Appendix — Arkansas Highway Police v. Crittenden County Prosecuting Attorney's Office

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(d) Property taken or detained under this

section shall not be subject to replevin, but is

deemed to be in the custody of the director or

seizing law enforcement agency subject only to

the orders and decrees of the circuit court having

jurisdiction over the property seized.

(Emphasis added.)

This statute vests authority for disposition of seized

property in the circuit court. We find the holdings and rationale

of the Seventh and Fifth Circuits persuasive. Although not binding

on this Court, those decisions offer compelling reasoning for our

holding that absent an order of the appropriate circuit court,

transfer of seized property by the seizing law enforcement agency

is invalid. While we disagree with and reverse the trial court’s

finding that the Crittenden County Prosecutor’s Office was the

seizing law enforcement agency, we affirm the court’s attempted

exercise of jurisdiction over the seized property pursuant to § 5-

64-505. Appellant raises many issues on appeal but these issues

are essentially resolved by our interpretation of § 5-64-505 to be

a “turnover” statute. Accordingly, we affirm the trial court in

part and reverse it in part.

Affirmed as modified.

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If. OTHER RELEVANT OPINIONS,

ORDERS, FINDINGS OF FACT, AND

CONCLUSIONS OF LAW ENTERED IN

THE CASE

CIRCUIT COURT OF

CRITTENDEN COUNTY, ARKANSAS

State of Arkansas Plaintiff

V.

$3,166,199 U.S. Currency Defendant

Roberto V. Zamarripa

Omar Saenz Claimants

Order

(Filed March 18, 1998) R. 25.

On this 17th day of March, 1998, comes before the

Court, the Plaintiff, by and through its attorney, James C. Hale,

III, and from the statements of counsel, and the facts before the

Court, the Court doth find:

That on March 7, 1998, Three Million One Hundred

Sixty Six One Hundred Ninety Nine [sic] ($3,166,199.00) in

U. S. Currency was seized for violation of Arkansas Code

Annotated § 5-64-505 by the Arkansas Highway Police in

Crittenden County, Arkansas. R. 25.

That the above-mentioned U.S. Currency was removed

by the Arkansas Highway Police from Crittenden County,

Arkansas and forwarded to the Arkansas Highway Police

Headquarters located in Little Rock, Arkansas. R. 25.

All

That the Arkansas Highway Police is hereby Ordered

to deposit said currency in a Federally Insured Depository and

said U.S. Currency is to be wired into P.A. Drug Asset Holding

Account located at the Citizens Bank in Marion, Crittenden

County, Arkansas bearing account number 189100 and

forwarded within ten (10) days of the issuance of this Order.

R. 25.

IT IS SO ORDERED this 17th day of March, 1998.

/S/ David Burnett, Circuit Judge

CIRCUIT COURT OF

CRITTENDEN COUNTY, ARKANSAS

State of Arkansas Plaintiff

V.

$3,166,199 U.S. Currency Defendant

Roberto V. Zamarripa

Omar Saenz Claimants

Order of Forfeiture

(Filed April 20, 1998) (R. 125)

Now on this 20th day of April, 1998, comes the Plaintiff,

the State of Arkansas before the Court, by and through its |

attorney, James C. Hale, III, and in seeking an Order of |

Forfeiture, this Court finds: |

1. That the State of Arkansas seeks forfeiture of |

$3,166,199 dollars in U. S. Currency pursuant to Arkansas Code

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Annotated Section 5-64-505, and this action was commenced

pursuant to Arkansas Code Annotated Section 5-64-505.

2. That the above-referenced U. S. Currency were

seized by the Crittenden County Prosecuting Attorney’s Office

from Roberto V. Zamarripa for violation of A.C.A. 5-64-505

on March 7, 1998. in Crittenden County, Arkansas.

3. That this Court has In Rem Jurisdiction pursuant to

Arkansas Code Annotated § 5-64-505 et seq.

4. That claimant Roberto V Zamarripa had waived

any interest he may have in the $3,166,199 dollars in U. S.

Currency and agrees to forfeit said monies to the Crittenden

County Prosecuting Attorney’s Office.

5. That jurisdiction is proper in the Circuit Court of

Crittenden County, Arkansas pursuant to Arkansas Code

Annotated § 5-64-505 et seq.

6. That any interest that Roberto V Zamarripa has in

the $3,166,199 dollars in U. S. Currency is forfeited to the

Crittenden County Prosecuting Attorney’s Office.

WHEREFORE IT IS BY THE COURT CONSIDERED.

ORDERED AND ADJUDGED that any interest of Roberto V.

Zamarripa in the $3,166,199 dollars in U. S. Currency is hereby

forfeited to the Crittenden County Prosecuting Attorney’s

Office. R. 125.

IT IS ORDERED this 20th day of April 1998.

/S/ David Burnett, Circuit Judge

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APPROVED AS TO FORM:

/S/ James C. Hale, III, Attorney for Plaintiff

/S/ Bart Ziegenhorn, Attorney for Claimant, Public Defender

/S/ Roberto V. Zamarripa, Claimant

CIRCUIT COURT OF

CRITTENDEN COUNTY, ARKANSAS

State of Arkansas Plaintiff

v.

$3,166,199 U.S. Currency Defendant

Roberto V. Zamarripa

Omar Saenz Claimants

Order of Forfeiture

(Filed April 24, 1998) (R. 127)

Now on this 24th day of April, 1998, comes the Plaintiff,

the State of Arkansas before the Court, by and through its

attorney, James C. Hale, III, and Omar Saenz and H & WwW

Trucking, Inc., by and through their attorneys, Chad Durrett

and John L. Alden, in seeking and Order of Forfeiture, this Court

finds:

1. That the State of Arkansas seeks forfeiture of

$3,166,199 dollars in U. S. Currency pursuant to Arkansas Code

Annotated Section 5-64-505, and this action was commenced

pursuant to Arkansas Code Annotated Section 5-64-505.

2. Thatthis Court has In Rem Jurisdiction pursuant to

Arkansas Code Annotated § 5-64-505 et seq.

ae,

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3. That the above-referenced U. S. Currency were

seized by the Crittenden County Prosecuting Attorney’s Office

from Roberto V. Zamarripa for violation of A.C_A. 5-64-505

on March 7, 1998, in Crittenden County, Arkansas.

4. That Omar Saenz is not Claiming any interest in

the $3,166,199 dollars in U. S. Currency and waives all rights

to said moneys.

5. That H & W Trucking, Inc. is not claiming any

interest in the $3,166,199 dollars in U. S. Currency and waives

all rights to said moneys.

6. That any interest Omar Saenz has in the $3,166,199

dollars in U. S. Currency is forfeited to the Crittenden County

Prosecuting Attorney’s Office.

7. That any interest H & W Trucking, Inc. has in the

$3,166,199 dollars in U. S. Currency is forfeited to the

Crittenden County Prosecuting Attorney’s Office. R. 128.

8. That Claimants waive any right to or cause of action

against Plaintiff or any of Plaintiff’s agencies, employees, or

representatives that he or his assignees have or may have in

any Court stemming from the March 7, 1998 seizure.

IT IS THEREFORE CONSIDERED, ORDERED, AND

ADJUDGED that Omar Saenz and H & W Trucking, Inc. may

have in the seized $3,166,199 dollars in US. Currency is

forfeited to the Crittenden County Prosecuting Attorney’s

Office.

IT IS SO ORDERED this 24th day of April, 1998.

/S/ David Burnett, Circuit Judge

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APPROVED AS TO FORM:

/S/ James C. Hale, III, Attorney for Plaintiff

/S/ Chad Durrett, Attorney for Claimant, Omar Saenz

/S/ John L. Alden, Attorney for Dino Ghiloni,

H&W Trucking, Inc., and Omar Saenz

CIRCUIT COURT OF

CRITTENDEN COUNTY, ARKANSAS

State of Arkansas Plaintiff

V.

$3,166,199 U.S. Currency Defendant

Roberto V. Zamarripa

Omar Saenz Claimants

Order of Forfeiture

(Filed April 24, 1998) (R. 129)

Now on this 24th day of April, 1998, comes the Plaintiff,

the State of Arkansas before the Court, by and through its

attorney, James C. Hale, III, in seeking an Order of Forfeiture,

this Court finds:

1. That the State of Arkansas seeks forfeiture of

$3,166,199 dollars in U. S. Currency pursuant to Arkansas Code

Annotated Section 5-64-505, and this action was commenced

pursuant to Arkansas Code Annotated Section 5-64-505.

2. That this court has In Rem Jurisdiction pursuant to

Arkansas Code Annotated § 5-64-505 et seq.

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3. That the above-referenced U. S. Currency were

seized by the Crittenden County Prosecuting Attorney’s Office

from Roberto V. Zamarripa for violation of A.C.A. 5-64-505

on March 7, 1998, in Crittenden County, Arkansas.

4. That on March 20, 1998, a complaint was filed in

the present case seeking forfeiture of the $3,166,199.

5. That on March 20, 1998, the complaint in this cause

of action was served upon Roberto V. Zamarripa, the individual

being in possession of the $3,166,199 dollars in U. S. Currency.

6. That on April 20, 1998, Roberto V. Zamarripa

entered into an Order forfeiting any interest he may have in the

$3,166,199 in U. S. Currency to the Crittenden County

Prosecuting Attorney’s Office.

7. That Omar Saenz,.the owner of the vehicle

transporting the U. S. Currency entered into an Order forfeiting

any interest that he may have in the $3,166,199 dollars in U.S.

Currency to the Crittenden County Prosecuting Attorney’s

Office. R. 130.

8. That H&W Trucking, Inc., the owner of the vehicle

transporting the $3,166,199 dollars in U. S. Currency has entered

an order forfeiting any interest that it may have in the said

currency to the Crittenden County Prosecuting Attorney’s

Office.

9. That on March 20, 1998, a Warning Order was

issued by the Circuit Clerk of Crittenden County, Arkansas,

warning any person claiming any right, title, or interest in the

$3,166,199 dollars in U. S. Currency to appear within thirty

(30) days from the first date of publication or be barred from

asserting an interest in the U. S. Currency.

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10. That the Warning Order was first published on

March 23, 1998, and again on March 30, 1998, in the Evening

Times Newspaper, a newspaper of general circulation in the

area of the seizure, and thirty (30) days have elapsed since the

first date of publication.

11. That the Plaintiff has forfeited all known parties

that may have had interest in the $3,166,199 dollars in U. S.

Currency and has made due and diligent efforts to locate any

other claimants.

WHEREFORE THE COURT DOTH FIND that the

$3,166,199 dollars in U. S. Currency is forfeited to the

Crittenden County Prosecuting Attorney’s Office pursuant to

Arkansas Code Annotated § 5-64-505. That the $3,166,199

dollars in U. S. Currency is to be deposited into the Crittenden

County Prosecuting Attorney’s Drug Asset Forfeiture Fund

Holding Account pending further orders of the Court.

IT IS SO ORDERED this 24th day of April, 1998.

/S/ David Burnett, Circuit Judge

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CIRCUIT COURT OF

CRITTENDEN COUNTY, ARKANSAS

State of Arkansas Plaintiff

v.

$3,166,199 U.S. Currency Defendant

Roberto V. Zamarripa

Omar Saenz Claimants

Order

(Entered May 8, 1998) R. 147

On April 1, 1998, this matter came before the Court.

Same is presented by Arkansas Highway Police, through their

attorney, Bill Wharton, and the Crittenden County Prosecuting

Attorney’s Office, through their attorney, James C. Hale, III,

the Court being well advised in the premises and after argument

of counsel and review of the authorities, makes the following

findings of fact and law-

1. Plaintiff’s Motion io Dismiss the Arkansas Highway

Police as parties because they are not properly before the Court

is denied. The Arkansas Highway Police filed numerous

pleading, introduced evidence and testimony from witnesses at

the hearing in this matter. The Arkansas Highway Police are

made parties to this case and are subject to the jurisdiction of

‘this Court.

2. The Court finds that there was not substantial

evidence presented to the Court that there was a pending Federal

forfeiture prior to this Court obtaining jurisdiction and the Court

finds that it has jurisdiction of this forfeiture proceeding.

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3. The Court makes a factual finding that although

the Arkansas Highway Police did initially take possession of

the money, based upon the facts presented, the Prosecuting

Attorney’s Office is the seizing agency for purposes of this

forfeiture proceeding. R. 147.

4. The Court finds that the Arkansas Highway Police

has not provided this Court with authority giving them the

discretionary power to direct State forfeiture cases to the federal

authorities. The Arkansas Highway Police had no authority to

direct the forfeiture proceedings of the $3,166,199 to the federal

government. The Court further finds that the Arkansas Highway

Police has no authority to object to the present State forfeiture

action and the objection was filed merely to circumvent State

statutes regarding the disbursement of forfeited funds. R. 148.

5 The Court makes a finding of fact that the Crittenden

County Prosecuting Attorney’s Office did not waive its nghts

to pursue this forfeiture this being totally inconsistent with the

facts presented.

6. The Court finds that since the Arkansas Highway

Police does not have possession of the $3,166,199 that it cannot

comply with the Court’s March 18, 1998 Order.

IT IS SO ORDERED.

/S/ David Burnett, Circuit Judge

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CIRCUIT COURT OF

CRITTENDEN COUNTY, ARKANSAS

State of Arkansas Plaintiff

Vv.

$3,166,199 U.S. Currency Defendant

Roberto V. Zamarripa

Omar Saenz Claimants

Judgment

(Entered July 16, 1998) (R. 231-A)

On the Ist day of April, 1998, this matter came before

the Court, the plaintiff appearing through its attorney, James C.

Hale, III, and the Arkansas Highway Police by and through its

attorneys, William L. Wharton and Lawrence W. Jackson,

entered a special appearance for the purpose of contesting the

jurisdiction of this court. The court, upon considering the

pleadings, exhibits introduced, testimony adduced and argument

of counsel, makes the following findings of fact and conclusions

of law:

1. On March 7, 1998, an Arkansas Highway Police

officer made a traffic stop on Roberto V. Zamarripa in Crittenden

County, Arkansas. A search was conducted and $3,166,199

was discovered. R. 231-A

2. On March 7, 1998, the officer in charge of the

Arkansas Highway Police in Marion contacted the Deputy

Prosecuting Attorney in Crittenden County, Arkansas, as the

duly sworn representative for the Prosecuting Attorney for the

Second Judicial District, and requested the Deputy Prosecuting

Attomey’s assistance in seizing the U.S. currency.

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3. Upon arrival, the Deputy Prosecuting Attorney

seized the U.S. currency and arranged for it to be transferred,

counted, and stored at Citizens Bank in Marion, Crittenden

County, Arkansas.

4. On March 9, 1998, the U.S. currency was in the

custody of the Deputy Prosecuting Attorney and forfeiture

proceedings were instituted by the filing of Notice of Seizure

for Forfeiture in this proceeding. 231-B.

5. On March 20, 1998, and March 27, 1998, the

Arkansas Highway Police, through its employed attorneys, filed

a motion to vacate and a motion to dismiss, respectively, and

entered a special appearance in this proceeding.

6. OnApril 1, 1998, upon due notice mailed by the

Court on March 24, 1998, to Paula J. Casey, United States

Attorney for the Eastern District of Arkansas, Gwendolyn

Hodge, Assistant United States Attorney, Bill Bryant, Director

for the Drug Enforcement Administration, and Chip Massanelli,

Deputy United States Marshal for the Eastern District of

Arkansas, a hearing was conducted wherein the Arkansas

Highway Police entered a special appearance to contest the

jurisdiction of the court.

7. There was no testimony by any federal Drug

Enforcement Administration (“DEA”) agent or any

representative from any federal agency that federal forfeiture

proceedings were in progress.

8 There was no documentary evidence produced by

the Arkansas Highway Police or any federal agency that there

was any pending federal forfeiture action, or that 21 U.S.C. §

881 notice had been given.

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9. The Prosecuting Attorney for the Second Judicial

District did not waive state forfeiture proceedings.

10. The Arkansas Highway Police, without a court

order, gave possession of the $3,166,199 to the United States

Marshal.

11. The Arkansas Highway Police, at the time of the

March 18, 1998, Order was not in possession of the $3,166,199.

R. 231-B.

Conclusions Of Law (R. 231-C)

12. The Court obtained primary and exclusive

jurisdiction over the res ($3,166,199) on March 9, 1998, because

it first established in rem jurisdiction of the res on March 9,

1998, by instituting state forfeiture proceedings on March 9,

1998. R. 231-C.

13. The allegations that the DEA adopted the forfeiture

action prior to March 9, 1998, is not supported by the evidence

presented by the Arkansas Highway Police.

14. In addition, the DEA’s administrative forfeiture

proceeding begins with the publication of a 21 U.S.C. § 881

notice. The Arkansas Highway Police did not present proof of

the 21 U.S.C. § 881 notice.

15. The transfer of the res to federal control and

attempts by the DEA and the Arkansas Highway Police to adopt

the forfeiture action was an affront to this Court’s state court

jurisdiction.

16. The Arkansas Highway Police’s referral of the

forfeiture action to the DEA was without the authority of the

Prosecuting Attorney for the Second Judicial District as required

by Ark. Code Ann. § 5-64-505(b).

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17. The Arkansas Highway Police’s referral of the

forfeiture action to the DEA was an attempt to circumvent the

intent and purpose of Ark. Code Ann. § 5-64-505 in order to

avoid the $250,000 limit set forth in Ark. Code Ann. § 5-64-

505(k (211).

18. The court agrees with the Arkansas Highway

Police and holds that the Arkansas Highway Police is not a

party to this cause of action. The court modifies its May 8,

1998. order in this respect. However, prior to the April | hearing,

the Arkansas Highway Police filed numerous pleadings in this

lawsuit. The Arkansas Highway Police introduced exhibits and

testimony through its two attorney at the hearing, made legal

argument, and had full opportunity to contest the jurisdiction

of the court. The Arkansas Highway Police, a law enforcement

of the State of Arkansas, is bound by this Court’s ruling

regarding the in rem jurisdiction and forfeiture orders herein.

R. 231-C to 231-D.

19. The Arkansas Highway Police, by turning

possession of the $3,166,199 to the United States Marshal

without an order or decree of this court, violated Ark. Code

Ann. § 5-64-505. R. 231-D.

20. Subsequent to the March 9, 1998, institution of

state forfeiture proceedings, the Arkansas Highway Police has

no authority to divert asset forfeiture cases to federal authorities

without an order pursuant to Ark. Code Ann. § 5-64-505(d).

As a matter of law, the Arkansas Highway Police has no

authority to object to this state forfeiture proceeding.

21. The court finds that the Arkansas Highway Police

does not have possession of the $3,166,199 and it has no power

to comply with this court’s orders regarding surrender of the

forfeited funds.

_

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22. The court finds its April 20, 1998, April 24, 1998,

and May 8, 1998 Orders and this Judgment are final for which

execution may issue.

IT IS SO ORDERED.

/S/ David Burnett, Circuit Judge

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Ill. ORDER ON REHEARING

Office of the Clerk

Supreme Court of the State of Arkansas

Arkansas Court of Appeals

Justice Building

625 Marshall Street

Little Rock, Arkansas 72201

April 29, 1999

Robert L. Wilson

Chief Counsel

Arkansas Highway & Transportation Department

P.O. Box 2261

Little Rock, AR 72203-2261

RE: 800957 In the Matter of $3,166,199, Arkansas

Highway Police v. Crittenden County Prosecuting

Attorney’s Office et al.

Dear Mr. Wilson:

The Arkansas Supreme Court made the following

order today in the above styled case:

“Petition for Rehearing is denied.”

Sincerely,

/S/ Leslie W. Steen, Clerk

cc: Mark Pryor

James C. Hale, III

Bart E. Ziegenhorn

Donna Palmer, Clerk

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IV. JUDGMENT SOUGHT TO BE

REVIEWED

See Part I, supra.

V. CONSTITUTIONAL PROVISIONS,

STATUTES, ORDINANCES, AND

REGULATIONS INVOLVED

Supremacy Clause of the United States Constitution, Art.

6, cl. 2.

This constitution, and the laws of the United

| States which shall be made in pursuance thereof.

and all treaties made, or which shall be made,

under the authority of the United States, shall

be the supreme law of the land; and the judges

in every state shall be bound thereby, anything

in the constitution or laws of any state to the

contrary notwithstanding.

21 U.S.C. 873. Cooperative arrangements.

(a) Cooperation of Attorney General with local, State.

| and Federal agencies. The Attorney General shall cooperate with

local, State, and Federal agencies concerning traffic in controlled

substances and in suppressing the abuse of controlled

substances. To this end, he is authorized to—

(1) arrange for the exchange of information

between governmental officials concerning the

use and abuse of controlled substances:

(2) cooperate in the institution and prosecution

of cases in the courts of the United States and

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before the licensing boards and courts of the

several States;

(3) conduct training programs on controlled

substance law enforcement for local, State, and

Federal personnel;

(4) maintain in the Department of Justice a

unit which will accept, catalog, file, and

otherwise utilize all information and statistics,

including records of controlled substance

abusers and other controlled substance law

offenders, which may be received from Federal,

State, and local agencies, and make such

information available for Federal, State, and

local law enforcement purposes;

(5) conduct programs of eradication aimed at

destroying wild or illicit growth of plant species

from which controlled substances may be

extracted;

(6) assist State and local governments in

suppressing the diversion of controlled

substances from legitimate medical, scientific,

and commercial channels by—

(A) making periodic assessments of the

capabilities of State and local governments

to adequately control the diversion of

controlled substances;

(B) providing advice and counsel to State ,

and local governments on the methods by

which such governments may strengthen

their controls against diversion; and

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(C) establishing cooperative investi gative

efforts to control diversion; and

(7) notwithstanding any other provision of law,

enter into contractual agreements with State and

local law enforcement agencies to provide for

cooperative enforcement and regulatory

activities under this Act.

(b) Requests by Attorney General for assistance from

Federal agencies or instrumentalities. When requested by the

Attorney General, it shall be the duty of any agency or

instrumentality of the Federal Government to furnish assistance,

including technical advice, to him for Carrying out his functions

under this title; except that no such agency or instrumentality

shall be required to furnish the name of, or other identifying

information about, a patient or research subject whose identity

it has undertaken to keep confidential.

(c) Descriptive and analytic reports by Attorney General

to State agencies of distribution patterns of schedule II

substances having highest rates of abuse. The Attomey General

shall annually (1) select the controlled substance (or controlled

substances) contained in schedule II which, in the Attorney

General’s discretion, is determined to have the highest rate of

abuse, and (2) prepare and make available to regulatory,

licensing, and law enforcement agencies of States descriptive

and analytic reports on the actual distribution patterns in such

States of each such controlled substance.

(d) Grants. (1) The Attorney General may make grants,

in accordance with paragraph (2), to State and local governments

to assist in meeting the costs of —

(A) collecting and analyzing data on the

diversion of controlled substances.

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(B) conducting investigations and

prosecutions of such diversions,

(C) improving regulatory controls and

other authorities to control such diversions,

(D) programs to prevent such diversions,

(E) preventing and detecting forged

prescriptions, and

(Ff) training law enforcement and

regulatory personnel to improve the control

of such diversions.

(2) No grant may be made under paragraph (1) unless

an application therefor is submitted to the Attorney General in

such form and manner as the Attorney General may prescribe.

No grant may exceed 80 per centum of the costs for which the

zrant is made, and no grant may be made unless the recipient

of the grant provides assurances satisfactory to the Attorney

General that it will obligate funds to meet the remaining 20 per

centum of such costs. The Attornev General shall review the

activities carried out with grants under paragraph (1) and shall

report annually to Congress on such activities.

(3) To carry out this subsection there 1s authorized to be

appropriated $6,.000.000 for fiscal vear 1985 and $6,000,000

tor fiscal vear 1986

21 U.S.C. § 878. Powers of enforcement personnel

(a) Any officer or emplovee of the Drug

Enforcement Administration or any State or

local law enforcement officer designated by

the Attorney General may

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(1) carry firearms; _

(2) execute and serve search warrants,

arrest warrants, administrative inspection

warrants, subpoenas, and summonses issued

under the authority of the United States:

(3) make arrests without warrant (A) for

any offense against the United States

committed in his presence, or (B) for any

felony, cognizable under the laws of the

United States, if he has probable cause to

believe that the person to be arrested has

committed or is committing a felony;

(4) make seizures of property pursuant to

the provisions of this title; and

(5) perform such other law enforcement

duties as the Attorney General may

designate.

(b) State and local law enforcement officers performing

functions under this section shall not be deemed Federal

employees and shall not be subject to provisions of law relating

to Federal employees, except that such officers shall be subject

to section 3374(c) of title 5, United States Code.

21 U.S.C. § 881. Forfeitures

(a) Subject property. The following shall be subject to

forfeiture to the United States and no property right shall exist

in them:

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(1)All controlled substances which have been

manufactured, distributed, dispensed, or

acquired in violation of this title.

(2) 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 or listed chemical in

violation of this title.

(3) All property which is used, or intended

for use, as a container for property described in

paragraph (1), (2), or (9)

(4) All conveyances, including aircraft,

vehicles, or vessels, which are used, or are

intended for use, to transport, or in any manner

to facilitate the transportation, sale, receipt,

possession, or concealment of property

described in paragraph (1), (2), or (9), except

that—

(A) no conveyance used by any person as |

a common carrier in the transaction of ,

business as a common carrier shall be

forfeited under the provisions of this section

unless it shall appear that the owner or other

person in charge of such conveyance was a

consenting party or privy to a violation of

this title or title III;

(B) no conveyance shall be forfeited under

the provisions of this section by reason of

any act or omission established by the owner

thereof to have been committed or omitted

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by any person other than such owner while

such conveyance was unlawfully in the

possession of a person other than the owner

in violation of the criminal laws of the United

States, or of any State; and

(C) no conveyance shall be forfeited under

this paragraph to the extent of an interest of

an owner, by reason of any act or omission

established by that owner to have been

committed or omitted without the

knowledge, consent, or willful blindness of

the owner.

(5) All books, records, and research, including

formulas, microfilm, tapes, and data which are

used, or intended for use, in violation of this title

(6) All moneys, negotiable instruments,

securities, or other things of value furnished or

intended to be furnished by any person in

exchange for a controlled substance or listed

chemical in violation of this title, all proceeds

traceable to such an exchange, and all moneys,

negotiable instruments, and securities used or

intended to be used to facilitate any violation of

this title, except that no property shall be

forfeited under this paragraph, to the extent of

the interest of an owner, by reason of any act or

omission established by that owner to have been

committed or omitted without the knowledge or

consent of that owner.

(7) All real property, including any right, title,

and interest (including any leasehold interest)

in the whole of any lot or tract of land and any

appurtenances or improvements, which is used.

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or intended to be used, in any manner or part, to

commit, or to facilitate the commission of, a

violation of this title punishable by more than

one year’s imprisonment, except that no property

shall be forfeited under this paragraph, to the

extent of an interest of an owner, by reason of

any act or omission established by that owner

to have been committed or omitted without the

knowledge or consent of that owner.

(8) All controlled substances which have been

possessed in violation of this title.

(9) All listed chemicals, all drug

manufacturing equipment, all tableting

machines, all encapsulating machines, and all

gelatin capsules, which have been imported,

exported, manufactured, possessed, distributed,

dispensed, acquired, or intended to be

distributed, dispensed, acquired, imported, or

exported, in violation of this title or title III.

(10) Any drug paraphernalia (as defined in

section 1822 of the Mail Order Drug

Paraphernalia Control Act [21 U.S.C. §857]).

(11) Any firearm (as defined in section 921

of title 18, United States Code) used or intended

to be used to facilitate the transportation, sale,

receipt, possession, or concealment of property

described in paragraph (1) or (2) and any

Proceeds traceable to such property.

(b) Seizure pursuant to Supplemental Rules for Certain

Admiralty and Maritime Claims. Any property subject to civil

forfeiture to the United States under this title may be seized by

A34

the Attorney General upon process issued pursuant to the

Supplemental Rules for Certain Admiralty and Maritime Claims

by any district court of the United States having jurisdiction

over the property, except that seizure without such process may

be made when—

(1) the seizure is incident to an arrest or a

search under a search warrant or an inspection

under an administrative inspection warrant:

(2) the property subject to seizure has been

the subject of a prior judgment in favor of the

United States in a criminal injunction or

forfeiture proceeding under this title:

(3) the Attorney General has probable cause

to believe that the property is directly or

indirectly dangerous to health or safety; or

(4) the Attorney General has probable cause

to believe that the property is subject to civil

forfeiture under this title.

In the event of seizure pursuant to paragraph (3) or (4)

of this subsection, proceedings under subsection (d) of this

section shall be instituted promptly.

The Government may request the issuance of a warrant

authorizing the seizure of property subject to forfeiture under

this section in the same manner as provided for a search warrant

under the Federal Rules of Criminal Procedure.

(c) Custody of Attorney General. Property taken or

detained under this section shall not be repleviable, but shall be

deemed to be in the custody of the Attorney General, subject

only to the orders and decrees of the court or the official having

‘i A35

jurisdiction thereof. Whenever property is seized under any of

the provisions of this title, the Attorney General may—

(1) place the property under seal;

(2) remove the property to a place

designated by him, or

(3) require that the General Services

Administration take custody of the property

and remove it, if practicable, to an

appropriate location for disposition in

accordance with law.

(d) Other laws and proceedings applicable. The

provisions of law relating to the seizure, summary and judicial

forfeiture, and condemnation of property for violation of the

customs laws; the disposition of such property or the proceeds

from the sale thereof; the remission or mitigation of such

forfeitures; and the compromise of claims shall apply to seizures

and forfeitures incurred, or alleged to have been incurred, under

any of the provisions of this title, insofar as applicable and not

inconsistent with the provisions hereof, except that such duties

as are imposed upon the customs officer or any other person

with respect to the seizure and forfeiture of property under the

customs laws shall be performed with respect to seizures and

forfeitures of property under this title by such officers, agents,

or other persons as may be authorized or designated for that

purpose by the Attorney General, except to the extent that such

duties arise from seizures and forfeitures effected by any

customs officer.

(e) Disposition of forfeited property. (1) Whenever

property is civilly or criminally forfeited under this title the

Attorney General may—

A36

(A) retain the property for official use or, in

the manner provided with respect to transfers

under section 616 of the Tariff Act of 1930,

transfer the property to any Federal agency or

to any State or local law enforcement agency

which participated directly in the seizure or

forfeiture of the property;

(B) except as provided in paragraph (4), sell,

by public sale or any other commercially feasible

means, any forfeited property which is not

required to be destroyed by law and which is

not harmful to the public;

(C) require that the General Services

Administration take custody of the property and

dispose of it in accordance with law;

(D) forward it to the Bureau of Narcotics and

Dangerous Drugs for disposition (including

delivery for medical or scientific use to any

Federal or State agency under regulations of the

_Attorney General); or

(E) transfer the forfeited personal property or

the proceeds of the sale of any forfeited personal

or real property to any foreign country which

participated directly or indirectly in the seizure

or forfeiture of the property, if such a transfer—

(i) has been agreed to by the Secretary of

State;

(ii) is authorized in an international

agreement between the United States and the

foreign country; and

A37

(111) is made to a country which, if

applicable, has been certified under section

490(b) of the Foreign Assistance Act of 1961

[22 U.S.C. §2291)j(b)].

(2) (A) The proceeds from any sale -under

subparagraph (B) of paragraph (1) and any

moneys forfeited under this title shall be used

to pay—

(1) all property expenses of the

proceedings for forfeiture and sale including

expenses of seizure, maintenance of

custody, advertising, and court costs; and

(11) awards of up to $100,000 to any

individual who provides original

information which leads to the arrest and

conviction of a person who kills or kidnaps

a Federal drug law enforcement agent. Any

award paid for information concerning the

killing or kidnapping of a Federal drug law

enforcement agent, as provided in clause

(11), shall be paid at the discretion of the

Attorney General.

(B) The Attorney General shall forward to the

Treasurer of the United States for deposit in

accordance with section 524(c) of title 28,

United States Code, any amounts of such

moneys and proceeds remaining after payment

of the expenses provided in subparagraph (A),

except that, with respect to forfeitures conducted

by the Postal Service, the Postal Service shall

deposit in the Postal Service Fund, under section

A38

2003(b\(7) of title 39, United States Code, such

moneys and proceeds.

(3) The Attorney General shall assure that any property

transferred to a State or local law enforcement agency under

paragraph (1 (A)}—

(A) has a value that bears a reasonable

relationship to the degree of direct participation

of the State or local agency in the law

enforcement effort resulting in the forfeiture,

taking into account the total value of all property

forfeited and the total law enforcement effort

with respect to the violation of law on which

the forfeiture is based; and

(B) will serve to encourage further

cooperation between the recipient State or local

agency and Federal law enforcement agencies.

(4) (A) With respect to real property described

in subparagraph (B), if the chief executive officer

of the State involved submits to the Attorney

General a request for purposes of such

subparagraph, the authority established in such

subparagraph is in lieu of the authority

established in paragraph (1)B).

(B) In the case of property described in

paragraph (1)(B) that is civilly or criminally

forfeited under this title, if the property is real

property that is appropriate for use as a public

area reserved for recreational or historic

purposes or for the preservation of natural

conditions, the Attorney General, upon the

request of the chief executive officer of the State

A39

in which the property is located, may transfer

title to the property to the State, either without

charge or for a nominal charge, through a legal

instrument providing that—

(1) such use will be the principal use of

the property; and

(11) title to the property reverts to the

United States in the event that the property

is used otherwise.

(f) Forfeiture of schedule I or II substances. (1) All

controlled substances in schedule | or II that are possessed,

transferred, sold, or offered for sale in violation of the provisions

of this title; all dangerous, toxic, or hazardous raw materials or

products subject to forfeiture under subsection (a2) of this

section, and any equipment or container subject to forfeiture

under subsection (a2) or (3) which cannot be separated safely

from such raw materials or products shall be deemed contraband

and seized and summarily forfeited to the United States.

Similarly, all substances in schedule I or II, which are seized or

come into the possession of the United States, the owners of

which are unknown, shall be deemed contraband and summarily

forfeited to the United States.

(2) The Attorney General may direct the destruction of

all controlled substances in schedule | or II seized for violation

of this title; all dangerous, toxic, or hazardous raw materials or

products subject to forfeiture under subsection (a2) of this

section, and any equipment or container subject to forfeiture

under subsection (a2) or (3) which cannot be separated safely

from such raw materials or products under such circumstances

as the Attorney General may deem necessary.

A40

(g) Plants. (1) All species of plants from which

controlled substances in schedules | and II may be derived which

have been planted or cultivated in violation of this title, or of

which the owners or cultivators are unknown, or which are wild

growths, may be seized and summarily forfeited to the United

States.

(2) The failure, upon demand by the Attorney

General or his duly authorized agent, of the

person in occupancy or in control of land or

premises upon which such species of plants are

growing or being stored, to produce an

appropriate registration, or proof that he is the

holder thereof, shall constitute authority for the

seizure and forfeiture.

(3) The Attorney General. or his duly

authorized agent, shall have authority to enter

upon any lands, or into any dwelling pursuant

to a search warrant, to cut, harvest, carry off, or

destroy such plants.

(h) Property title, etc. vested in United States. All right,

title, and interest in property described in subsection (a) shall

vest in the United States upon commission of the act giving

rise to forfeiture under this section.

(1) Stay of civil proceeding. The filing of an indictment

or information alleging a violation of this title or title Ill, or a

violation of State or local law that could have been charged

under this title or title III, which is also related to a civil forfeiture

proceeding under this section shall, upon motion of the United

States and for good cause shown. Stay the civil forfeiture

proceeding.

A4l

(J) Venue. In addition to the venue provided for in section

1395 of title 28, United States Code, or any other provision of

law, in the case of property of a defendant charged with a

violation that is the basis for forfeiture of the property under

this section, a proceeding for forfeiture under this section may

be brought in the judicial district in which the defendant owning

such property is found or in the judicial district in which the

criminal prosecution is brought.

(k) [Not enacted] —

(1) Functions. The functions of the Attorney General

under this section shall be carried out by the Postal Service

pursuant to such agreement as may be entered into between the

Attorney General and the Postal Service.

21 U.S.C. § 885. Burden of proof; liabilities

(a) Exemptions and exceptions; presumption in simple

possession offenses. (1) It shall not be necessary for the United

States to negative any exemption or exception set forth in this

title in any complaint, information, indictment, or other pleading

or in any trial, hearing, or other proceeding under this title, and

the burden of going forward with the evidence with respect to

any such exemption or exception shall be upon the person

claiming its benefit.

(2) In the case of a person charged under

section 404(a) [21 U.S.C. §844(a)] with the

possession of a controlled substance, any label

identifying such substance for purposes of

section 503(b)2) of the Federal Food, Drug, and

Cosmetic Act [21 U.S.C. §353(b)(2)} shall be

admissible in evidence and shall be prima facie

evidence that such substance was obtained

pursuant to a valid prescription from a

A42

practitioner while acting in the course of his

professional practice.

(b) Registration and order forms. In the absence of proof

that a person is the duly authorized holder of an appropriate

registration or order form issued under this title, he shall be

presumed not to be the holder of such registration or form, and

the burden of going forward with the evidence with respect to

such registration or form shall be upon him.

(c) Use of vehicles, vessels, and aircraft. The burden of

going forward with the evidence to establish that a vehicle,

vessel, or aircraft used in connection with controlled substances

in schedule I was used in accordance with the provisions of

this title shall be on the persons engaged in such use.

(d) Immunity of Federal, State, local and other officials.

Except as provided in sections 2234 and 2235 of title | 8, United

States Code [18 U.S.C. §§2234, 2235], no civil or criminal

liability shall be imposed by virtue of this title upon any duly

authorized Federal officer lawfully engaged in the enforcement

of this title, or upon any duly authorized officer of any State,

territory, political subdivision thereof, the District of Columbia,

or any possession of the United States, who shall be lawfully

engaged in the enforcement of any law or municipal ordinance

relating to controlled substances.

28 U.S.C. § 1355.

(a) The district courts shall have original Jurisdiction,

exclusive of the courts of the States, of any action or proceeding

for the recovery or enforcement of any fine, penalty, or

forfeiture, pecuniary or otherwise, incurred under any Act of

Congress, except matters within the jurisdiction of the Court of

International Trade under section 1582 of this title.

A43

(bX1) A forfeiture action or proceeding may

be brought in —

(A) the district court for the district in

which any of the acts or omissions giving

rise to the forfeiture occurred, or

(B) any other district where venue for the

forfeiture action or proceeding is specifically

provided for in section 1395 of this title or

any other statute.

(2) Whenever property subject to forfeiture

under the laws of the United States is located in

a foreign country, or has been detained or seized

pursuant to legal process or competent authority

of a foreign government, an action or proceeding

for forfeiture may be brought as provided in

paragraph (1), or in the United States District

court or the District of Columbia.

(c) In any case in which a final order disposing of

property in a civil forfeiture action or proceeding is appealed,

removal of the property by the prevailing party shall not deprive

the court of jurisdiction. Upon motion of the appealing party,

the district court or the court of appeals shall issue any order

necessary to preserve the right of the appealing party to the full

value of the property at issue, including a stay of the judgment

of the district court pending appeal or requiring the prevailing

to post an appeal bond.

(d) Any court with jurisdiction over a forfeiture action

pursuant to subsection (b) may issue and cause to be served in

any other district such process as may be required to bring before

the court the property that is the subject of the forfeiture action.

A44

28 U.S.C. § 1356.

The district courts shall have original jurisdiction,

exclusive of the courts of the States, of any seizure under any

law of the United States on land or upon waters not within

admiralty and maritime jurisdiction, except matters within the

jurisdiction of the Court of International Trade under section

1582 of this title.

Ark. Code Ann. § 5-64-501.

Any law enforcement officer, or any person authorized

to enforce subchapters 1-6 of this chapter, or any employee of

the State Health Department designated by the director to

conduct examinations, investigations, or inspections under

subchapters 1-6 of this chapter relating to controlled substances

or to counterfeit drugs may:

(1) Carry firearms in the performance of his

official duties;

(2) Execute and serve search warrants, arrest

warrants, administrative inspection warrants,

subpoenas, and summonses issued under the

authority of this state:

(3) Make arrests without warrant for any

offense under subchapters 1-6 of this chapter

committed in his presence, or if he has probable

cause to believe that the person to be arrested

has committed a violation of subchapters 1-6 of

this chapter which may constitute a felony;

(4) Make seizures of property pursuant to

subchapters 1-6 of this chapter; or

aaa aaa iain

A45

(5) Perform other law enforcement duties as

the director designates.

Ark. Code Ann. § 5-64-504.

(a) The director shall cooperate with federal and other

state agencies in discharging its responsibilities concerning

traffic in controlled substances and in suppressing the abuse of

controlled substances. To this end, he may:

(1) Arrange for the exchange of information

among governmental officials concerning the

use and abuse of controlled substances,

(2) Coordinate and cooperate in training

programs concerning controlled substance law

enforcement at local and state levels;

(3) Cooperate with the Bureau by establishing

a centralized unit to accept, catalogue, file, and

collect statistics, including records of drug

dependent persons and other controlled

substance law offenders within the state, and

make the information available for federal, state,

and local law enforcement purposes. He shall

not furnish the name or identity of a patient or

research subject whose identity could not be

obtained under subsection (c) of this section; and

(4) Conduct programs of eradication aimed

at destroying wild or illicit growth of plant

species from which controlled substances may

be extracted.

(b) Results, information, and evidence received from

the Bureau relating to the regulatory functions of subchapters

1-6 of this chapter, including results of inspections conducted

by it, may be relied and acted upon by the director in the exercise

of its regulatory functions under subchapters 1-6 of this chapter.

A446

(c) A practitioner engaged in medical practice or research

is not required or compelled to furnish the name or identity of a

patient or research subject to the director nor may he be

compelled in any state or local civil, criminal, administrative,

legislative, or other proceedings to furnish the name or identity

of an individual that the practitioner is obligated to keep

confidential.

Ark. Code Ann. § 5-64-505.

ot

(a) The following are subject to forfeiture:

(1) All controlled substances and counterfeit

substances which have been manufactured,

distributed, dispensed, or acquired in violation

of subchapters 1-6 of this chapter;

(2) 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 or counterfeit substance in

violation of subchapters 1-6 of this chapter,

(3) All property which is used, or intended

for use, as a container for property described in

subdivision (aX 1) or (2);

(4) All conveyances, including aircraft,

vehicles, or vessels, which are used, or intended

for use, to transport, or in any manner to facilitate -

the transportation, for the purpose of sale or

A47

receipt of property described in subdivision

(aX 1) or (2), but:

(1) No conveyance used by any person as

a common carrier in the transaction of

business as a common carrier is subject to

forfeiture under this section unless it appears

that the owner or other person in charge of

the conveyance is a consenting party or privy

to a violation of subchapters 1-6 of this

chapter,

(11) No conveyance is subject to forfeiture

under this section by reason of any act or

omission established by the owner thereof

to have been committed or omitted without

his knowledge or consent and without the

knowledge or consent of anyone having

possession, care, or control of the

conveyance with the owner’s permission;

(111) A conveyance is not subject to

forfeiture for a violation of § 5-64-401 (c);

and

(iv) A forfeiture of a conveyance

encumbered by a bona fide security interest

is subject to the interest of the secured party

if he neither had knowledge of nor consented

to the act or omission.

(5) All books, records, and research products

and materials, including formulas, microfilm,

tapes, and data which are used, or intended for

use, in violation of subchapters 1-6 of this

chapter.

ee

A48

(6) Everything of value furnished or intended

to be furnished, in exchange for a controlled

substance or counterfeit substance in violation

of subchapters 1-6 of this chapter, all proceeds

and profits traceable to such an exchange, and

all moneys, negotiable instruments, and

securities used, or intended to be used, to

facilitate any violation of subchapters 1-6 of this

chapter, except that no property shall be forfeited

under this paragraph, to the extent of the interest

of an owner, by reason of any act or omission

established by him to have been committed or

omitted without his knowledge or consent.

REBUTTABLE PRESUMPTIONS. All moneys, coin,

and currency found in close proximity to forfeitable controlled

substances, to counterfeit substances, to forfeitable drug

manufacturing or distributing paraphernalia, or to forfeitable

records of the importation, manufacture, or distribution of

controlled substances or counterfeit substances are presumed

to be forfeitable under this paragraph. The burden of proof is

upon claimants of the property to rebut these presumptions.

(7) Real property may be forfeited under

subchapters 1-6 of this chapter if it substantially

assisted in, facilitated in any manner, or was used

or intended for use in the commission of any act

prohibited by subchapters 1-6 of this ‘chapter,

except that:

(i) No real property is subject to forfeiture

under subchapters 1-6 of this chapter by

reason of any act or omission established by

the owner thereof to have been committed

or omitted without his knowledge or consent,

A49

(ii) Real property is not subject to

forfeiture for a violation of § 5-64-401(c),

and

(iii) A forfeiture of real property

encumbered by a mortgage or other lien is

subject to the interest of the secured party if

the secured party neither had knowledge of

nor consented to the unlawful act or

omission.

(iv) Upon conviction, when the circuit

court having jurisdiction over the real

property seized finds upon a hearing by a

preponderance of the evidence that grounds

for a forfeiture exist under this section, the

court shall enter an order consistent with

subsection (k) of this section.

(v) When any court orders a forfeiture of

real property pursuant to subchapters 1-6 of

this chapter, the order shall be filed of record

on the day issued and shall have prospective

effect only.

(vi) A forfeiture of real property ordered

under the provisions of subchapters 1-6 of

this chapter shall not affect the title of a bona

fide purchaser who purchased the property

prior to the issuance of the order, and such

order shall have no force or effect on the

title of the bona fide purchaser.

(vii) Any lis pendens filed in connection

with any action pending under the provisions

of subchapters 1-6 of this chapter which

ASO

might result in the forfeiture of real property

shall be operative only from the time filed

and shall have no retroactive effect.

(b) Property subject to forfeiture under subchapters 1-6

of this chapter may be seized by any law enforcement agent

upon process issued by any circuit court having jurisdiction

over the property on petition filed by the prosecuting attorney

of the judicial circuit. Seizure without process may be made if.

(1) The seizure is incident to an arrest or a

search under a search warrant or an inspection

under an administrative inspection warrant;

(2) The property subject to seizure has been

the subject of a prior judgment in favor of the

State in a criminal injunction or forfeiture

proceeding based upon subchapters 1-6 of this

chapter;

(3) The director has probable cause to believe

that the property is directly or indirectly

dangerous to health or safety; or

(4) The director or any law enforcement agent

has probable cause to believe that the property

was used or is intended to be used in violation

of subchapters 1-6 of this chapter. |

(c) In the event of seizure pursuant to subsection (b) of

this section, proceedings under subsections (d) and (e) of this

section shall be instituted promptly.

(d) Property taken or detained under this section shall

not be subject to replevin, but is deemed to be in the custody of

the director or seizing law enforcement agency subject only to

ASI

the orders and decrees of the circuit court having jurisdiction

over the property seized. When property is seized under

subchapters 1-6 of this chapter, the director or seizing law

enforcement agency may:

(1) Place the property under seal:

(2) Remove the property to a place designated

by it; or

(3) Require the director to take custody of the

property and remove it to an appropniate location

for disposition in accordance with law.

(e) When the circuit court having jurisdiction over the

property seized finds upon a hearing by a preponderance of the

evidence that grounds for a forfeiture exist under subchapters

1-6 of this chapter, the court shall enter an order consistent with

subsection (k) of this section.

(f) Controlled substances listed in Schedule | that are

possessed transferred, sold, or offered for sale in violation of

subchapters 1-6 of this chapter are contraband and shall be

seized and summarily forfeited to the state. Controlled

substances listed in Schedule I, which are seized or come into

the possession of the state, the owners of which are unknown,

are contraband and shall be summarily forfeited to the state.

(g) Species of plants from which controlled substances

in Schedules I, II, and VI may be derived which have been

planted or cultivated in violation of subchapters 1-6 of this

chapter, or of which the owners or cultivators are unknown, or

which are wild growths, may be seized and summarily forfeited

to the state.

AS2

(h) The failure, upon demand by the director, or his

authorized agent, of the person in occupancy or in control of

land or premises upon which the species of plants are growing

or being stored, to produce an appropriate registration, or proof

that he is the holder thereof, constitutes authority for the seizure

and forfeiture of the plants.

(i) All drug paraphernalia and counterfeit substances

except in the possession or control of a practitioner in the course

of professional practice and/or research shall be subject to civil

seizure and forfeiture.

(JX 1) If property is seized for forfeiture under subchapters

1-6 of this chapter, the seizing agency which seized the property

may, subject to any need to retain the property as evidence:

(1) Remove the property to a place

designated by the circuit court:

(i1) Place the property under constructive

seizure posting notice of pending forfeiture

on it, by giving notice of pending forfeiture

to its owners and interest holders, or by filing

notice of pending forfeiture in any

appropriate public record relating to the

property ,

(111) Remove the property to a storage area

for safekeeping or, if the property is a

negotiable instrument or money, or is not

needed for evidentiary purposes, deposit it

in an interest-bearing account;

(iv) Provide for another agency or

custodian, including an owner, secured party,

mortgagee, or lienholder, to take custody of

AS3

the property and service, maintain, and

operate it as reasonably necessary to

maintain its value in any appropriate location

within the jurisdiction of the court; or

(v) Require the law enforcement agency

to take custody of the property and remove

it to an appropriate location for disposition

in accordance with law.

(2) A person who acts as custodian of property

under this section is not liable to any person on

account of acts done in compliance with an order

under subchapters 1-6 of this chapter in a

reasonable manner.

(3) As soon as practicable after seizure for

forfeiture, the seizing agency shall conduct an

inventory and estimate the value of the property

seized. The seizing agency shall maintain a log

book which lists the following:

(i) A description of the property;

(11) The estimated value;

(111) The location of the property; and

(iv) The disposition of the property.

(kX 1) Whenever property is forfeited under subchapters

1-6 of this chapter, the circuit court shall enter an order:

(1) To permit the law enforcement agency

or attorney for the state to retain the property

AM

for official use except that all aircraft shall

be transferred to the Arkansas Drug Director,

(11) To sell that which is not required by

law to be destroyed and which is not harmful

to the public. Such property shall be sold at

a public sale to the highest bidder, and if not

sold at public sale, the court may permit a

private sale. The proceeds of any sale and

any moneys forfeited or obtained by

judgment or settlement under subchapters 1 -

6 of this chapter shall be deposited in the

special asset forfeiture fund of the attorney

for the state.

(2) The attorney for the state shall administer

expenditures from the fund. The fund is subject

to audit by the Division of Legislative Audit.

Moneys in the fund must be distributed in the

following order:

(i) For satisfaction of any bona fide

security interest or lien;

(11) For payment of all proper expenses of

the proceedings for forfeiture and sale,

including expenses of seizure, maintenance

of custody, advertising, and court costs; and

(iii) Any balance under two hundred fifty

thousand dollars ($250,000) shall be

distributed proportionally so as to reflect

generally the contribution of the appropriate

local or state law enforcement or

prosecutorial agency’s participation in any

of the activities that led to the seizure or

ASS

forfeiture of the property or deposit of

moneys under subchapters 1-6 of this

: chapter;

(iv) Any balance over two hundred fifty

thousand dollars ($250,000) shall be

forwarded to the Department of the Arkansas

State Police to be transferred to the State

Treasury for deposit in the Special State

Assets Forfeiture Fund for distribution as

provided in subsection (1).

(3) All controlled substances shall be

forwarded to the Drug Enforcement

Administration or Department of Health for

disposition or destruction.

(41) There is created on the books of law

enforcement agencies and attorneys for the

state a Drug Control Fund. The Drug Control

Fund shall consist of all moneys obtained

under subsection (1) and other revenues as

may be provided by law or ordinance.

Moneys from the fund may not supplant

other local, state, or federal funds. Moneys

in this fund are appropriated on a continuing

basis and are not subject to the Revenue

Stabilization Law, § 19-5-101 et seq.

Moneys in this fund must only be used for

law enforcement and prosecutorial purposes.

The fund is subject to audit by the Division

of Legislative Audit.

(ii) The law enforcement agencies and

attorneys for the state shall submit to the

State Drug Director on or before January |

AS

and July | of each year a report detailing all

moneys received and expenditures made

from the Drug Control Fund during the

preceding six-month period.

(11) There is created and established on the

books of the State Treasurer, the State Auditor,

and the Chief Fiscal Officer of the State a fund

to be known as the Special State Assets

Forfeiture Fund

(2) The Special State Assets Forfeiture Fund

shall consist of revenues obtained under

subdivision (k)(2\iv) and any other revenues

as may be provided by law. All moneys obtained

under subdivision (k2)iv) shall be deposited

in this fund. Moneys from the fund may not

supplant other local, state, or federal funds.

(3) This fund shall not be subject to the

provisions of the Revenue Stabilization Law, §

19-5-101 et seq., or subject to the provisions of

§ 19-5-203 (b\(2 A), the Special Revenue Fund

Account.

(4) The State Drug Director shall establish

through rules and regulations a procedure for

proper investment and disposition of moneys

deposited in the special asset forfeiture fund in

accordance with the intent and purposes of

subchapters 1-6 of this chapter.

(m) Forfeitures under this section may be based on in

rem or in personam jurisdiction. In personam jurisdiction may

be based on the person’s presence in the state, or on his conduct

in the state, as set out in § 16-4-101 (c).

AS7

(n) The following additional provisions shall apply to

in personam forfeiture proceedings:

(1) A temporary restraining order under this

section may be entered ex parte on application

of the state, upon a showing that:

(i) There is probable cause to believe that

the property with respect to which the order

is sought is subject to forfeiture under this

section; and

(ii) Notice of the action would jeopardize

the availability of the property for forfeiture.

(2) Notice of the entry of a temporary

restraining order and an opportunity for hearing

must be afforded to persons known to have an

interest in the property. The hearing must be held

at the earliest possible date consistent with

A.R.C.P. Rule 65 and is limited to the issues of

whether:

(i) There is a probability that the state will

prevail on the issue of forfeiture and that

failure to enter the order will result in the

property being destroyed, conveyed,

alienated, encumbered, disposed of,

received, removed from the jurisdiction of

the court, concealed, or otherwise made

unavailable for forfeiture; and

(ii) The need to preserve the availability

of property through the entry of the requested

order outweighs the hardship on any owner

AS8

or interest holder against whom the order is

to be entered.

(3) The state has the burden of proof by a

preponderance of the evidence to show that the

defendant’s property is subject to forfeiture.

(4) On a determination of liability of a person

for conduct giving rise to forfeiture under this

section, the court shall enter a judgment of

forfeiture of the property subject to forfeiture as

alleged in the complaint and may authorize the

prosecuting attorney or any law enforcement

officer to seize all property subject to forfeiture

pursuant to subsection (a) of this section not

previously seized or not then under seizure. The

order of forfeiture shall be consistent with

subsection (k) of this section. In connection with

the judgment, the court, on application of the

state, may enter any appropriate order to protect

the interest of the state in property ordered

forfeited.

(5) Subsequent to the finding of liability and

order of forfeiture, the following procedures

apply:

(i) The attorney for the state shall give

notice of pending forfeiture, in the manner

provided in A.R.C.P. Rule 4, to all owners

and interest holders who have not previously

been given notice;

(ii) An owner of or interest holder in

property that has been ordered forfeited and

AS

whose claim is not precluded may file a

claim within thirty (30) days after initial

notice of pending forfeiture or after notice

under A.R.C.P. Rule 4, whichever is earlier;

(iii) The court may amend the in personam

order of forfeiture if the court determines that

a claimant has established that he or she has

an interest in the property and that that

interest is exempt under subdivision (a4),

(6), or (7) of this section.

(o) The court shall order the forfeiture of any other

property of a claimant or defendant up to the value of the

claimant’s or defendant’s property found by the court to be

subject to forfeiture under subsection (a) of this section if any

of the forfeitable property had remained under the control or

custody of the claimant or defendant and:

(1) Cannot be located;

(2) Was transferred or conveyed to, sold to,

or deposited with a third party;

(3) Is beyond the jurisdiction of the court;

(4) Was substantially diminished in value

while not in the actual physical custody of the

seizing agency,

(5) Was commingled with other property that

cannot be divided without difficulty; or

(6) Is subject to any interest exempted from

forfeiture under this subchapter.

: A60

Ark. Code Ann. § 5-64-506.

(a) It is not necessary for ‘. . .tate to negate any

exemption or exception in subchapters .-6 of this chapter in

any complaint, information, indictment, or other pleading or in

any trial, hearing, or other proceeding under subchapters 1-6 of

this chapter. The burden of proof of any exemption or exception

is upon the person claiming it.

(b) In the absence of proof that a person is the duly

authorized holder of an appropriate registration or order form

issued under subchapters 1-6 of this chapter, he is presumed

not to be the holder of the registration or form. The burden of

proof is upon him to rebut the presumption.

(c) No liability is imposed by subchapters 1-6 of this

chapter upon any authorized state, county, or municipal officer,

engaged in the lawful performance of his duties.

Ark. Code Ann. § 5-64-509.

(Repealed by Ark. Act 1120 of 1999)

(a) This section shall be known as the “Uncontested

Forfeiture Act.”

(b) Property may be proceeded against by uncontested

forfeiture only if said property is otherwise subject to forfeiture

under § 5-64-505 and if its cumulative appraised value is less

than one hundred thousand dollars ($100,000). “Appraised

value” means the average retail value of the property at the

time and place of seizure.

(c)1) Within thirty (30) days of the seizure of the

property for forfeiture, the prosecuting attorney shall mail a

notice to proceed by uncontested forfeiture by registered or

certified mail to all known owners and interest holders of the

A6él

seized property. Reasonable efforts shall be made to locate all

parties with any interest in the property.

(2) The notice to proceed by uncontested

forfeiture shall:

(A) Describe the property, including

identification, or serial numbers, if any;

(B) State the appraised value of the property,

the date, place, and cause of the seizure;

(C) State that, if an owner does not within

thirty (30) days from the first date of receipt of

the letter file with the prosecuting attorney at

the provided address a notice for judicial referral

of forfeiture in order to terminate the uncontested

forfeiture proceeding and cause the referral of

the case for judicial forfeiture, the property will

be forfeited without contest; and

(D) State that an owner or interest holder may

file a notice for judicial referral with the

prosecuting attorney within thirty (30) days of

the first date of receipt of the letter.

(d) If the property owner or interest holder wishes to

contest, then they shall file with the prosecuting attorney a notice

for judicial referral of a forfeiture containing the following:

(1) A statement describing the property and

showing petitioner’s interest in the property, with

supporting documents to establish such interest;

and

A62

(2) A certification by the property owner or

interest holder stating that he has read the

~ document and that this is not filed for any

improper reason such as delay or harassment.

(eX 1) If actual notice, by registered or certified mail, is

not perfected as required in subsection (d) of this section,

uncontested forfeiture may occur only after the prosecuting

attorney publishes a notice of seizure and intent to forfeit in a

newspaper of general circulation in the area of seizure once a

week for three (3) consecutive weeks.

(2) The publication shall:

(A) Describe the property, including

identification, or serial numbers, if any;

(B) State the appraised value of the property,

the date, place, and cause of the seizure;

(C) State that, if an owner does not within thirty

(30) days from the first date of publication file

with the prosecuting attorney at the provided

address a notice for judicial referral of a

forfeiture in order to terminate the uncontested

forfeiture proceeding and cause the referral of

the case for judicial forfeiture, the property will

be forfeited without contest; and

(D) State that an owner or interest holder may

file a notice for judicial referral with the

prosecuting attorney within thirty (30) days of

the first date of publication.

(f1) If the prosecuting attorney does not receive a

notice of judicial referral from the owner of the property or

from an interest holder contesting ownership interest in said

A63

property within thirty (30) days of the first date of publication

of the notice of seizure and intent to forfeit, the seized property

will be deemed to be forfeited without contest.

(2) The prosecuting attorney will then execute an

order of forfeiture, which will include the following:

(A) The date of the order;

(B) The description of the property, including

identification and serial numbers, if any;

(C) The appraised value of the property, the

date, place, and cause of the seizure;

(D) The name of the newspaper where

publication was made, and the three (3) dates of

publication;

(E) A statement of reasonable effort made to

locate owners and interest holders, and the date

the notice of seizure was mailed to owners and

interest holders;

(F) A statement that the property is declared

to be forfeited since no notice of judicial referral

was received by the prosecuting attorney within

thirty (30) days from the first date of letter or

newspaper publication, and

(G) The signature of the prosecuting attorney.

(g) The executed order of forfeiture will have the same

force and effect as a court decree of forfeiture, and may be used

by any official or private party to obtain title or registration; or

A64

to establish, transfer, or quiet title to such property. It will be

filed with the circuit clerk and filed under the name of the owner.

(h\ 1) The-disposition of the uncontested property which

has been forfeited pursuant to the order of forfeiture shall be

distributed in the same manner as is currently provided for in §

5-64-505 (k).

(2) The property management provisions of §

5-64-505 (j) shall apply to any pending

uncontested forfeiture.

(i) Nothing contained herein shall

preclude the property owner or the interest

holder from entering into an agreement

whereby the property is forfeited and an —

order of forfeiture is entered without the

foregoing notice requirements.

Ark. Act 1120 of 1999 (Amending Ark. Code Ann. § 5-64-

505 and repealing Ark. Code Ann. § 5-64-509) (Approved

April 5, 1999)

AN ACT TO AMEND ARKANSAS CODE 5-

64-505 PERTAINING TO THE FORFEITURE

OF PROPERTY UNDER THE UNIFORM

CONTROLLED SUBSTANCES ACT; TO

REPEAL ARKANSAS CODE 5-64-509; AND

FOR OTHER PURPOSES.

Subtitle

A65

PERTAINING TO THE FORFEITURE OF

PROPERTY UNDER THE UNIFORM

CONTROLLED SUBSTANCES ACT; TO

REPEAL ARKANSAS CODE 5-64-509.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE

STATE OF ARKANSAS:

SECTION 1. Legislative intent. As stated in the

comment to section 505 of the Uniform Controlled Substances

Act, “Effective law enforcement demands that there be a means

of confiscating the vehicles and instrumentalities used by drug

traffickers in committing violations under this act. The

reasoning is to prevent their use in the commission of subsequent

offenses involving transportation or concealment of controlled

substances and to deprive the drug trafficker of needed

mobility.” The General Assembly recognizes the importance

of asset forfeiture as a means to confront drug trafficking.

However, the General Assembly also recognizes that under the

system that existed prior to the enactment of this act, the lack

of uniformity and accountability in forfeiture procedures across

the state has undermined confidence in the system. As the

United States Supreme Court has stated, “Forfeiture provisions

are powerful weapons in the war on crime; like any such

weapons, their impact can be devastating when used unjustly.”

In order to alleviate the problems resulting from the lack of

uniformity and accountability, the General Assembly has

determined that time limits for initiating forfeiture proceedings

and stricter controls over forfeited property will help alleviate

such problems while strengthening forfeiture as a vital weapon

against drug trafficking. Specifically, it is the intent of § 5-64-

505(a) that there be no forfeitures based solely upon a

misdemeanor possession of a controlled substance. However,

if the prosecuting attorney can prove that other evidence exists

to establish a basis for forfeiture, the property may be forfeited.

A66

It is the intent of § 5-64-505(d) to reduce the conflict between

state and federal authorities over seizures executed by state law

enforcement officers. It is the intent of § 5-64-505(h) to allow

law enforcement agencies and drug task forces to maintain

forfeited property for official use, provided that the final order

disposing of such property defines the legal entity that is

responsible for such property. Section 5-64-505(i)(1)(D)

governs those situations in which a seizure results in the

forfeiture of money and or property in excess of two hundred

fifty thousand dollars ($250,000). It is the specific intent of the

General Assembly that forfeiture proceedings not be structured

in such a way as to defeat the General Assembly’s intent that

money or property in excess of two hundred fifty thousand

dollars ($250,000) be transferred to the Special State Assets

Forfeiture Fund. It is determined that such fund can best be

used to combat drug trafficking statewide.

SECTION 2. Arkansas Code 5-64-505 is amended to

read as follows:

5-64-505. Property subject to forfeiture -

Procedure - Disposition of property.

(a) Items subject to forfeiture. The following are subject to

forfeiture upon the initiation of a civil proceeding filed by the

prosecuting attorney and when so ordered by the circuit court

in accordance with this section, provided that no property shall

be subject to forfeiture based solely upon a misdemeanor

possession of a Schedule III, IV, V, or VI controlled substance:

(1) All controlled substances and counterfeit

substances which have been manufactured,

distributed, dispensed, or acquired in violation

of this chapter;

A67

(2) 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 or counterfeit substance in

violation of this chapter,

(3) All property which is used, or intended

for use, as a container for property described in

subdivision (aX 1) or (2);

(4) All conveyances, including aircraft,

vehicles, or vessels, which are used, or intended

for use, to transport, or in any manner to facilitate

the transportation, for the purpose of sale or

receipt of property described in subdivision

(aX 1) or (2), but:

(A) No conveyance used by any person as a common

carrier in the transaction of business as a common carner

is subject to forfeiture under this section unless it appears

that the owner or other person in charge of the

conveyance is a consenting party or privy to a violation

of this chapter;

(B)No conveyance is subject to forfeiture under this

section by reason of any act or omission established by

the owner thereof to have been committed or omitted

without his knowledge or consent. Upon such showing

by the owner or interest holder, the conveyance may

nevertheless be forfeited if the prosecuting attorney

establishes that the owner or interest holder either knew

or should reasonably have known that the conveyance

would be used to transport or in any manner to facilitate

the transportation, for the purpose of sale or receipt, of

property described in subsection (a1) or (2);

A68

(C) A conveyance is not subject to forfeiture for a

violation of § 5-64-401(c); and

(D) A forfeiture of a conveyance encumbered by.a

bona fide security interest is subject to the interest of

the secured party if he neither had knowledge of nor

consented to the act or omission.

(5) All books, records, and research products and

matenials, including formulas, microfilm, tapes, and data

which are used, or intended for use, in violation of this

chapter.

(6) Everything of value furnished or intended to be

furnished in exchange for a controlled substance or

counterfeit substance in violation of this chapter, all

proceeds and profits traceable to such an exchange, and

all moneys, negotiable instruments, and securities used,

or intended to be used, to facilitate any violation of this

chapter; except that no property shall be forfeited under

this paragraph, to the extent of the interest of an owner

by reason of any act or omission established by him, by

a preponderance of the evidence, to have been

committed or omitted without his knowledge or consent.

REBUTTABLE PRESUMPTIONS. All moneys, coin,

and currency found in close proximity to forfeitable controlled

substances, to counterfeit substances, to forfeitable drug

manufacturing or distributing paraphernalia, or to forfeitable

records of the importation, manufacture, or distribution of

controlled substances or counterfeit substances are presumed

to be forfeitable under this paragraph. The burden of proof is

upon claimants of the property to rebut these presumptions by

a preponderance of the evidence.

A69

(7) Real property may be forfeited under this chapter

if it substantially assisted in, facilitated in any manner,

or was used or intended for use in the commission of

any act prohibited by this chapter, except that:

(A) No real property is subject to forfeiture

under this chapter by reason of any act or

omission established by the owner thereof by a

preponderance of the evidence to have been

committed or omitted without his knowledge or

consent,

(B) Real property is not subject to forfeiture

for a violation of § 5-64-401(c); and

(C) A forfeiture of real property encumbered

by a mortgage or other lien is subject to the

interest of the secured party if the secured party

neither had knowledge of nor consented to the

unlawful act or omission.

(D) Upon conviction, when the circuit court

having jurisdiction over the real property seized

finds upon a hearing by a preponderance of the

evidence that grounds for a forfeiture exist under

this section, the court shall enter an order

consistent with subsection (h) of this section.

(E) When any court orders a forfeiture of real

property pursuant to this chapter, the order shall

be filed of record on the day issued and shall

have prospective effect only.

(F) A forfeiture of real property ordered under

the provisions of this chapter shall not affect the

title of a bona fide purchaser who purchased the

A70

property prior to the issuance of the order, and

such order shall have no force or effect on the

title of the bona fide purchaser.

(G) Any lis pendens filed in connection with

any action pending under the provisions of this

chapter which might result in the forfeiture of

real property shall be operative only from the ~

time filed and shall have no retroactive effect.

(b) Seizure and summary forfeiture of contraband. The

following items shall be deemed contraband and may be seized

and summarily forfeited to the state:

(1) Controlled substances listed in Schedule | that

are possessed, transferred, sold, or offered for sale in

violation of this chapter and controlled substances listed

in Schedule I which are seized or come into the

possession of the state, the owners of which are

unknown.

(2) Species of plants from which controlled

substances in Schedules I, II, and VI may be derived

which have been planted or cultivated in violation of

this chapter, or of which the owners or cultivators are

unknown, or which are wild growths. The failure, upon

demand by the seizing law enforcement agency, of the

person in occupancy or in control of land or premises

upon which the species of plants are growing or being

stored, to produce an appropriate registration, or proof

that he is the holder thereof, constitutes authority for

the seizure and forfeiture of the plants.

(3) All drug paraphernalia and counterfeit substances

except in the possession or control of a practitioner in

the course of professional practice and/or research.

A7l

(c) Seizure of property. Property subject to forfeiture under

this chapter may be seized by any law enforcement agent upon

process issued by any circuit court having jurisdiction over the

property on petition filed by the prosecuting attorney of the

judicial circuit. Seizure without process may be made if:

(1) The seizure is incident to an arrest or a search

under a search warrant or an inspection under an

administrative inspection warrant;

(2) The property subject to seizure has been the

subject of a prior judgment in favor of the state in a

criminal injunction or forfeiture proceeding based upon

this chapter;

(3) The seizing law enforcement agency has probable

cause to believe that the property is directly or indirectly

dangerous to health or safety; or

(4) The seizing law enforcement agency has probable

cause to believe that the property was used or is intended

to be used in violation of this chapter.

(d) Transfer of property seized by state or local agency to

federal agency. No state or local law enforcement agency may

transfer any property seized by the state or local agency to any

federal entity for forfeiture under federal law unless the circuit

court having jurisdiction over the property enters an order, upon

petition by the prosecuting attorney, authorizing the property

to be transferred to such federal entity. Such transfer shall not

be approved unless it reasonably appears that the activity giving

rise to the investigation or seizure involves more than one state

or the nature of the investigation or seizure would be better

pursued under federal law.

(eX1) Custody of property pending disposition. Property

seized for forfeiture under this section shall not be subject to

A72

replevin, but is deemed to be in the custody of the seizing law

enforcement agency subject only to the orders and decrees of

the circuit court having jurisdiction over the property seized.

When property is seized under this chapter, the seizing law

enforcement agency may, subject to any need to retain the

property as evidence:

(A) Remove the property to a place designated

by the circuit court;

(B) Place the property under constructive

seizure posting notice of pending forfeiture on

it, by giving notice of pending forfeiture to its

owners and interest holders, or by filing notice

of pending forfeiture in any appropriate public

record relating to the property;

(C) Remove the property to a storage area for

safekeeping or, if the property is a negotiable

instrument or money, or is not needed for

evidentiary purposes, deposit it in an interest-

bearing account; or

(D) Provide for another agency or custodian,

including an owner, secured party, mortgagee,

or lienholder, to take custody of the property and

service, maintain, and operate it as reasonably

necessary to maintain its value in any appropriate

location within the jurisdiction of the court.

(2) In all cases of transfer of property, a transfer receipt

Shall be prepared by the transferring agency. The

transfer receipt shall list a detailed and complete

description of the property being transferred. The

transfer receipt shall also state to whom the property is

being transferred and the source or authorization for the

A73

transfer. The transfer receipt shall be signed by both

the transferor and the transferee. Both transferor and

transferee shall maintain a copy of the transfer receipt.

(3) A person who acts as custodian of property under

this section is not liable to any person on account of

acts done in compliance with an order under this chapter

in a reasonable manner.

(f) Inventory of property seized - Referral to prosecuting

attorney.

(1) Any property seized by state or local law enforcement

officers who are detached to, deputized or commissioned by,

or working in conjunction with a federal agency shall remain

subject to the provisions of this section.

(2) When property is seized for forfeiture by a law

enforcement agency, the seizing officer shall prepare

and sign a confiscation report. The party from whom

the property is seized shall also sign the report if present

and shall immediately receive a copy of it. If the party

refuses to sign the report, the report shall be signed by

one (1) additional law enforcement officer, stating that

- the party refused to sign the report. The original report

shall be filed with the seizing law enforcement agency

within forty-eight (48) hours after the seizure and shall

be maintained in a separate file. One (1) copy of the

report shall be retained by the seizing officer.

(3) The confiscation report shall contain the following

information:

(A) A detailed description of the property

seized including any serial or model numbers;

A74

(B) The date of seizure;

(C) The name and address from whom the

property was seized;

(D) The reason for the seizure;

(E) Where the property will be held;

(F) The seizing officer’s name; and

(G) A signed statement by the seizing officer

stating that the report is true and complete.

(4) Within three (3) business days of receiving the

confiscation report, the seizing agency shall forward a

copy of the report to the prosecuting attorney for the

district in which the property was seized and to the

Arkansas Drug Director.

(5A) If the Division of Legislative Audit determines,

by its own investigation or upon written notice from

the Arkansas Drug Director, that (i) a law enforcement

agency has failed to complete and file the confiscation

reports as required by this section, (ii) that a law

enforcement agency, prosecuting attorney, or other

public entity has not properly accounted for any seized

property, or (iii) that a prosecuting attorney has failed

to comply with the notification requirement set forth in

subsection (i) 1), the Division of Legislative Audit shall

notify the circuit court in the county of such entity and

the Arkansas Alcohol and Drug Abuse Coordinating

Council that the entity is thereafter ineligible to receive

any forfeited funds, forfeited property, or any grants

from the council. The court shall thereafter not issue

any orders distributing seized property to that entity nor

A75

shall any grants be awarded by the council to that entity

until the appropriate officials of the entity have appeared

before the Legislative Joint Auditing Committee and

the committee has adopted a motion authorizing

subsequent transfers of forfeited property to the entity.

(B) While an entity is ineligible to receive

forfeited property, the court shall order any

money that would have been distributed to that

entity to be transmitted to the Treasurer of State

for deposit into the Crime Lab Equipment Fund,

and if the property is other than cash, the court

shall order it converted to cash pursuant to

subdivision (h)(1)(B), and the proceeds

transmitted to the Treasurer of State for deposit

into the Crime Lab Equipment Fund.

(C) Monies deposited into the Crime Lab

Equipment Fund pursuant to subdivision

(f)(5\B) are not subject to recovery or retrieval

by the ineligible entity.

(g) Initiation of forfeiture proceedings - notice to claimants -

judicial proceedings.

(1) The prosecuting attorney shall initiate forfeiture

proceedings by filing a complaint with the circuit clerk

of the county in which the property was seized and by

serving such complaint on all known owners and interest

holders of the seized property in accordance with the

Arkansas Rules of Civil Procedure. The complaint may

be based on in rem or in personam jurisdiction but shall

not be filed in such a way as to avoid the distribution

requirements set forth in subdivision (ix 1).

A76

(2) The complaint shall include a copy of the

confiscation report and shall be filed within sixty (60)

days after receiving a copy of the confiscation report

from the seizing law enforcement agency. In cases

involving real property, the complaint shall be filed

within sixty (60) days of the defendant’s conviction on

the charge giving rise to the forfeiture.

(3) The prosecuting attorney may file the complaint

after the expiration of the time set forth in subdivision

(g(2) only if the complaint is accompanied by a

statement of good cause for the late filing. However, in

no event shall the complaint be filed more than one

hundred twenty (120) days after either the date of the

seizure or, in cases involving real property, the date of

the defendant’s conviction. If the court determines that

good cause has not been established, the court shall order

that the seized property be returned to the owner or

interest holder.

(4) Within the time set forth in the Arkansas Rules

of Civil Procedure, the-owner or interest holder of the

seized property shall file with the circuit clerk a verified

answer to the complaint which shall include:

(A) A statement describing the property and

the petitioner’s interest in the property, with

supporting documents to establish such interest;

(B) A certification by the owner or interest

holder stating that he has read the document and

that it is not filed for any improper purpose;

(C) A statement setting forth any defenses to

forfeiture; and

A77

(D) The address at which the owner or interest

holder will accept mail.

(SA) If the owner or interest holder fails to file an

answer as required by subdivision (g\4), the prosecuting

attorney may move for default judgment pursuant to

the Arkansas Rules of Civil Procedure.

(B) If a timely answer has been filed, the

prosecuting attorney shal! have the burden of

proving by a preponderance of the evidence that

the seized property should be forfeited. After

the prosecuting attorney has presented such

proof, any owner or interest holder of the

property seized shall be allowed to present

evidence why such property should not be

forfeited. If the court determines that grounds

for forfeiting the property exist and that no

defense to forfeiture has been established by the

owner or interest holder, the court shall enter an

order pursuant to subsection (h). However, if

the court determines either that the prosecuting

- attorney has failed to establish that such grounds

exist or that the owner or interest holder has

established a defense to forfeiture, the court shall

order that the property be immediately returned

to the owner or interest holder.

(h) Final disposition. (1) When the circuit court having

jurisdiction over the property seized finds upon a hearing by a

preponderance of the evidence that grounds for a forfeiture exist

under this chapter, the court shall enter an order:

(A) To permit the law enforcement agency

Or prosecuting attorney to retain the property for

A78

law enforcement or prosecutorial purposes,

subject to the following provisions:

(i) Property may not be retained for

official use for more than two (2) years,

unless the circuit court finds that the property

has been used for law enforcement or

prosecutorial purposes and authorizes

continued use for such purposes on an annual

basis. At the end of the period of retention,

the property shall be sold as provided in

subdivision (hX1\B), and eighty percent

(80%) of the proceeds shall be deposited in

the drug control fund of the retaining agency

and twenty percent (20%) of the proceeds

shall be deposited into the State Treasury as

special revenues to be credited to the Crime

Lab Equipment Fund. Nothing shall prohibit

the retaining agency from selling the retained

property at any time during the time allowed

for retention, provided that the proceeds of

such sale shall be distributed as set forth in

this paragraph;

(ii) If the circuit court determines that

retained property has been used for personal

use or by non-law enforcement personnel for

non-law enforcement purposes, the court

shall order the property to be sold pursuant

to the provisions of Arkansas Code § 5-5-

101(e) and (f), and the proceeds shall be

deposited into the State Treasury as special

revenues to be credited to the Crime Lab

Equipment Fund;

A79

(iii) Drug task forces may use forfeited

property or money, provided that the court’s

order specifies that the money or property is

forfeited to the prosecuting attorney, sheriff,

chief of police, or Arkansas State Police, or

Arkansas Highway Police. The prosecuting

attorney, sheriff, chief of police, or Arkansas

State Police, or Arkansas Highway Police

shall thereafter maintain an inventory of such

property, shall be accountable for such

property, and shall be subject to the

provisions of subsection (f)(5) with respect

to such property;

(iv) All aircraft shall be forfeited to the

Office of the Arkansas Drug Director and

may only be used for drug eradication or

drug interdiction efforts, within the

discretion of the Arkansas Drug Director.

However, if the Arkansas Alcohol and Drug

Abuse Coordinating Council determines that

the aircraft should be sold, such sale shall

be conducted pursuant to the provisions of

§ 5-5-101(e) and (f), and the proceeds of

such sale shall be deposited in the Special

State Assets Forfeiture Fund;

(v) All firearms not retained for official

use shall be disposed of in accordance with

state and federal law;

(vi) All controlled substances, plants, drug

paraphernalia, and counterfeit substances

shall be destroyed pursuant to court order;

A80

(B) To sell that which is not required by law

to be destroyed and which is not harmful to the

public. Such property shall be sold at a public

sale, by the retaining agency, pursuant to the

provisions of § 5-5-101(e) and (f);

(2) Disposition of forfeited property pursuant to this

subsection shall be subject to the need to retain the

property as evidence in any related proceedings;

(3) Within three (3) business days of the entry of the

order, the circuit clerk shall forward to the Arkansas

Drug Director copies of the confiscation report, the

court’s order, and any other documentation detailing the

disposition of the seized property.

(1) Disposition of moneys received. Subject to the provisions

of subsection (f)(5S), the proceeds of sales conducted pursuant

to subsection (h1)(B) and all moneys forfeited or obtained by

judgment or settlement pursuant to this chapter shall be

deposited and distributed in the manner set forth in this

subsection. Moneys received from federal forfeitures shall be

deposited and distributed pursuant to subdivision (4) of this

subsection.

(1) Asset Forfeiture Fund. (A) The proceeds of any

sale and any moneys forfeited or obtained by judgment

or settlement under this chapter shall be deposited in

the asset forfeiture fund of the prosecuting attorney and

shall be subject to the following provisions:

(i) If, during a calendar year, the aggregate

amount of moneys deposited in the asset

forfeiture fund exceeds twenty thousand

dollars ($20,000) per county, the prosecuting

attorney shall, within fourteen (14) days of

A8l

that time, notify the circuit judges in the

judicial district and the Arkansas Drug

Director;

(ii) Subsequent to the notification set forth

in (i), twenty percent (20%) of the proceeds

of any additional sale and any additional

moneys forfeited or obtained by judgment

or settlement under this chapter in the same

calendar year shall be deposited into the

State Treasury as special revenues to be

credited to the Crime Lab Equipment Fund

and the remainder shall be deposited in the

asset forfeiture fund of the prosecuting

attorney;

(iii) Failure by the prosecuting attorney

to comply with the notification requirement

set forth in (i) shall render the prosecuting

attorney and any entity eligible to receive

forfeited moneys or property from the

prosecuting attorney ineligible to receive

such moneys or property, except as provided

in subsection (f( 5A);

(iv) Twenty percent (20%) of any moneys

in excess of twenty thousand dollars

($20,000) that have been retained but not

reported as required by (i) shall be subject

to recovery for deposit into the Crime Lab

Equipment Fund.

(B) The prosecuting attorney shall administer

expenditures from the fund which shall be

subject to audit by the Division of Legislative

Audit. Moneys distributed from this fund must

only be used for law enforcement and

A8&2

prosecutorial purposes. Moneys in the fund must

be distributed in the following order:

(i) For satisfaction of any bona fide

security interest or lien;

(1i) For payment of all proper expenses

of the proceedings for forfeiture and sale,

including expenses of seizure, maintenance

of custody, advertising, and court costs;

(iii) Any balance under two hundred fifty

thousand dollars ($250,000) shall be

distributed proportionally so as to reflect

generally the contribution of the appropriate

local or state law enforcement or

prosecutorial agency’s participation in any

of the activities that led to the seizure or

forfeiture of the property or deposit of

moneys under this chapter; and

(iv) Any balance over two hundred fifty

thousand dollars ($250,000) shall be

forwarded to the Arkansas Drug Director to

be transferred to the State Treasury for

deposit in the Special State Assets Forfeiture

Fund for distribution as provided in

subdivision (3) of this subsection. -

(2) Drug Control Fund. (A) There is created on the

books of law enforcement agencies and prosecuting

attorneys a Drug Control Fund. The Drug Control Fund

shall consist of all moneys obtained under subdivision

(1) and other revenues as may be provided by law or

ordinance. Moneys from the fund may not supplant other

local, state or federal funds. Moneys in this fund are

A&3

appropriated on a continuing basis and are not subject

to the Revenue Stabilization Law, § 19-5-101 et seq.

Moneys in this fund must only be used for law

enforcement and prosecutorial purposes. The fund is

subject to audit by the Division of Legislative Audit.

(B) The law enforcement agencies and

prosecuting attorneys shall submit to the

Arkansas Drug Director on or before January 1

and July | of each year a report detailing all

moneys received and expenditures made from

the Drug Control Fund during the preceding six-

month period.

(3) Special State Assets Forfeiture Fund. (A) There

is created and established on the books of the State

Treasurer, the State Auditor, and the Chief Fiscal Officer

of the State a fund to be known as the Special State

Assets Forfeiture Fund. =

(B) The Special State Assets Forfeiture Fund

shall consist of revenues obtained under

subdivision (i 1 Biv) and any other revenues

as may be provided by law. Moneys from the

fund may not supplant other local, state, or

federal funds.

(C) This fund shall not be subject to the

provisions of the Revenue Stabilization Law, §

19-5-101 et seq., or the Special Revenue Fund

Account, § 19-5-203(b\2\A).

(D) The Arkansas Drug Director shall

establish through rules and regulations a

procedure for proper investment, use, and

disposition of moneys deposited in the special

A&4

asset forfeiture fund in accordance with the

intent and purposes of subchapters 1-6 of this

chapter. Moneys in this fund shall be distributed

by the Arkansas Alcohol and Drug Abuse

Coordinating Council and shall only be

distributed for law enforcement and

prosecutorial purposes related to drug

interdiction and eradication efforts.

(4) Federal Forfeitures. (A) All moneys received by

prosecuting attorneys and law enforcement agencies

from federal forfeitures shall be deposited and

maintained in a separate account, provided that any

balance over two hundred fifty thousand dollars

($250,000) shall be distributed as set forth in (B). No

other moneys may be maintained in such account except

for any interest income generated by such account.

Moneys in this account must only be used for law

enforcement and prosecutorial purposes consistent with

governing federal law. Such accounts shall be subject

to audit by the Division of Legislative Audit.

(B) Any balance over two hundred fifty

thousand dollars ($250,000) shall be forwarded

to the Arkansas Drug Director to be transferred

to the State Treasury for deposit in the Special

State Assets Forfeiture Fund where it shall be

maintained separately and distributed consistent

with governing federal law.

(j) In personam proceedings. In personam jurisdiction may

be based on the person’s presence in the state, or on his conduct

in the state, as set out in § 16-4-101(c), and is subject to the

following additional provisions:

A85

(1) A temporary restraining order under this section

may be entered ex parte on application of the state, upon

a showing that:

(A) There is probable cause to believe that

the property with respect to which the order is

sought is subject to forfeiture under this section;

and

(B) Notice of the action would jeopardize

the availability of the property for forfeiture.

(2) Notice of the entry of a temporary restraining

order and an opportunity for hearing must be afforded

to persons known to have an interest in the property.

The hearing must be held at the earliest possible date

consistent with A.R.C.P. Rule 65 and is limited to the

issues of whether:

(A) There is a probability that the-state will

prevail on the issue of forfeiture and that failure

to enter the order will result in the property being

destroyed, conveyed, alienated, encumbered,

disposed of, received, removed from the

jurisdiction of the court, concealed, or otherwise

made unavailable for forfeiture; and

(B) The need to preserve the availability of

property through the entry of the requested order

outweighs the hardship on any owner or interest

holder against whom the order is to be entered.

(3) The state has the burden of proof by a

preponderance of the evidence to show that the

defendant’s property is subject to forfeiture.

A86

(4) On a determination of liability of a person for

conduct giving rise to forfeiture under this section, the

court shall enter a judgment of forfeiture of the property

subject to forfeiture as alleged in the complaint and may

authorize the prosecuting attorney or any law

enforcement officer to seize all property subject to

forfeiture pursuant to subsection (a) of this section not

previously seized or not then under seizure. The order

of forfeiture shall be consistent with subsection (h) of

this section. In connection with the judgment, the court,

on application of the state, may enter any appropriate

order to protect the interest of the state in property

ordered forfeited.

(5) Subsequent to the finding of liability and order

of forfeiture, the following procedures apply:

(A) The attorney for the state shall give notice

of pending forfeiture, in the manner provided in

A.R.C.P. Rule 4, to all owners and interest

holders who have not previously been given

notice;

(B) An owner of or interest holder in property

that has been ordered forfeited and whose claim

is not precluded may file a claim within thirty

(30) days after initial notice of pending forfeiture

or after notice under A.R.C.P. Rule 4, whichever

is earlier;

(C) The court may amend the in personam

order of forfeiture if the court determines that a

claimant has established that he or she has an

interest in the property and that that interest is

exempt under subdivision (a\4), (6), or (7) of

this section.

A87

(k) The court shall order the forfeiture of any other property

of a claimant or defendant up to the value of the claimant’s or

defendant’s property found by the court to be subject to forfeiture

under subsection (a) of this section if any of the forfeitable

property had remained under the control or custody of the

claimant or defendant and:

(1) Cannot be located;

(2) Was transferred or conveyed to, sold to, or

deposited with a third party;

(3) Is beyond the jurisdiction of the court;

(4) Was substantially diminished in value while not

in the actual physical custody of the seizing agency;

(5) Was commingled with other property that cannot

be divided without difficulty; or

(6) Is subject to any interest exempted from forfeiture

under this subchapter.

SECTION 3. There is hereby created the Crime Lab

Equipment Fund on the books of the Auditor of State, Treasurer

of State, and Chief Fiscal Officer of the State. The monies in

the fund shall only be used by the State Crime Laboratory for

the purchase of equipment.

SECTION 4. Arkansas Code 5-64-509 is hereby

repealed.

SECTION 5. Arkansas Code 16-21-148 is amended to

read as follows:

A88

16-21-148. Deputy prosecutor for civil asset

forfeiture actions.

(a) In addition to the deputy prosecuting attorney positions

created by § 16-21-113(a)(1) and other Arkansas Code

provisions and laws, a prosecuting attorney shall have the power

to enter into a contract for personal services with a licensed

attorney whose duty it will be to act as a deputy prosecutor to

prosecute civil asset forfeiture actions at such hourly amount

as is deemed proper by the prosecuting attorney.

(b) This attorney may be paid from funds generated from §

5-64-505(i)(2).

SECTION 6. Arkansas Code 19-5-972 is amended to

read as follows:

19-5-972. Special State Assets Forfeiture Fund.

(a) There is hereby established on the books of the Treasurer

of State, Auditor of State, and Chief Fiscal Officer of the State

a fund to be known as the Special State Assets Forfeiture Fund.

(b) Such fund shall consist of revenues as provided in § 5-

64-505(i 1 (Biv) and any other revenues as may be provided

by law, there to be administered through rules and regulations

established by the Arkansas Drug Director and distributed by

the Arkansas Drug and Alcohol Abuse Coordinating Council

in accordance with the intent and purposes of chapter 64, title

5, of the Arkansas Code.

SECTION 7. Arkansas Code 16-21-147(d) is amended

to read as follows:

A89

(d) All federal forfeitures to a prosecuting

attorney's office shall be deposited in a separate

account pursuant to § 5-64-505(i)\4).

SECTION 8. All provisions of this Act of a general

and permanent nature are amendatory to the Arkansas Code of

1987 Annotated and the Arkansas Code Revision Commission

shall incorporate the same in the Code.

SECTION 9. If any provision of this Act or the

application thereof to any person or circumstance is held invalid,

such invalidity shall not affect other provisions or applications

of the Act which can be given effect without the invalid

provision or application, and to this end the provisions of this

Act are declared to be severable.

SECTION 10. All laws and parts of laws in conflict

with this Act are hereby repealed.

A90

VI. PORTIONS OF RECORD WHERE

FEDERAL QUESTIONS RAISED AND

RULED UPON

A. WHERE RAISED

CIRCUIT COURT OF

CRITTENDEN COUNTY, ARKANSAS

State of Arkansas Plaintiff

V.

$3,166,199 U.S. Currency Defendant

Roberto V. Zamarripa

Omar Saenz Claimants

Motion To Vacate Order

(Filed March 20, 1998) (R. 27-33)

Comes now the Movant, Arkansas Highway Police, by

and through its attorneys, Robert L. Wilson, Chief Counsel,

William L. Wharton, Calvin R. Gibson, and Lawrence W.

Jackson, and for its Motion to Vacate Order states and alleges:

1. On March 18, 1998, at 5:05 p.m., after the close of

regular business hours and without any notice or even a phone

call to Movant’s counsel, Movant received a faxed copy of an

Order (the “Ex Parte Order’’), which apparently had been signed

on March 17, 1998, and entered on March 18, 1998. The Ex

Parte Order was faxed to the office of the Chief of the Arkansas

Highway Police, but copies have never been provided to

Movant’s counsel by the Plaintiff’s counsel. Based on the

contents of the Ex Parte Order, Movant believes that the Court

was not fully advised of the facts and circumstances surrounding

these proceedings.

A9l

2. The Ex Parte Order makes reference to “Three

Million One Hundred Sixty Six [sic] One Hundred Ninety Nine

($3,166,199.00)”, which was seized on March 7, 1998, by the

Arkansas Highway Police in Crittenden County, Arkansas. As

correctly noted in the Ex Parte Order, the money was transported

‘to the Arkansas Highway Police Headquarters in Little Rock,

Arkansas. The amount of currency seized and transported was

Three Million One Hundred Sixty Six Thousand One Hundred

Ninety Nine Dollars ($3,166,199.00) (the “Money”).

3. As the seizing agency, Movant is a party in interest

and is entitled to notice in these proceedings. Furthermore,

because the Money is now property of the United States and in

the possession of Federal law enforcement agencies, the United

States is a party in interest and a necessary party to these

proceedings, although it is doubtful that the Court or Prosecutor

possess jurisdiction over United States property in the custody

and control of the United States.

4. The £x Parte Order directs the Arkansas Highway

Police to “deposit said currency in a Federally Insured

Depository and said U. S. Currency is to be wired into P. A.

Drug Asset Holding Account located at the Citizen’s Bank in

Marion, Crittenden County, Arkansas bearing account number

189100 and forwarded within ten (10) days of this Order.”

5. The Ex Parte Order was apparently entered upon

an ex parte motion submitted to the Court by James C. Hale,

Ill. The Ex Parte Order was obtained and entered without notice

to Movant. Because the Ex Parte Order was obtained without

notice, the Court was apparently misinformed about several

relevant facts.

6. First, the Arkansas Highway Police is the seizing

agency for the purposes of State and Federal forfeiture laws

and, as such, elected to have any forfeiture action prosecuted

A92

by Federal authorities in Federal court. United States Drug

Enforcement Agency (“DEA”) administrative forfeiture

proceedings have already begun. Neither the Crittenden County

Prosecutor nor this Court possess jurisdiction or authority to

second-guess Movant’s election.

7. Second, as a courtesy, the Crittenden County

Prosecutor was informed of the seizure. Also, as a courtesy,

Movant requested the Crittenden County Prosecutor’s

agreement to the transfer of the Money to Little Rock and the

Federal prosecution of any forfeiture action. James C. Hale,

Jr., expressly agreed to the transfer and Federal prosecution.

Mr. Hale expressed his agreement to William L. Wharton, one

of Movant’s attorneys, among others, and, accordingly, had

actual knowledge that Movant was represented by counsel, a.

well as the identity, address, and phone number of Movant’s

counsel.

8. Third, the Money is no longer in the possession or

control of the Arkansas Highway Police. After being transported

to Arkansas Highway Police Headquarters shortly after it was

seized and in reliance upon the agreement with the Crittenden

County Deputy Prosecuting Attorney, the Money was

subsequently placed in a Federally Insured Depository and

turned over to the DEA. The Money has since been transferred

to the custody and control of the United States Marshal.

Accordingly, the Court no longer possesses jurisdiction over

the res.

9. Fourth, on two different occasions (so far) some of

the currency has been determined to be counterfeit. Accordingly,

it is Movant’s belief that the counterfeit currency has been, or

is being, forwarded to the Federal Reserve Bank, at which point

it will be forwarded to the United States Secret Service for

further investigation.

A93

10. Fifth, Plaintiff's attorney agreed and acquiesced

to the transfer of the Money and Movant’s election to have this

matter prosecuted by Federal authorities, and further knew the

identity and phone number of Movant’s counsel. Nevertheless,

Movant was afforded no notice of Plaintiff's motion for the Ex

Parte Order.

11. Sixth, Movant objects to the Ex Parte Order.

Movant cannot comply with the x Parte Order and the Court

now lacks jurisdiction to compel Movant to transfer the Money

even if it were still in Movant's possession or control.

12. Seventh, the Money was and is property of the

United States pursuant to 21 U.S.C. § 881(h).

13. Eighth, the Money was seized during a consensual

search of a commercial motor vehicle in interstate commerce

while Movant’s employees and agents were acting in their

capacity as agents of the Federal Government in the enforcement

of United States Department of Transportation regulations

regarding the operation of interstate motor carriers. While

engaged in such duties, Movant’s employees and agents were

serving in dual capacities under both Federal and State authority.

14. The £x Parte Order resulted from an apparent

motion that was improper and violated Ark. R. Civ. P. 65 and

Rules 3.3, 3.4, & 3.5 of the Model Rules of Professional

Conduct. Even though the Crittenden County Deputy

Prosecuting Attorney knew Movant was represented by counsel,

the Deputy Prosecuting Attorney communicated directly with

the agents and employees of Movant without the consent of

counsel. Given the adversarial nature that the Deputy

Prosecuting Attorney has elected to instill into these

proceedings, such communications were in violation of Rule

4.2 of the Model Rules of Professional Conduct. Furthermore,

the Deputy Prosecuting Attorney still has never faxed copies of

A94

any pleadings to Movant’s counsel, nor even bothered to call

Movant’s counsel regarding the Ex Parte Order. The motion

and Ex Parte Order are also in violation of Ark. R. Civ. P. 65,

which requires an affidavit or verified complaint alleging

irreparable harm, a reasonable effort to provide notice to other

parties, and an expedited hearing. The Money has remained

securely in the hands of appropriate law enforcement officials

and agencies, or their depository, at all times, and no chance of

any harm — much less irreparable harm — exists. Plaintiff

apparently failed to make any effort to notify Movant because

Movant's counsel has been available on March 16, 17, and 18.

The £x Parte Order further makes no provision for a hearing

on the matter.

1S. The Ex Parte Order violates Ark. Const. art. 4,

which prohibits the Court from exercising the powers of the

executive branch. To the extent that Ark. Code Ann. § 5-64-

505 permits the Court to enter such orders directing Movant to

bring the forfeiture action in either the Federal or State forum,

it is unconstitutional as applied. Ark. Const. art. 4; Ark. Const.

amend. 42.

16. Movant believes that prosecution of the forfeiture

action by Federal authorities in Federal Court under Federal

law is more likely to be successful.

17. DEA administrative forfeiture proceedings have

already begun. Movant has been advised that DEA form DAG-

71 will be forwarded to the Crittenden County Prosecutor’s

office in the event that it desires to claim a share of the Money.

18. Finally, the vehicle carrying the Money apparently

originated in Texas and had traveled between Texas and Ohio.

The only connection with Arkansas is that the Money was being

transported through the State when it was seized. The Federal

agencies are better able to investigate the multi-state

A95

transportation, transactions, and circumstances, not to mention

the counterfeit bills that have been discovered.

19. For each and all of the foregoing:

a) the Ex Parte Order is void;

b) the Court lacks jurisdiction to have entered

the Ex Parte Order,

c) Movant cannot possibly comply with the

Ex Parte Order, even if it were valid;

d) the Crittenden County Prosecuting Attorney

is estopped from denying the existence of its

agreement to transfer the Money to Little Rock

and Federal prosecution of the forfeiture action;

e) the £x Parte Order is unconstitutional; and,

f) the Ex Parte Order is moot.

20. Movant requests an emergency hearing at the

Court’s earliest possible convenience.

THEREFORE, Movant respectfully requests that this

action be dismissed or, alternatively, the Order signed March

17, 1998, and entered March 18, 1998, be set aside, vacated,

and held for naught.

Respectfully submitted,

/S/ Robert L. Wilson, Chief Counsel

A96

CIRCUIT COURT OF

CRITTENDEN COUNTY, ARKANSAS

State of Arkansas Plaintiff

V.

$3,166,199 U.S. Currency Defendant

Roberto V. Zamarripa

Omar Saenz Claimants

Motion To Dismiss And. Alt tivel

Amended Motion To Vacate Order

(Filed March 27, 1998) (R. 44-52)

Comes now the Movant, Arkansas Highway Police, by

and through its attorneys, Robert L. Wilson, Chief Counsel,

William L. Wharton, Calvin R. Gibson, and Lawrence W.

Jackson, and for its Motion to Dismiss and, Alternatively,

Motion to Vacate Order states and alleges:

1. On March 18, 1998, at 5:05 p.m., after the close of

regular business hours and without any notice or even a phone

call to Movant’s counsel, Movant received a faxed copy of an

Order (the “Ex Parte Order”), which apparently had been signed

on March 17, 1998, and entered on March 18, 1998. The Ex

Parte Order was faxed to the office of the Chief of the Arkansas

Highway Police, but copies have never been provided to

Movant’s counsel by the Plaintiff’s counsel. Based on the

contents of the Ex Parte Order, Movant believes that the Court

was not fully advised of the facts and circumstances surrounding

these proceedings.

2. The Ex Parte Order makes reference to “Three

Million One Hundred Sixty Six [sic] One Hundred Ninety Nine

A97

($3,166,199.00)”, which was seized on March 7, 1998, by the

Arkansas Highway Police in Crittenden County, Arkansas. As

correctly noted in the x Parte Order, the money was transported

to the Arkansas Highway Police Headquarters in Little Rock,

Arkansas. The amount of currency seized and transported was

Three Million One Hundred Sixty Six Thousand One Hundred

Ninety Nine Dollars ($3,166,199.00) (the “Money”).

3. As the initial seizing agency, Movant is a party in

interest and is entitled to notice in these proceedings.

Furthermore, because the seizure was adopted by the Drug

Enforcement Administration (“DEA”), the Money is now

property of the United States and in the possession of federal

law enforcement agencies, and the United States is a party in

interest and a necessary party to these proceedings — although

it is doubtful that the Court or Prosecutor possess jurisdiction

over United States property in the custody and control of the

United States.

4. The £x Parte Order directs the Arkansas Highway

Police to “deposit said currency in a Federally Insured

Depository and-said U. S. Currency is to be wired into P. A.

Drug Asset Holding Account located at the Citizen’s Bank in

Marion, Crittenden County, Arkansas bearing account number

189100 and forwarded within ten (10) days of this Order.”

5. The £x Parte Order was apparently entered upon

an ex parte motion submitted to the Court by James C. Hale,

Ill. The £x Parte Order was obtained and entered without notice

to Movant. Because the Ex Parte Order was obtained without

notice, the Court was apparently misinformed about several

relevant facts.

6. First, the Arkansas Highway Police, the initial

seizing agency for the purposes of State and federal forfeiture

laws, elected to have any forfeiture action prosecuted by federal

A98

authorities in federal court. Agents for the United States Drug

Enforcement Agency (“DEA”) were contacted immediately

upon the seizure of the Money on March 7, 1998, prior to

contacting the Crittenden County Prosecutor, and administrative

forfeiture proceedings have already begun. The Money, the

rem, was voluntarily and lawfully transferred to federal

authorities before either the Ex Parte Order was entered or the

Complaint in this matter was filed. Therefore, neither the

Crittenden County Prosecutor nor this Court possess jurisdiction

or authority to second-guess Movant’s election. United States

v. $12,390.00, 956 F.2d 801 (8th Cir. 1992) (“The fact that the

government had taken possession of the money and initiated

the requisite paperwork for administrative forfeiture is

determinative in this case.”)

7. Second, as.a courtesy, the Crittenden County

Prosecutor was informed of the seizure. Also, as a courtesy,

Movant requested the Crittenden County Prosecutor’s

acquiescence agreement to the transfer of the Money to Little

Rock and the federal prosecution of any forfeiture action. James

C. Hale, Jr., expressly agreed to the transfer and federal

prosecution. Mr. Hale expressed his agreement to William L.

Wharton, one of Movant’s attorneys, among others, and,

accordingly, had actual knowledge that Movant was represented

by counsel, as well as the identity, address, and phone number

of Movant’s counsel. Nonetheless, no notice was provided to

Movant even though the Ex Parte Order directs Movant to return

the Money.

8. Third, the Money is no longer in the possession or

control of the Arkansas Highway Police. After being transported

to Arkansas Highway Police Headquarters shortly after it was

seized and in reliance upon the agreement with the Crittenden

County Deputy Prosecuting Attorney, the Money was

subsequently placed in a Federally Insured Depository and

turned over to the DEA. This occurred before the Court either

—s

A99

signed or entered the Ex Parte Order, and before even receiving

any notice that a motion had been, or was going to be, filed or

otherwise made (since there was no notice). The Money, with

the possible exception of the counterfeit bills, was transferred

by the DEA to the custody and control of the United States

Marshall at about the same time, or shortly before, the Ex Parte

Order was signed. Accordingly, the Court no longer possesses

jurisdiction over the res, nor can Movant comply with the Ex

Parte Order.

9. Fourth, on at least two different occasions (so far)

some of the currency has been determined to be counterfeit.

Accordingly, it is Movant’s belief that the counterfeit currency

has been, or is being, forwarded to the Federal Reserve Bank,

at which point it will be forwarded to the United States Secret

Service for further investigation.

10. Fifth, even assuming that the Court possessed

jurisdiction, Plaintiff's attorney agreed and acquiesced to the

transfer of the Money and Movant’s election to have this matter

prosecuted by federal authorities, and further knew the identity

and phone number of Movant’s counsel. Nevertheless, Movant

was afforded no notice of Plaintiff's motion for the Ex Parte

Order.

11. Sixth, Movant objects to the Ex Parte Order. As

already stated, Movant cannot comply with the Ex Parte Order

and the Court now lacks jurisdiction to compel Movant to

transfer the Money even if it were still in Movant’s possession

or control.

12. Seventh, the Money was and is property of the

United States pursuant to 21 U.S.C. § 881(h). The Money

became property of the United States at the time of the

commission of the act that made the Money subject to forfeiture.

A100

13. Eighth, the Money was seized during a consensual

search of a commercial motor vehicle in interstate commerce

while Movant’s employees and agents were acting under

authority of both federal and State law regarding the regulation

of interstate motor carriers.

14. The Ex Parte Order resulted from an apparent

motion that was improper and violated Ark. R. Civ. P. 65 and

Rules 3.3, 3.4, & 3.5 of the Model Rules of Professional

Conduct. Even though the Crittenden County Deputy

Prosecuting Attorney knew Movant was represented by counsel,

the Deputy Prosecuting Attorney communicated directly with

the agents and employees of Movant without the consent of

counsel. Given the adversarial spirit that the Deputy Prosecuting

Attorney has elected to instill into these proceedings, such

communications were also in violation of Rule 4.2 of the Model

Rules of Professional Conduct. Furthermore, the Deputy

Prosecuting Attorney still has never faxed copies of any

pleadings to Movant’s counsel, nor even bothered to call

Movant’s counsel regarding the Ex Parte Order. The motion

and Ex Parte Order are also in violation of Ark. R. Civ. P. 65,

which requires an affidavit or verified complaint alleging

irreparable harm, a reasonable effort to provide notice to other

parties, and an expedited hearing. The Money has remained

securely in the hands of appropriate law enforcement officials

and agencies, or their depository, at all times, and no chance of

any harm — much less irreparable harm — exists. Plaintiff

apparently failed to make any effort to notify Movant and

Movant’s counsel was fully available on March 16, 17, and 18.

The Ex Parte Order further makes no provision for a hearing

on the matter.

15. The Ex Parte Order violates Ark. Const. art. 4,

which prohibits the Court from exercising the powers of the

executive branch. To the extent that Ark. Code Ann. § 5-64-

505 permits the Court to enter such orders directing Movant to

Al0l

bring the forfeiture action in either the federal or State forum, it

is unconstitutional as applied. Ark. Const. art. 4; Ark. Const—

amend. 42.

16. To the extent that Ark. Code Ann. § 5-64-505

purports to grant the State the authority to seize assets that are

part of a pending or anticipated federal forfeiture proceeding it

violates the Supremacy Clause of the United States Constitution.

In any event, the kx Parte Order is an unconstitutional

application of Ark. Code Ann. § 5-64-505.

17. Movant believes that prosecution of the forfeiture

action by federal authorities in federal Court under federal law

is more likely to be successful.

18. The DEA adopted the seizure and DEA

administrative forfeiture proceedings have already begun. DEA

agents were contacted by Movant immediately upon the seizure

on March 7, 1998. The agents were contacted before the

Crittenden County Prosecutor was contacted. The Money was

voluntarily transferred out of the Court’s territorial jurisdiction

and transferred to the DEA. All of this occurred before the Ex

Parte Order was entered and long before the Complaint was

filed in these proceedings. Movant has been advised that DEA

form DAG-71 will be forwarded to the Crittenden County

Prosecutor’s office in the event that it desires share in the

distribution of the Money.

19. Finally, the vehicle carrying the Money apparently

originated in Texas and had traveled between Texas and Ohio.

The only connection with Arkansas is that the Money was being

transported through the State when it was seized. The federal

agencies are better able to investigate the multi-state

transportation, transactions, and circumstances, not to mention

the counterfeit bills that have been discovered. It is Movant's

belief that the underlying criminal acts giving rise to forfeiture

A102

are more properly characterized as federal in nature and spread

over several states.

20. The Ex Parte Order directs the “Arkansas

Highway Police” to transfer the Money to Crittenden County.

No individual official or person was named in the Order and

the Court lacks jurisdiction to compel AHP to make such a

transfer — even had the Money not already been transferred to

the DEA. Ark. Const. art. 5, § 20.

21. For each and all of the foregoing:

a) the Ex Parte Order is void;

b) the Court lacks jurisdiction to have

entered the Ex Parte Order:

¢) Movant cannot comply with the Ex Parte

Order, even if it were valid;

d) the Crittenden County Prosecuting

Attomey is estopped from denying the existence

of its agreement to transfer the Money to Little

Rock and federal prosecution of the forfeiture

action;

e) the Ex Parte Order is unconstitutional:

and,

f) the Ex Parte Order is moot.

g) the Court lacks jurisdiction over the res,

the subject matter, and the necessary parties in

interest.

A103

22. Movant requests an emergency hearing at the

Court’s earliest possible convenience.

THEREFORE, Movant respectfully requests that this

action be dismissed pursuant to Ark. R. Civ. P. 12(1), (2), (4),

(6), (7), and (8), or, alternatively, at least that the Order signed

March 17, 1998, and entered March 18, 1998, be set aside,

vacated, and held for naught.

Respectfully submitted,

/S/ Robert L. Wilson, Chief Counsel

CIRCUIT COURT OF

CRITTENDEN COUNTY, ARKANSAS

State of Arkansas Plaintiff

V.

$3,166,199 U.S. Currency Defendant

Roberto V. Zamarripa

Omar Saenz Claimants

Brief In Support Of

Bietion To Biemion And. Al -

Amended Motion To Vacate Order

(Filed March 27, 1998) (R. 53-61)

In chronological order, the relevant facts are as follows.

The seizure was made on Saturday, March 7, 1998, solely by

the Arkansas Highway Police (“AHP”), a state-wide law

enforcement agency. The seizure was made during inspection

of an interstate motor carrier engaged in interstate commerce,

an inspection authorized by both Federal and State law. The

Drug Enforcement Administration (“DEA”) was contacted

A104

immediately and the seizure was adopted by the DEA on March

7, 1998, and the Money was secured. At this point, the Money

was still located in Crittenden County. On Monday, March 9,

1998, the first Notice of Seizure was filed in this matter in the

Crittenden County Circuit Court, but no Complaint was filed.

At the request of agents and employees of the AHP, James C.

Hale, Jr., Deputy Prosecuting Attorney, then agreed that the

Money should and could be transported to Little Rock by the

AHP so that physical custody could be transferred to the DEA

and federal forfeiture proceedings could commence. The

agreement, even though not required, was expressed more than

once and to multiple representatives of the AHP. On the evening

of March 9, 1998, the Money, with the knowledge and

acquiescence of the Deputy Prosecutor, was transported to Little

Rock, where it was turned over to the DEA. The Money was

then transferred into the custody of the United States Marshall.

On March 16, 1998, the formal paperwork for the DEA

administrative proceedings was begun. On March 18, 1998, at

about 5:05 p.m., after the close of the business day, without

any prior notice or knowledge, and, most importantly, well after

the Money had been placed in Federal custody and federal

forfeiture proceedings had begun, the AHP received a faxed

copy of the Ex Parte Order directing it to transfer the Money to

the Crittenden County Prosecutor’s asset forfeiture account. The

Order did not name any individual official of the AHP or direct

any individual to take any action, but was only directed to the

AHP as an entity. On March 20, 1998, the AHP filed its Motion

to Vacate and the Crittenden County Prosecutor finally filed a

Complaint. With the exception of the Order, which was received

only after it had been signed and entered, neither AHP nor its

attorneys have ever received any notice (including formal,

informal, written, or oral via telephone) or copies of any pleading

filed in this matter despite the fact that the Deputy Prosecutor

has had full notice since March 7, 1998, that AHP is an interested

party,

A105

A federal agency’s adoption of a seizure has the same

effect as if the federal agency had originally seized the property

on the date ut was seized by the local authorities. Madewell v.

Downs, 68 F.3d 1030 (8th Cir.) (citing The Caledonian, 17 US.

100, 103, 4 Wheat. 100, 4 L. Ed. 523 (1819), One Ford Coupe,

272 US. at 321,478. Ct. at 155, 71 L. Ed. 279 (1926), United

States v. $119,000 in U.S. Currency, 793 F. Supp. 246, 249 (D.

Hawat 1992) (calling this the “ adoptive forfeiture’ doctrine”’),

(/nited States v. Certain Real Property Known as Lot B,

Governor & Rd., Milton, N.H., 755 F. Supp. 487, 490 (D.N_H.

1990), (/nited States v. Alston, 717 F. Supp. 378, 380 (M.D.N.C.

1989) (calling this the “adoption principle”), aff'd sub nom,

United States v. Winston-Salem Forsyth County Bd. of Educ.,

902 F.2d 267 (4th Cir 1990)) In fact, the United States may

adopt a seizure even when the person who seized the property

had no authority to seize the property, or the initial seizure was

constitutionally tainted. (/nited States v. One lord Coupe Auto. ,

272 US. 321, 325, 47S. Ct. 154, 155, 71 L. Ed. 279 (1926),

(/niuted States v. Winston-Salem Forsyth County Bd. of E-duc.,

902 F.2d 267, 272 (4th Cir. 1990): United States v. One 1977

Mercedes Benz, 708 F.2d 444, 450 (9th Cir. 1983), (/nited States

v. One 1956 Ford Tudor Sedan, 253 F.2d 725, 727 (4th Cir.

1958) In other words, the federal adoption relates back to the

time of the seizure, which means federal jurisdiction was

acquired here before even the Notice of Seizure was filed in

the Circuit Court. This ts also consistent with the fact that 21

U S.C. § 881 provides that the United States became the owner

of the property at the time the unlawful act giving rise to the

seizure occurred.

While there is a split of authority over whether a transfer

of seized property to federal control after proper state court

proceedings have been initiated divests the state court of

jurisdiction, that is not at issue here because the transfer was

made before the Complaint was filed in this action on March

20, 1998 Mere seizure pursuant to a State warrant, does not

A106

establish exclusive state jurisdiction. Madewell v. Downs, 68

F.3d 1030 (8th Cir. 1995). Furthermore, the Deputy Prosecutor

agreed to the transfer of the Money and the federal adoption.

There is absolutely no way that the transfer could be

characterized as improper. Like in United States v. $12,290,

956 F.2d 801 (8th Cir. 1992), the federal adoption, the transfer

of the Money, and the initiation of the federal administrative

proceedings disposes of this case. This is not a case of the

federal government affronting the jurisdiction of the State.

Instead, this is a case of a local official acting under the color

of State authority in affront to the jurisdiction of the United

States. It is the proceedings herein that are improper, not the

adoption by the United States. It should be pointed out that

Arkansas law provides discretion for the seizing agency to

remove and hold seized property. Ark. Code Ann. § 5-64-505(d)

expressly provides that the property is “deemed to be in the

custody of the director or seizing law enforcement agency”

(emphasis added) and that the agency “[rjemove the property

to a place designated by it.” Ark. Code Ann. § 5-64-505(j)

Furthermore, although there is admittedly some

authority to the contrary, many cases have held that the federal

law preempts the state law, regardless of which court first

acquired jurisdiction. Considering that (1) the seizure occurred

during inspection of commercial motor vehicles in interstate

commerce, (2) the DEA was informed and adopted the seizure

before the Prosecuting Attorney was contacted, (3) it is apparent

that any investigation surrounding the source of the money will

need to take place in Texas and other states, (4) the Money

contained some counterfeit bills, (5) AHP determined as the

seizing agency that federal proceedings are preferable, (6) the

Money has never been in the custody or control of the

Prosecuting Attorney, the Prosecuting Attorney agreed and

acquiesced to the removal of the Money from Crittenden

County, (7) the Prosecuting Attorney agreed to the institution

of federal forfeiture proceedings, and (8) AHP, as a state agency

A107

with discretion to request federal authorities to adopt its seizures,

believed that federal authorities were better able to handle the

resulting investigation and forfeiture proceedings and elected

to request adoption of the seizure, 21 U.S.C. § 881 preempts

Ark. Code Ann. § 5-64-505 under the Supremacy Clause of the

United States Constitution. In light of the relation back doctrine,

the property interest of the United States, and the fact that the

United States possesses and controls the Money, there is no

reason or justification for this Court to assert jurisdiction. See,

e.g., Certain Real Property Known as Lot B, 755 F. Supp. at

490 (holding federal adoption of seizure meant federal

jurisdiction over forfeiture attached first, and state court orders

purporting to direct return of the property to the claimant could

be enjoined by the federal court); Alston, 717 F. Supp. at 380

(describing the result of the adoption principle as making the

federal government the winner of the “unseemly race to the

res,” but holding that the state court was without jurisdiction to

issue orders concerning disposition of the property seized even

though the federal adoption occurred after the state court

assumed jurisdiction). However, the effect given the doctrine

by the Supreme Court in One Ford Coupe, 272 U.S. at 325, 47

S. Ct. at 155, 71 L. Ed. at 279, was to establish that the seizure

would be treated as if it had been made by an official with

authority to make such a seizure, Le., a federal official, rather

than by someone with no authority to make the seizure.

The transfer of the Money was lawful, appropriate, and

above-board. The only unseemly and inappropriate actions

taken here have been taken by the Deputy Prosecutor. AHP

fully advised the Deputy Prosecutor of the federal adoption and

the preference for federal forfeiture proceedings between March

7 and March 9. The Deputy Prosecutor even agreed. Since

then, there have proceedings, motion, orders, and other actions

taken without any notice to AHP by the Deputy Prosecutor.

The federal authorities acted at the request of the State of

Arkansas, through AHP, the seizing agency. In no way could

A108

the actions of the AHP and DEA be truthfully characterized as

being improper in any way. It should be pointed out that neither

AHP nor the DEA have even been made parties to these

proceedings. There may be occasions where an untimely federal

adoption could be construed as an affront to the state’s

sovereignty, but this is not one of them. Here, it is the local

prosecutor affronting the United States’ sovereignty against the

express requests of the State agency that seized the Money.

The Court has no more jurisdiction to order the release of the

res than it does to order the release of a federal prisoner on a

writ of habeas corpus.

Even if the first Notice of Seizure could be construed

as having subjected the Money to the Court’s jurisdiction, the

voluntary removal of the Money from the Court’s territorial

and subject matter jurisdictions and into the DEA’s hands

deprived the Court of jurisdiction. Apparently, the Court was

not advised of this development when it was presented with

the unwritten, unnoticed, ex parte motion of the Deputy

Prosecutor that requested the Ex Parte Order. Although an

improper rernoval of the res, in an effort to defeat the court’s

jurisdiction does not deprive the court of jurisdiction over the

res, the rule does not apply here because (1) the Court had not

yet acquired exclusive jurisdiction over the res when it was

removed and (2) the removal was entirely proper and voluntary

on the part of AHP and the Deputy Prosecutor. A leading case

on the issue is Republic National Bank of Miami v. United States,

506 U.S. 80 (1992), in which the Supreme Court held that simply

removing the res from the territorial jurisdiction of the Court

of Appeals did not defeat the appellate court’s jurisdiction.

However, in distinguishing one particular case, the court said:

Fairly read, The Brig Ann simply restates the

rule that the court must have actual or

constructive control of the res when an in rem

forfeiture suit is initiated. If the seizing party

A109

abandons the attachment prior to filing an action,

it, in effect, has renounced its claim. The result

is “to purge away all the prior rights acquired

by the seizure,” [citation omitted], and, unless a

new seizure is made, the case may not

commence.

If the plaintiff abandons a seizure, a court will

not proceed to adjudicate the case.

The Eighth Circuit made a similar ruling in (/nited States

v. $12,390, 956 F.2d 801 (8th 1992), but it is also distinguishable

because the Deputy Prosecutor was fully aware of the transfer.

Furthermore, the case makes clear that the warrants and notices

filed in these proceedings do not provide the Court with

jurisdiction over the Money. It was not until the Complaint

was filed on March 20, 1998, that forfeiture proceedings were

commenced. The removal of the Money occurred before the

Court ever acquired jurisdiction and, in addition, was clearly

voluntary and constituted an abandonment. The Court had no

jurisdiction over the res when the Ex Parte Order was entered,

a fact that is implicitly conceded by the fact that the Deputy

Prosecutor finally filed a Complaint on March 20, 1998.

In addition, although the Order directs the AHP to return

the Money, no individual person or official is named in the order

and the Court lacks jurisdiction to issue a mandatory injunction

against AHP. Ark. Const. art. 5, § 20.

The AHP cannot imagine any legitimate reason for the

Deputy Prosecutor’s interest in whether the forfeiture is

procured through state or federal proceedings. Crittenden

County has no drug task force to be funded from the proceeds.

All0

In sum, the Court lacks jurisdiction over the res, the

subject matter, and the “person” of AHP. Because of the lack

of jurisdiction, the Court should dismiss this action in its entirety

without prejudice to the Deputy Prosecutor’s ability to refile in

the event that the federal action were to prove unsuccessful.

Alternatively, at the very least, the Court should vacate the Order

entered March 18, 1998.

Respectfully submitted,

/S/ Robert L. Wilson, Chief Counsel

CIRCUIT COURT OF

CRITTENDEN COUNTY, ARKANSAS

State of Arkansas Plaintiff

V.

$3,166,199 U.S. Currency Defendant

Roberto V. Zamarripa

Omar Saenz Claimants

Answer To Motion To Vacate

(Filed March 30, 1998) (R. 63-67)

Comes now the Plaintiff, State of Arkansas, by and

through its court appointed attorney, James C. Hale, III, and for

its Answer to the Movants Motion to Vacate, states and alleges:

1. That the Plaintiff admits that on March 18, 1998

that an Order signed on March 17, 1998 and entered on March

18, 1998 was faxed to the Chief of the Arkansas Highway Police

and admits that copies of said Order was not provided to

Movants counsel by Plaintiffs counsel prior to said Order being

taxed. The Plaintiff denies the remaining allegations contained

Alll

in paragraph | of the Movants Motion to Vacate. The Plaintiff

affirmatively states the Plaintiff has litigated and handled all

Arkansas Highway Police forfeiture cases for the past five years

and had never been advised by any representative of the

Arkansas Highway Police that they ever had counsel and wanted

notice of any forfeiture proceedings. The Plaintiff was not aware

that the Movants had independent counsel relating to forfeiture

matters. The Plaintiff further states that pursuant to A.C.A. 5-

64-505, et. seq. it is not required to provide Movants counsel

with any notice or pleadings in this matter.

2. That the Plaintiff admits that the Arkansas Highway

Police did take possession of $3,166,199.00 on March 7, 1998

but denies that it was seized by the Arkansas Highway Police.

The Plaintiff admits the remaining allegations contained in

paragraph 2 of the Movants Motion to Vacate. The Plaintiff

affirmatively states that the Crittenden County Prosecuting

Attorneys office made the seizure pursuant to A.C.A. 5-64-505.

3. That the Plaintiff denies that the Movant is the

seizing agency. The Plaintiff denies the remaining allegations

contained in paragraph 3 of the Movants Motion to Vacate. The

Plaintiff affirmatively states that the money is not the property

of the United States and that the United States lacks jurisdiction

in this cause because State In-Rem forfeiture proceedings were

filed prior to any Federal administrative action and primary

jurisdiction lies in Crittenden County, Arkansas.

4. That the Plaintiff admits the allegations contained

in paragraph 4 of the Movants Motion to Vacate.

5. That the Plaintiff admits that the Motion was

submitted by James C. Hale, III and that it was obtained without

notice to Movant. The Plaintiff denies the remaining allegations

contained in paragraph 5 of the Movants Motion to Vacate. The

Plaintiff affirmatively states it is under no requirement to give

All2

the Movants attorney notice and was not aware that the Arkansas

Highway Police had independent counsel.

6. That the Plaintiff is without sufficient knowledge

to admit or deny that the United States Drug Enforcement

Agency (“DEA”) administrative forfeiture proceedings have

already begun and therefore denies same. The Plaintiff denies

the remaining allegations contained in paragraph 6 of the

Movants Motion to Vacate. The Plaintiff affirmatively states

that any administrative forfeiture proceeding which was filed

by the “DEA” lacks jurisdiction in this matter in that the Plaintiff

had already begun a State seizure and this primary jurisdiction

of the forfeiture. The only available means for the “DEA” to

obtain jurisdiction was for said case to be transferred by Court

order from the State Court’s jurisdiction.

7. That the Plaintiff denies the allegations contained

in paragraph 7 of the Movants Motion to Vacate. The Plaintiff

affirmatively states that the Plaintiffs office has litigated and

processed all forfeitures for the Arkansas Highway Police for

the last five (5) years and the Movant has never showed any

interest in any litigation or have taken part in any asset forfeiture

before this time. The Movants statement that as a curtesy, the

Crittenden County Prosecutors office was informed of the

seizure, clearly evidence the true intent of the Movants attempt

to circumvent the jurisdiction of the State Court.

8. That the Plaintiff is without sufficient knowledge

to admit or deny if the money is in the possession or control of

the Arkansas Highway Police. The Plaintiff specifically denies

the remaining allegations contained in paragraph 8 of the

Movants Motion to Vacate. The Plaintiff affirmatively states

that neither the United States Marshalls office or the DEA has

jurisdiction in this matter in that an In-Rem forfeiture proceeding

was already pending in State court at the time the monies were

turned over to the “DEA”.

All3

9. That the Plaintiff is without sufficient knowledge

to admit or deny the allegations contained in paragraph 9 of the

Movants Motion to Vacate and therefore denies same. The

Plaintiff affirmatively states that any counterfeit currency can

be segregated from the remaining currency and forwarded to

the United States Secret Service for further investigation.

However, this is not grounds to change the jurisdiction of the

pending State forfeiture action to Federal Court.

10. That the Plaintiff denies the allegations contained

in paragraph 10 of the Movants Motion to Vacate. The Plaintiff

affirmatively states that at the time the Order was entered, it

had no knowledge of any Federal forfeiture proceeding or that

the Arkansas Highway Police had independent counsel. The

Plaintiff was afforded no notice that the U.S. Currency was

given to the Federal authorities until after it received a telephone

call from the U.S. Marshalls office on March 20, 1998.

11. That the Plaintiff denies the allegations contained

in paragraph 11 of the Movants Motion to Vacate. The Plaintiff

affirmatively states that the United States nor their agents have

jurisdiction over the for forfeiture of the U.S. Currency.

12. That the Plaintiff denies the allegations contained

in paragraph 12 of the Movants Motion to Vacate.

13. That the Plaintiff denies the allegations contained

in paragraph 13 of the Movants Motion to Vacate. The Plaintiff

affirmatively states that paragraph 13 of the Movants Motion

is merely an attempt by the Movant to circumvent State

jurisdiction in this matter and is meritless.

14. That the Plaintiff denies the allegations contained

in paragraph 14 of the Movants Motion to Vacate. The Plaintiff

affirmatively states that the Movants are not entitled to notice

of the seizure in this case. The Plaintiff further states that its

All4

offices have litigated every asset forfeiture in Crittenden County,

Arkansas for the Arkansas Highway Police for five (5) years

and was not aware that the Movant even had counsel, them not

showing any interest prior to this seizure. This the only time

their alleged attorneys ever bothered to have any interest in

any forfeiture seizure at all. The Movants should be estopped

from now alleging that the Plaintiffs counsel is now all of a

sudden in violation of ethical rules for cooperating with the

local police which has been the procedure for years prior to the

Movants counsel’s motion.

15. That the Plaintiff denies the allegations contained

in paragraph 15 of the Movants Motion to Vacate.

16. That the Plaintiff denies the allegations contained

in paragraph 16 of the Movants Motion to Vacate.

17. That the Plaintiff denies the allegations contained

in paragraph 17 of the Movants Motion to Vacate. The Plaintiff

affirmatively states that any “DEA” administrative forfeiture

proceedings lack Jurisdiction in this matter due to a prior

pending State action regarding the same U.S. Currency. The

State Court has primary jurisdiction of this forfeiture action.

18. That the Plaintiff denies the allegations contained

in paragraph 18 of the Movants Motion to Vacate. The local

Prosecuting Attorney’s office andthe Federal “DEA” have

historically cooperated and worked together on asset forfeiture

and what junsdiction the forfeiture case is pending should not

be a factor in determining jurisdiction of this case.

19. That the Plaintiff denies the allegations contained

in paragraph 19 of the Movants Motion to Vacate.

20. That the Plaintiff denies that an emergency hearing

is necessary in this matter.

All5

WHEREFORE, the Plaintiff prays that the Movants

Motion to Vacate be dismissed; for attorneys fees and for any

and all other relief to which it may be entitled.

Respectfully Submitted,

/S/ James C. Hale, II1, Attorney for Plaintiff

CIRCUIT COURT OF

CRITTENDEN COUNTY, ARKANSAS

State of Arkansas Plaintiff

7

$3,166,199 U.S. Currency Defendant

Roberto V. Zamarnpa

Omar Saenz Claimants

To Motion To Dismiss And Alt tive!

Amended Motion To Vacate Order

(Filed April 14, 1998) (R. 76-82)

Comes now the Plaintiff, State of Arkansas, by and

through its court appointed attorney, James C. Hale, III, and for

its Answer to the Movants Motion to Dismiss and Alternatively

Amended Motion to Vacate Order, states and alleges:

1. That the Plaintiff admits that on March 18, 1998

that an Order signed on March 17, 1998 and entered on March

18, 1998 was taxed to the Chief of the Arkansas Highway Police

and admits that copies of said Order was not provided to

Movants counsel by Plaintiffs counsel prior to said Order being

faxed. The Plaintiff denies the remaining allegations contained

in paragraph I of the Movants Amended Motion to Vacate. The

Plaintiff affirmatively states that the Plaintiff has litigated and

A116

handled all Arkansas Highway Police forfeiture cases for the

past five (5) years and had never been advised by any

representative of the Arkansas Highway Police that they ever

had counsel and wanted notice of any forfeiture proceedings.

The Plaintiff was not aware that the Movants had independent

counsel relating to forfeiture matters. The Plaintiff further states

that pursuant to A.C.A. 5-64-505, et. seq. it is not required to |

provide Movants counsel with any notice or pleadings in this

matter.

2. That the Plaintiff admits that the Arkansas Highway

Police did take possession of $3, 166,199.00 on March 7, 1998

but denies that it was seized by the Arkansas Highway Police.

The Plaintiff admits the remaining allegations contained in

paragraph 2 of the Movants Amended Motion to Vacate. The

Plaintiff affirmatively states that the Crittenden County

Prosecuting Attorneys office made the seizure pursuant to

A.C.A. 5-64-505.

3. That the Plaintiff denies that the Movant is the

seizing agency. The Plaintiff denies the remaining allegations

contained in paragraph 3 of the Movants Amended Motion to

Vacate. The Plaintiff affirmatively states that the money is not

the property of the United States and that the United States

lacks jurisdiction in this cause because State In-Rem forfeiture

proceedings were filed prior to any Federal administrative action

and primary jurisdiction lies in Crittenden County, Arkansas.

4. That the Plaintiff admits the allegations contained

in paragraph 4 of the Movants Amended Motion to Vacate.

5. That the Plaintiff admits that the Motion was

submitted by James C. Hale, II] and that it was obtained without

notice to Movant, The Plaintiff denies the remaining allegations

contained in paragraph 5 of the Movants Amended Motion to

Vacate. The Plaintiff affirmatively states it is under no

All7

requirement to give the Movants attorney notice and was not

aware that the Arkansas Highway Police had independent

counsel.

6. That the Plaintiff denies the allegations contained

in paragraph 6 of the Movants Amended Motion to Vacate. The

Plaintiff affirmatively states that any administrative forfeiture

proceeding which was filed by the “DEA” lacks jurisdiction in

this matter in that the Plaintiff had already begun a forfeiture

proceeding in State Court and primary jurisdiction of the

forfeiture lies in the Circuit Court of Crittenden County,

Arkansas. The only available means for the “DEA” to obtain

jurisdiction was for said case to be transferred by Court order

from the State Court’s jurisdiction.

7. That the Plaintiff denies the allegations contained

in paragraph 7 of the Movants Amended Motion to Vacate. The

Plaintiff affirmatively states that the Plaintiffs office has litigated

and processed all forfeitures for the Arkansas Highway Police

for the last five (5) years and the Movant has never showed any

interest in any litigation or have taken part in any asset forfeiture

before this time. The Movants statement that as a curtesy, the

Crittenden County Prosecutors office was informed of the

seizure, clearly evidence the true intent of the Movants attempt

to circumvent the jurisdiction of the State Court.

8. That the Plaintiff is without sufficient knowledge

to admit or deny if the money is in the possession or control of

the Arkansas Highway Police and therefore denies same. The

Plaintiff specifically denies the remaining allegations contained

in paragraph 8 of the Movants Amended Motion to Vacate. The

Plaintiff affirmatively states that neither the United States

Marshalls office or the DEA has jurisdiction in this matter in

that an In-Rem forfeiture proceeding was already pending in

State court at the time the monies were turned over to the

“DEA”.

All8

9. That the Plaintiff is without sufficient knowledge

to admit or deny the allegations contained in paragraph 9 of the

Movants Amended Motion to Vacate and therefore denies same.

The Plaintiff affirmatively states that any counterfeit currency

can be segregated from the remaining currency and forwarded

to the United States Secret Service for further investigation.

However, this is not grounds to change the jurisdiction of the

pending State forfeiture action to Federal Court.

10. That the Plaintiff denies the allegations contained

in paragraph 10 of the Movants Amended Motion to Vacate.

The Plaintiff affirmatively states that at the time the Order was

entered, it had no knowledge of any Federal forfeiture

proceeding or that the Arkansas Highway Police had

independent counsel. The Plaintiff was afforded no notice that

the U.S. Currency was given to the Federal authorities until

after it received a telephone call from the U.S. Marshalls office

on March 20, 1998.

11. That the Plaintiff denies the allegations contained

in paragraph 11 of the Movants Amended Motion to Vacate.

The Plaintiff affirmatively states that the United States nor their

agents have jurisdiction over the for forfeiture of the U.S.

Currency.

12. That the Plaintiff denies the allegations contained

in paragraph 12 of the Movants Amended Motion to Vacate.

13. That the Plaintiff denies the allegations contained

in paragraph 13 of the Movants Amended Motion

This text is long and has been trimmed here. Open the source document for the complete record.