Court Extends Hope to Jailed Drug Dealers

From a rustic ranch in eastern Orange County, Daniel James Fowlie ran a drug trafficking ring that bundled off bales of marijuana to cities across the nation.

But his drug dynasty began to crumble a decade ago when authorities filed a civil lawsuit to win possession of his Rancho Del Rio headquarters in the Santa Ana Mountains, while Fowlie sought refuge in Mexico.

After Fowlie lost his fight against extradition to the United States in 1990, he was hit with criminal charges. After his conviction, he was fined $1 million and sentenced to 30 years without possibility of parole, virtually guaranteeing that the then 57-year-old drug kingpin would die in prison.

Now, however, Fowlie and other convicted drug dealers are entertaining hopes of walking free--thanks in part to a controversial federal court decision declaring that the government cannot prosecute a drug dealer and seize his assets in separate court proceedings.

Ruling on a legal argument written by a prison inmate, a three-judge panel of the U. S. 9th Circuit Court of Appeals said the double-barreled approach to justice, routinely used by prosecutors against drug dealers, amounts to double jeopardy and is barred by the Constitution.

With the force of a legal earthquake, the ruling has jolted the law enforcement community.

A top Justice Department official said that after the September 1994 decision, a few drug dealers have been released from prison, seized assets have been returned, and several hundred people--convicted of drug dealing, money laundering and other crimes--have asked judges to reverse their sentences or return their property.

Scores more have cited the ruling in asking courts to dismiss pending criminal charges against them. A few have been successful.

“For some, it’s a get-out-of-jail-free card,” said Stefan D. Cassella, deputy chief of the Justice Department’s asset forfeiture section in Washington.

Cassella and other federal prosecutors say the court’s decision has hobbled the government’s war on drugs.

U. S. Atty. Nora M. Manella, the chief federal prosecutor for seven Southern California counties, said the ruling has altered the way that law enforcement agencies prosecute drug dealers.

In the Central District of California, which stretches from San Luis Obispo to Riverside, more than a hundred people have challenged either their convictions or indictments on double jeopardy grounds.

“If this decision stands, it will have an impact on many convictions that have already been secured, and on future criminal litigation nationwide,” Manella said.

Miriam A. Krinsky, who heads the appellate section of the U.S. attorney’s office in Los Angeles, has argued that the 9th Circuit decision--written by Judge Stephen Reinhardt--was wrong. He contends that confiscating a drug dealer’s assets is not punishment, but akin to seizing a bank robber’s loot: He or she never had a right to the stolen cash in the first place.

But a cadre of lawyers--and another federal appeals court-- has sided with the 9th Circuit’s ruling, saying it merely reinforced the centuries-old American legal principle that the government cannot penalize someone twice for the same offense.

Richard J. Troberman, a Seattle lawyer who is co-chairman of the National Assn. of Criminal Defense Lawyer’s forfeiture abuse task force, said federal prosecutors who criticize the appeals court’s ruling are making “much ado over not so much. They are running around like Chicken Little, when very few [convicted] people” are going to be released from prison or have their property returned.

Troberman said a subsequent 9th Circuit ruling, also written by Reinhardt, declares that felons cannot claim to have been penalized twice if they never contested the seizure of their property in the first place. The second ruling effectively precludes about two-thirds of those whose property has been seized from succeeding in their appeals, Troberman said.

Two weeks ago, the U. S. Supreme Court waded into this double jeopardy debate, agreeing to review the 9th Circuit ruling and a similar decision by the 6th Circuit in Cincinnati. The Cincinnati court, which reversed the conviction of a Michigan marijuana grower, said the man already had been punished when the government seized his entire $13,250 net worth in a civil proceeding.

With the Supreme Court’s decision several months away, top prosecutors nationwide say the unresolved issue has cast a cloud over civil forfeiture actions, which they see as one of the most potent weapons in the government’s anti-drug strategy.

For centuries, the government has seized ill-gotten property, ranging from smuggled goods to pirate ships. But during the past decade, prosecutors have used a 1984 federal forfeiture law to step up such actions, raking in more than $4 billion worth of cars, cash, airplanes and other property in civil and criminal forfeitures.

A large portion of those assets have been seized in civil proceedings, in which authorities need only prove that they had “probable cause” to believe that the assets were connected to a criminal enterprise. Once this standard has been met, the burden shifts to the property owner to disprove the government’s case.

Opponents of such civil forfeiture actions maintain that they are often abused by law enforcement officials who have a selfish interest in the seized property. Proceeds from the sale of forfeitures are routinely distributed to the law enforcement agencies that seized the assets.

Legal scholars say the dispute over civil forfeiture has become one of the hottest topics in constitutional law. In this term, the Supreme Court has agreed to review five cases involving forfeiture law, said Jimmy Garule, a professor at Notre Dame Law School.

But few cases have triggered a firestorm like the 9th Circuit’s decision, known as U.S. vs. $405,089.23 in U.S. Currency et. al.

The case involved James Wren and Charles Arlt, who were sentenced to life in prison without parole after being convicted on numerous counts of narcotics trafficking and money laundering.

Prosecutors alleged that the two used a series of front corporations to run a very profitable methamphetamine operation.

Five days after the men were indicted on criminal charges, prosecutors filed a separate civil action to seize $405,089.23 in a Security Pacific Bank account, $123,000 in cash, $8,929.93 in Bank of America accounts, 138 bars of silver bullion, a Bell 47 G-2 helicopter, a Piper 6 Cherokee airplane, two seagoing vessels, including a shrimp boat, and 11 cars, including Porsches and Jaguars.

On April 1, 1993, about a year after the men had been convicted on the criminal charges, prosecutors persuaded a federal judge in Los Angeles to award their assets to the government, saying their goods were the fruits of an illegal drug ring.

From their cell at Lompoc Federal Penitentiary, Arlt and Wren appealed to the 9th Circuit to recover their property.

In his opinion, Reinhardt said prosecutors violated the Constitution’s double jeopardy provisions by obtaining criminal convictions and then pursuing a civil action.

Rejecting the government’s argument that the civil and criminal filings are part of a single, coordinated effort, the judge wrote: “We fail to see how two separate actions, one civil and one criminal, instituted at different times, tried at different times before different fact-finders, presided over by different district judges, and resolved by separate judgments, constitute the same ‘proceeding.’ ”

The decision had an immediate impact.

In San Francisco, a federal judge dismissed 43 felony counts against an accused Oakland heroin smuggler, ruling that authorities already had punished him for drug offenses by seizing his Alfa Romeo car and $4,900 in cash.

In Alaska, federal charges also were dropped against an Anchorage man accused of using his ties to the Cali cartel to ship about 500 pounds of cocaine from Los Angeles and Houston to New Jersey. A judge ruled that the government already had penalized the man, Gerald Frank Plunk, when they seized his cash, firearms, gold and a Rolex watch worth $1,500.

Among those seeking to have their sentences reversed is Fowlie, who lost his Orange County ranch in an odd chain of events that started on a February morning in 1985, when one of his ranch foremen began shooting a gun in the early morning darkness in Laguna Beach.

The commotion brought on police, who found $73,000 in cash and a 50-pound bale of marijuana in the Laguna home where the foreman was staying. The follow-up investigation led police to Fowlie’s remote ranch on a winding dirt road just off Ortega Highway near Ronald W. Caspers Wilderness Park.

Sheriff Brad Gates controlled the ranch for six years and promoted it as a site for a regional drug enforcement training center. In 1989, President George Bush used it as a backdrop for a nationally televised anti-drug speech. The ranch eventually was sold to the Girl Scout Council of Orange County in 1994 for $2.38 million.

Now Fowlie argues that the seizure of his Rancho Del Rio and his criminal conviction years later constitute double jeopardy.

Prosecutors say that even though they are winning nine of 10 cases, appeals such as Fowlie’s are keeping them busy.

“It’s eating up all our time,” Westphal said.

Times librarians Sheila A. Kern and Lois Hooker provided legal research for this article.