Legislature(2015 - 2016)GRUENBERG 120
03/31/2016 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB236 | |
| HB317 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 317 | TELECONFERENCED | |
| *+ | HB 236 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 205 | TELECONFERENCED | |
HB 317-FORFEITURE: NO CIVIL IN REM; ONLY CRIMINAL
1:39:29 PM
CHAIR LEDOUX announced that the next order of business would be
HOUSE BILL NO. 317, "An Act relating to forfeiture to the state;
relating to criminal law; amending Rules 3, 4, 11, 12, 16, 32,
32.2, 32.3, 39, 39.1, and 42, Alaska Rules of Criminal
Procedure, Rules 501, 801, and 803, Alaska Rules of Evidence,
and Rules 202, 209, and 217, Alaska Rules of Appellate
Procedure; and providing for an effective date."
1:39:51 PM
REPRESENTATIVE KELLER moved to adopt CSHB 317, Version 29-
LS1380\W, Wallace/Martin, 4/4/16, as the working document.
There being no objection, Version W was before the committee.
1:40:16 PM
TAMMIE WILSON, Representative, Alaska State Legislature, advised
that the Departments of Law, Public Safety, the Alaska Court
System, Legislative Legal and Research Services, and her office
worked together to offer Version W, and referred to her document
entitled "CS for HB 317, Explanation of Changes".
REPRESENTATIVE WILSON referred to Sec. 12.36.300(3), line 24 -
changed to require a higher standard of "beyond a reasonable
doubt" with the idea of eliminating forfeiture all together.
She said she was advised by Legislative Legal and Research
Services that otherwise it would require going through all of
the different statutes so the sponsor raised the standard to
make it harder. She commented that civil forfeiture was
eliminated with this bill, and that this section deals with the
process for criminal forfeiture.
REPRESENTATIVE WILSON referred to Sec. 12.36.300(e) - paragraphs
(1) and (2) deleted which narrows the scope by which property
subject to forfeiture under this section may be seized at any
time with a prior court order, thereby making it more difficult.
REPRESENTATIVE WILSON referred to Sec. 12.36.350 (e)(1) - after
claimant, "and" was added for clarification.
REPRESENTATIVE WILSON referred to Sec. 12.36.350(e) - paragraph
(3) deleted which excludes the ability of a person to request
the return of property in order to pay for legal representation
under this section.
REPRESENTATIVE WILSON referred to Sec. 12.36.450 - deleted
"Chief Public Defender" and "the District Public Defender", and
she described it as a cleanup in that the State of Alaska does
not have either of the positions.
REPRESENTATIVE WILSON referred to Sec. 12.36.450(f) - deleted
"clear and convincing evidence" and inserted "beyond a
reasonable doubt" requiring a higher standard.
REPRESENTATIVE WILSON referred to 12.36.450(g) - added language
clarifying that forfeiture proceedings after conviction isn't
necessary in cases where forfeitures are, by statute, not
challengeable or illegal, for example felony DUI.
REPRESENTATIVE WILSON referred to Sec. 12.36.460 - deleted "in
full or partial fulfillment of responsibility established in the
court's proceedings" because the language is not necessary.
1:43:30 PM
REPRESENTATIVE WILSON referred to Sec. 12.36.500 - deleted "At
any time" and added "within 90 days to establish a specific
timeline under this section." Although, it was believed that
people would come sooner rather than later, it would have opened
up retroactive and into the future on a case, which would be
costly. She commented that "within 90 days" was determined
because if a person's property is part of the forfeiture they
would probably be following the case closely.
REPRESENTATIVE WILSON referred to Sec. 12.36.500 and advised it
was rolled into Sec. 12.36.450(g) to prevent duplication and
additional cost by having another hearing.
1:44:21 PM
REPRESENTATIVE CLAMAN referred to the committee substitute and
noted he could not locate Sec. 12.36.500, and referred to number
9 on her explanation of changes, which read the sponsor is
deleting Sec. 12.36.500.
REPRESENTATIVE WILSON responded that it is two-part because Sec.
12.36.500 no longer exists; therefore, Sec. 12.36.500 was placed
into Sec. 12.36.450(g). The words "at any time" were deleted
and the words "within 90 days" were inserted because it would
have caused another hearing, she explained.
REPRESENTATIVE WILSON referred to Sec. 12.36.600 - deleted
"district," which is a cleanup.
REPRESENTATIVE WILSON referred to Sec. 12.36.625 - deleted "by
abandonment of the prosecution," which was deleted for clarity.
1:45:33 PM
CHAIR LEDOUX expressed concern that this bill appears to be
similar to a cartoon depicting something simple and it becoming
convoluted. The bill appears convoluted and she expressed that
the committee just wants to simply be rid of civil forfeiture
period.
REPRESENTATIVE WILSON offered that is part of it. Although,
criminally there are times things are taken away especially when
getting into the area of fish and game. She offered that there
may or may not have been a violation requiring Wildlife Troopers
to check and the person may have that their fishing boat,
netting and other property seized at that time. Currently, she
indicated there is not a good process on how to get the property
back when it is not required as evidence and pointed to the
testimony that it took 3-4 years before the person was found
correct, and then get their airplane back. She referred to the
discussion of putting the airplane in storage but the testimony
given doesn't necessarily happen and it may sit outside in the
weather until the case is completed. The civil issue has a
lower expectation as does the process and she related that this
is the committee's bill right now.
1:47:32 PM
CHAIR LEDOUX asked whether there is any possibility of asking
Legislative Legal and Research Services to go through Alaska
Statutes and just eliminate what is called a civil forfeiture,
although it really is a criminal forfeiture.
REPRESENTATIVE WILSON opined that she understood Legislative
Legal and Research Services could do it but probably not in the
time left for this session.
1:48:12 PM
CHAIR LEDOUX listed the people on line available to answer
questions.
1:49:50 PM
DOUG WOOLIVER, Deputy Director, Administrative Staff, Alaska
Court System, explained that the issues that would require a
fiscal note include additional hearings and the length of those
hearings. He pointed out there would be a whole new scheme for
forfeitures and it has been working with the sponsor in an
ongoing process because there are unanswered questions for the
court system.
CHAIR LEDOUX pointed out that civil forfeiture actually sounds
like criminal forfeiture, apparently, due to the in rem nature
wherein the airplane is being sued as opposed to the person.
MR. WOOLIVER agreed that there is confusion as to what a civil
forfeiture means and what it doesn't because these are all in
conjunction with a criminal case. He pointed to the national
news comments and John Oliver's clip wherein "they just come in
and take your money from your car," and he opined that is not
the process here. The Alaska Statutes did allow "in rem, just
simple civil forfeitures" but from the testimony of others it
appears that's not the norm here. These are forfeitures in
conjunction with criminal cases only, he reiterated.
REPRESENTATIVE CLAMAN commented that John Skidmore was in the
audience and he was not certain whether he would like to testify
as to his concerns.
1:53:06 PM
JOHN SKIDMORE, Director, Legal Services Section, Criminal
Division, Department of Law (DOL), said he was available for
questions.
REPRESENTATIVE KELLER said the Daily News-Miner quoted Mr.
Skidmore and he paraphrased "to say that having civil
forfeiture, I believe, eliminates the need for hiring -- or
maybe the resource for hiring extra help in the Department of
Law." Representative Keller asked him to discuss the
implications.
MR. SKIDMORE replied that he had not seen the article and was
unsure ...
REPRESENTATIVE KELLER asked him to explain the implications.
MR. SKIDMORE responded that he understood the question to be
what was [included in the bill] that resulted in the fiscal
note. He explained that the elimination of in rem forfeitures,
which is the civil component as he refers to it, does not impact
the fiscal note because those civil forfeitures are used
infrequently and the Department of Law (DOL) does not have a
problem with eliminating them. The inclusion of the fiscal note
is with regard to the rest of HB 371 in that it attempts to
redraft the process that occurs for forfeiture in criminal cases
because it creates additional hearings, the necessity to have to
file against particular pieces of property. He related that
under the bill, the department doesn't just file a charge
against someone with possession of child pornography, it then
has to file an action against the individual images of child
pornography that the state will seek to forfeit at the end of
the case. Subsequent to that, there is an opportunity for
hearings for people to try to get property back, then a trial,
then a forfeiture proceeding after the trial to deal only with
the property, then a sentencing, then a reconsideration of the
forfeiture decision, and then a right of appeal about the
forfeiture decision. He pointed out that all of the various
hearings resulted in the fiscal note and opined there are ways
for a process addressing the concerns of the sponsor. Although,
he did not believe there had been enough time to wrap his
suggestions into the committee substitute today. He opined that
the sponsor's concerns related to consolidating forfeiture laws
into one title and clearly articulate what the case law in
Alaska says so it is easier to find and follow. There is a
process through the criminal case to address forfeiture that
would eliminate that fiscal note and none of that is associated
with the in rem forfeitures, he remarked.
1:56:37 PM
CHAIR LEDOUX referred to in rem forfeitures currently in the
statutes, and said they have nothing to do with a criminal case.
MR. SKIDMORE agreed.
CHAIR LEDOUX verified that Mr. Skidmore has no objection to
eliminating those forfeitures.
MR. SKIDMORE agreed.
CHAIR LEDOUX continued that there is another group of cases in
which the forfeiture is in conjunction with a criminal case.
MR. SKIDMORE agreed.
CHAIR LEDOUX asked whether people acquitted in the criminal case
automatically receive their property back, assuming the
forfeited property is not contraband or in and of itself
illegal.
MR. SKIDMORE noted that Chair LeDoux placed in the question the
caveat of the items that in and of themselves are illegal, and
said the answer to her question is yes.
1:58:03 PM
CHAIR LEDOUX restated her question to confirm that the property
is automatically given back to the person at the time they are
acquitted.
MR. SKIDMORE commented that when she used the phrase "at the
time that they are acquitted," he doesn't want to quibble but
does not want it to be understood that the jury comes back with
the acquittal and the person is handed their property at that
moment. The person does receive their property and it shouldn't
be more than a matter of days, although there are probably
horror stories of times it has taken longer than it should. The
law does say that when a person is acquitted the property is to
be returned, unless the possession of those items is illegal in
and of themselves. There are statutes that discuss the
disposition of property, and he opined they do not list
timeframes within them.
2:00:03 PM
KEVIN FITZGERALD, Attorney, said he was available.
CHAIR LEDOUX asked Mr. Fitzgerald's whether he would concur with
Mr. Skidmore's analysis.
MR. FITZGERALD responded not entirely, no.
CHAIR LEDOUX asked him to explain his understanding of the way
the law works that differs from Mr. Skidmore's understanding.
MR. FITZGERALD referred to the disposition of property at the
conclusion of a case, and agreed there are statutes under Title
12 dealing with the disposition of property and there are no
timelines. Mr. Fitzgerald then expressed that he has an
enormous amount of respect for Mr. Skidmore. Generally, he
opined, the law is pretty well followed as far as trying to get
property back, and he then related a horror story. Subsequent
to his horror story, he put forth that the idea a whole host of
additional hearings are required is similar to "Chicken Little."
For example, with regard to the opportunity to appeal a decision
made as it relates for forfeiture is a right parties already
have and that would not require additional hearings. His main
focus in the current forfeiture law, has to do with items seized
pre-charge or post-charge but pre-conviction, in that there is
little remedy for the party to whom the property has been taken
to seek redress. In the instance of pre-charge, he said he does
not know of an adequate process and as a result there are
situations he related during yesterday's testimony. He opined
there has been an indication from the Law Office of Brent R.
Cole of a similar situation involving another client and the
situations are not unique. It is the pre-charge, pre-conviction
process in which there isn't any appropriate remedy to allow
parties to seek redress. He pointed to due process case law
that indicates if law enforcement seizes property that affects
someone's livelihood they have a right to a hearing within 48 -
72 hours. There is no statutory construct or regulatory
construct that says that, but there is case law that certainly
suggests that is the case. He related that there is a problem
in trying to get a superior court to pay attention to a pre-
charge situation, and "secondly of all that law frankly is --
that case law is ignored." Therefore, even if a person manages
to get a hearing all the prosecution need say is that the
property is needed for purposes of evidence and there is no
further inquiry. He opined that violates due process and his
concern is that there is no procedural mechanism to afford an
aggrieved party some relief.
2:05:54 PM
MR. FITZGERALD continued that he cannot say what the fiscal
consequence is likely to be, and that with regard to the pre-
charge or pre-conviction process like the one contemplated by HB
317 there is likely to be situations in which there are
additional hearings, he could not say how many additional
hearings but not close to the number contemplated by the
Department of Law (DOL). He pointed out that the constitutional
protections require no less, so by virtue of that hearing put
into the bill and a statute require no less than the
constitution otherwise requiring and why shouldn't that be the
case.
CHAIR LEDOUX surmised that he believes the constitution requires
this now and that the courts are not following the
constitutional requirements as they exist now, asked why he
would think the courts would follow a statute.
MR. FITZGERALD responded that the courts are bound to follow the
statutes.
CHAIR LEDOUX interjected, but not the constitution.
[Mr. Fitzgerald continue to speak, thereby, speaking over Chair
LeDoux and his conversation was difficult to decipher.]
MR. FITZGERALD ... follow a statute, particularly a statutory
construct like this dealing with the very situation being
discussed. He commented that other states have recognized that
the construct that "we have now, which is really no construct or
it's certainly not standardized or centralized," is in need of
fixing and [the states] have done so. He said he has not
researched and is unaware whether other states having adopted
similar statutory constructs are facing the fiscal consequences
suggested by DOL. He reiterated that there isn't any statutory
construct now and this bill provides centralized and
standardized construct concerning forfeitures.
2:09:04 PM
CHAIR LEDOUX asked whether Mr. Fitzgerald has reviewed the
committee substitute for HB 317 [Version W].
MR. FITZGERALD said he received the committee substitute moments
ago and he was also provided a copy of the Alaska State Trooper
(DPS) summary regarding its concerns with HB 317, but he has not
gone through the documents in great detail. He then reiterated
that many of the concerns or complaints are a case of "Chicken
Little," and he expressed great respect for Wild Life Troopers,
Alaska State Troopers and Mr. Skidmore as they are trying to do
the best they can.
CHAIR LEDOUX asked Mr. Fitzgerald whether he could review the
new committee substitute by tomorrow so the committee can be
assured it takes care of the problems he articulated.
MR. FITZGERALD agreed.
2:10:49 PM
REPRESENTATIVE KELLER commented that some of the issues Mr.
Fitzgerald related are sobering and that there have been reports
that Alaska's justice system compared to other states have
received low grades in this arena. He expressed concern that
when a person is charged their property is taken, and then
suddenly the burden is on the person charged to keep track, and
figure out how to get their property back when there is no
process or system that is working. He pointed out that that is
the context he would like everyone to consider when reviewing
the committee substitute.
2:12:02 PM
CAPTAIN JEFF LAUGHLIN, Alaska State Troopers, Statewide Drug
Enforcement Unit Commander, Department of Public Safety (DPS),
said he is the Alaska State Troopers Captain and currently the
Statewide Drug Enforcement Unit Commander. After listening to
the discussions today, he said he was unsure whether he had
testimony because some of his concerns appear to be a confusion
between civil asset forfeiture and forfeiture pursuant to
criminal proceedings, which was adequately addressed. Although,
he has not had a chance to review the committee substitute and
how the changes might affect his concerns that DPS provided to
the [sponsor]. He argued that, contrary to Mr. Fitzgerald's
testimony, this is not "Chicken Little" in that these are
realities of what "those of us in the business of practicing
this" will be faced with if the bill is passed as it stands,
even with what he knows of the committee substitute. Major
Chastain is available to discuss wildlife issues and Captain
Laughlin is available for other questions, he offered.
2:13:37 PM
REPRESENTATIVE KELLER asked whether there is an incentive for
law enforcement to include a federal charge due to different
federal and state standards having to do with an equitable
sharing agreement.
CAPTAIN LAUGHLIN opined that Representative Keller was asking
about the Department of Justice Equitable Sharing Program, and
opined that it is a large concern for people and the national
dialogue on the asset sharing program done by the Department of
Justice surrounding civil forfeitures. Although, he offered
people may have looked like that in March of 2015, through
President Obama's administration, Attorney General Eric Holder
offered clarification and new direction on the Department of
Justice's assets sharing program. He pointed out that the
biggest change is that there is no longer the ability for state
and local law enforcement to participate in that program for
civil asset forfeiture proceedings. In addition to that, in
order for state and local law enforcement to participate in
federal criminal asset forfeiture, such that when a defendant
has been charged in drug cases a federal agent must be involved
in that proceeding from the onset. In the past, he explained,
state or local law enforcement might begin an investigation into
a drug trafficking organization, and at a later date during the
investigation they would engage in conversations with the drug
enforcement administration or the FBI. The federal agency would
then adopt that case, see it through prosecution, and any
potential assets would be forfeited through the Department of
Justice asset sharing program. Currently, with the changes
announced last March, in order for the state to work
collaboratively with its federal partners, they must be involved
in that investigation from the beginning.
2:16:42 PM
CAPTAIN LAUGHLIN expressed that it is important for the
committee to understand that this change is particularly
important, not only to law enforcement nationally, but to law
enforcement in Alaska. The reason being, he explained, is that
Alaska, with the rare exception of marijuana and perhaps
methamphetamine to a certain degree, is a consuming state. For
example, the state doesn't produce heroin, opioids, prescription
medications, or cocaine. Therefore, in order for law
enforcement try to effectively reduce the flow of those
controlled substances coming into Alaska, it oftentimes has to
work beyond the borders of Alaska and in order to do that its
best approach is to partner with its federal partners who have
reached beyond the borders of Alaska.
2:17:33 PM
CAPTAIN LAUGHLIN related that he can't in good conscious,
especially in this fiscal climate, send troopers out to its
source states, such as Oregon, Washington or Arizona to try to
intercept or interdict multiple kilos of heroin without that
partnership availability because law enforcement has to wait
until the drug is smuggled into the border of Alaska and then
try to determine where it was disbursed to. He described it as
a very, very difficult challenge for Alaska's law enforcement
and the partnership with its federal partners are extremely
important. The contrast, he pointed out is that the Alaska
State Troopers are limited with the number of personnel assigned
to its drug investigative unit so in turn it relies heavily on
its municipal partners to work together. For example, in
Fairbanks they partner with the North Pole Police Department,
Fairbanks Police Department, Alaska State Troopers, Drug
Enforcement Administration and various agencies to collectively
and collaboratively try to target the state's mid-level to
upper-level drug offenders and the federal asset sharing program
goes a long way to allow them to do that.
2:19:00 PM
CAPTAIN LAUGHLIN noted that while he is on the topic of assets
and concerns about state seized assets coming back to the
Department of Public Safety, advised that the statutes do not
allow for that. For example, say law enforcement prosecuted a
defendant on a drug charge and seized $1,000, if it is a state
charge and ordered forfeited by the judge through the criminal
due process, that $1,000 must be deposited into the general fund
and it does not remain with the Department of Public Safety
(DPS). The exception would be where the DPS is engaged with a
task force cooperative effort with its local partners, and if
the local partners are part of that investigation there is an
allowance in statute that allows DPS to share a portion with its
local partners to help offset the cost of those investigations.
He related that any remaining amount and at least a minimum of
25 percent must go into the general fund because the DPS is not
allowed to receive any of those funds from state asset
forfeitures from the court.
REPRESENTATIVE KELLER thanked Captain Laughlin because it was
good information for the record.
2:20:27 PM
CHAIR LEDOUX related that she is still confused and asked
whether they can partner with people without getting involved in
civil forfeiture. For example, say they are trying to intercept
a large quantity of heroin before it hits Alaska, can't they
partner with the federal government without a forfeiture
statute.
CAPTAIN LAUGHLIN replied that they absolutely can, and that is
why the confusion is between criminal forfeiture and civil
forfeiture. In analyzing this bill to determine whether it
would have any impact on DPS, he said, that on its surface,
because the sponsor appeared to be focused on civil asset
forfeiture, he looked back to 2012 and he could not relate a
single case where the State of Alaska, particularly in drug
investigations, has ever used civil asset forfeiture or civil in
rem to seize anything. He offered that everything he just
referred to has to do with criminal law and criminal
investigations and ultimately criminal forfeiture through the
court system. The department can absolutely work with its
partners, absent civil asset forfeiture, "both at the federal
level which already exists, they've discontinued that practice,"
and if it is the committee's desire is to just simply end civil
in rem, it will have absolutely no impact on what the department
does. However, he pointed out some stipulations in this bill,
for example, requiring all proceeds to be deposited into the
general fund, and there is a further prohibition that reads if a
federal partnered agency does not allow deposit of any forfeited
funds into the general fund, then the department is not allowed
to participate in it. He described that as that having a pretty
dramatic effect on the department's partnership with its federal
taskforce officers. In response to Chair LeDoux's previous
question, he replied that the lack of civil forfeiture
proceedings, either at the state or local level, has absolutely
no impact on the department. He related his concerns regarding
HB 317 is that, although, the discussion is civil asset
forfeiture, most of the suggestions and change to law affect
criminal seizure and criminal forfeiture, and those would have a
dramatic effect on what Alaska does for drug investigations.
2:23:04 PM
CHAIR LEDOUX said she is still trying to follow this because
civil forfeiture, which is the in rem proceeding, doesn't have
to have any criminal case attached to it. Then, she continued,
there are two aspects of the criminal forfeiture, such as items
seized which are evidentiary items, and items seized that don't
have anything to do with evidence. For example, if they are
seizing money it could be photocopied and it is not necessary to
keep the money for evidence. She said, other than the fact that
statutes were enacted a while ago, she doesn't see justification
for grabbing property until there is a criminal conviction,
unless it is evidentiary. It appears there are cases where
property is taken that is not evidentiary and it is confusing,
she related.
CAPTAIN LAUGHLIN responded that he cannot think of a case he has
been exposed to in which items were seized in a criminal case
that were not of evidentiary value. The Department of Public
Safety (DPS) absolutely does seize cash and/or assets during a
drug investigation, for example. Generally, it can be for
reasons such as: belief to be proceeds from illegal activities;
proceeds from ill-gotten gains; a drug detection canine may have
alerted on that money; and in many cases undercover "buy funds"
to enact the transaction to prove the illegal distribution of
controlled substance. He confidentially related that anything
seized during a drug investigation is all believed to be
evidence of the crime of drug trafficking. There is no instance
where DPS would seize property that cannot be tied to the whole
idea of drug trafficking and drug trafficking organizations
because it is all evidence of what the department believes is
evidence of that crime.
2:26:06 PM
CHAIR LEDOUX remarked that she could understand if there was
some question as to whether drugs are literally on the money,
but if they don't have that circumstance and they are
photocopying it first, before it's spent, to compare what they
get back, asked why couldn't they photocopy what they get back.
It was photocopied in the beginning, why can't they photocopy
what they get back, she reiterated.
CAPTAIN LAUGHLIN answered that they do. For example, within the
criminal justice reform bills, HB 205 and SB 91, one of the
ideas being discussed is having law enforcement not focus on
drug addicts or even low-level drug dealers that may be selling
a drug just so they can continue with their drug habit. What
that does, he offered, and even prior to the bills is that the
department focuses on mid-level and upper-level drug dealers and
drug trafficking organizations. One of the ways they attempt to
prove to the court and juries that someone is involved in larger
scale drug trafficking is not only the amount of drug they are
able to seize, but the amount of cash they are carrying with
them at the time those seizures are made because that is
indicative of the sale of controlled substance, he explained.
2:28:05 PM
CAPTAIN LAUGHLIN continued that should an undercover officer or
an informant buy an ounce of heroin from a dealer and law
enforcement grabs that dealer to effect the arrest and finds
$10,000 cash in their pocket that, to the courts and most
juries, is indicative of drug trafficking at a much larger
scale. He further explained that that is why that money becomes
important ....
CHAIR LEDOUX asked why he couldn't do the same thing with simply
photocopying the money, and if the person is convicted law
enforcement could seize the money or fine the person. She
inquired as to why the actual money is needed for evidence, as
opposed to a photocopy of the money.
CAPTAIN LAUGHLIN opined that it is evidence of crime that needs
to be preserved and is used in trial. He posed that the same
question could be asked for different items seized through the
investigative processes.
CHAIR LEDOUX commented that the question could be asked, and she
surmised that that is what the committee is doing.
2:29:57 PM
MAJOR BERNARD CHASTAIN, Deputy Director, Division of Alaska
Wildlife Troopers, Department of Public Safety, referred to Mr.
Fitzgerald's testimony regarding seizure and having the ability
to remedy the situation, and pointed to the remedy under Alaska
Rules of Criminal Procedure Rule No. 37(c), which read as
follows:
A person aggrieved by an unlawful search and seizure
may move the court in the judicial district in which
the property was seized or the court in which the
property may be used for the return of the property
and to suppress for use as evidence anything so
obtained on the ground that the property was illegally
seized.
MAJOR CHASTAIN advised that Mr. Fitzgerald has sometimes been
the defense attorney in wildlife cases involving the seizure of
aircraft or vessels. He extended that the Department of Public
Safety (DPS) and the Department of Law (DOL) believe there is
sufficient remedy in place in the criminal rules for that.
Items are seized for many reasons, he related, and in the fish
and wildlife world in Alaska it is worth a lot of money to the
residents and the state. This arena is worth over $5 billion a
year, which includes commercial fisheries, wildlife, big game
guiding, sport fish guiding, and it is a substantial piece to
Alaska's economy. He stated that commercial wildlife violations
are about making money illegally, and the primary reason
property is seized in fish and wildlife crimes is because the
property was the instrumentality of the crime. The property is
seized due to the re-occurring nature of a commercial wildlife
crime and they often happen more than once or several times
before law enforcement gets the ability to contact the violating
individual. When the violations occur they tend to be of a more
serious nature ...
2:32:23 PM
CHAIR LEDOUX referred to his statement that property is seized
due to the re-occurring nature, and asked whether that means it
is being seized so they can't do it again.
MAJOR CHASTAIN responded correct, it is being seized to keep the
individual from continuing to violate.
CHAIR LEDOUX argued that law enforcement is then presuming the
individual is guilty before being convicted.
MAJOR CHASTAIN answered that is not correct.
CHAIR LEDOUX contended that in his response to her question he
agreed that property is being seized to keep the individual from
doing something again. Chair LeDoux then reminded Major
Chastain that her response to his agreement was that it sounds
like law enforcement is presuming the individual had done
something wrong in the first place without a conviction.
MAJOR CHASTAIN explained that the items seized are seized under
a criminal search and seizure warrant that a judge signed under
"probable cause" that the violation had taken place, those items
are seized ...
2:33:31 PM
CHAIR LEDOUX pointed out that "probable cause" is not the same
standard as "guilty beyond a reasonable doubt."
MAJOR CHASTAIN said she was correct and it is not the same
standard in that "guilty beyond a reasonable doubt" is used when
someone is convicted and the judge decides what happens to that
item. Currently, he reiterated there is sufficient remedy under
Alaska Rules of Criminal Procedure Rule No. 37(c) for a
defendant to go before the court and petition to have that item
returned to them.
2:34:24 PM
REPRESENTATIVE CLAMAN asked whether there are occasions when law
enforcement would seize a commercial guide's airplane before
ever arresting the guide for hunting violations.
MAJOR CHASTAIN answered yes, law enforcement goes before the
court with a criminal affidavit and a judge issues a search
warrant as part of the investigatory process. The item is
seized and, he acknowledged, that sometimes the case takes an
excess of months to complete before it is ready to be charged.
Once the case is charged it goes through the court process, the
state is ready to proceed in court, and oftentimes defense is
not ready to proceed and the case moves slowly as the defense
attorney has the ability to defend their client.
REPRESENTATIVE CLAMAN restated his question, used an airplane as
an example, and said that law enforcement seized an airplane
that isn't an instrument of crime and there wouldn't be evidence
of a crime in the airplane. Although, the guide/owner used the
airplane to fly to wherever to take their hunters hunting and it
happens to be the means by which they fly to the middle of
nowhere to hunt. He asked whether, in that situation, the
department would periodically get a warrant, not for purposes of
obtaining evidence, but to actually seize the airplane and
prevent the guide/owner from using it for flying any longer.
MAJOR CHASTAIN replied the statute provides that if the item is
used in commission of the crime itself, such as same day
airborne of an animal, the item itself is subject to seizure and
subject to forfeiture.
REPRESENTATIVE CLAMAN said he understands the statute allows the
department to do it, and asked that if the department doesn't
need that airplane to prove this person has been committing same
day airborne hunting and there is nothing requiring DPS to seize
the airplane, why does the department choose to seize the
airplane.
2:37:21 PM
MAJOR CHASTAIN responded that it is in preservation of that
evidence in that the item itself could be disposed of before the
court forfeits the item to the state. For example, a defendant
actually dismantled his aircraft so he could hide it from the
Alaska State Troopers and keep them from seizing it. He noted
that there have been several cases wherein people have flown
their aircraft out-of-state to different locations in order to
hide the aircraft and in those situations oftentimes it's very
difficult to find that asset. Therefore, when a criminal search
and seizure warrant is obtained from the court the department
seeks that asset out to preserve the evidence, he explained.
2:38:15 PM
CHAIR LEDOUX argued that there are two questions, such that the
property is seized for evidence actually necessary in order to
present the item to the jury to prove someone's guilt is one
thing, but if the department is just seizing it because it is
concerned that once the person has been convicted that the
department will not get this airplane or other property of
value. She said she doesn't understand why the department
should be in such a different position than any other plaintiff
who thinks they have a good case and do not want the defendant
to be able to hide assets. When she practiced law, she related,
there were few instances that the plaintiff could seize property
before a court or jury determined someone had actually done
something wrong. Chair LeDoux acknowledged this is the way the
statute reads and that it does so because a past legislature
enacted the statute. Even so, she said she has a real problem
with the idea that the department can seize property it doesn't
need for evidence prior to a finding by a judge or jury that
someone committed a crime beyond a reasonable doubt.
MAJOR CHASTAIN said that a neutral detached magistrate has
already made a finding of probable cause when the department
goes before a magistrate or judge to get the warrant issued.
That finding is from a criminal court saying there is enough
evidence to warrant seizure of that item. In addition, the item
itself is subject to forfeiture but not evidence, and he
reiterated that the defendant has the ability to go before the
court under Alaska Rules of Criminal Procedure Rule 37(c) and
ask the court to find for the item ...
2:41:36 PM
REPRESENTATIVE CLAMAN advised Major Chastain that he was not
answering the question. In the event the department is trying
to convict someone of same day airborne hunting, the evidence of
that is typically either there is someone undercover in the
airplane that later testifies they were in the airplane, it
landed and shot the wolf. Or, alternatively, the trooper knows
enough about the snow conditions to determine where the airplane
had to have landed, finds evidence of a kill in that area, and
puts the case together with pictures. He argued that the
airplane itself gives no evidence that the crime occurred
because they don't put GPS tracker in the airplanes telling the
troopers exactly where the airplane went.
MAJOR CHASTAIN responded that he is correct.
REPRESENTATIVE CLAMAN surmised that more often than not the
department does not seize the airplane as evidence of the crime,
but seizes it because the department is allowed, during the
course of the prosecution, to forfeit the airplane as it was the
instrument of the illegal activity.
MAJOR CHASTAIN replied that he is correct.
REPRESENTATIVE CLAMAN explained that the committee is trying to
determine whether it likes the idea that Alaska is seizing
airplanes for the purpose of forfeiture at the end of the case,
as opposed to seizing the airplane because it is evidence itself
of the crime and is needed to prove the elements of the crime to
get the conviction, which is a rare occasion. Usually, he said,
the department seizes the airplane because it is an instrument
of the illegal activity and the department's goal is to forfeit
it.
2:44:03 PM
MAJOR CHASTAIN related there are many reason for seizure and
forfeiture, and in fish and wildlife crimes, one of the main
reasons is deterrents of other violators. He expressed that
deterrents are a big factor, especially with the amount of law
enforcement patrolling Alaska for fish and wildlife cases. He
offered that in remote locations there is not a Wildlife Trooper
for thousands of miles sometimes.
REPRESENTATIVE CLAMAN surmised the reason the department wanted
it forfeited was to send a message to the community that the
department is taking this seriously. He referred to same day
airborne hunting, anyone doing it needs to aware of the risk
they take on, going to court, and also losing their airplane,
which may cause more concern. He extended that if the
department didn't have the right to seize it to be forfeited
later, people would have a tendency to make airplanes disappear
and the state would no longer have an airplane to forfeit at the
end of the case.
MAJOR CHASTAIN answered that he is correct.
2:45:21 PM
REPRESENTATIVE KREISS-TOMKINS asked whether seizure and
forfeiture is effectively used as a deterrent tool.
MAJOR CHASTAIN reiterated there are many reasons for seizure and
forfeiture, and he offered a short list of examples as follows:
deterrents of convicted persons from the commission of future
offenses; protection, safety and welfare of the public;
deterrents of other persons as potential offenders; an
expression of public condemnation of the seriousness or
aggravated nature of the convicted person's conduct; keeping the
offender from benefiting in any way from ill-gotten gains; and
preventing the ill-gotten gains from being used to promote or
build criminal enterprises. He noted that fish and game taken
illegally in the state belongs to the State of Alaska.
Therefore, in regulations and statutes throughout criminal fish
and wildlife law, the item itself, such as the fish or game
taken illegally does not belong to the person - it belongs to
the state. In addition, he said, forfeiture of the fish and
game items themselves are an important part of successfully
enforcing fish and wildlife laws in the state.
2:47:29 PM
PETER SANDBERG, Attorney, said he works with Kevin Fitzgerald
who had to step away, and he is making himself available for
questions.
CHAIR LEDOUX, after ascertaining no one wished to testify closed
public testimony. She advised that she is holding HB 317
because she likes the concept and wants to get the bill right.
[HB 317 was held over.]