A recent new story posted on WRAL.com (and now available on CBS News) highlights the collateral consequences that a federal drug prosecution and conviction can have on not only a defendant’s life, but also the lives of family members and unsuspecting business associates. As noted in the story:
An online auction with a wild back story allowed Atlanta-area brides to save big on wedding expenses.
When a federal drug bust in Alaska led to the seizure of a bridal store’s inventory, the government was left with thousands of bridal gowns, tuxedos, tiaras and even engagement rings. So the General Services Administration handled it like any other seizure of valuables and set up an auction.
Understandably, the first thing that comes to mind for anyone who has received a federal target letter or has been indicted for committing a federal drug crime is the prospect of spending time in prison. Federal sentencing laws are harsh, and prosecutors routinely seek the maximum punishment allowed by law. But what happens to a convicted person’s personal property?
FORFEITURES IN THE EASTERN DISTRICT OF NORTH CAROLINA ARE COMMON
In the Eastern District of North Carolina, most indictments are accompanied by a forfeiture notice. A forfeiture notice informs a defendant of the government’s intent to recover assets that it believes were obtained through criminal activity. If, for example, a defendant uses proceeds from drug sales to buy cars or a house, that property can be seized by the government and liquidated (usually at an auction). The notice generally becomes final upon entry of a guilty plea or conviction by a jury.
What happens, however, if a defendant acquires assets jointly with his wife or other legitimate sources of income are used to buy property. Sometimes, the extent to which those properties can be forfeited can be negotiated with the federal prosecutor. Otherwise, a defendant has to demonstrate that property that the government may have an interest in is not “ill-gotten” and was acquired legitimately.
If you have been charged with a federal crime or otherwise have an interested in forfeited property, time is not on your side. You must act quickly, or your rights to seized property can be lost. Contact Blue Law LLP if you have a forfeiture issue.
It has been said that the life of the law is experience. Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise.
It is rare for the US Supreme Court to declare, almost unanimously, that it doesn’t know what something means. But that just happened in Johnson v. United States, a case about the proper interpretation of the residual clause of the Armed Career Criminal Act, 18 U.S.C. §924(e) (the “ACCA”).
We’ll start with the facts. The defendant in Johnson is a felon with a long criminal record. In 2010, the FBI began to monitor him because of his involvement in a white supremacist organization that was suspected of planning a terrorist attack. During the investigation, the defendant told undercover agents that he planned to use explosives to attack the Mexican consulate in Minnesota, progressive bookstores, and liberals. He showed the agents an assault rifle, several semiautomatic firearms, and over 1,000 rounds of ammunition. The defendant was arrested and pleaded guilty to violating 18 U.S.C. §922(g).
THE ARMED CAREER CRIMINAL ACT HAS A 15 YEAR MANDATORY MINIMUM SENTENCE
Section 922(g) forbids convicted felons from possessing firearms (most people are familiar with the crime and commonly refer to it as “being a felon in possession of a firearm”). The law generally punishes violators with up to 10 years’ imprisonment. If, however, a defendant has three or more prior convictions for a “serious drug offense” or a “violent felony,” the ACCA increases the prison term to a minimum sentence of 15 years and a maximum sentence of life.
So, what is a “violent felony” under the ACCA? The Act defines a violent felony as:
any crime punishable by imprisonment for a term exceeding one year . . . that —
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.“
The highlighted language above is referred to as the ACCA’s “residual clause.” The question in Johnson was whether the defendant’s prior conviction for the unlawful possession of a short-barreled shotgun (under Minnesota law) was a violent felony under the residual clause. The Court held that it was not because the residual clause is unconstitutionally vague and therefore violates the Constitution’s guarantee of due process.
Let’s dig a little deeper. The Court begins its legal analysis with the Fifth Amendment:
The Fifth Amendment provides that “[n]o person shall . . . be deprived of life, liberty, or property without due process of law.” Our cases establish that the Government violates this guarantee by taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. . . . The prohibition of vagueness in criminal statutes “is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law,” and a statute that flouts it “violates the first essential of due process.” . . . These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences.
Prior to Johnson, the Court adopted a framework called the “categorical approach” to decide whether an ACCA predicate offense is “burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injuty to another[,]” as those terms and that language is used in the ACCA text. This framework required a court to assess whether a crime is a violent felony “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Johnson at 4. It further required “a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents a serious potential risk of physical injury.” Id.
The Court cited two features of the residual clause that make it unconstitutionally vague. First, the clause “leaves grave uncertainty about how to estimate the risk posed by a crime” in the judicially imagined “ordinary case.” For example, “does the ordinary instance of witness tampering involve offering a witness a bribe? Or threatening a witness with violence?” The Court concluded that “[t]he residual clause offers no reliable way to choose between . . . competing accounts of what” an “ordinary case” involves. Id. at 6.
Second, the clause “leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.” The Court offered the following as an example:
Does the ordinary burgler invade an occupied home by night or an unoccupied home by day? Does the typical extortionist threaten his victim in person with the use of force, or does he threaten his victim by mail with the revelation of embarassing personal information? By combining indeterminancy about how to measure the risk posed by a crime with indeterminancy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.”
Throughout the opinion, the Court explains its (and lower courts’) failure to develop a consistent, reliable, and predictable framework for application of the residual clause to different felonies. This failure mandated striking the clause as unconstitutionally vague. Importantly, application of the ACCA to the four specifically enumerated offenses (burglary, arson, extortion, or a crime involving the use of explosives) remains in tact.