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Texas. That amount does not include money seized by local law enforcement agencies operating on their own. The Texas Department of Public Safety seized $9,783,563 in currency during 1990. Ken Magidson of the asset forfeiture division of the U.S. Attorney’s Office in Houston, said the forfeited money cannot be used for operating expenses, but it helps participating law enforcement agencies update their equipment and vehicles without using tax money. He believes there are safeguards against abuse. “There’s always a potential for abuse in any program that involves money … but I think, based upon the guidelines that are in place, that there is a tremendous amount of oversight,” he said. Take the Fifth, Lose the Property While those whose cash or property may seek its return, the forfeiture attorneys said it is a difficult process that is stacked in the federal government’s favor. In the discovery phase, federal prosecutors may inquire into any financial dealings the claimant may have had, including their tax returns for the previous five years. If they can force the claimant to plead the Fifth Amendment constitutional right against self-incrimination, that may be grounds to throw out the claim, Gladden said, because the prosecutor can argue that the claimant is withholding evidence. “They can zero in on things that are calculated to scare you away,” he said. Claimants thus face a legal dilemma, Gladden said. “You have to waive your Fifth Amendment rights if you’re going to have a snowball’s chance in hell of getting your money back,” he said. But even those who are not involved in the drug trade may not welcome a prosecutorial look at their finances. “If they catch you in a lie,. they can give you 10 years in prison for perjury. If you tell the truth, they can file [charges] on you for something else you tell them about,” he said. Even if the plaintiff gets the money back, Gladden noted, the attorney gets his fee, which usually is at least one-third of the disputed amount. Gladden estimated he settled with the U.S. Attorney’s office in 10 to 15 forfeiture cases last year. In those settlements, he said, his clients received 10 to 85 percent of the money, depending on the facts and how willing his clients were to fight for full reimbursement. State law offers more protection from seizures than federal law, since state prosecutors must still show some connection between the money or assets and the criminal activity. In a May 3, 1989, search of the Columbus home of Apolonia Reyes in Colorado County, for example, police seized $5,559 and other items after an informant allegedly made a $25 controlled purchase of 0.12 grams of white powder containing cocaine. Police found no cocaine or other illegal drugs during the subsequent search, nor were the marked bills used in the “buy” recovered, according to court records. There were no arrests and charges against Reyes were not filed until the following November, after Reyes petitioned the court for the return of the cash, which was shown to have nothing to do with drug sales, and four scales, which Reyes’ wife testified were used to weigh food. The First Court of Appeals in Houston in February ruled that the state should return the seized cash and scales. “While the circumstantial evidence may make it more likely than not that [Reyes] had been engaged in illegal drug activity, it fails to raise even a surmise linking the $5,559 and the scales to this activity, and it gives rise to inferences equally consistent with the proposition that appellant obtained the money, and used the scales, legitimately,” the court said. Because of the different treatment under state law, Gladden said many police departments refer cases to the state’s district attorney only if they find drugs. “If you have dope and money, they’re going to bust you and they’re going to charge you with possession of dope in the state courts and seize the money in state courts because it goes to the DA’s office and the county basically gets all of it,” he said. COURTESY LEWAYNE KELLY LeWayne Kelly and his lawyer, Jim Harrington “But if they stop you and you don’t have dope, but you have a whole bunch of money, they’re going to have some dog bark at the money and that will be their evidence to indicate it must be drug money.” Nam Everywhere Narcotics agents also can count on help from a network of informants that does not only include convicted drug traffickers who help set up drug transactions for police. Among those who received some of the $24 million paid out of the Asset Forfeiture Fund last year, the Press reported, were airline counter clerks who report passengers who paid for their tickets in cash or otherwise acted’ “suspiciously’ operators of X-ray machines who report large amounts of money in baggage; and some package handlers who, according to police affidavits and court documents, open “suspicious” packages and alert police to what they find. Typically, the newspaper reported, informants get 10 percent of the value of whatevdr is found. Lawmakers and prosecutors say the asset forfeiture law is an important key to breakinglucrative rings of drug dealers, but Goldstein said citizens give up their Fourth Amendment protections against unreasonable searches and seizures at their peril. “The government has made the presumption that it’s a crime in America to possess cash. The presumption is if you have cash, it must be ill-gotten,” Goldstein said. “And I’m not sure our recent bank and savings-andloan problems haven’t taught us we’re better off to keep it in cash.” Kelly said he opposes drug use and supports law enforcement, but his Austin airport experience has caused him to reconsider the means police use to stop drug traffic. “I have certain constitutional rights and I don’t think we should give up our rights to some mythical drug war,” he said. He also said narcotics agents were looking in the wrong place for drug money. “They ought to check the briefcases … at the banks [because] that’s where the drug money is.” THE TEXAS OBSERVER 11