CITY SEEKS TO UNDO DRUG-CASH FORFEITURE

A 35-year-old Cuban national facing drug-trafficking charges lost $311 to
the city of Albuquerque in a civil-forfeiture proceeding last summer, but
now the city is trying to undo the victory it won in court.

That's because under the state Supreme Court's recent double-jeopardy
ruling on civil forfeitures, it appears that Pedro Tellez already has been
punished, and his pending drug charges could be dropped.

The high court, in a 3-2 ruling in December, found that property
forfeitures in drug cases amounted to punishment under the New Mexico
constitution.

A separate criminal conviction in the same case would be unconstitutional
double jeopardy, punishing someone for the same crime twice, according to
the majority opinion.

This week, Assistant City Attorney Stanley Harada took what he called the
"unusual step" of asking state District Judge Robert Thompson to take back
his forfeiture ruling in favor of the city.

"The city didn't have any way of knowing that the law of the land would be
changed as drastically as it was," said Harada.

Harada asked the judge to weigh "the prejudice to the state" if he allows
the $311 judgment to stand and the narcotics trafficking and
evidence-tampering charges against Tellez are dismissed.

Harada pointed out that another judge last month dismissed a criminal
charge in an unrelated case because the city had already won a civil
forfeiture.

According to court records, a charge of possession of a firearm by a felon
against Craig L. Fowler was dismissed Jan. 26 by state District Judge James
Blackmer because of the ruling that has come to be known as "State vs.
NuF1ez."

Last October, the city won its forfeiture case for $180 in cash and a Colt
.22-caliber firearm seized at Fowler's arrest, court records said.

The high court in its opinion ordered that all future drug cases involving
forfeitures be held in a single two-part proceeding under one judge.

But the ruling also applies to cases, like Tellez's, that were "pending" at
the time of the Dec. 30 opinion.

"It certainly is unusual," Tellez's public defender Alan Maestas said of
the city's motion at the hearing before Thompson on Thursday.

"What they're trying to do is undo the valid judgment of this court, so
they can continue the criminal prosecution," Maestas said.

Maestas said the city was acting on behalf of the District Attorney's
Office in order to circumvent the high court's ruling.

"You can't undo double jeopardy" any more than a bank robber can walk out
of a bank, then turn around and try to give the money back without facing
criminal charges, Maestas said.

And jeopardy, or punishment, applied the moment the money was forfeited,
Maestas said.

The cases that resulted in the Supreme Court's opinion have been on appeal
for more than two years, so government attorneys were aware of the issue,
Maestas said.

"But they chose to ignore it ... and went ahead with the forfeiture
action," Maestas said.

Harada said he wasn't asking for the money to be given back to Tellez, but
rather to be put in a court fund until procedural snags from the high
court's decision could be worked out.

Harada told Thompson that if he granted the city's motion "we would
immediately move to have the forfeiture case consolidated" with criminal
charges pending before state District Judge Frank Allen Jr.

But rather than rule on the city's motion, Thompson said he would wait to
see whether Allen would agree to hear a motion to consolidate.

On Friday, Allen agreed.