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Admin bill to amend forfeiture law tabled in the Senate

Deputy AG Roy Hall and others

Pago Pago, AMERICAN SAMOA — The Senate has tabled an administration bill proposed to amend the forfeiture law, expanding seizure authority to include proceeds from illicit drug transactions.

During a Senate hearing earlier, Deputy Attorney General Roy Hall explained that if drugs are found in a vehicle, that car will be processed under this proposed amendment.

The proposed bill provides a general procedure for forfeiture actions that could be used for a variety of crimes while balancing due process rights of individuals with public safety/ law enforcement objectives.

“Further, the bill also provides for distribution of forfeiture proceeds, including residual funds to the Legislature, and requires reports to the Legislature, Governor, and Territorial Auditor to be published on the ASG website.”

However Senators believe the bill should be tabled as there are a number of issues that need to be clarified including the language, which should be amended.

Hall testified before the Senate last week citing there is a section titled 13.for for forfeiture related to drug substance, or contraband.

“The bill would expand that to property, which would be seized or complicit and involved with the seizure of illegal substances.

“With this bill [it] would create a new section under title 43 chapter 20.

“I would simply explain, this creates a civil asset forfeiture bill; the other means of a forfeiture would be under a criminal forfeiture action,” Hall said.

“We in American Samoa do not have criminal forfeiture statute.

“The executive branch has elected to move forward with a civil asset forfeiture bill and what it does it takes the action for seizure of property associated or found with the discovery and arrests or criminal prosecution of illegal substances.

“It sets a procedure where if there are drugs found in a vehicle, that entire vehicle can be taken, seized and processed, since it’s not a criminal action, there is no constitutional violation of the fourth amendment or double jeopardy.

“And the purpose of this bill is to deter the promoters, distributers and users of illegal drugs from continuing that bad behavior,” explained Hall.

According to the measure, civil asset forfeiture laws are an important tool for depriving criminals of the means that they use to commit crimes and of the proceeds of those crimes.

The preamble of the proposed bill says that funds resulting from civil asset forfeiture can be used to compensate victims and provide needed funds for investigation and prosecution of criminal activity.

“The bill provides a general procedure for forfeiture actions that could be used for a variety of crimes while balancing due process rights of individuals with public safety/ law enforcement objectives,” it says.

Current forfeiture law, states in part, that all controlled substances, which have been manufactured, distributed, dispensed, imported or acquired in violation of local drug law are subject to forfeiture.

Also subject to forfeiture, are all raw materials, products and equipment of any kind, which are used, or intended for use, in manufacturing, compounding, processing, delivering importing or exporting any controlled substance.

Amendments proposed to be added to the forfeiture “property” law include:

•           Any proceeds resulting from a violation of this chapter including, but not limited to, property derived directly or indirectly from, maintained by, or realized through an act or omission relating to criminal conduct and includes any benefits interest, or property of any kind without reduction for expenses incurred for acquisition, maintenance, or any other purpose 

•           Any property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of this chapter 

•           Any interest, security, claim, or property or contractual right of any kind affording a source of influence over any enterprise that a person has established operated, controlled, conducted, or participated in the conduct of in violation of this chapter or the laws of the United States relating to controlled substances that is punishable by imprisonment for more than one year;

•           Any property found in close proximity to any controlled substances or other property subject to forfeiture under this section; and 

•           Any weapon available for any use in any manner to facilitate a violation of this chapter.

The bill also creates the Chapter in the local law — “Civil Asset Forfeiture” — which outlines the procedures for forfeiture, which includes filing a forfeiture lien with the court.

Another provision of the proposed law — “Authority to seize property for Civil Asset Forfeiture — states that any law enforcement officer who has the power to make arrests may seize property that is subject to forfeiture when the officer has probable cause to believe that the property is subject to forfeiture under laws of American Samoa.

Additionally, any law enforcement officer may seize property that is subject to forfeiture pursuant to a search warrant or other orders from a court with jurisdiction in American Samoa.

And if the property that is subject to forfeiture was taken from a person, the law enforcement officer seizing the property shall provide a written receipt (to the person) that provides the date, time, and location of seizure along with a list of property that was seized.

Other provisions of the proposed law require the government to provide burden of proof, or “preponderance of evidence” that the seized property is subject to forfeiture. 

It also provides in detail the disposition of forfeited property.