, providing a Fourth Amendment limitation on forfeiture procedure.
- Calero Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974). The Supreme Court finds that Due Process does not require pre-seizure notice or hearing, and that the innocence of the owner is not a general defense.
- Austin v. U.S., 506 U.S. 602 (1993). On the facts of the case, in rem forfeiture of real property is punitive and violates the Eighth Amendment Excessive Fines clause.
- U.S. v. James Daniel Good Real Property, 510 U.S. 43 (1993). Both the Fourth and Fifth Amendment limit the actions of the government in forfeiture proceedings, providing owners with notice and other Due Process protections.
- Bennis v. Michigan, 517 U.S. 1163 (1996). The Court holds that forfeiture is not a taking under the Fourteenth Amendment and continues to confirm the lack of "innocent owner" defense.
- U.S. v. Ursery, 518 U.S. 267 (1996). A civil in rem forfeiture proceeding following a criminal conviction is not punitive, and therefore does not violate the Fifth Amendment Double Jeopardy clause.
- U.S. v. Bajakajian, 524 U.S. 321 (1998). On the facts of the case, an in rem forfeiture of cash violates the Eighth Amendment Excessive Fines clause due to lack of proportionality with the conduct authorizing forfeiture.
- 18 U.S.C. § 1963: RICO Act Forfeiture
- 18 U.S.C. § 982: Criminal Forfeiture
- 18 U.S.C. § 981: Civil Forfeiture
- 19 U.S.C. § 1703: Customs Procedure
- 21 U.S.C. § 881: Drug Forfeiture Procedure
Key Internet Sources
- Criminal Cases (Nolo)
Current References and Sites Focusing on Forfeiture Issues
- Press Release on NYC DWI Forfeitures
- Special Report, Kansas City Star (1/2/1999)
- FEAR (Forfeiture Endangers American Rights) Site
Law Journal Articles
- E. Blumenson & E. Nilsen, E., Policing for Profit: The Drug War's Hidden Economic Agenda, 65 University of Chicago Law Review 35 (1998)
- D. Boudreaux & A. Pritchard, Innocence Lost: Bennis v. Michigan and the Forfeiture Tradition, 61 Missouri Law Review 593 (1996)
- A. Nicgorski, Comment, The Continuing Saga of Civil Forfeiture, the "War on Drugs," and the Constitution: Determining the Constitutional Excessiveness, 91 Northwestern University Law Review 374 (1996)