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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. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

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