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Forfeiture Law Casts a Shadow on Presumption of Innocence : Legal system: Government uses the statute to seize money and property believed to be linked to narcotics trafficking. But critics say it short-circuits the Constitution.


MORGAN HILL, Calif. — When Carl and Mary Shelden sold their home and agreed to carry a $160,000 note, they had no idea they were about to be trapped in a government web that would cost them almost everything they owned.

In 1979, the Sheldens made the mistake of selling their $289,000 house in Moraga, Calif., to a man later convicted under a federal law that permits the government to seize his property as the product of his ill-gotten gains.

The fact that the Sheldens had nothing to do with the crimes and were the legal owners, courtesy of the unpaid mortgage, meant nothing. After a 10-year court battle, they are virtually bankrupt. They got back the house, but it was so badly damaged that it made little difference.

"Everything we worked for was in that house," said Carl Shelden, a 52-year-old disabled shoe salesman. "And this is the United States. We don't know whether we want to stay in this country anymore."

The Sheldens are not unique. Authorities across the nation are coming under fire from citizens whose homes, cars, cash and other property were seized in America's war on drugs.

Prosecutors and law enforcement officials insist the program, included in the Comprehensive Crime Control Act of 1984, is helping them fight the drug war. They say the seizures hurt dealers where it counts--in the pocketbook.

"This is a very powerful law enforcement weapon," said Cary Copeland, who heads the Executive Office for Asset Forfeiture at the Justice Department in Washington. "We think it is being operated well."

But alleged abuses make big headlines. A small-town Southern sheriff seizes a Rolls-Royce from a drug dealer and uses it as his personal car. Local police in Little Compton, R.I., net $3.8 million in a drug bust and outfit their cars with $1,700 video cameras and heat detection devices for a police force of seven. The owner of a sailboat loses the craft after a crew member is caught with a small amount of marijuana.

Since 1985, federal authorities have confiscated almost $3 billion worth of cash and other property under the 9-year-old federal Asset Forfeiture Program, according to the U.S. Justice Department. Under federal civil forfeiture statutes, police may seize money and property presumed to be connected to illegal drug profits.

But a growing number of critics, including citizens, defense attorneys and civil rights advocates in California, Missouri, Florida and other states, say the law violates the U.S. Constitution and a basic tenet of the criminal justice system.

They say people whose assets are seized are treated as guilty and must prove themselves innocent to get their property back.

"Once the American public finds out what's been going on under their noses without them knowing about it, they are going to be horrified," said Brenda Grantland, a San Francisco attorney who spent 10 years defending forfeiture victims in Washington.

Grantland serves as counsel to a group called Forfeiture Endangers American Rights, or FEAR, with chapters organizing in New Jersey, Virginia, California and Massachusetts.

"They treated the criminal better than they treated the innocent lien holder in this case," said Grantland, who is representing the Sheldens in their damage suit against the government.

Another case involved Jorge Lovato Jr., a computer reseller in Morgan Hill, and Rey Sotelo, a motorcycle shop owner in nearby Gilroy. Both have previous drug convictions, once had ties to a suspected drug dealer and probably do not elicit much sympathy from most people.

They say they, too, have been victims of a law that is out of control.

In July, agents swept down on Sotelo's home and both men's businesses, seizing company records and a Harley-Davidson motorcycle for sale on consignment at Sotelo's bike shop. They later seized $120,000 in cash from a safe-deposit box rented to Lovato.

Police said they suspected the money was illegal drug proceeds and the motorcycle was stolen.

Neither Lovato nor Sotelo was charged with a crime.

Lovato said he keeps large amounts of cash available because he deals in cash purchases. He and Sotelo both think police targeted them because of their former ties with the key target in the raids--a man with whom they were partners in a failed export business.

Five months and $10,000 in lawyers' fees later, Lovato got his money back.

"If you have a good lawyer, you have the power to fight them," he said.

Sotelo, too, is bitter. "I'm not the most desirable person to look at," he said. "I have tattoos, long hair and drive a Harley-Davidson motorcycle. After this ordeal, I believe no one is safe in this country."

Lovato says publicity surrounding the raid has hurt his business. And Sotelo claims the emotional trauma caused his pregnant wife to miscarry the day after the raid. Both threatened to sue the government.

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