RULING DRIES UP DRUG FORFEITURES

Nebraska's county attorneys have a tough decision to make when it
comes to drug cases in which money and property are
confiscated.

In many cases, they can either go after the money or the criminal
charges at the state level. But not both.

"That's your choice right now," Johnson County Attorney Steve Mercure
said. "If you're going to pursue the forfeiture, you cannot go through
the prosecution of the individual for a criminal offense."

The dilemma stems from a Nebraska Supreme Court decision last year,
which found that making an accused drug dealer face both criminal
charges and a forfeiture hearing constituted double jeopardy.

While it doesn't involve a lot of money on a county-by-county basis,
the ruling has put Nebraska in a unique situation.

The U.S. Supreme Court and many states have rejected arguments about
double jeopardy. That's because in those cases, a forfeiture hearing
is a civil proceeding.

In Nebraska, however, the Supreme Court found that state law makes a
forfeiture hearing more of a criminal proceeding than a civil one. As
a result, the court ruled, some drug dealers in Nebraska were being
punished twice for the same crime.

The ruling has all but stopped county attorneys from going after
forfeitures at the state level. It has some county attorneys urging
state senators to come up with a legislative fix as they consider
other issues surrounding forfeitures.

However, at least one senator is concerned that calls to fix that
aspect of forfeiture law is really an effort to defeat a bill that
proposes to regulate how forfeiture money is divided.

"They're playing a game," said State Sen. Kermit Brashear of
Omaha.

Meanwhile, prosecutors across the state have had to come up with new
ways to try to keep the money confiscated each year from returning to
criminals. No statewide figures are kept, but in Douglas County at
least $50,000 a year was put at risk by the ruling.

"We've had to make some decisions," said Hall County Attorney Ellen
Totzke, whose office handles a couple of hundred to several thousand
dollars in forfeitures each year. "We've had to dismiss some
forfeitures after the ruling came down."

The issue comes as law enforcement officials are facing criticism for
taking forfeitures through the federal system instead of the state
one.

The federal system allows law enforcement to get back 80 percent of
the drug money that is seized. However, money taken through the state
system is divided between schools and anti-drug efforts.

A proposal sponsored by Brashear would require all forfeiture cases to
follow the State Constitution, giving schools a share of the money.

The court ruling that has given prosecutors trouble involved a man who
was charged with possession of a controlled substance in Lancaster
County in 1997. The Nebraska State Patrol seized Juan Franco Jr.'s
1992 Chevrolet pickup and $2,190 in cash.

Franco was tried for the crime and lost his money and pickup through
state forfeiture proceedings.

The State Supreme Court ruled that Franco wrongly faced multiple
punishments at multiple proceedings stemming from one crime.

"Our basic rule since that decision came down is, 'Don't send me over
any forfeitures,' " said Totzke, the Hall County attorney. "At this
point, our hands our tied."

Douglas County prosecutors, who say prosecuting criminals is more
important to them than going after drug money, dismissed 30 to 40
forfeiture cases so they wouldn't jeopardize criminal
prosecutions.

Five or six other cases faced problems because Douglas County
prosecutors already had completed forfeiture proceedings when criminal
charges still were pending.

Since then, forfeiture cases have slowed to "all but a trickle" in
Douglas County, said Deputy County Attorney Robert Cryne, who oversees
the county's drug cases.

County attorneys have come up with creative ways to deal with the
problem.

In some cases, the solution is simple. As in the past, state
prosecutors can hand off the forfeiture portion of the case to the
federal government and pursue the criminal case at the state level.
They can also let federal officials make the criminal case while they
handle the forfeiture in the state system.

In Douglas County, prosecutors also go after the money using an
obscure state law called "failure to affix a tax stamp."

The law requires drug dealers to pay a tax on the controlled
substances they peddle. The stamps can be bought from the Nebraska
Department of Revenue at offices across the state. The price is $100
per ounce of marijuana, $150 per gram of controlled substance such as
cocaine or meth and $500 per dosage of drugs such as LSD.

Not surprisingly, few drug dealers buy the stamps and affix them to
their drugs.

"A few years ago people were coming in and buying these stamps as a
collectors item, said Tom Norris, a Department of Revenue spokesman.
"I don't think we've sold any in a couple years."

If convicted, the penalty for not having the stamps is a fine - twice
the tax. In some cases, that could be much more than the amount
prosecutors want to seize from the dealer. In other cases, it might
not be close at all.

"Most of the cases we have are possession with intent to deliver
cases," Deputy Douglas County Attorney Corey O'Brien said. "We have a
small amount of drugs and a large amount of cash because they just
sold most of their stuff."

No one in Douglas County has been sentenced for violating the
tax-stamp law yet. A defendant pleaded guilty to violating the law a
few weeks ago, and prosecutors still are studying how to handle the
sentencing and fine process.

In the meantime, at least one Nebraska county attorney is asking that
senators change the state law to avoid the need for such creative fixes.

Mercure, the Johnson County attorney, wrote in a letter to Brashear
that a "substantial revision" of the state forfeiture law is necessary
if senators want prosecutors and law enforcement officials to use it.

Mercure urged the Legislature to take up that issue before it moves on
the more controversial one targeted by Brashear's bill.

"The Legislature is going to have to take some action to redraft the
law to enable prosecutors and law enforcement agencies across the
state to proceed with forfeitures and prosecutions at the state
level," Mercure said.

Brashear said he sees political motivation in all the talk about the
state law, a problem that he says cannot be fixed this legislative
session. He thinks the double-jeopardy issue will be used to try to
defeat his proposal to require all forfeiture cases to follow the
State Constitution.

"It's an after-the-fact argument to justify what they were doing," he
said.