Allegedly Traded Leniency for Drug Money
It happens every day. Police stop a motorist, find large amounts of cash and seize the money. Now the motorist must prove the money was lawfully obtained, or the police agency may just keep the cash. It is called civil asset forfeiture.
The indictment of Wagoner County Sheriff Bob Colbert on felony charges related to asset seizure highlights a dark underbelly of civil asset forfeitures. Colbert was charged with conspiracy to receive a bribe, receiving a bribe and extortion induced by threats. A grand jury alleges Colbert pressed the limits of civil forfeiture beyond what the law allows.
Critics have long complained that civil asset forfeiture encourages policing for profit. When police budgets depend on proceeds of investigations, police might pursue profits instead of pursuing justice. With Colbert, the charges allege the sheriff profited by not policing.
In court documents, prosecutors allege Colbert and a Wagoner police captain offered to let a driver and passenger off the hook on possession of drug proceeds charges if the pair agreed to surrender cash seized from his vehicle.
The multi-county grand jury simultaneously filed document seeking Colbert’s removal from office on the same allegations, and an additional allegation that he could not account for $440 of a $2,500 cash voucher for undercover operations.
Colbert was first elected Wagoner County Sheriff in 2008 after retiring from a 24 year career with the Oklahoma Highway Patrol. He voluntarily suspended himself from active duty as sheriff about a week after the grand jury petitioned for his removal.
While the indictment provides some assurance prosecutors will go after the most egregious abuses, it might be cold comfort for those who must fight to recover lawfully earned property after more routine forfeitures. So far, there is no evidence the Wagoner County case would have come to light if not for other investigations into the Sheriff’s office.
Did Audit Lead To Civil Forfeiture Investigation?
The indictment followed several months of controversy surrounding the sheriff’s office. In June, 2015, Tulsa’s 2 Works for You – a KJRH-TV news team – investigated allegations that Colbert had ordered deputies to falsify records to show he attended training when he had not.
In July, the TV station reported allegations of nepotism involving a jail administrator whose daughter married a detention officer who was then promoted to report directly to the jail administrator.
Allegations continued to swirl around the Wagoner County sheriff’s office throughout the summer. A routine state audit of Wagoner County finances reported Colbert had spent $6,324.86 of county funds on hats, bracelets, coloring books, and medallions that bore the sheriff’s name. Another $969.16 was spent engraving his name on 40 newly purchased Glock handguns issued to county deputies.
Auditors recommended the county “establish policies and procedures to ensure County funds are not used by elected officials for self promotion.”
The same audit detailed missing drug-buy funds and inadequate drug-buy ledgers, including a $2,500 draw of which $450 was unaccounted for. It appeared to be the same funds the grand jury cited in the Accusation for Removal of the sheriff.
News coverage of corruption allegations in Wagoner County continued through the summer. Based on recordings produced by anonymous sources, the TV news program reported allegations of poorly considered raises and promotions allegedly granted to quiet internal criticism.
Additional controversy swirled around the purchase of radios that cost more and were not compatible with other emergency radios the county used. By September, 2015, reports emerged of grand jury subpoenas for Colbert and several sheriff’s office employees. News organizations speculated about the subject of those investigations.
In January, 2016, the Wagoner County Sheriff’s Office hired a former Tulsa County Sheriff’s Office spokesperson who had been fired in the wake of controversy following the shooting of an unarmed suspect by an elderly volunteer auxiliary officer. Tulsa County Sheriff Stanley Glanz had resigned in September, 2015 after a grand jury indicted him on two misdemeanor counts.
Much like the Wagoner County indictment, Glantz indictment arose from allegations of falsified training records – in his case related to the reserve deputy program. Technically, he was charged with an open government violation. The grand jury alleged he “denied lawful requests for the release of internal investigations of his office’s Reserve Deputy program.”
The other charge against Glantz involves an allegation of drew a $600 monthly travel stipend while using a county vehicle for official travel. It is a safe bet that a grand jury would have never heard of the travel fund stipend if not for allegations of open government violations.. which might not have found momentum if not for a fatal shooting by a 72-year-old reserve deputy… which might not have gained any attention if not for nationwide attention to other fatal police shootings.
Civil Asset Forfeitures Continue Despite Criticisms
Whether a multi-county grand jury would have turned its attention toward improprieties in civil forfeiture if auditors had not questioned a few hundred dollars in missing drug-buy money is anybody’s guess at this time. Nationwide, civil forfeiture programs have been under scrutiny, but so far, scrutiny has done little to slow the pace of civil asset forfeiture.
The U.S. Dept. of Justice in December, 2015 suspended payments from an “Equitable Sharing” program under which the fed could “adopt” property seized by local agencies then “share” a large portion of the proceeds with the local agency. The reason? Budget cuts, according to DOJ statements.
The cuts were not deep enough to keep the program sidelined for more than a few months. In March, 2016, the fed reported that it had continued the program, ostensibly because “the financial solvency of the fund has improved,” according to a DOJ spokesman’s email reported in the Washington Post.
What distinguishes the allegedly unlawful, extortionary seizure of property by the Wagoner County Sheriff from routine civil asset forfeiture was the alleged agreement to release the suspect in exchange for the suspect’s disowning the cash. There is no allegation that the sheriff personally pocketed the money.
Brokered Justice is the Norm
By some analysis, he did what police and prosecutors do every day – reduce or forgo prosecution in exchange for cooperation. Some might say deals involving civil forfeiture are just another kind of plea deal.
The Associated Press in 2011 reported a Shelby County, Texas district attorney had exchanged lenient prosecution for some $800,000 in assets seized from motorists. A class action lawsuit in that instance focused on racial profiling. In a settlement, police officials agreed to more strictly control officer’s conduct during traffic stops.
In 1998, the AP reported a Boston Globe investigation that alleged prosecutors in several Massachusetts counties had exchanged reduced sentences for surrender of assets seized in a civil forfeiture actions.
Civil forfeiture has expanded exponentially since the Comprehensive Drug Abuse and Control Act of 1970 allowed seizure of assets used in the illegal drug trade. A 1978 law permitted seizure of profits from the drug trade. States soon followed with their own laws.
Prosecutors have argued civil forfeiture stops the flow of cash even when individual drug traffickers cannot be prosecuted, but civil forfeiture sidesteps many of the protections associated with criminal law. Most importantly, the burden of proof the government must establish to keep seized property is less than that required in criminal cases. Instead of proof beyond a reasonable doubt, courts in civil cases only consider preponderance of evidence – what is more likely than not.
Some critics say the process shifts the burden of proof from the state to the person whose property the government seized. Rather than innocent until proven guilty, a property owner must often prove the property was obtained lawfully to recover seized assets.
Is Civil Forfeiture a Criminal Sanction?
We would argue that civil forfeiture cannot lawfully be used as a punitive measure, although some legal scholars might argue to the contrary. The difference between seizing criminal proceeds and punishing lawbreakers by taking their property can be difficult to discern. There is, nonetheless, a difference between a fine and a civil forfeiture.
The indictment of a sheriff who allegedly used civil forfeiture as a cudgel in ad hoc roadside justice, however, suggests at least one state attorney generals office is willing to draw a line. The indictment suggests the Oklahoma Attorney General would not allow agencies to accept drug money as an alternative to prosecution.
Considering the momentum of criminal charges and auditor’s findings, we could not offer Sheriff Colbert much encouragement for his career in law enforcement or for his future in an elected office. At trial, though, we wonder whether jurors might be sympathetic to a defense that questions whether brokered justice is as much the rule as an exception.
Courts entertain plea deal agreements in lieu of prosecution every day. Police cut backroom deals, recommending leniency or no prosecution in exchange for testimony or information about other suspected crimes. Prosecutors routinely fund part of their office operations with “supervision fees” from defendants who agree to deferred judgment and less-than-formal probation in lieu of a harsher sentence.
A defendant’s agreement to a deferred judgment and probation can provide prosecutors the evidence they need to claim seized property. It can effectively result in surrendering seized assets in an agreement to avoid criminal liability. It is similar, but not the same was what a grand jury alleges the Wagoner County Sheriff did. Deferred prosecution agreements are approved in court but a judge, not in a booking room of the jail, with a sheriff acting as judge.
We are not saying we endorse a system where asset forfeiture can occur without criminal convictions. We would argue proceeds of illegal activity should only be seized after a person has been found guilty of a crime. We find it difficult to believe the public will allow anything less.
For many people, though, until police barge into their home a mistaken address, allege bread crumbs are drug residue then seize personal items as alleged drug proceeds, there is little reason to believe a program targeted at bad guys can go so wrong. It has happened to a Wirth Law Office client, so know all too well the stress that places on innocent victims. We can only hope prosecution of public officials who abuse the system can bring some clarity to the discussion.
Free Consultation: Tulsa Asset Forfeiture Attorney
If police have seized your property and refuse to return it, contact a Tulsa attorney at Wirth Law Office to find out what you can do about it. If police have offered to drop charges if you agree to let them keep money, they could be criminally liable. For a free consultation with a civil asset forfeiture attorney in Tulsa, call (918) 879-1681 or send your question using the form at the top of this page.