From: [doctor 1] at [pofbbs.chi.il.us] (Patrick B. Hailey)
Subject: Part Five: Crime and Punishment
Date: Tue, 23 Nov 93 20:32:08 CST
CRIMES ARE SMALL BUT JUSTICE TAKES ALL
PART FIVE: CRIME AND PUNISHMENT
A Vermont man was found guilty of growing six marijuana plants. He
received a suspended sentence and was ordered to do 50 hours of community work.
But there was an added penalty: He and his family nearly lost their 49- acre
farm.
In Washington, where the maximum criminal penalty could have been a
$10,000 fine, an elderly couple served 60 days for growing 35 marijuana plants
- and lost their $100,000 house.
In Bismarck, N.D., a young couple received suspended sentences after
pleading guilty to growing marijuana. The judge who ordered them to forfeit
the three-bedroom house where they lived with their three children worried from
the bench that he might be throwing them onto the welfare rolls. But he says
he had no choice.
All three families are the victims of a federal law that allows the
government to take homes, lands, vehicles and other possessions from Americans
convicted of possessing drugs or violating a host of other statutes.
The law was intended to penalize major drug dealers and organized crime
figures by taking their property, selling it and returning the proceeds to the
cops for other investigations. But the dollar return to the cops has been so
great that it's now being used for scores of crimes, some no more than
misdemeanors by first-time law-breakers.
Because of the law, more and more people are losing their property. For
many, the punishment no longer fits the crime.
---
TOWN: BACK OFF
Community outrage helped Robert Machin and Joann Lidell keep their farm
in South Washington, Vt., after the federal government tried to seize it in
1989.
Signs decrying "Cruel and unusual punishment - remember the Eighth
Amendment" were posted along local roads. Lawmakers and politicians got
involved. Nearly all their neighbors signed petitions.
Machin and Lidell, advocates of the back-to-nature movement, support
themselves and their three children off their 49 acres. They boil maple sap
into syrup, press apples into cider and educate their children in the rustic,
gas-lit rooms of their eight-sided wooden house.
Their trouble began in September 1988, when a teenager busted for a
traffic violation traded his way out of a ticket by telling state police he
could show them 200 marijuana plants growing on Machin's farm.
Police raided the property and found only six plants, which Machin
admitted to growing.
He received a suspended sentence and spent 50 hours doing community
service. Tranquility returned to the Machin farm, but the government wasn't
through.
On Aug. 12, 1989, U.S. Attorney George Terwilliger III filed action to
seize the Machin house and property. Vermont state law does not permit the
seizure of a home, so the case was pursued through federal courts.
But the political pressure and the outpouring of concern from the
community forced Terwilliger, who also runs the Justice Department's
forfeiture fund, to back off.
"The Machin case is one where public scrutiny forced the government to do
it right. What about all the others where no one is watching?" Machin's
lawyer, Richard Rubin, asks.
---
LET THE FEDS DO IT
There was little public scrutiny in November 1989 after Robert and Brenda
Schmalz pleaded guilty to marijuana charges in Bismarck, N.D., and got
probation.
North Dakota state law does not allow the forfeiture of real estate
involved in crimes. So, in order to seize the house, prosecutors took the
Schmalz case to federal court, says federal Judge Patrick Conmy, who got the
case.
Conmy said at the hearing that the couple had grown marijuana in their
basement for their own use. Even so, because they used their house in the
crime, Conmy says, he had no choice but to order them to forfeit their home.
"I don't really care if somebody loses their Cadillac, or their coin
collection, the cash that's with the drugs. That's fine. It's looked on as a
hazard of doing business," the federal judge says.
"But you get a husband, wife and several children in a three-bedroom home
and the husband raises marijuana in the basement with some grow lights, and you
take their house for that. That, to me, is different."
---
HEADACHES
The marijuana Jack Blahnik grew in his yard controlled severe pain from
his cluster headaches, he says.
Blahnik completed 68 years of his life without a single brush with the
police. But in his 69th year, he and his 61-year-old wife, Patricia, were
arrested, convicted and jailed for 60 days for growing 35 marijuana plants. On
March 6, 1990, the state of Washington also seized the couple's three-bedroom
home and the five acres it sat on.
Blahnik admits he was growing the dope.
"I showed it to the police, I took them out to the shed in the back yard
and told them that I was growing the stuff for my own use, to try to control
the pain from these cluster headaches that I have," Blahnik says.
Blahnik heard that marijuana helps such headaches, and his doctor
confirmed its value.
"My wife was against my growing the stuff, but she went to jail because
she copied some growing instructions for me," Blahnik says.
The statute under which the Blahnik's house was seized requires the
state to provide "evidence which demonstrates the offender's intent to engage
in commercial activity." The police never made that link, affidavits show.
The Blahnik's $100,000 property in Woodland, about 130 miles south of
Seattle, was their nest egg.
"It was our life savings," Blahnik says. "Everything we had went into
that house and land."
Police charged that drug sales financed the house.
"They knew that wasn't true," Mrs. Blahnik says. "Our bank statements
and tax forms show that everything we ever put into buying that house, and
everything else we have, came from money that we worked hard 40 years to
save."
The Blahniks', lawyer, Michael Mclean, calls the seizure unconstitutional
and punitive.
"The maximum fine for this crime in the state of Washington is $10,000.
The Blahnik's property was worth 10 times that amount."
Blahnik does not question that he should be punished for breaking the
law. However, he questions the manner in which it was done.
"The prosecuting attorney went on television, putting our mug shots on and
claiming they had made the biggest seizure ever made in either Washington or
Oregon and we could possibly be connected to a nationwide drug ring," Blahnik
says.
"They failed to mention that their big seizure was our retirement money,"
Blahnik says.
---
A COSTLY CATCH
Sometimes the government's push to seize property drives it to spend far
more than it makes. For example, it's estimated that the state of Iowa spent
more than $100,000 defending the seizure of a $6,000 fishing boat.
It has been three years since the Iowa Department of Natural Resources
agents charged Dickey Kaster with having three illegally caught fish.
The officers stopped Kaster, a 63- year-old retired gas company foreman,
leaving Clear Lake. In the back of his truck the fish cops found a silver bass,
a northern pike and a muskie, and said they had "net marks" on them. Kaster
was charged with gillnetting, a misdemeanor in Iowa punishable at the time by
up to 30 days in jail and a $100 fine for each fish. Altogether, he paid about
$500 in fines.
But the officers also seized Kaster's 16-foot boat, 40-hp motor and
trailer worth about $6,000.
"No doubt they had net marks on them, but so do 75 percent of the fish in
the lake, I caught them with a rod and night crawlers," Kaster says.
District Court Judge Stephen Carroll said the seizure was unconstitutional
and ordered the boat, motor and trailer returned.
But Cerro Gordo County Attorney Paul Martin appealed to the Iowa Supreme
Court, which ruled the property could be seized.
Kaster's saga of the three fish has been on local court dockets four
times and before the Iowa Supreme Court twice.
A court clerk in Mason City estimated that "probably a lot more than
$100,000" was spent in pursuit of justice for those fish.
Kaster says he knows exactly what the ordeal cost him.
"Just about everything I own. I auctioned off the inventory of my bait
and tackle shop at about a dime on the dollar and sold my house to pay the
legal bills and keep the bank happy," he says.
"I didn't get my boat back, but I'm still trying," he says. "You can't let
the government ignore the Constitution. I'm fighting this over a boat that
shouldn't have been taken, but it really deals with how fair our government is
supposed to be."
---
MIXED CROP
And fairness is what is worrying Don and Ruth Churchill, who are fighting
to keep their family farm in Indiana.
"Salt of the earth" and "good, God-fearing people" are how some neighbors
in the southern Indiana farming community describe the 54-year-old couple.
In 1987, Churchill had found some marijuana plants mixed in with his corn
and immediately notified state police.
Farmers in the area were aware that a group called "the Cornbread Mafia"
was planting marijuana in other people's cornfields throughout nine Midwestern
states.
The cops destroyed the crop, and the Churchills thought they were done
with marijuana.
But two years later, while they were watching a TV newscast about
thousands of marijuana plants being found on farmland, they recognized the land
as theirs.
The next morning, the Churchills went to the sheriff to say it was their
land. Ten days later, state police arrived at their door to arrest Churchill
and his 34-year-old son, David, charging them with numerous felony counts,
including possession of and cultivating marijuana.
An informant had reported that he saw Churchill, his son and a third,
unidentified man tending marijuana crops on land they own in Harrison County.
The informant later reported that dope was also growing on other Churchill land
in Crawford County, court affidavits show.
In February, four months before their first criminal trial, the federal
government - prodded by state police who would get the bulk of any forfeiture
proceeds - seized the 149 acres the Churchills own in both counties.
They are awaiting the outcome of the cases.
While the Churchills anguish over the possible loss of their property,
they don't dispute that police found thousands of marijuana plants growing on
their two tracts.
What Churchill disputes is that he or anyone else in his family grew it.
"I farm part time. We plant in the spring and harvest in the fall and
don't mess with the corn in between." Before the large cache of marijuana was
discovered, "we hadn't been out there for weeks," says Churchill, who leaves
for work at 4 a.m. to get to the Ford truck plant 43 miles away in Louisville,
where he has worked for 27 years.
Planting of "no-till" crops is very common in the area as a way to make
extra money.
The farmland, especially valuable because it contains the largest natural
spring in Indiana, has been in Mrs. Churchill's family for generations.
Standing on the steps of a wood-frame chapel in the midst of some of the
land the government is trying to take, Mrs. Churchill expressed her
disillusionment.
"This church is built on my family's land. I was baptized here, and Don
and I were married here. This used to be a place of peace and happiness," Mrs.
Churchill says. "Now, this place, our community, our lives, our faith in
government, everything has changed.
"If they take our land, I'm going to lose faith in everything," she says.
Ron Simpson, the state's primary prosecutor of the criminal charges,
questions the fairness of the federal government's seizure of the Churchills'
land when most of it was inherited from the wife's family.
"Under our system, if someone is punished, they should have been charged
with something, and we've brought no charges against Mrs. Churchill. We have no
evidence that she knew anything about the marijuana that was growing,"
Simpson says. "You just have to wonder about how fair this seizure is."
Churchill says:
"We assumed the legal system was fair, that if we were innocent, we had
nothing to worry about. Now I'm in one court defending myself and my son
against drug charges, and in another court, they're trying to take my land
away. I'm worrying about a lot of things now."
---
A HANDFUL OF TROUBLE
The issues of proportionality and fairness pose challenges for even
strong supporters of forfeiture laws, including Gwen Holden, a director of the
National Criminal Justice Association in Washington, D.C., a group that
represents state law enforcement interests.
"If an individual is clearly a major trafficker and everything he ever
bought is dirty, no one has major heartburn. If someone owns 200 acres of land
and there's drugs on a corner and the guy never knew it was there, then the rule
of reason should kick in," Ms. Holden says. "You shouldn't be taking the whole
farm if he didn't know it was there."
Taking Bradshaw Bowman's whole farm is exactly what the government is
trying to do.
The 80-year-old man was arrested for growing marijuana, and the local
sheriff has seized his 160-acre ranch in the breathtaking high desert area of
Southern Utah.
A convicted drug dealer-turned-sheriff's informant blew the whistle on a
handful of marijuana plants growing on Bowman's property.
Bowman's "Calf Creek Ranch" is 300 miles south of Salt Lake City, at the
entrance to a National Scenic Vista area of stunning canyons.
The marijuana was found on a hiking trail far from Bowman's house.
"I've had this property for almost 20 years, and it's absolute heaven. I
love this place. My wife's buried here," Bowman says. "I can't believe they're
trying to take it away from me, and I didn't even know the stuff was growing
there.
"I used to serve on jury duty, but at 70 they make you stop. In all my
time sitting in the jury box, I never heard of the Constitution treated this
way."
Garfield County Attorney Wallace Lee, who is prosecuting both the criminal
charges and the civil effort to seize Bowman's house, says, "He's getting his
day in court."
"The fact that he's 80 years old has no bearing on the case at all and
certainly not with me," Lee says. "I'm out to prosecute a criminal case here,
and it doesn't matter whose house it is."
Bowman's lawyer, Marcus Taylor, says:
"This is the classic example of the absurdity, injustice and almost
immoral nature of forfeiture.
"You could hold that entire bundle of 67 plants in one hand."
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JET SEIZED, TRASHED, OFFERED BACK FOR $66,000
With more than 9,000 flights under his belt, Billy Munnerlyn has survived
lots of choppy air. But it took only one flight into a government forfeiture
action to send his small air charter service crashing to the ground.
Munnerlyn and his wife, Karon, both 53, worked for years building their
Las Vegas business. Their four planes - a jet and three props - flew
businessmen, air freight, air ambulance runs and Grand Canyon tours.
"It wasn't a big operation, but it was ours," Mrs. Munnerlyn says.
Today, Munnerlyn is making 22 cents a mile trucking watermelons and
frozen carrots across the country in an 18-wheeler.
He has filed for bankruptcy. He sold off his three smaller planes and
office equipment to pay $80,000 in legal fees. His 1969 Lear Jet - his pride
and joy - is being held by the federal government at a storage hangar in Texas.
Munnerlyn's life went into a tailspin the afternoon of Oct. 2, 1989,
when he flew an old man and four padlocked, blue plastic boxes to the Ontario
International Airport, outside Los Angeles.
His passenger was 74-year-old Albert Wright, a convicted cocaine
trafficker. The plastic boxes contained $2,795,685 in cash.
But Munnerlyn says he didn't know that until three hours after they
landed and Drug Enforcement Administration agents handcuffed him and took him
to the Cucamonga County Jail. Munnerlyn was charged with drug trafficking
and ordered to pay $1 million bail. Seventy-one hours later, he was released
without being charged.
When he went to get his plane, a drug agent told him "it belongs to the
government now" - a simple statement that launched a devastating legal battle
that continues today. An informant had told Ontario Airport police that
Wright would arrive Oct. 2 with a large amount of currency to purchase
narcotics.
Police were waiting when the Lear landed. They watched Wright get off the
plane. For the next three hours, agents followed him as he met two other
people, picked up a rented van, returned to the airport and unloaded the
plastic containers from Munnerlyn's jet.
Police followed the van to a residence about 20 miles away. They
surrounded the van and four people nearby. All were identified as being major
cocaine traffickers.
A search of the plastic boxes found $2,795,685.
At the airport, agents told Munnerlyn he was in trouble. They searched
the jet. No drugs were found, but they seized $8,500 in cash that he had been
paid for the charter.
"I guessed they would figure out I had nothing to do with that guy and his
drug money, and give me my plane and $8,500 back," Munnerlyn says. He was
wrong.
Two weeks later, drug agents showed up at Munnerlyn's Las Vegas home and
office and carried off seven boxes of documents and flight logs.
It was just the beginning of the government's efforts to prove he was a
drug trafficker and had flown for Wright for years. Munnerlyn says he didn't
even know Wright was the man's name.
Several days before the seizure, Munnerlyn was contacted by a man
identifying himself as "Randy Sullivan," a banker, who was willing to discuss
financing a new aircraft that Munnerlyn had been telling business contacts he
wanted to buy.
Munnerlyn agreed to meet him Oct. 2 at Little Rock Airport. "We were
going to fly back to Las Vegas, where I was going to show him my operation and
talk about him financing my purchase of a larger plane." Munnerlyn picked up
"Sullivan" and four boxes of "financial records."
"He was a distinguished-looking, very old man dressed in a dark suit. He
looked like a banker is supposed to look," Munnerlyn says.
They stopped in Oklahoma City to refuel. When they took off 45 minutes
later headed to Las Vegas, "Sullivan" told Munnerlyn he had made a telephone
call and had to go to the Ontario airport instead. They would discuss the loan
at a later date, he told the pilot.
While en route, he paid Munnerlyn $8,300, the normal tariff for a jet
charter, and gave him a $200 tip.
"I told the DEA that I never saw that man before in my life, and I've
never had anything to do with drugs," Munnerlyn says. "All I want is my plane
back."
Assistant U.S. Attorney Alejandro Mayorkas is still fighting to prevent
that from happening.
In court documents Mayorkas filed, he acknowledged the government "will
rely in part on circumstantial evidence and otherwise inadmissible hearsay" to
try to justify the forfeiture.
The government "need not establish a substantial connection to illegal
activity, but need only establish probable cause," the prosecutor wrote.
Mayorkas says the fact the aircraft flew into Los Angeles, "an area known
as a center of illegal drug activity," is probable cause.
The prosecutor faulted Munnerlyn for not knowing what was in the boxes,
but government regulations do not require charter pilots to question or examine
baggage.
Munnerlyn wanted Wright to testify, but the government said he couldn't.
"He was the only guy other than me who could tell the court that we didn't
know each other. But Mayorkas said they couldn't find him," Munnerlyn says.
At a three-day trial that began last Oct. 30, Mayorkas sprang a surprise
witness. A ramp worker from Detroit's Willow Run Airport testified that he had
seen Munnerlyn and Wright at his airport "in the fall of 1988." The witness,
Steven Antuna, described Munnerlyn to a T, right down to the full reddish,
gray-streaked "Hemingway-like" beard he had when he was arrested.
The only problem was that Munnerlyn didn't have a beard until the summer
of 1989.
Mrs. Munnerlyn and her 31-year-old son took the stand and refuted the
statements about the beard.
The six-member jury ruled that the plane should be returned to the pilot
and his wife.
In December, Mayorkas asked for another trial - and held on to the plane.
He said Munnerlyn's family members had lied.
But Munnerlyn submitted 51 affidavits from FAA and Las Vegas officials,
U.S. marshals, bank officers, customers and business contacts sweating he did
not have a beard in the fall of 1988.
Photos and a TV news tape of Munnerlyn being interviewed after rescuing
a couple from Mexico after a hurricane, both taken that fall, showed him
beardless. But the government kept the plane.
Munnerlyn and his wife shuttled between Las Vegas and Los Angeles more
than 20 times.
"Each time we went we thought this nightmare would be over, but each time
there was some new game that the government wanted to play," Mrs. Munnerlyn
says.
First, Mayorkas demanded the pilot pay the government $66,000 for his
plane.
"We didn't have any money left and we couldn't figure out why we should
have to pay the government anything, when a jury said we were innocent,"
Munnerlyn says.
Mayorkas lowered the "settlement" to $30,000, still far more than the
Munnerlyns could raise.
In April, Munnerlyn went to the U.S. Marshal Service's aircraft storage
site in Midland, Texas. He climbed over, under and through his plane, which had
been torn apart during the DEA search for drugs.
"The whole thing was a mess," he says. "That plane's going to need about
$50,000 worth of work to bring it up to FAA standards again, to make it legal
to fly."
In mid-June, Mayorkas made what he called a "final offer."
"We have to pay the government $6,500 to get back my plane, that a jury
says shouldn't have been taken in the first place, and they want to keep the
$8,500 that I was paid for the flight," Munnerlyn says.
Last month, when asked if the settlement request was fair, Mayorkas said:
"If he was innocent, he would have taken reasonable steps to avoid any
involvement in illicit drug activity," Mayorkas says.
But he wouldn't detail what preventive measures Munnerlyn should have
taken. The Munnerlyns are trying to borrow the money to get their plane back.
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