Subscribe
Share
Share
Embed
This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm good. How are you?
J. Aughenbaugh: Well, of course I'm good because I've already had my requisite, a mug and a half of the nectar of the gods.
N. Rodgers: You know why I'm good?
J. Aughenbaugh: Why is that?
N. Rodgers: Because nobody has taken any of my stuff lately.
J. Aughenbaugh: Well, hey, I'm right there with you. And listeners today, our episode is one that Nia and I discussed a number of times off recording and the topic is asset forfeiture.
N. Rodgers: Now actually we're going to have a two part episode of asset forfeiture because Aughie is going to lay out the case for the four side of it. Why there is asset forfeiture and what the positives are of that. Then when next we meet, we are going to discuss the critique downside. Of course, we'll probably star mostly me because I have lots of feelings. Asset just means a thing you own.
J. Aughenbaugh: Yes.
N. Rodgers: A thing that is yours. Your bicycle is an asset, your car is an asset, your house is an asset, if you own it, not if you rent.
J. Aughenbaugh: Yes.
N. Rodgers: In your case, your precious coffee mug is an asset. In fact, let's use your coffee mug as an example.
J. Aughenbaugh: Let's just say for instance the government.
N. Rodgers: Let's say that your asset, that you value your coffee mug because it was given to you by Thomas Jefferson. It was handed down through the generations and especially a special antique coffee mug thing. It's very important to you.
J. Aughenbaugh: It holds and nurtures the coffee that I put in it every single day. It has sentimental, it has practical. This is an important asset. Let's just say the government believes that I'm using this mug for illegal activity.
N. Rodgers: In this instance, if you were drinking coffee that was made out of a contraband substance.
J. Aughenbaugh: Substance.
N. Rodgers: Then the coffee mug becomes part of the problem, which you were using it to transport the contraband substance, hence why cars could be considered seizable assets or home instance where you kept the coffee that was contraband.
J. Aughenbaugh: Or if you had a boat and that's how you shipped the illegal contraband.
N. Rodgers: Okay.
J. Aughenbaugh: Or let's say I bought this cherished, priceless coffee mug.
N. Rodgers: It wasn't given down to you. It was purchased.
J. Aughenbaugh: It was purchased.
N. Rodgers: At the Lamborghini store.
J. Aughenbaugh: But I purchased it because I used the proceeds of illegal.
N. Rodgers: Coffee trade.
J. Aughenbaugh: Yes.
N. Rodgers: Let's say that there's an embargo on coffee from Cuba, and you're drinking Cuban coffee in your mug?
J. Aughenbaugh: Yes.
N. Rodgers: Your mug is now part of the problem.
J. Aughenbaugh: Yeah. It's part of the criminal transaction.
N. Rodgers: Or if you sold Cuban coffee and bought your mug, you pursue. Let's go to a different example, Lamborghini. If you bought a Lamborghini with money that you had gotten through criminal activity, even though the Lamborghini is innocent of any criminal activity on its own. That you haven't done anything criminal.
J. Aughenbaugh: In it. That's right.
N. Rodgers: But it's part of the proceeds of that.
J. Aughenbaugh: Yeah, that's right.
N. Rodgers: When they say asset, they mean pretty much anything.
J. Aughenbaugh: Yes.
N. Rodgers: You can tie to.
J. Aughenbaugh: To criminal activity. I'm going to make some distinctions here. Asset forfeiture, or the more common verb or I guess would be noun, asset seizure, is where the government takes assets. There are two separate processes for this. One type is a criminal justice obligation. Let's just say for instance, Nia, you commit a crime and as part of your punishment, you have to give back the money you made with the criminal enterprise.
N. Rodgers: So that's restitution. I have to make restitution in some way.
J. Aughenbaugh: I'll give the classic example here is Bernie Madoff. For listeners who don't know who I'm referencing, Bernie Madoff was a financial consultant advisor who created such an elaborate Ponzi scheme that by the time the government prosecuted him he had swindled hundreds of millions of dollars from his victims. When he was convicted, he was forced to go ahead and give back the proceeds. Now, some of these proceeds.
N. Rodgers: He probably spent them on stuff.
J. Aughenbaugh: He had spent them on stuff. I said millions. Hundreds of millions. It was actually billions. That was how elaborate the Ponzi scheme was. He was ordered to forfeit, asset forfeiture over $170 billion. But the prosecution was able to demonstrate to a judge that he had reallocated some of his assets to family members.
N. Rodgers: He put it in his wife's names and his kids names.
J. Aughenbaugh: Kids names. For instance, his wife Ruth, though she wasn't charged because Mr. Madoff was actually very close, tight lipped about his Ponzi scheme. Of course, you sort of have to be, if you want to make a Ponzi scheme work. But she agreed to forfeit over $80 million in assets.
N. Rodgers: Let me just take this to its conclusion there. Let us say that you have engaged in the selling of Cuban coffee, which we have agreed is currently illegal, even though it's not, but just bear with us.
J. Aughenbaugh: But at one point it was.
N. Rodgers: Just before embargo.
J. Aughenbaugh: But until the Obama administration, and Nia, it's funny, you mentioned Cuban coffee. I love Cuban roast coffee. The day that embargo was lifted, I was searching the Internet and because I just absolutely loved the taste of Cuban coffee.
N. Rodgers: Prior to the Obama administration, let's say during the Bush II administration, you had been sneaking Cuban coffee in your coffee mug. They take your coffee mug as part of this forfeiture?
J. Aughenbaugh: Yes.
N. Rodgers: As part of the seizure. Then the government sells that property and uses the money to pay people back.
J. Aughenbaugh: Yes.
N. Rodgers: Or no?
J. Aughenbaugh: Well, they could. Again, there's two types of asset forfeiture. One is related to criminal justice. You get convicted of a crime. It's usually applied to things like terrorist activities, drug related crimes. Basically it comes in the form of a punishment.
N. Rodgers: You're going to get to keep the cool stuff that your ill gotten gains got you.
J. Aughenbaugh: That's right. In the case of Bernie Madoff, he violated a number of financial crime statutes. Therefore, he didn't get to keep the proceeds of his criminal activities that he was found guilty of. He had to give that money back. The other type is known as civil forfeiture.
J. Aughenbaugh: With civil forfeiture, the government doesn't sue the person, they sue the asset.
N. Rodgers: The government would sue your coffee cup.
J. Aughenbaugh: Not me, and then they say to me, if you want your coffee mug back, you have to go to court and show that the mug was not an instrumentality of a criminal activity.
N. Rodgers: You have to prove the mug's innocence, It's not assumed.
J. Aughenbaugh: That's right.
N. Rodgers: Unlike the rest of our, criminal justice theoretical.
J. Aughenbaugh: Yes, theoretically, you're innocent until proven guilty.
N. Rodgers: But the mug is guilty until you prove that's innocent.
J. Aughenbaugh: That's right. Let's just say, for instance, again we're talking about the importing of a prohibited coffee. Now, let's say I'm getting it from Cuba before the embargo was lifted and I'm using boats that I own. At least that's the theory. The government wants me to stop doing this, but they're not entirely sure they have enough evidence to prosecute me. What they might do is go into federal civil court and make a claim on my boat.
N. Rodgers: So they're prosecuting the boat?
J. Aughenbaugh: They're prosecuting the boat.
N. Rodgers: We can't prove that Aughie was driving the boat, but we can prove that the boat is engaged in transportation of this illegal substance.
J. Aughenbaugh: That's right. This is where many people whose assets are used by others.
N. Rodgers: Hey, Aughie can I borrow your boat? Sure, what are you going to do now? I'm just going to take a quick trip to Cuba. I'll be back in a couple of days. Go ahead.
J. Aughenbaugh: Then two weeks later, I get a notification via registered mail. From a federal court saying.
N. Rodgers: My boat has been seized, your boat has been seized.
J. Aughenbaugh: My boat has been seized, and that if I want to go ahead and make a claim for my boat, I have to respond within 35 days.
N. Rodgers: Isn't there a defense that you can say, but I had no idea Nia was going to be using my boat to do an illegal thing.
J. Aughenbaugh: Yes.
N. Rodgers: Otherwise, I wouldn't have lent it to her.
J. Aughenbaugh: It's called the innocent owner defense.
N. Rodgers: If you can prove that you in good faith lent me something that you had no idea I was going to slip off to Cuba and get Cuban coffee in it, then you might be able to get your asset back.
J. Aughenbaugh: Yes. But this is tricky on the government's part because the government has already seized your property. If you make the innocent owner defense, then the government gets to depose you. And let's extend out the hypothetical, let's say I hire you to captain my boat because I don't want to be anywhere near the illegal coffee that I'm importing from Cuba, and the Coast Guard goes ahead and takes the boat that you're the captain of. But it's my boat and that boat is worth millions of dollars. If I make a claim for that boat, saying I had no knowledge that Nia was actually using it to import illegal Cuban coffee, and I claim the innocent owner defense, at that point under oath, I have to give a deposition where the government then gets to explore.
N. Rodgers: Well, then what were you doing on the weekend of?
J. Aughenbaugh: Yes.
N. Rodgers: You didn't know that that was happening?
J. Aughenbaugh: Do you have other boats that are used by other friends, and, yeah by the way, do you know that those boats were bringing in prohibited coffee and illegal drugs and some of them had guns, etc.? This is where it gets tricky because then the government gets to depose you under oath.
N. Rodgers: How quickly is the turnaround on that?
J. Aughenbaugh: With the federal government's civil forfeiture program. Let's say the government takes the boat. You then have 35 days from the point you're notified that the government has seized your asset to file a claim.
N. Rodgers: To hire a lawyer.
J. Aughenbaugh: Yes. You filed the claim with the federal agency and by the way, most of the time it's either with the drug enforcement agency or the FBI.
N. Rodgers: Because it's the nature of the crime.
J. Aughenbaugh: That's right. The US Attorney then has three months, 90 days to review your claim and file a civil complaint in US District Court. You then, as the owner, have 35 days to file the judicial claim in court, and within three weeks, 21 days of you filing that claim, the owner must file an answer denying allegations of the complaint. Typically, so if you add this up, you got 35 days plus 90, that's 125, plus another 35, so that makes it 160, and then 21 days, so that's 181 days.
N. Rodgers: It's roughly Half a year.
J. Aughenbaugh: Half a year. Now you're going to need a lawyer.
N. Rodgers: That's before the actual trial.
J. Aughenbaugh: Before the actual trial.
N. Rodgers: That's the going back and forth thing while everybody's filing motions and doing all things.
J. Aughenbaugh: That's right.
N. Rodgers: But if your boat is worth millions and you didn't know I was doing that, it's worth it.
J. Aughenbaugh: That's right.
N. Rodgers: It's worth it to do that.
J. Aughenbaugh: Yes.
N. Rodgers: I would be willing to bet though that most people will be like, screw it. Because they know they were involved in some way or they know that they can't withstand a deposition.
J. Aughenbaugh: Yes.
N. Rodgers: For whatever reason.
J. Aughenbaugh: Yeah. That's the tricky part. Because a good lawyer will go ahead and say, I know Mr. Aughenbaugh, this boat is worth millions. However, if you file this claim at some point in time, the federal government gets to depose you in court. And in depositions, lawyers get to ask all questions.
N. Rodgers: Much less restrictive than in courts.
J. Aughenbaugh: Yeah. Criminal trials.
N. Rodgers: Criminal trials.
J. Aughenbaugh: Now, in civil cases, not only federal civil forfeiture, but in almost all the states, and by the way, states also have asset forfeiture programs.
N. Rodgers: I was going to ask you, so is this just a federal thing or also a state thing?
J. Aughenbaugh: No. I will explain why all levels of government like asset forfeiture. We'll probably get to it in the next episode. In a civil case, not a criminal case, a civil case.
J. Aughenbaugh: The standard of evidence to demonstrate that your asset can be seized by the government. Nia, you actually or probably aware of the standard of evidence. Do you know the standard of evidence?
N. Rodgers: Is it preponderance?
J. Aughenbaugh: Preponderance of the evidence.
N. Rodgers: They don't have to prove beyond a reasonable doubt, they just have to do by the preponderance of the evidence. Meaning it's more likely than not.
J. Aughenbaugh: Not, yes.
N. Rodgers: Which is a very different standard.
J. Aughenbaugh: Yes, this is an easier standard.
N. Rodgers: For the government to meet.
J. Aughenbaugh: That's right.
N. Rodgers: To keep your stuff.
J. Aughenbaugh: To keep your stuff.
N. Rodgers: The thumb is on the scale for the government on this particular part.
J. Aughenbaugh: That's right. The owner of the asset does not even have to be judged guilty of a crime.
N. Rodgers: It is asset to be judged guilty of a crime.
J. Aughenbaugh: That's right.
N. Rodgers: Because remember, they're suing the asset per person.
J. Aughenbaugh: That's right.
N. Rodgers: Whereas in a criminal case, you are not suing the asset, you are suing an individual.
J. Aughenbaugh: When the asset gets taken in a criminal case, it's usually a form of punishment because you've been found guilty.
N. Rodgers: Assets in criminal cases are often seized after the trial, whereas assets in civil cases are seized before the trial because they are the Defendant if you want.
J. Aughenbaugh: Yes.
N. Rodgers: That makes sense, so civil cases then would be much easier to win.
J. Aughenbaugh: Oh, sure. Yes.
N. Rodgers: I would imagine there's probably a lot more of those than there are criminal cases because the bar is lower, versus, I mean, in criminal cases you have a much higher bar of proving somebody actually did a thing. You have to show intent. You have to show opportunity. You have to show all those.
J. Aughenbaugh: Yeah, and if the Prosecution is going to ask to seize your assets after you've been convicted. You're talking about the sentencing part of a criminal trial. Again, the prosecutor is going to have to demonstrate before a judge or a jury that the assets were part of the criminal enterprise.
N. Rodgers: Were ill-gotten gains.
J. Aughenbaugh: In Civil forfeiture.
N. Rodgers: You don't have to show that.
J. Aughenbaugh: The government doesn't have to show that. All the government has to show.
N. Rodgers: We found the Cuban coffee on the board. The board is guilty.
J. Aughenbaugh: The board is guilty. That's the great thing as far as the government is concerned in regards to civil forfeiture. You're not suing the person and thus the standard of evidence is not beyond a reasonable doubt.
N. Rodgers: Because you're not depriving the board of freedom.
J. Aughenbaugh: That's right.
N. Rodgers: Doesn't have freedom. Whereas, the reason criminal cases are, I think, held to a higher standard. You're depriving an individual of their freedom. If they are found guilty, they will go to jail. If they do, you've now removed Whereas if the board. I mean you can't remove the board's freedom. Doesn't have freedom.
J. Aughenbaugh: Yeah. Because beyond a reasonable doubt in a criminal trial flows from the due process clause of the Fifth and 14th Amendments of the US Constitution. The fifth and 14th Amendments don't apply to assets.
N. Rodgers: Assets don't have due process.
J. Aughenbaugh: No. Right.
N. Rodgers: They have no equal treatment before the law.
J. Aughenbaugh: The law. Now, Nia can you guess when asset forfeiture arose in the United States?
N. Rodgers: I am going to bet that it has something to do with prohibition.
J. Aughenbaugh: Yes.
N. Rodgers: Because that's when we get a lot of Eliot Ness going after property. Because what they were doing was going after barrels of liquor and destroying them. For being barrels of liquor. They were preventing criminal enterprise by destroying the asset.
J. Aughenbaugh: Because during Prohibition, Congress passed a law, of the Volstead Act. Again, for listeners who don't know much about prohibition in the United States, Prohibition did not prohibit you from drinking.
N. Rodgers: It prohibited you from buying alcohol.
J. Aughenbaugh: It prohibited the manufacture, sale, and distribution.
N. Rodgers: But if you found it somewhere.
J. Aughenbaugh: Where?
N. Rodgers: You could drink it.
J. Aughenbaugh: Of course, you know, in the one year before Prohibition was added to the Constitution and Congress got around to passing the Volstead Act, what many Americans who liked alcohol did was they went ahead, well, they bought a whole bunch of it and stored it.
J. Aughenbaugh: But the Treasury agents tasked with enforcing the Volstead Act when after the distribution of the booze.
N. Rodgers: Which makes sense. It is the similar, although not exactly the same, but it's similar to prostitution that police often go after the providers of sexual favors rather than the pay consumers, Because if you can stop it at the distribution point again the other end takes care of itself. If there is no one to provide whatever this is, alcohol, sex, drugs, whatever it is, Which is why drug dealers are often prosecuted as opposed to drug takers.
J. Aughenbaugh: That's right. Drug consumers. It was in a particular. The Treasury Agents focused on bootleggers. The term that was used for those who would manufacture and then would you sell and distribute. They targeted things like automobiles, storage units, boats, etc.
J. Aughenbaugh: Because there was so much violence associated with bootlegging, this was one of those rare times, Nia, in American politics where both sides of the ideological spectrum were fully supportive of the federal government using asset forfeiture. Liberals didn't like the violence associated with bootlegging in their communities. Conservatives wanted to hit criminals, where for conservatives it would hurt the most.
N. Rodgers: Which is assets?
J. Aughenbaugh: Which is their assets. Because good conservative property owners. Well, if you took my property, that would hurt me. Well, if we really want to go and hurt the bootlegger, we take their property, and this is a huge program, Nia. I mentioned this to Nia off recording. The Department of Justice has a separate unit of its website designed to its Asset Forfeiture Program. And it's referred to as, of course, since it's a federal government, there's an acronym. It is the AFP, the Asset Forfeiture Program. I love the mission, to use asset forfeiture as a tool in order to deter, disrupt, and dismantle criminal enterprises by depriving criminals of their instruments of illicit activity.
N. Rodgers: Like distributing those guns without a car. Now you got to go on foot or you've got to go on a little scooter. That means it's going to cut the amount of guns you can carry. If you're going on a scooter, you can now only carry what you can carry on your back.
J. Aughenbaugh: That's right.
N. Rodgers: You can't carry a truck full or a Hummer full of guns or grenades or whatever it is.
J. Aughenbaugh: But if you got a panel truck, you can carry a lot more guns.
N. Rodgers: It is easier to visualize alcohol. There are so many bottles of alcohol you can put in your backpack if you're on a scooter.
J. Aughenbaugh: That's right.
N. Rodgers: Whereas if I pull up in a big old passenger van, I get a whole bunch of bottles of alcohol.
J. Aughenbaugh: Well, and then and then think about drugs. If you think about it, trunks were almost the ideal size for shipping kilos of the Coke, or multiple kilos of grass. If you think about it, you package it right, you can get quite a bit of marijuana in a modestly sized trunk.
N. Rodgers: Yeah, you don't even have to have one of those big cars from the '50s, like an Impala.
J. Aughenbaugh: Yeah. Basically, and here's the fascinating thing about the AFP, the Asset Forfeiture Program, because it was funded, and we're going to go ahead and post the law on the research guide. The program was significantly expanded in the 1980s with the Comprehensive Crime Control Act. And this is where Congress allocated a specific, if you will, line item to fund the program. Congress gives the Department of Justice money to do this, but this is a program that generates huge amounts of money for the federal government, and by law the federal government then gets to share it with state and local law enforcement that assist them. There are financial incentives for the government. We're going to discuss this because that's a huge point of contention with this program.
N. Rodgers: Aughie is saying that to you because he can see in my face that I'm getting ready to say no.
J. Aughenbaugh: Listeners, Nia's face scrunched up and she started biting her lower lip. One of the more fascinating things about this program is, Congress specifically allows AFP to share its bounty with state and local law enforcement.
N. Rodgers: Thus, encouraging all of those agencies to work together.
J. Aughenbaugh: That's right.
N. Rodgers: Otherwise, Aughie has referred to in this podcast on many occasions, the territorialness of agencies at various levels. And that it is often a complicating factor in crime prevention and/or resolution in other things as well. We have a huge problem with housing in the United States because the federal and the state and the local levels often have trouble working together. This was one of those efforts to try to get cooperation and collaboration across those institutions.
J. Aughenbaugh: Nia, you make an excellent point here. Because some public policy problems in this country, we have allocated billions of dollars and in some instances have made little to no improvement.
N. Rodgers: How's that war on poverty going? Those agencies sometimes work at contra.
J. Aughenbaugh: Yeah, they run counter. But this is a program where facilitation across turf is beneficial.
N. Rodgers: Aughie and I do not argue with the concept of depriving criminals of the stuff that helps them be criminals. We are both not unhappy about this idea of, you don't get to just keep stuff with your ill gotten. Seriously, if you engage in, I don't know, human trafficking and it allows you to buy a thing, we both believe you should be deprived of that thing in addition to being deprived of your liberty. In that instance, probably being beaten to death. But neither here nor there, but we believe in that thing. There have been some cases where I think you and I could both agree that was a legitimate outcome of this concept.
J. Aughenbaugh: When you're talking about, for instance, financial managers who have ripped off working class people their retirement plans, etc. I have absolutely no issue with the government going after their assets. Because at that point, as far as I'm concerned, you're a scammer. If you ended up buying a half a dozen mansions because you trafficked in other human beings, or you were the muscle end of an organized crime organization, and you were murdering people and killing people and assaulting people, and you got paid handsomely for your criminal activity, and you're found guilty, and the Feds or state government says, we want your three houses, and we want your nice plane that you used to jet off to the Bahamas, etc., I have no problem with that. But this is a difficult constitutional and legal issue, and this is the last thing I think we should address in this episode. We can use it as a segue to the next one. That is the Supreme Court at least initially gave approval to these programs. Occasionally, they did not. In 1965, the Supreme Court said that the Pennsylvania government, seizing a vehicle that was used by a different family member and you didn't know that the other family member was using it for criminal activity, that was probably unconstitutional.
N. Rodgers: Please tell us the name of that case.
J. Aughenbaugh: Oh yeah, this is One 1958 Plymouth Sedan versus Pennsylvania.
N. Rodgers: I know it's not funny, but it's funny to me. One 1958 Plymouth Sedan.
J. Aughenbaugh: Again, this was a civil forfeiture case.
N. Rodgers: Remember that they're suing the Sedan, and this name appears as the defendant in this case. Which I just think is hilarious.
J. Aughenbaugh: There were a whole bunch of cases, Nia, in the first decade and a half of this millennium concerning banks.
N. Rodgers: Banks seem to be especially bad for this thing.
J. Aughenbaugh: Because what had happened was at the tail end of the Bush 43 administration. You're talking about 2008 and segueing into the first few years of the Obama administration. There were a whole bunch of investigative reports about how criminal organizations, as far back as the Nazis, used foreign banks to hide their financial proceeds. Eventually, a number of western governments, including the United States started targeting the banks. In 2009, the Lloyds Bank had to forfeit $350,000,000 for violating a federal statute. I love the acronym because there are court cases in my common law class where I get to use the acronym. The name of the law is International Emergency Economic Powers Act, IEEPA.
N. Rodgers: IEEPA.
J. Aughenbaugh: IEEPA. It almost feels like you need to do a Caribbean dance to it, IEEPA.
N. Rodgers: Falsified outgoing wire transfers to persons on US sanctions.
J. Aughenbaugh: Sanctions list. Yes.
N. Rodgers: But Mr. Bin Laden, we have your money. I mean, he would have been one of the people on that list where they lied about who they were sending the money to.
J. Aughenbaugh: That's right.
N. Rodgers: That's a weird thing for the bank because the bank promises you privacy so that you'll bank with them. But then when they lied to the federal government who they're sending money to, they get in trouble with the law.
J. Aughenbaugh: Yes. This happened not only with the Lloyds Bank, but, I always mispronounce that word.
N. Rodgers: Suisse.
J. Aughenbaugh: Yes.
N. Rodgers: Credit Suisse.
J. Aughenbaugh: Credit Suisse, the Barclays Bank, the ABN and AMRO Bank.
N. Rodgers: These are not small institutions?
J. Aughenbaugh: No, and these were huge amounts of money, 350 million with Lloyd's, 536 million, 298 million, 500 million.
N. Rodgers: But in a bank, is that money
J. Aughenbaugh: No.
N. Rodgers: It's money to me and you because we'll never have. Unless we rob a bank, we're never going to have.
J. Aughenbaugh: But for the banks it's just creeping decimals.
N. Rodgers: Right.
J. Aughenbaugh: I love that phrase.
N. Rodgers: I was fascinated by one of your cases which I would like to mention if you don't mind terribly. And that is, the State of Texas seized the YFC Ranch. At one time fundamentalist Church of Jesus Christ of Latter Day Saints, FLDS community that housed as many as 700 people when it was raided by Texas in 2008.
J. Aughenbaugh: Yes.
N. Rodgers: I suspect that what the criminal conduct there was under age marriage.
J. Aughenbaugh: Yes.
N. Rodgers: That was probably part of it and part of it was probably multiple marriage, which is illegal in the United States.
J. Aughenbaugh: Yes.
N. Rodgers: Because the FDLS church, which by the way, is not the same as the Mormon church.
J. Aughenbaugh: That's right.
N. Rodgers: Excuse me, the LDS church is not the same as the FLDS church because the LDS church outlawed multiple marriage, frankly, in order to get Utah statehood. But that's neither here nor there because it is outlawed within that church, the break off branch.
J. Aughenbaugh: Was the Fundamentalist sect.
N. Rodgers: It's the Fundamentalist sect. They continued to practice it, and I'm assuming that Texas was like, you know what, that's illegal and you know what? You doing it on a compound means that the compound is now ours.
J. Aughenbaugh: That's right. The last case I want to mention and Nia, I think the last is the appropriate segue to our next episode. This was a Supreme Court case from 2019 Timbs versus Indiana. For the first time, the United States Supreme Court held that the Eighth Amendment's prohibition on excessive fines is applicable to the states, which then makes state asset forfeiture programs possible to be sued as unconstitutional.
N. Rodgers: If they're excessive.
J. Aughenbaugh: If it's excessive.
N. Rodgers: Okay.
J. Aughenbaugh: Okay.
N. Rodgers: I think the facts of this case would actually make it makes sense to me. You tell us the facts of the case.
J. Aughenbaugh: Indiana seized Timbs truck because the cops found a small quantity of drugs in the truck and he was convicted of a non felony possession charge.
N. Rodgers: Let us stop for a moment there and say, I don't know what the street value of drugs is these days because I'm way out of that scene.
J. Aughenbaugh: We both are.
N. Rodgers: But let us just even pretend that it was $1,000 worth of drugs, which it probably was not, since it's a small quantity and a non felony possession. It's probably much smaller than that. But let's even say it was 1,000. If his truck was worth 45,000 basically that's what was getting at right, is that it's too heavy.
J. Aughenbaugh: Of a punishment.
N. Rodgers: A punishment for the crime.
J. Aughenbaugh: Because Indiana prosecutors argued that because he had drugs in the truck.
N. Rodgers: That truck could be seized.
J. Aughenbaugh: The truck could be seized because either he transported his drugs, which by the way, there was no evidence he was a ''Drug dealer''. He just occasionally liked to go ahead and use drugs in small amounts. But they said either the drugs were transported in his truck or he occasionally used illegal drugs in his truck. Either way, it was an asset that was the location or used to facilitate an illegal activity. Now, Tim's argued, I have a small amount of drugs, and I'm convicted. But you want to take my truck that was valued at I think it was well over $40,000. He goes.
N. Rodgers: Which is also my way to work. Are they can deprive me of other things besides that truck?
J. Aughenbaugh: Because the State could never show that he was a dealer, they couldn't go ahead and say that the truck was the result of proceeds of drug dealing.
N. Rodgers: I see.
J. Aughenbaugh: Tim's claim was.
N. Rodgers: It was too much such punishment for the crime. Aughie, we've caught you jaywalking, and your ticket fine is $9,000. You'd be like, excuse me, I'm not paying a $9,000 fine for Jay walking. I will pay $100 fine for jaywalking. It's ridiculous. I did see where his argument is there.
J. Aughenbaugh: Or if a court says Aughie, you were found guilty of jaywalking, so we now want your $120 leather shoes that you just purchased.
N. Rodgers: That's more accurate, and you're like, I don't think so.
J. Aughenbaugh: No cars were coming. The lights had just changed, but you want my nice leather shoes?
N. Rodgers: You're right. That's a great segue, [inaudible] two of the things that are wrong with this program.
J. Aughenbaugh: By the way, a trailer alert or a spoiler alert.
J. Aughenbaugh: Spoiler alert. But a little bit of a trailer, a little bit of foreshadowing our next episode when we talk about the critiques. These critiques cross the ideological spectrum folks.
N. Rodgers: It's civil discourse in the sense that everybody hates these.
J. Aughenbaugh: Because as I began to do research, I was just like, Wow, hey, never thought of them. But anyways, Nia, thanks.
N. Rodgers: That's awesome. Thank you Aughie.
You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.