It takes certain time, pleading and proof requirements in order to make a currency forfeiture case, and according to one local criminal defense attorney, Montgomery County did not meet those requirements after a drug raid at his client’s home.
On May 1, the Montgomery County Circuit Court ordered the county to return $83,000 seized from a client of Houlon, Berman, Bergman, Finci, Levenstein & Skok law offices after a drug raid at her home.
Managing partner of Houlon Berman and criminal defense attorney Richard A. Finci said the client’s home was raided because there was a search warrant for the premises, though the money that was seized was not on the premises.
Finci said the county can seek currency forfeiture in three cases: if money is profit of drug transactions, if money serves as an instrumentality of drug crimes, or if money is within close proximity of drugs. He said money used as instrumentality serves a functional purpose in drug crimes, like money used to buy drugs. An example of a close proximity case is if the county seizes money from a drug dealer who has cash in one pocket and drugs in the other.
In this case, he said, the county had no basis for forfeiting his client’s money.
“They lacked proof that it was proceeds or instrumentality and it was clearly not in any close proximity to drugs because it was in a bank,” Finci said.
After the drug raid Finci’s client was charged with felony drug charges, but the charges were dropped and the case dismissed. The problem came after that.
Finci explained that procedurally, the county must file a petition within 90 days of the final disposition of any case that rose out of the forfeiture. If the county does not seek forfeiture, the defendant has nine months to seek return of the money, as at that point there is no basis for the county to keep the money.
“They re-charged her in a criminal summit,” Finci said. “They can’t use that to obtain a new 90 days under the forfeiture law. A few weeks later, they dismissed the new charges. Then they filed a forfeiture within 90 days of the dismissal of the second set of charges, of the un-served summons that they re-charged her with.”
A year after the final disposition of a currency forfeiture case, the money is forfeited outright. In those cases, Finci said the money often goes into a law enforcement fund.
“I’ve seen it used for cool new police equipment and things of that nature,” Finci said.
Finci said the court never got to the other problems with the case – like the county’s lack of proof that the money was proceeds of, instrumental in obtaining or within close proximity to drugs – because it was dismissed when the court found the county had failed to file a petition within the correct time frame.
“My position was that you must file your petition within the first 90 days of that original final disposition,” Finci said. “The immediate reason for the return was that they had not filed their petition in time.”
Finci said the impact of a felony drug charge conviction can vary.
“To a judge, if you’re convicted of a felony drug charge…for marijuana it’s five years, for cocaine or heroin it’s a 20 year sentence potentially,” he said. “Clearly it’s a serious charge.”
Finci said he hopes the effects of this case will make the county do better in the future.
“It’s wrong to keep people’s money when they don’t have the evidence for the case,” Finci said. “I hope the county attorney sees that they should return the money. It costs everybody a lot of time and money and takes up a lot of court time when they should just return the money, in my opinion. That’s what I hope (this case) does. Whether or not it does remains to be seen.”