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Asset forfeiture dispute divides appeals panel

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An order transferring to the federal government money seized from a criminal defendant was deemed proper by the Indiana Court of Appeals Thursday, though a dissenting judge said the defendant didn’t even know the order had been issued until nearly two years later.

The majority reversed a Clark Circuit Court ruling that set aside an order to transfer to the Drug Enforcement Administration $8,765 seized in a drugs and weapons prosecution. The order was signed by the judge in Clark Division One Circuit Court though the motion was filed in Division Three.

"The Division One Circuit Court subsequently granted Downey’s motion and issued an order instructing the State to release the funds to Downey or his designee. The Division One Circuit Court issued this order over the State’s objection that the Division One Circuit Court did not have the authority to set aside the order of a different court of equal jurisdiction," Judge Cale Bradford wrote in the majority opinion joined by Judge Patricia Riley.

“In light of the long-standing rule that one court cannot control the orders or process of any other court of equal jurisdiction, we conclude that the Division One Circuit Court abused its discretion in setting aside the order,” Bradford wrote in State of Indiana v. Chase R. Downey, 10A01-1310-CR-432.

The majority also accepted the state’s alternative argument that Downey’s request for return of the money was moot because the state has transferred it to the feds. “While it may seem bothersome that the State may divest itself of the funds by transferring them to someone other than the defendant and now argue that the issue is moot, we must recognize that the federal government is a separate governmental entity and is not a party to this action. As such, we conclude that Downey’s request for the funds is moot as the State cannot produce the funds that it does not possess,” Bradford wrote.

Judge Margret Robb picked apart all of the majority’s holdings and pointed out that while Downey was charged in one court, the motion and proposed order were assigned to a different court and signed by a judge in a third court.
    
At the time Downey was charged in 2011, Clark County had one Circuit Court and three Superior courts. The General Assembly reorganized the system into four Circuit courts in 2012.

“Division One granted Downey’s motion for release of property and also granted his subsequent motion to compel release of property. At that time, neither Downey nor Division One had any knowledge of the transfer order that had been issued over a year before. In April of 2013, Downey filed a motion for rule to show cause because the State had not complied with Division One’s orders regarding the funds. It was not until shortly before a hearing on that motion in June of 2013 that Downey’s defense counsel, with the aid of the deputy prosecuting attorney, was able to track down the transfer order and learn that the funds had been transferred to the federal government pursuant to an order issued nearly two years earlier,” Robb wrote.

“I do not believe Division One abused its discretion in setting aside the order of Division Three,” she wrote. “If one court cannot control the processes of any other court of equal jurisdiction, then neither the (former) Superior Three court nor the (former) Superior One judge should have been issuing orders affecting a Circuit Court case.

“Likewise,” she wrote, “I do not agree with the majority that Downey’s request is moot. The money still exists even if it is no longer in the State’s immediate possession. That the State may need to recover it from the federal government or take other action to provide the relief the court ordered does not make this issue moot.”
 

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  • Looking forward to new legislation
    I am looking forward to Congress considering the bill submitted by Rand Paul that would restrict these asset forfeitures.

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  1. Ah ha, so the architect of the ISC Commission to advance racial preferences and gender warfare, a commission that has no place at the inn for any suffering religious discrimination, see details http://www.theindianalawyer.com/nominees-selected-for-us-attorney-in-indiana/PARAMS/article/44263 ..... this grand architect of that institutionalized 14th amendment violation just cannot bring himself to utter the word religious discrimination, now can he: "Shepard noted two questions rise immediately from the decision. The first is how will trial courts handle allegations of racism during jury deliberations? The second is does this exception apply only to race? Shepard believes the exception to Rule 606 could also be applied to sexual orientation and gender." Thus barks the Shepard: "Race, gender, sexual orientation". But not religion, oh no, not that. YET CONSIDER ... http://www.pewforum.org/topics/restrictions-on-religion/ Of course the old dog's inability to see this post modern phenomena, but to instead myopically focus on the sexual orientation issues, again betrays one of his pet protects, see here http://www.in.gov/judiciary/admin/files/fair-pubs-summit-agenda.pdf Does such preference also reveal the mind of an anti-religious bigot? There can be no doubt that those on the front lines of the orientation battle often believe religion their enemy. That certainly could explain why the ISC kicked me in the face and down the proverbial crevice when I documented religious discrimination in its antechambers in 2009 .... years before the current turnover began that ended with a whole new court (hallelujah!) in 2017. Details on the kick to my face here http://www.wnd.com/2011/08/329933/ Friends and countrymen, harbor no doubt about it .... anti-religious bias is strong with this old dog, it is. One can only wonder what Hoosier WW2 hero and great jurist Justice Alfred Pivarnik would have made of all of this? Take this comment home for us, Gary Welsh (RIP): http://advanceindiana.blogspot.com/2005/05/sex-lies-and-supreme-court-justices.html

  2. my sister hit a horse that ran in the highway the horse belonged to an amish man she is now in a nurseing home for life. The family the horse belonged to has paid some but more needs to be paid she also has kids still at home...can we sue in the state f Indiana

  3. Or does the study merely wish they fade away? “It just hasn’t risen substantially in decades,” Joan Williams, director of the Center for WorkLife Law at the University of California Hastings College of the Law told Law360. “What we should be looking for is progress, and that’s not what we’re seeing.” PROGRESS = less white males in leadership. Thus the heading and honest questions here ....

  4. One need not wonder why we are importing sex slaves into North America. Perhaps these hapless victims of human trafficking were being imported for a book of play with the Royal Order of Jesters? https://medium.com/@HeapingHelping/who-are-the-royal-order-of-jesters-55ffe6f6acea Indianapolis hosts these major pervs in a big way .... https://www.facebook.com/pages/The-Royal-Order-of-Jesters-National-Office/163360597025389 I wonder what affect they exert on Hoosier politics? And its judiciary? A very interesting program on their history and preferences here: https://www.youtube.com/watch?v=VtgBdUtw26c

  5. Joseph Buser, Montgomery County Chief Prosecutor, has been involved in both representing the State of Indiana as Prosecutor while filing as Representing Attorney on behalf of himself and the State of Indiana in Civil Proceedings for seized cash and merchandise using a Verified Complaint For Forfeiture of Motor Vehicle, Us Currency And Reimbursement Of Costs, as is evident in Montgomery County Circuit Court Case Number 54C01-1401-MI-000018, CCS below, seen before Judge Harry Siamas, and filed on 01/13/2014. Sheriff Mark Castille is also named. All three defendants named by summons have prior convictions under Mr. Buser, which as the Indiana Supreme Court, in the opinion of The Matter of Mark R. McKinney, No. 18S00-0905-DI-220, stated that McKinney created a conflict of interest by simultaneously prosecuting drug offender cases while pocketing assets seized from defendants in those cases. All moneys that come from forfeitures MUST go to the COMMON SCHOOL FUND.

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