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Thread: Dan Druff's Guide to Gamblers and Civil Forfeiture

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    Dan Druff's Guide to Gamblers and Civil Forfeiture

    Earlier today, I realized that the players at the Pokerstars PCA in the Bahamas would be in danger on their flight home. Or, more accurately, their money will be in danger. That's because flights to the US from the PCA have long been the target of US Customs and the FBI, which have seized cash from poker pros who committed no crime. Additionally, many of these players were carrying under $10,000, and thus were not under any requirements to report the cash they were bringing back into the country. I fired out this tweet to warn people:

    https://twitter.com/#!/x/status/1617693920774991873


    I was surprised that some people responded with claims that I was exaggerating, or that this simply was not a problem at all. Others felt that you could avoid the heartbreak of civil forfeiture simply by declaring the money you're bringing in the country. Even others thought that this will never happen if you're carrying less than $10k.

    I realized that there was a lot of confusion regarding civil forfeiture, exactly what it is, and why US law enforcement has the right in many jurisdictions to grab your cash at any time for any reason. This post will help you understand civil forfeiture, and how it applies to gamblers and poker players.



    What is Civil Forfeiture?

    Civil forfeiture is the act of US law enforcement seizing property or cash from private citizens, based upon their suspicion that the property or cash was acquired through criminal activities. This does not require a warrant, court order, or conviction. Under civil forfeiture laws, law enforcement can simply take your stuff, and it requires a tremendous effort (usually involving expensive lawyers) to get it back.

    Civil forfeiture began in 1983, as part of the War on Drugs. It began under a reasonable premise. Often known drug dealers would be caught with large amounts of cash on them -- sometimes millions -- which clearly were proceeds from criminal activity. However, without proof that the money had been acquired via criminal activity, the government could not seize it. Civil forfeiture law allowed the government to confiscate money or property from suspected criminals, and the criminals would have to show in court how they legally acquired it in order to get it back. This sounds like a good thing, but like many well-intentioned laws, it eventually became abused. Within a short time, civil forfeiture was perverted into legalized theft against ordinary citizens.

    Despite it originating 40 years ago, the father of civil forfeiture is a very familiar figure today. It was a young Senator named Joseph Biden, who introduced the Comprehensive Forfeiture Act into law that year. With this law, federal agents had nearly unlimited powers to seize assets from private citizens, and it became official in 1984. Then, in 1984, the Comprehensive Crime Control Act was introduced, which allowed federal agents to work with local police to engage in civil forfeiture, and thus sharing the proceeds. This became known as "equitable sharing", and allowed federal forfeiture laws to supersede any local or state protections against abuse of these seizure powers. The equitable sharing law took effect in 1986, and civil forfeiture went off the rails. It quickly became more about legalized theft than a sincere effort to combat drug dealers.

    In the 2010s, the Comprehensive Crime Control Act was reversed, but it was put back a few years later. We are still just as vulnerable to civil forfeiture today as we were in 1986.




    Why Would the Government Target Ordinary Citizens Like Me?

    Growing up, we were taught that if we haven't broken the law, we have nothing to fear regarding law enforcement. In most cases this is true, but civil forfeiture is a clear exception. The problem spawned from the government's discovery that civil forfeiture didn't need to be limited to grabbing cash from real criminals. They had the power to take cash from anyone who happened to be holding it, so if the police department, the town, or the county is strapped for cash, why not use this as a fundraising source?

    And indeed, that's exactly what's been happening. It is quite burdensome and expensive to get back cash seized via civil forfeiture. The legal fees will almost surely cost you $10,000 or more, which makes it impractical to hire an attorney to fight seizures of smaller amounts, such as $8000. This allows law enforcement to stop people on highways or at airports, claim a phony "drug money suspicion", and count on it being too expensive to legally fight.

    Even in cases where the money seized is large enough to worth fighting in court, the entire process is still quite slow, expensive, and burdensome.

    Local governments, and in some cases the federal government, do not feel any guilt stealing your hard-earned cash. Their position is that anyone driving or flying with thousands of dollars in cash is likely up to no good, and therefore you are undeserving of any rights or consideration. They are not ignorant to the fact that most of the "drug money seizures" via roadside and airport civil forfeiture isn't really drug money. They just assume you must be shady if you have such cash with you, and therefore their conscience is clean when taking it.



    What Legal Standard Allows Them to Take My Money?

    It is true that, even under civil forfeiture law, the government can't just take your money because they want to. There has to be some legal justification. Unfortunately, the law is written in such a fashion to where it is incredibly easy to falsify "suspicion" of your money being drug money, thus allowing the legal seizure of it.

    Studies have shown that 80-90% of cash bills have small traces of cocaine on them, due to either their usage in drug trade, proximity to drug usage, or actual usage for snorting cocaine. This allows drug sniffing dogs to smell drugs on any stack of bills you're carrying, thus authorizing their seizure.

    Again, police are very aware that almost all of these "dog sniffed bills" are false positives for the money actually being from drug deals. However, they don't care. As was explained above, the goal is to acquire funding for government coffers and police departments.

    In many jurisdictions, the legal standard for seizure is "preponderance of the evidence". This is a fancy term for "50.01% certain", and is a FAR lower standard than what is required for criminal conviction, which is "beyond a reasonable doubt" -- meaning almost 100% certain. This creates a tremendous gap between the standard for which your money can be seized, and the standard for which you can be convicted of any crime! Therefore, the government can easily seize your cash, even if no criminal case against you could ever hold up, and even if it's clear you've done nothing wrong.

    Do any states have laws against this shady forfeiture scheme? Yes, many do. Unfortunately, that's where this equitable sharing bullshit comes into play, in order to circumvent that. Federal forfeiture laws only require preponderance of the evidence to do seizures. If a federal agent is involved with the "investigation", then federal laws supersede any state laws on the matter. Many towns and counties have a federal agent on standby to "assist with the investigation", and turn it into a federal matter. Once that happens, any protection provided by the state is out the window.




    How Do They Determine Who Is Carrying Cash on the Road?

    Most people do not carry thousands of dollars in cash with them while driving, even when on road trips. How do the cops magically know who to stop?

    They usually don't know for certain, but they have their ways to deduce this at a good clip. First off, they almost always target vehicles with out-of-state license plates. Why? Locals aren't as likely to be traveling on highways with a lot of cash. However, people from out of the area are far more likely to be doing so, whether it's because they're driving to or from a gambling venue, driving to buy something expensive, or moving. They will manufacture a false reason to pull people over (often falsely claiming the driver was speeding for failed to use a turn signal), and ask questions of the driver. If the driver admits to having thousands in cash, they will almost always seize it. If the driver does not admit to having cash, they will still sometimes search the vehicle, utilizing a drug sniffing dog to find the hidden cash.

    In a few cases, they will get a tip. In one case, a casino (Harrah's Joliet) was so mad at two casino advantage players who had beaten them, that they tipped off police across the country that these two guys would be carrying a lot of cash, and they were stopped in Iowa, with their entire $120k seized. The casino reported 4 other players two weeks later, one of whom got $400k seized by a different department in Arizona.

    Roadside seizures of less than $2,000 are rare. There is a certain legal burden the government takes on, so amounts under $2k are usually seen as not worth it.




    What About Airports?

    Civil forfeiture is common at airports, as well, especially involving international travel.

    Airports already have federal customs agents present 24 hours a day, and the FBI is never far away. In some cases, the civil forfeiture operations at airports are strictly done by the federal government. In other cases, it's a combination of local and federal authorities working together to steal money of landing airline passengers.

    In 2006, Gina Fiore and Keith Gipson, both of whom were combination poker pros and casino advantage players, had $97k seized at Atlanta airport, when on the way back to Las Vegas from Puerto Rico. They eventually recovered the funds, but it was a tremendous hassle, and it took a good deal of time. In their case, the federal agent who seized the money actually falsified documents in order to justify keeping it, and he never suffered any consequence for it!

    Federal agents have also been targeting flights from the Pokerstars PCA in the Bahamas, which took place every January for many years, and now has returned for 2023. After realizing that many on these flights will be carrying a lot of cash, customs started pulling a lot of people aside, inspecting their luggage and carryons, and seizing all cash. It is very important to travel with less than $2000 cash if returning from the PCA, as this is the most commonly targeted group of flights for civil forfeiture.



    CONTINUED NEXT POST...

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    If I Follow Customs Cash Declarations Requirements, Am I Safe At Airports?

    One of the most common misconceptions about civil forfeiture is that it's related to the $10,000+ cash reporting requirement. This requirement has long existed, and requires you to disclose on your customs form that you are carrying over $10k in cash (or cash equivalent).

    Many erroneously believe that if they simply fill out the form honestly, and admit they are carrying over $10k, their money won't be seized. Others believe that their money won't be seized as long as they travel with less than $10,000. Both of these assumptions are FALSE!

    Civil forfeiture occurs when the government seizes money they "believe" was used in criminal activity. The forfeiture for failing to disclose that you're carrying $10k+ is an entirely separate reason for forfeiture. Thus, following disclosure requirements does not protect you from civil forfeiture. The government agent will simply say, "Sure, you don't have to declare $8,000 cash, but our dog smelled drugs on your cash! We suspect this is drug money, and we're taking it!"

    This happened to a lot of people flying back from the PCA, over the years. Younger people were especially targeted, as they were assumed to be naive regarding how to fight civil forfeiture, and would be more willing to simply let the money go. However, middle-aged and older people were also targeted, albeit not as often.




    Coercion to Sign Forms Authorizing the Money Seizure

    Picture this. You're pulled over by small town cops in the middle of nowhere, or perhaps detained by Customs or the FBI at the airport. They're accusing you of carrying drug money, and insisting that it will be an open-and-shut case against you because of their dog finding residue. Sure, you know you're innocent, but miscarriages of justice happen all the time. What if you end up serving years in prison for a crime you didn't commit? Obviously it's an incredibly stressful situation to be facing.

    Knowing this, often law enforcement will present you with a paper to sign. The paper promises not to charge you for the crimes of which you're suspected, but states that you are agreeing to the forfeiture and will not challenge it. You're told that you have one and only one chance to take this deal, or otherwise prosecution is likely. Do you sign it?

    Unfortunately, many people do, especially if the amount of money is something like $8,000. It's simply not worth it to most people to gamble with beating a criminal charge, even one where they are 100% innocent. But what if you do sign it? Does that mean you're screwed?

    Not necessarily. A good attorney can make the case that you were coerced into signing the paper, and did not have legal representation at the time it was presented to you. Courts are very aware of these civil forfeiture tricks, and often will disallow or mostly disregard these statements during the hearing to get the money back.

    It is best to refuse to sign the paper. Civil forfeiture stings are meant to acquire money, not put people in jail. You can simply state that you are innocent and do not agree with the forfeiture, and do not wish to sign anything. It is unlikely they will arrest you. In fact, if they do, you could later sue them for false arrest, and very possibly win.




    What If I Have Proof Where the Money Came From?

    Imagine you just won $95k at a poker tournament, and are driving home. You get pulled over, the cops search your car after their "drug dog" picks up a scent, and they tell you that your $95k cash is likely drug money.

    You then produce a receipt from a licensed casino showing that you just won that $95k the day before. How could the cops possibly justify taking it at that point?

    The bad news is that they can -- and often will. Your ability to produce the legal source of the cash will bode great for your chances in court, but not out on the road with the cops looking to seize money. They can claim that they suspect your receipt is fake, or that they still believe the money was acquired via drug sales, and that you simply carried additional cash along to mimic the amount you had just won. No matter what you show them -- casino receipts, bank statements, or any other proof -- they will almost always seize your cash anyway.

    This is true both for airports and highway stops.




    Are There Certain Highways or States to Avoid?

    Yes. Certain states and highways are notoriously bad regarding roadside civil forfeiture. I-80 is particularly bad for hundreds of miles east and west of Reno, especially to the east. This is because they expect gamblers will be traveling to and from Reno on this highway. Iowa is notoriously aggressive with civil forfeiture, especially on highways which lead to and from casinos. Arizona and Oklahoma also engage in civil forfeiture stops fairly often.

    You might be wondering about the well-traveled route on I-15 between Los Angeles and Las Vegas. Wouldn't that be a goldmine for civil forfeiture? Yes, but surprisingly, civil forfeiture stops on I-15 between LA and Vegas are incredibly rare. This is presumably due to influence by the powerful corporate forces in Las Vegas. If word got around that gamblers' money was being taken by law enforcement between LA and Vegas, it would severely harm the tourism and gambling industry in Vegas, as many would-be visitors would be scared to make that otherwise easy 300-mile drive. For that reason, this route is mostly left alone, except in specific cases where they tend to be looking for something.




    What Can I Do to Avoid Being a Victim of Civil Forfeiture?

    1) Do not carry more than $2,000 cash when flying back from the Pokerstars PCA in Bahamas.

    2) Do not carry more than $10,000 cash when flying anywhere else, even though you are allowed to do this without declaring if flying domestically.

    3) At airports, carry your cash in a light jacket, if it will fit. If you have "TSA Precheck", you can keep the jacket on without emptying the pockets, and your cash will never be seen. This is not illegal if you are flying domestically, and is still legal for international flights, provided you declare the cash whenever you cross country lines. If the cash will not fit in your jacket, put it in your carryon bag. It is less likely to be reported by TSA if there, compared to checked luggage, and also far less likely to be stolen.

    4) If you do have over $10,000 and are flying internationally, always declare the cash. If you don't, they will seize it and you will have no recourse. Again, this will not prevent civil forfeiture, but it will prevent a seizure which will hold up in court.

    5) Never sign any papers agreeing to let them keep the money. You will almost never go to jail for refusing to sign it, no matter how aggressive they seem in their demands.

    6) If pulled over on the road with cash, never volunteer that you have it, and never state that you're driving to or from a casino. Plan beforehand a story as to where you are going. It can be anywhere, such as visiting family or sightseeing. Just make sure you have memorized it beforehand. However, if asked if you have cash, tell the truth. Do not give them a possible reason to arrest you. If they're asking about cash, they are probably going to bring out the dog to search the car anyway, so there's no point to lie.

    7) Always have receipts easily available as to where your cash came from. If you do not have such receipts (such as cash you've been holding for a long time, from long-accumulated gambling winnings), consider making a cash withdrawal from your bank prior to the trip, equivalent to what you're bringing, and then bring that receipt. If the amount is under $10,000, it is less of a big deal that you don't have receipts, as you can simply say that this is your gambling bankroll which you keep in cash at home for such trips. However, again, do not talk about gambling or casinos until they ask about or find the cash you're carrying.

    8) Be especially mindful NOT to drive with a lot of cash in the "forfeiture hotspot" areas which I mentioned above. Some areas are far worse than others.

    9) If you need to get a lot of cash from place to place, see if you can do a bank wire to the casino you're visiting. Then wire the money back when you're done. You also might want to get accounts at major banks (Wells Fargo, Chase, Citibank, B of A, US Bank), as it's somewhat likely there is a branch at your destination, and you can simply withdraw the cash there (and deposit it when done), provided you give them sufficient notice to have such cash on hand.

    10) Do not argue with the law enforcement agent taking your money. Yes, it's outrageous and legalized theft, but your objections will just piss them off further, and they'll make things difficult for you. Politely and firmly assert that you're innocent, and that you can prove it. You can state that you will be hiring a lawyer to get the funds back, even if it results in a net loss for you. You can also state that you are close friends with a lawyer who will likely help you pro bono to get your money back, even if that's not true. There is a small chance that they will not seize the money if they feel there's a good chance you will fight vigorously to get it back. However, in most cases your rhetoric will be meaningless, so keep it short, polite, and don't rant or get angry. Keep your arms down while speaking. Do not give anyone a reason to arrest or beat you.



    CONCLUDED NEXT POST...

     
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      Cerveza Fria: Key point - NEVER SIGN THE FORFEITURE FORM. ALSO TAKE EVERYONE'S NAME DOWN WHO IS INVOLVED WITH THE CIVIL FORFEITURE SO YOU KNOW WHO TO SUE FOR CONVERSION AND/OR CIVIL THEFT

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    My Money Got Taken -- What Now?

    No matter how grim they make it sound regarding your chances to recover the money, you actually have a pretty good chance of success. However, it might be expensive, and it clearly doesn't make sense to hire an attorney if the amount is low 4-figures. For smaller amounts, you can still try to go at it yourself, as sometimes the court will take pity on you and rule that the money must be returned. For larger amounts, you should hire an attorney experienced in civil forfeiture matters.

    You also might want to contact the Institute of Justice, and see if they can help you. This is a great charity which provides pro bono (free) legal representation to ordinary citizens victimized by government overreach. Many of their cases involve civil forfeiture. They're very good at what they do, and it won't cost you a penny. Obviously they only have limited resources, and won't take a lot of cases. However, it's worth contacting them and giving them full details, as there is a chance they will select your case as one where they will help. I am not affiliated with Institute of Justice in any way, but I very much believe in what they're doing, and have donated money to them.

    Most importantly, do not blame yourself. Many victims of civil forfeiture eventually rationalize that it was somehow "their fault" for having carried around a lot of cash, and that the government was simply attempting to do its job and fight drug trafficking. This is false. The government is very aware that they are stealing from ordinary citizens, and they don't care. Use every legal tactic available to recover that money!



    Why Is Civil Forfeiture Still Legal?

    Given that civil forfeiture was perverted into legalized theft over 30 years ago, why is this still happening so often? Should we blame the Democrats? After all, Joe Biden started the entire thing in 1983! Or maybe we should blame Republicans and their stupid War on Drugs?

    The truth is that neither party is to blame. In fact, most politicians on both sides of the aisle OPPOSE civil forfeiture, and would like to see it abolished.

    Why hasn't it been? Because there hasn't been enough attention brought to the issue. It's too easy to dismiss as something where shady people and drugs dealers are demanding the government give their seized cash back, but the reality is that this largely impacts ordinary, law abiding citizens. Hopefully there will be a high profile civil forfeiture story at some point, which will change the law.

    How could the law be changed to protect people? Civil forfeiture could either be completely abolished, or it could be modified to where there's a high minimum seizure amount ($100k would be a good number), and a change in federal law requiring that all civil forfeitures require an evidentiary standard of "clear and convincing evidence", rather than preponderance. Making these two changes would almost completely end all civil forfeiture abuse, yet allow it to still be properly utilized to target actual criminals. The law could still allow seizure of property in the case of arrest, with its automatic return if a conviction is not achieved.



    Why Does Civil Forfeiture So Prominently Affect the Gambling and Poker Communities?

    We carry a lot of cash from place to place. Most people don't. Not all civil forfeiture abuses victimize gamblers, but our community is victimized at a tremendously higher rate than the rest of the population.

    In fact, many of these civil forfeiture stops are purposely located on routes to and from casinos, as stated earlier.




    Where Else Can I Read About Civil Forfeiture?

    You can google "civil forfeiture", "civil forfeiture abuse", or "civil asset forfeiture" and you will find a ton of ugly news stories about people victimized. You may also want to watch this piece from John Oliver. While I am not a big fan of Oliver's politics, he did a great job with this segment:


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