[Congressional Record Volume 144, Number 141 (Friday, October 9, 1998)]
[Senate]
[Pages S12223-S12224]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   THE DRUG CURRENCY FORFEITURES ACT

 Mr. CLELAND. Mr. President, Mark Twain once said, ``Get your 
facts first, and then you can distort them as much as you please.'' 
There has been some distortion and misinformation about my bill, the 
Drug Currency Forfeitures Act, and I appreciate the opportunity to 
discuss the facts.
  First of all, the purpose of my bill is to dismantle the fortunes of 
drug traffickers by helping law enforcement seize their drug profits. 
It is all about confiscating the money of drug dealers, drug 
traffickers, and drug kingpins. It is NOT about seizing the money of 
innocent, law-abiding citizens, as some have charged. Confiscating the 
money of innocent citizens violates the Fourth Amendment of the 
Constitution, and I would oppose such an attempt with every effort at 
my command. That is why this legislation includes constitutional 
safeguards which protect innocent Americans against illegal searches 
and seizures.
  Mr. President, let me tell you why I introduced my bill. There have 
been a recent series of court cases which have handed down some very 
disturbing verdicts. In each case, despite overwhelming evidence to the 
contrary, the court ruled against seizing the assets of drug 
traffickers--one of our most effective weapons in the war against 
drugs. Let me give you just one example.
  A traveler was stopped in an airport carrying almost $14,000 in cash. 
A trained drug dog responded positively to the presence of drugs on the 
money. When asked for an explanation, the drug courier produced a fake 
ID and lied about the money's source. He also had a previous drug 
arrest on his record. Yet despite the evidence, the court gave the 
money back to the trafficker. Why? The court ruled there was sufficient 
evidence to show that the money came from some kind of criminal 
activity. But the court held there was insufficient evidence to prove 
that the crime was drug trafficking. United States v. $13,570.00 in 
U.S. Currency, 1997 WL 722947 (E.D. La. 1997).
  Every year drug sales in this country generate $60 billion in drug 
profits. Every day drug couriers move huge quantities of this multi-
billion-dollar pot out of the U.S. in loads big enough to fill 
suitcases, trucks, and even airplanes. This movement of drug kingpins' 
cash crop is the most vulnerable part of their drug operation. Yet 
current law allows the drug trafficker and his couriers to say nothing 
at all when their money is seized. That's right, Mr. President. Under 
the law, the drug trafficker is obliged to give no explanation at all 
as to where his money came from. If the government can only show that 
the money was involved in a crime--but can't show that it was a drug 
crime--the drug dealer gets his money back.
  My legislation proposes a presumption that the money is drug proceeds 
if certain clearly defined circumstances are present--circumstances 
which typically are found in drug trafficking cases: the presence of 
drugs or drug residue; a positive alert by a properly

[[Page S12224]]

trained dog; packaging of the money in a suspicious and highly unusual 
manner; false statements made to the police; previous drug trafficking 
convictions.
  Let me take just a moment, Mr. President, to answer those critics who 
discount the positive alert by a properly trained dog. These critics 
say that so much of our currency is tainted with drug residue that a 
positive dog alert is meaningless. Yet these critics fail to take into 
account the scientific evidence that shows that the drug dogs are NOT 
alerting to the presence of cocaine--which may or may not contaminate a 
large fraction of all U.S. currency. Instead, the scientific evidence 
shows that the dogs are alerting to methyl benzoate, a highly volatile 
chemical by-product of the cocaine manufacturing process that remains 
on the currency only for a short period of time. The bottom line is 
that the dogs are alerting only to money that has recently, or just 
before packaging, been in close proximity to a significant amount of 
cocaine. This research explains why these dogs do not routinely alert 
to currency.
  To repeat: These clearly defined circumstances in my bill are 
safeguards to protect the innocent. More important, my bill establishes 
only a presumption that the money is drug money. Individuals have every 
opportunity to rebut the government's claim and get their money back. 
Criminals, however, will no longer be able to play dumb and recover 
their drug money without having to provide an explanation of where that 
money came from.
  To those critics who maintain that my bill violates the rights of 
innocent citizens, let me say loud and clear: My bill takes effect only 
AFTER a determination has been made that the money in question is from 
an illegal source. This is how the process works.
  A police officer or federal agent assigned to an airport task force 
seizes the money of a traveler based on ``probable cause.'' The 
traveler, for example, has exhibited suspicious, counter-surveillance 
behavior, such as signaling to seemingly unrelated travelers who, in 
fact, are traveling with him. He has concealed a large quantity of 
money in his carry-on bag along with odor-disguising items like fabric 
softener sheets to throw off the drug dog. He produces a fake ID and 
offers a false explanation for the money. Someone whose name he doesn't 
remember packed the bag, and he had no idea there was any money in it.
  Let me repeat: There must be probable cause for the government to 
seize the money. Once the money is seized, notice of the seizure must 
be published in the newspaper on three successive weeks and direct 
notice must be given, in writing, to the person from whom the money was 
seized as well as to any other person known to have a potential legal 
interest. The notice explains the procedure for filing a claim to the 
money. In 85 percent of all federal cases, no one files a claim. To my 
critics, let me repeat: In 85 percent of the cases, the individual 
never contests the seizure.
  If an individual does file a claim, the agency which has seized the 
money must refer the case to the United States Attorney, who then makes 
an independent determination of the merits of the case. If the U.S. 
Attorney does not believe the government can establish that the money 
was drug proceeds, the case is rejected and the money is returned. On 
the other hand, if the U.S. Attorney believes the case has merit, he or 
she must file a civil forfeiture complaint in federal district court. 
The claimant is granted a certain number of days to renew his claim and 
file an answer to the government's complaint.
  The case is then litigated in the district court. In each and every 
case, the burden of proof is on the government. In each and every case, 
the government has the burden of establishing--to the satisfaction of 
the district court--that there is probable cause to believe that the 
money is drug money and therefore subject to forfeiture. Only if the 
government successfully overcomes this hurdle is the case scheduled for 
a jury trial where the claimant is required to offer his explanation 
for the legitimate source of the money. If the jury accepts this 
explanation, and the government is unable to rebut it with admissible 
evidence, the claimant will prevail and will recover the money. 
Otherwise, the court will enter judgment for the government and order 
the forfeiture of the money.
  Mr. President, the federal forfeiture laws are carefully written to 
provide due process to the innocent and the guilty alike. My bill 
conforms to these high standards while closing a legal loophole that 
benefits only the guilty. In the court cases which my bill addresses, 
the cases are dismissed before the claimant ever has to go before a 
jury to explain the source of the money. My bill addresses this problem 
by creating a presumption that if certain factors are present, the 
money is drug proceeds, and thereby allows the case to move forward to 
the next stage.
  To those who have expressed concern with the concept of rebuttable 
presumption, let me emphasize this fact: The presumption does not lead 
inevitably to the forfeiture of the money. Its role is only to force 
the claimant to come forward with an explanation for a legitimate 
source of the money. Therefore, my bill in no way infringes upon a 
property owner's rights under law.
  To those who have expressed concern over the possible impact of my 
bill, let me cite these facts. In fiscal year 1995--a time period prior 
to most of the court decisions which have limited the use of drug asset 
seizures--the FBI, the Drug Enforcement Administration, and the 
Immigration and Naturalization Service made 35,000 seizures of 
forfeitable property. Of the 35,000 cases, more than 85 percent were 
uncontested. Of the 5,250 contested cases, the U.S. Attorney declined 
to prosecute 3,057. Of the 2,193 complaints filed, the government lost 
in only 48 cases. These statistics are similar for the prior three 
years. There is therefore little evidence of actual abuses of drug 
asset forfeitures in the past, and there is even less likelihood of 
such abuses under the enhanced safeguards in my proposal.
  In closing, let me state once again: The Drug Currency Forfeitures 
Act goes after drug money only. Drug trafficking is a business, and 
drug traffickers are in this business for one reason--money. Their 
multi-billion-dollar war chests allow drug lords to have some of the 
world's most sophisticated airplanes, boats, and communications 
equipment. Because of their war chests, drug cartels possess weapons in 
quantities that rival the capabilities of some legitimate governments. 
If we want to make our streets safer, if we hope to make our children's 
lives drug-free, it is not enough just to apprehend the drug 
trafficker. Throw the drug kingpin in jail, and he continues his drug 
operations from behind prison walls. As evidence, just look at the 
leaders of the most powerful international organized crime group in 
history--Colombia's notorious Cali cartel. Even now, the Rodriguez-
Orejuela brothers are able to run their drug trafficking business from 
prison through the use of private quarters and telephones.
  Critics of my proposal talk about the need to protect innocent 
victims. If we want to talk about innocent victims, look at the 
children who are being sold drugs at increasingly younger ages. Mr. 
President, I'm proud to be the sponsor of the Drug Currency Forfeitures 
Act. It hits the drug cartels where it hurts the most--their wallets. 
The ability of law enforcement to confiscate drug money hinges on the 
government's ability to prove that the money is drug proceeds, and not 
the proceeds of some other form of unlawful activity.
  My bill is endorsed by the Fraternal Order of Police, the 
International Association of Chiefs of Police, the International 
Brotherhood of Police Officers, and the Federal Law Enforcement 
Officers Association. The Drug Currency Forfeitures Act closes a legal 
loophole that benefits only the guilty. At the same time, it upholds 
the Constitution's Fourth Amendment, which protects the innocent 
against unlawful searches and seizures. I worked very closely with the 
Department of Justice in crafting this legislation. It is a positive--
and needed--step forward, and at the appropriate time I urge my 
colleagues to support this measure.

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