Opposition Brief — Hawkins v. Michigan

Supreme Court, U.S,

FILED

SEP -8

No. 93-160 1993

OFFICE OF THE CLERK

———————————

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1992

ROBERT HAWKINS, PAMELA HAWKINS, RASHAWN

HAWKINS, RODERICKA HAWKINS, RYAN HAWKINS,

and ROBERT HAWKINS, JR.,

Petitioners,

vs.

PEOPLE OF THE STATE OF MICHIGAN, ex rel

JOHN D. O'HAIR, Prosecuting Attorney

Respondent

On Petition For Writ of Certiorari

RESPONDENT'S ANSWER IN OPPOSITION

JOHN D. O'HAIR

Prosecuting Attorney

*TIMOTHY A. BAUGHMAN

Chief of Research, Training and Appeals

1441 St. Antoine

Detroit, MI 48226

(313) 224-5792

MARYSUE CZARNECKI

Assistant Prosecuting Attorney

*Counsel of Record

STATEMENT OF QUESTIONS PRESENTED

I.

IS A REMAND REQUIRED WHERE:

PETITIONER FAILED TO RAISE ANY

EIGHTH AMENDMENT ISSUE IN STATE

COURTS; THE INSTANT CASE PRESENTS A

DIFFERENT THEORY OF RECOVERY THAN

THAT PRESENTED IN AUSTIN; AND THE

EIGHTH AMENDMENT HAS NOT BEEN HELD

TO APPLY TO THE STATES THROUGH THE

FOURTEENTH AMENDMENT?

2 hla ale Fe

Ease

WERE PETITIONERS DENIED A FAIR

TRIAL ON THE BASIS OF AN ALLEGED

LACK OF JUDICIAL IMPARTIALITY?

Itt.

IS IT IMPROPER FOR A TRIAL COURT TO

DECLINE TO REVISIT A FRANKS V

DELAWARE ISSUE IN A STATE

FORFEITURE TRIAL WHEN THE PRECISE

ISSUE WAS RAISED AND DECIDED UPON

WITHIN THE CONTEXT OF A FEDERAL

CRIMINAL TRIAL OF ROBERT HAWKINS?

2 pm Ht ial N AIS $y Aha 4

TABLE OF CONTENTS

Statement of the Question 1

Index of Authorities 3

Statement of the Case S

Reasons For Denying The Writ 18

Relief 34

INDEX OF AUTHORITIES

CASE

Ashe v Swenson,

397 US 436; 25 LEd2d 469;

90 SCt 1189 (1970)

Austin v United States,

509 US ; S Ct ;

LEd2d ; 53 CrL 2274 (1993)

Bankers Life & Casualty Co.

Vv Crenshaw, 486 US 71;

100 LEd2d 62; 108 SCt 1645 (1989)

Browning-Ferris v Kelco Disposal,

492 US 257; 106 LEd2d 219;

109 SCt 2909 (1989)

Franks v Delaware,

438 US 154; 57 LEd2d 667;

98 SCt 2674 (1978)

In re Forfeiture of $1,159,420,

194 Mich App 134;

486 NW2d 326 (1992)

Parklane Hosiery Co. v Shore,

439 US 322; 58 LEd2a 552;

99 SCt 645 (1979)

People v Poindexter, 90 Mich App 599;

282 NW2d 411 (1979),

lv den 407 Mich 876 (1980)

People v Turner, 155 Mich App 222;

399 NW2d 477 (1986),

lv den 427 Mich 854 (1986)

People v Ward, 107 Mich App 38;

308 NW2d 664 (1981),

lv den 417 Mich 938 (1983)

PAGE

31

18

20

24

29

28

31

31

34

od

Webb v Webb,

451 US 493; 68 LEd2d 392;

101 SCt 1889 (1981)

STATUTES

Mich Compiled Laws 333.7521

21 United States Code Section 88l

CONSTITUTION

Const. 1963, Art 2, Section 15

20

26

21

20

STATEMENT OF FACTS OF THE CASE

On May 9, 1989, a search warrant

was executed at the residence of ROBERT and

PAMELA HAWKINS. 5/1/90A 26-29. The warrant

was based in part upon information obtained

from a confidential informant named RANDY

ULMER. The police recovered from the

residence over one million dollars in U.S.

currency. Recovered from an end table which

contained a hidden compartment was

approximately one-half million dollars in

U.S. currency. Id. 33-35, 40. The currency

was bundled in approximate $15,000 amounts.

Id. 41-44. This amount was consistent with

the wholesale price of a kilo of cocaine.

5/2/90 165-166. Drug ledgers were found in

the master bedroom which reflected a sale of

approximately sixty-nine kilos of cocaine.

A travel itinerary was also found which

indicated that the HAWKINS were flying to

New York on May 10, 1989 in the morning and

were due to return to the Detroit area later

that same day. 5/2/90 91-94; 187-195;

5/7/90 51-56. Three pieces of luggage full

of the remaining approximately one-half

million dollars in cash were recovered in

the master bedroom. Id. at 186-187. White

residue on one of the $20 bills was visible

to the naked eye of the police officers.

Id. 146-148; 162-164. The substance field

tested positive for cocaine. All of the

currency recovered from the house was fanned

over a clean table and the residue was

collected for chemical analysis which was

found to contain cocaine. 5/1/90A 41-44;

5/3/90 18-31, 85-126.

Located in the house were numerous

safes including a pedestal column with a

safe hidden in the bottom of the column.

5/2/90 175-179. PAMELA HAWKINS also rented

a safe deposit box at a location called the

Depository; the rented safe's dimensions

were approximately four feet in length and

two or three feet in depth. 5/3/90 34-38.

The jewelry recovered from the

master bedroom of the house had an estimated

worth of over $100,000. 5/2/90 195-202;

5/7/90 35-39. The remaining defendant items

were also taken which included a Tiffany,

Bayliner Boat, Rolls Royce, Jeep, Jaguar,

Dodge and Lincoln as well as thousands of

dollars in various bank accounts.

ROBERT HAWKINS worked at Chrysler

Corporation in the Capacity of a factory

worker. PAMELA HAWKINS worked on and off on

a part time basis.

ROBERT HAWKINS was prosecuted in

the federal system with narcotic violations.

The confidential informant, RANDY ULMER,

testified on behalf of the federal

government at the criminal trial. ROBERT

HAWKINS was convicted and sentenced to

approximately thirty years imprisonment.

His conviction has been affirmed in the

federal system. A civil narcotic forfeiture

action was filed at the state level pursuant

to MCLA 333.7521, et seq. ROBERT HAWKINS

and PAMELA HAWKINS testified. Also

testifying on behalf of the government was

the confidential informant, RANDY ULMER.

The forfeiture trial began on May

1, 1990. Testimony was taken on May 2, May

3 The trial was adjourned from that

Thursday to the following Monday, May 7,

1990. Testimony was taken on May 8, 9 and

10. The trial was then continued until May

15, 1990. The trial was then adjourned

until July 16, 1990.

Testimony was presented concerning

the net worth of the HAWKINS. 7/16/90

(eee eee

- 9 -

11-68. The HAWKINS' assets for the listed

years were the following:

179,987 for 1983

207,353 for 1984

799,182 for 1985

$1,475,542 for 1986

$2,140,517 for 1987

$2,277,620 for 1988

$3,450,582 for four

months in 1989, Id.

19-41.

Nin in

Testimony also established the

lavish spending habits of the HAWKINS.

PAMELA HAWKINS had a common practice of

purchasing large money orders under the

$10,000 federal reporting requirement and

depositing them into various banks on a

regular basis. Many luxury items were

purchased including trips, numerous

automobiles, jewelry, real estate,

extravagant parties. 5/9/90 140-160. When

the network was put together by the

accountants, they decided that they would

not include as a factor any normal "cost of

-- 10 -

living" 7/16/90 22-43. There was

insufficient legitimate income to support

the majority of the assets. Id. Between

December 31, 1983 and May 9, 1989, income

from unknown and unexplainable sources was

$2,708,156.00. 7/16/90 22-43.

The Government called as witnesses

ROBERT HAWKINS and PAMELA HAWKINS. The

confidential informant, RANDY ULMER, also

testified.

The defense proffered at the

forfeiture trial was that the money and all

of the assets were the result of income

generated from a lawsuit settlement. PAMELA

HAWKINS claimed that a woman named MARGARET

WILSON came to Mrs. HAWKINS' residence for

purposes of selling an insurance policy.

MARGARET WILSON became irate and assaulted

PAMELA HAWKINS who happened to be in the

very early stages of a pregnancy. PAMELA

- ll =

HAWKINS testified that her doctor told her

the fetus she was carrying was killed and an

abortion was necessary. 5/9/90 172-173.

PAMELA HAWKINS was impeached because of her

conflicting testimony surrounding the

reasons for the abortion. After

impeachment, PAMELA HAWKINS indicated that

the doctor never recommended the abortion.

Prior to her impeachment, PAMELA HAWKINS was

insistent that the doctor informed her the

fetus was dead and that an abortion was

necessary. 5/9/90 172-173; 7/17/90 20-30.

The doctor was produced at the trial but

PAMELA HAWKINS asserted the doctor/patient

privilege. Even though PAMELA HAWKINS

testified concerning her medical examination

and the "seeming" medical conclusion of her

doctor, the trial court did not compel the

doctor to testify at trial. 7/17/90 20-30.

MARGARET WILSON did not testify at the

trial nor did the HAWKINS know where she

lived.

‘= i2

The parties stipulated to the

source of the funds utilized to purchase

most of the defendant properties as well as

to the time of the purchases and to the

tracing of the funds deposited into the

various bank accounts. The source of the

funds and the funds utilized to purchase the

assets came from the MARGARET WILSON

lawsuit. The entire court file of the

lawsuit was admitted into evidence at the

forfeiture trial. 7/17/90 5-19. The

lawsuit was filed by attorney BRAZELL who

subsequently was the subject of federal

indictments for money laundering. 5/9/90

19-93, 160-178; 5/10/90 20-58, 60-158;

5/15/90 11-69. BRAZELL testified that at

the HAWKINS' request, BRAZELL did not

participate in any settlement negotiations.

Rather, negotiations were the result of two

phone calls between ROBERT HAWKINS and

MARGARET WILSON. 5/9/90 43. MARGARET

‘- 13 -

WILSON was never represented by any

attorney. Id. After two telephone calls,

MARGARET WILSON agreed to pay the sum of two

million dollars in settlement of the

lawsuit. Id. The two million dollar amount

was decided by ROBERT HAWKINS who just came

up with that amount. 5/9/90, 18, 19-93,

160-178; 5/10/90 20-58, 60-158; 5/15/90

11-69.

The two million dollars was paid

in cash and two of the cash payments were

made at BRAZELL'S office. The first payment

of $500,000 was received less than one month

before the second payment of an additional

$640,000. It was unclear when the third

$750,000 payment was received, but that

payment was also in cash. The quantity of

cash was so enormous that it was necessary

to make the payments in large suitcases.

5/10/90 68-69, 89, 100. The money was then

deposited into BRAZELL'S client trust fund

- 14 -

and checks were subsequently written to the

HAWKINS.

BRAZELL represented WILSON in the

formation of numerous dummy corporations.

Each was set up with BRAZELL acting as an

officer of the corporation and as an

authorized check signer. 5/10/90 98-130.

Both BRAZELL and WILSON were the only

authorized check signatories. 5/10/90

98-130. Each of the dummy corporations

utilized a residential address which had no

relationship to the corporation. 7/16/90

3-9. BRAZELL opened numerous bank accounts

for WILSON in the names of WILSON APPLIANCE

& HARDWARE, WILSON LIQUOR & FOOD and DEXTER

WILSON GROCERY. These accounts were opened

within two days of each other and each of

the named accounts were opened at four

different financial institutions. 5/10/90

131-147; 5/15/90 11-29.

- 15 -

Each of these corporate bank

accounts reflected checks written to either

ROBERT HAWKINS or ROBERT AND PAMELA

HAWKINS. No other checks were written on

any of the corporate accounts. Neither

HAWKINS nor Brazell could offer a plausible

explanation as to the additional check

payments which amounted to some $224,000.00,

although ROBERT HAWKINS confirmed his

endorsement on the back of the check.

In addition, Brazell opened an

account in the name of Dallas Land and

Cattle on which he was the only signatory

(5/10/90 130). One check was written from

that account payable to Robert and Pamela

Hawkins in the amount of $750,000.00. The

check was endorsed by the HAWKINS but not

cashed due to insufficient funds (5/9/90

86). Some of the various banks closed the

numerous WILSON accounts. In each case, the

entire remaining balances were deposited

- 16 -

into bank accounts held by the HAWKINS. All

of these payments were in addition to the

alleged lawsuit settlement.

The alleged WILSON lawsuit filed

by BRAZELL on behalf of the HAWKINS was

admitted into evidence. 7/17/90 5-19. The

case was put on the no progress docket and

dismissed. 7/17/90 5-19. A consent

judgment was thereafter signed by the

parties but not by the judge. Id. That

document reflected a settlement amount of

$750,000.00. Id. The HAWKINS testified,

however, that they received over two million

dollars which was given to them primarily in

the form of cash which was allegedly brought

to Brazell's office by MARGARET WILSON.

5/9/90 18, 160-178; 5/10/90 20-58, 60-158;

5/15/90 11-69.

The money was kept either in the

HAWKINS' house, until they went out of town

- 17 =

at which time the money was put into the

trunk of one of their cars, and/or in

various financial institutions. 5/9/90

18-93, 160-178; 5/10/90 20-58, 60-158;

5/15/90 11-69.

The trial court ordered the

defendant items forfeit and additionally

found that the lawsuit was fraudul ent and

BRAZELL's testimony to be beyond

comprehension. 7/23/90 21; 8/24/90 20.

~ 18 -

REASONS FOR DENYING WRIT

:; REMAND IS NOT REQUIRED BECAUSE:

PETITIONER FAILED TO RAISE ANY

EIGHTH AMENDMENT ISSUE IN STATE

COURTS; THE INSTANT CASE PRESENTS A

DIFFERENT THEORY OF RECOVERY THAN

THAT PRESENTED IN AUSTIN; AND THE

Petitioner asks this Court to

remand this case for further consideration

in light of this Court's ruling in Austin v

United States, 509 U.S. ; BS. Ce.

; L.Ed.2d * 53 CrL 2274 (1993).

Respondent maintains that a remand is not

proper under the circumstances. First,

Petitioner failed to raise any Eighth

Amendment issue in the courts below.

Respondent further maintains that a remand

is not required because the instant case

presents a different theory of recovery

under the narcotic forfeiture statute than

the recovery theory presented in Austin.

Finally, the Eighth Amendment's prohibition

- 19 =

on excessive fines has not been found to

apply to the States through the Fourteenth

Amendment.

In its appeal to the Michigan

Court of Appeals and to the Michigan Supreme

Court, Petitioner did not raise any state or

federal Eighth Amendment challenges to the

scope of the trial court's order of

forfeiture; thus, no Eighth Amendment

Challenge based upon the federal

Constitution was passed upon in state court.

It is clear that any generic reference to a

Claimed constitutional violation is not

sufficient to preserve a constitutional

claim based upon an unidentified

constitutional provision.

At the minimum . . . there should

be no doubt from the record that a

Claim under a federal statute or

the Federal Constitution was

presented in the state courts and

that those courts were apprised of

the nature or substance of the

federal claim at the time and in

leer ane tice aie einai

- 20 =

the manner reguired by the state

law. Bankers Life & Casualty Co. v

Crenshaw, 486 US 71; 100 LEd2d 62,

72; 108 SCt 1645 (1989), citing

Webb v Webb, 451 US 493, 501, 68 L

Ed 2d 392, 101 S Ct 1889 (1981).

The Crenshaw Court also cautioned

that accepting an Eighth Amendment claim

that was not raised in the state courts

becomes especially problematic when the

state Constitution contains its own

Excessive Fines Clause. Crenshaw, 100 L Ed

2d, supra at 72. Michigan's Constitution

reflects in pertinent part the following:

"Excessive bail shall not be required;

excessive fines shall not be imposed...."

Const. 1963, Art 2, Section 15. Petitioner

admits that the excessive fines argument was

not raised below. Therefore, this Court

need not consider it.

This Court also need not remand

this case as a result of the Austin decision

because the facts of Austin are inapposite

- 21 -

to the facts of the instant case. In that

case, Austin brought two ounces of cocaine

from the mobile home to a body shop in order

to consummate a prearranged sale to another

individual. The sale was accomplished and a

search warrant was executed at the body shop

and mobile home the following day. As a

result of that warrant, small amounts of

marijuana, cocaine, a weapon, drug

paraphernalia and approximately $4,700 in

cash was recovered. Austin pled guilty to

one count of possessing cocaine with intent

to distribute in the state court. A federal

forfeiture Complaint was filed pursuant to

21 U.S.C. 881(a)(4) and (a)(7) which sets

forth that conveyances and real property

shall be forfeit if it is used to facilitate

a narcotic transaction. The government

sought forfeiture of the mobile home and

the business which was granted by the trial

court.

- 22 -

The facts of the instant case are

inapposite because the government sought

forfeiture of items which were purchased

with narcotic proceeds. At trial there was

a stipulation of the tracing of the money

allegedly obtained from the WILSON lawsuit

which was used to purchase almost all of the

various defendant items. The defense

proffered that the source of the funds used

to purchase these items and the funds which

were contained in the various bank accounts

constituted the settlement from the lawsuit.

These facts are Gistinctly different than

those presented in Austin. Respondent

prevailed at trial in establishing that

these funds were garnered from narcotic

trafficking. Without the drug money,

Petitioners would not have been in

possession of the over one million dollars

found in their residence. The drug talley

sheets supported Respondent's theory as well

‘- 23 -

as the theory that the money which was found

in the suitcases were to be taken to New

York in payment for the sold cocaine. There

was visible cocaine residue on the money and

additional cocaine residue was recovered for

chemical analysis. The trial court found,

affirmed by the Court of Appeals, that

Respondent had met the requisite burden.

A "proceeds" forfeiture is

conceptually different from a facilitating

theory. By definition, proceeds do not

constitute an excessive fine since the

narcotic dealers are in possession of items

purchased with illgotten money. "Proceeds"

are traceable entirely to criminal activity.

Removing criminal proceeds from a culpable

owner is no different than taking bank

robber proceeds from a bank robber. The

culpable owner is put into the precise

position he or she would be in if no crime

had been committed. Therefore, a remand as

- 24 =-

a result of Austin is not required because

the forfeiture in the instant case was based

primarily on a "proceeds" theory rather than

a "facilitation" theory. Property forfeit

because they constitute narcotic proceeds

are significantly different than property

forfeit because it was used to facilitate a

narcotic transaction.

Finally, in order for Austin to be

applicable when the forfeiture is based upon

a state statute, several antecedent

questions have to be answered. Austin

reviewed a federal forfeiture statute. This

Court has not held that the Excessive Fines

Clause of the Eighth Amendment applies to

the States through the Fourteenth Amendment.

Ow ~ S Vv ° j , 492 US

257, 106 L Ed 2a 219, 239 fn.22, 109 § ct

2909 (1989). Any remand, then , would be

premature because the applicability of the

Eighth Amendment at the state level has not

yet been determined.

"* 25 -

II. THE PETITIONERS WERE NOT DENIED A

This Court should not grant the

petition on this basis. Petitioners made

this clain through numerous vehicles

including the following: pretrial motions

before the trial judge; pretrial review of

the trial judge's denials before the Chief

judge of the Circuit Court; mid-trial

motions; appeals to the Michigan Court of

Appeals; application for appeal before the

Michigan Supreme Court. All of the

Petitioners' requests were denied.

Petitioner's primary claim rests

upon an alleged Showing of an "indirect

financial interest" by virtue of a letter

sent by the trial judge. With this

argument, the Petitioner is stretching the

statutory proscription against a pecuniary

interest in the outcome of the case. The

“= 26 -

Court of Appeals summarily dismissed

Petitioner's claim by noting that an

ambition to fight the war on drugs does not

translate into the inability of the court to

decide a case fairly. Michigan's narcotic

forfeiture statute, MCL 333.7524a; MSA

14.15(7524a) also required the court to keep

records.

Moreover, Petitioner's suggestion

that a trial judge is unable to be impartial

because of a reference to the "scourge of

drugs" is absurd. Most people are against

drugs. This is not a new concept. To

accept Petitioner's logic would result in

the automatic exclusion of every judge who

once found a defendant guilty. The letter

does not establish actual bias or

prejudgment as required by Michigan court

rule and case law.

‘- 27 -

The Court of Appeals properly

noted that a careful review of the entire

record, rather than a selective review,

reveals that Petitioners were not denied a

fair trial. The court properly noted:

After carefully reviewing the

entire record in this case, we

conclude that reversal is not

warranted on this basis. ze

appears that throughout the trial

the atmosphere was rather tense as

a result of the bickering between

counsel and between claimants'!

counsel and the trial court. it

appears to us that claimants'

counsel provoked the trial court

with their comments and conduct in

general. In addition to being

disrespectful to the court in many

instances, Claimants' counsel

resorted to attacking a prosecutor

by apparently stating that her

conduct ‘typified the basest kind

of projection as described in

psychiatric literature.' This ‘ype

of conduct was uncalled for. 7 e

trial judge also appeared to be

agitated by the tactics of

Claimants' counsel, such as what

appeared in the judge's eyes to be

attempts to create appellate

parachutes and reliance on what

Clearly appears to be a fraudulent

lawsuit as an explanation for some

of claimants' extensive assets. As

a result, the judge was apparently

becoming frustrated and was losing

|

‘= 28 =

his patience. In re Forfeiture of

$1,159,420, 194 Mich App 134, 154;

486 NW2d 326 (1992).

Finally, Petitioner claims that

there is a "conflict" with this Court's

decisions and those of the lower federal

courts. The cases cited by Petitioner,

however, fail to support their claim. The

Petitioners were not denied a fair trial on

this basis.

- 29 -

IIt. IT IS PROPER FOR A TRIAL COURT TO

ISSUE WAS RAISED AND DECIDED UPON

WITHIN THE CONTEXT OF A FEDERAL

CRIMINAL TRIAL OF ROBERT HAWKINS.

ROBERT HAWKINS was charged

criminally in the Federal court systen.

PAMELA HAWKINS was not charged with any

crimes. The narcotic forfeiture action was

filed under the state narcotic forfeiture

law.

At the federal criminal trial,

ROBERT HAWKINS raised an issue under Franks

v_ Delaware, 438 US 154; 98 S Ct 2674; 57 L

Ed 2d 667 (1978). The affiant, Jerome

Sharpe, on the search warrant testified

extensively at the federal criminal trial.

The affiant's information was based in part

On information from a confidential

informant. That confidential informant,

Randy Ulmer, testified at the federal

- 30 -

criminal trial and was cross examined at

length by the defense. At the close of the

government's case, the defense requested

that the items recovered from the residence

Of ROBERT HAWKINS be suppressed and relied

upon Franks. The federal trial court denied

the request after having heard all of the

testimony.

Similarly, the Franks issue was

raised within the context of the state

forfeiture civil lawsuit. Once again, the

HAWKINS requested that the search warrant be

suppressed on the basis that the affidavit

contained deliberately false statements or

statements made in reckless disregard for

the truth, a violation under Franks v

Delaware, supra. Michigan has adopted

federal law when similar claims are brought

at the state level. People v Turner, 155

Mich App 222, 227; 399 NW2d 477 (1986), lv

den 427 Mich 854 (1986); People vy

Poindexter, 90 Mich App 599; 282 NW2d 411

(1979), lv den 407 Mich 876 (1980); People v

Ward, 107 Mich App 38; 308 NW2d 664 (1981),

lv den 417 Mich 938 (1983).

The Michigan Court of Appeals

properly ruled that collateral estoppel

precluded the relitigation of the Franks

issue. The doctrine of collateral estoppel

has long been employed throughout the

judicial system and applies to criminal

cases as well as civil matters. Ashe _ v

Swenson, 397 US 436; 90 SCt 1189; 25 LEd2a

469 (1970). Application of this principle

requires several findings. First, the same

ultimate issues underlying the first action

must be involved in the second action.

Parklane Hosiery Co. v Shore, 439 US 322; 58

LEd2d 552; 99 SCt 645 (1979). The issue

raised in the federal court was identical to

the issue raised in the forfeiture trial.

"= 32 -

Secondly, there must be "mutuality" of

parties. Parklane, 58 LEd2d at 560. The

respective litigants in the second lawsuit

were parties or privy to a party to the

first lawsuit. The interests of ROBERT

HAWKINS in the first lawsuit were adequate

to protect the interests of his wife and

children. Because of the spousal

relationship, ROBERT HAWKINS' interests were

so closely aligned with PAMELA HAWKINS'

interests as to be her virtual

representative.

Most importantly, even though the

trial court in the instant action declined

to revisit the Franks issue in the civil

forfeiture action, the underlying

allegations proffered by Petitioners, that

is, that there were deliberate false

statements by both the affiant and the

confidential informant, were presented as an

affirmative equitable defense. Both the

aot aes) Whe Ral ARs iat ae eam?

;

i

- 33 -

affiant and the confidential informant were

questioned at length during the forfeiture

trial regarding their statements set out in

the search warrant. Thus, the precise issue

was nevertheless presented, argued and

rejected once again by a trial court. On

this basis there was no error.

- 34 -

RELIEF

WHEREFORE,

Respondent respectfully

requests that this Honorable Court deny the

Petition for Writ of Certiorari.

Dated:

August 27,

Respectfully submitted,

JOHN D. O'HAIR

oe Prosecutor

TIMOTHY A. BAUGHMAN

Chief of Research,

Training and Appeals

1441 St. Antoine

Room 1212

Detroit, MI 48226

(313) 224 5777

MARYSUE CZARNECKI

Assistant Prosecuting

Attorney

1993.