law enforcement interdiction in particular is a labor-intensive function. You can't possibly cut billets in that magnitude and not cripple an agency's ability to perform its mission. We saw what happened in 1981-82 when the Bureau of Alcohol, Tobacco and Firearms was cut to $188 million. They weren't making cases-dismissing indictments and we lost dozens of seasoned agents. We never really recovered from that devastation. The Drug Enforcement Administration is just beginning to get back to its 1981 level. We never recovered from the cuts in 1981 and 1982 in the area of diversion of prescription drugs into the illicit market, which accounts for the overwhelming majority of the deaths from overdoses. So it is important, Senator-and I say to my colleague Clay Shaw-that we maintain the Federal law enforcement officers, particularly the Coast Guard at a time when we have huge arrivals of contraband. It is no time to be cutting the force of law enforcement agencies. I also want to echo the sentiments of my colleagues here from Florida in thanking the Coast Guard for being our escort, and providing us with excellent service in getting us to this hearing. We appreciate the first-rate escort that they provided for us. Mr. HUGHES. Our first member of our initial panel is Mr. Kellner, the U.S. attorney, who is a 1971 graduate of Harvard Law School. Subsequent to law school, Mr. Kellner was associated with two New York law firms until 1982, when he was appointed as assistant U.S. attorney. He was appointed U.S. attorney in August 1985. Our second panelist, Mr. Corless, is the special agent in charge of the Miami office of the FBI. Joseph Corless has held the position of special agent in charge of the Southern Florida office since 1980. Prior to that time he has held various other positions of responsibility, since his entry on duty with the FBI in 1982. He is also a graduate of Seton Hall University in South Orange, NJ. The third member of this panel is William Lenck, who is the forfeiture counsel to the Drug Enforcement Administration in Washington. Mr. Lenck received a bachelor of science and a doctor of law degree from the University of Maryland and has held numerous responsible positions in Federal law enforcement since 1960, with particular emphasis on narcotics trafficking. Our other panelists are Howard Rose, district counsel of the Immigration and Naturalization Service; Peter Gruden, special agent in charge of the Drug Enforcement Administration in Miami; and Daniel Horgan, U.S. marshal, Miami. Unfortunately, we were not supplied with biographical data in time for me to properly introduce them. They all have distinguished records in law enforcement, and they will add a great deal to the testimony today. Gentlemen, we welcome you before the Subcommittee on Crime today. We have your prepared statements, which without objection, will be made a part of the record. You may proceed as you see fit. Mr. HUGHES. Mr. Kellner, welcome. STATEMENTS OF LEON KELLNER, U.S. ATTORNEY, SOUTHERN DISTRICT OF FLORIDA; HOWARD ROSE, DISTRICT COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE, MIAMI, FL; WILLIAM LENCK, FORFEITURE COUNSEL, DRUG ENFORCEMENT ADMINISTRATION, ACCOMPANIED BY PETER GRUDEN, SPECIAL AGENT IN CHARGE, MIAMI, FL; JOSEPH CORLESS, SPECIAL AGENT IN CHARGE, FEDERAL BUREAU OF INVESTIGATION, MIAMI, FL; AND DANIEL HORGAN, U.S. MARSHAL, U.S. MARSHALS SERVICE, MIAMI, FL Mr. KELLNER. Thank you, Mr. Chairman, members of the subcommittee, Senator Pepper. I want to thank you for inviting me to testify on the implementation of the forfeiture provisions of the Comprehensive Crime Control Act of 1984. Two years ago, testifying before this subcommittee, Judge Stanley Marcus, my predecessor as U.S. attorney for the southern district of Florida, stated that the most serious Federal crime problem facing this district was the drug problem. South Florida was, and remains today, the Wall Street of drug trafficking. We remain the entry point for more than 75 percent of all the marijuana and cocaine smuggled into the United States. It is in south Florida that the criminal wholesale transaction of the American drug trade is taking place. The administration's response to this unique and staggering national problem has been a massive buildup in the deployment of personnel and other resources, both investigative and prosecutive. We recognized at the outset that simply utilizing the criminal laws to put people behind bars is not enough. Drug dealers are by and large motivated by pure and simple greed. In order to successfully attack drug smuggling, it is equally important to hit these criminals in the pocketbook, to take their assets away whenever we can. Thus we have aggressively pursued narcotics assets, utilizing both the civil and criminal forfeiture provisions of title 21 of the drug laws, title 31, the Bank Secrecy Act, and the RICO statute. In the past 4 fiscal years, in this district, we have forfeited cash and assets having a value in excess of approximately $17 million. We have currently pending civil forfeiture proceedings of cash and assets having an assessed value of approximately $30 million. The forfeiture provisions of the Comprehensive Crime Control Act of 1984 went a long way toward helping us achieve our goal of making criminal activities, and in particular importation of drugs, a nonprofit business. At this juncture I would like to briefly review how the forfeiture provisions of the act have been implemented in this district. Rather than run through provision by provision, I would like to discuss these by category, and comment on those provisions we have found to be the most significant. The amendments which have had the greatest impact are those amending title 21. The section that has been the most significant in expanding the authority of Federal law enforcement to seize and forfeit drug property is 881(a)(7), which explicitly authorizes the forfeiture of real property or an interest in real property used or intended to be used to facilitate a drug transaction. Prior to enactment of 881(a)(7), real property could be forfeited only if it was pur chased with the proceeds of a drug transaction. That meant that a coke lab or a stash house could not be seized and forfeited for that reason alone. Today we are seizing and forfeiting parcels of real property that are being used to store drugs or used for the manufacture of cocaine. Seizures of real property have tripled since October 1984. We expect seizures of real property to increase even more dramatically in the next year. Other significant amendments are 881(j), providing that the forfeiture proceeding may be brought in the district where the defendant is being prosecuted or the owner is found, and amendments to title 19, which increase the dollar amount of an administrative seizure to $100,000, and remove the dollar cap entirely from the administrative forfeiture of conveyances. Previously, all property valued in excess of $10,000 was automatically referred to the U.S. attorney's office for judicial forfeiture. This district is burdened by the largest nonimmigration criminal caseload in the United States, and indicts more defendants than New York and Chicago combined. This extraordinary caseload adversely impacts the court's ability to address its civil calendar. The amendment raising the cap, reduced the number of cases being filed in Federal court, and equally important, shortens the time period between seizure and ultimate disposition of the property. It also permitted overworked Government prosecutors to turn their attention to pursuing major assets. The amendments to the criminal forfeiture laws are also of great benefit to the prosecutors in this district, because they significantly clarify formerly vague provisions of the law. For example, the amendment gave greater specificity to the definition of forfeitable property. It is now clear that the definition of forfeitable property includes real estate as well as tangible or intangible property from which it may have been derived. Section 1963(c) did nothing more than specifying that forfeitable property relates back to the commission of the racketeering activity, a doctrine long recognized in civil forfeiture law. It served to eliminate a very large loophole in the previous law, the preconviction transfer of property to avoid forfeiture and the protection for the unwary who legitimately obtained tainted property unaware of its origin. Finally, I would like to comment on another provision about which we feel very strongly, the equitable sharing provisions of section 881(e). The problem of narcotics trafficking transcends state, local and Federal boundaries. The Attorney General has stated on numerous occasions that law enforcement is a shared responsibility, and the only way to successfully deter drug trafficking is through joint operations with State and local authorities. Federal law enforcement agencies in south Florida have successfully conducted numerous operations with local law enforcement. Federal law enforcement has for many years placed into service seized drug assets. This amendment gives Federal authorities the opportuity for the first time to share these assets with State and local law enforcement agencies that participated in the seizure of those assets, thereby enhancing our joint ability to combat drug trafficking. We, in south Florida, are aggressively using the provi sions of this amendment and intend to expand its use as the implementing regulations are promulgated. The subcommittee has also asked for my comments on the forfeiture of defense attorneys' fees and the issuance of grand jury or trial subpoenas to attorneys for information relating to the representation of clients. The Department of Justice is sensitive to the concerns raised in a number of quarters about this issue. In other words, to insure that these provisions are not abused and are handled in a similar fashion throughout the country, the Department of Justice has issued strict guidelines providing that before forfeiture of attorneys' fees is sought where a subpoena is issued to an attorney, the assistant attorney general for the criminal division must approve each request. The guidelines also require the prosecutor to show need, actual knowledge, relevancy, and that there is no alternative law enforcement tool. In this office, the southern district of Florida, before a request is made to the Department of Justice, each request must be approved by myself or my chief assistant. These safeguards I believe ensure that these law enforcement tools will be used judiciously and will not be abused. Finally, we have been asked to provide our views on the advisability of using forfeiture funds for drug abuse prevention, treatment, and rehabilitation. In this regard we are of the view that the forfeiture funds should be reserved exclusely for forfeiture-related expenses, and must respectfully oppose opening up the fund to other purposes even as laudable as drug abuse prevention. The asset forfeiture fund created by the 1984 act has been in place only since August 1985. We are only now beginning to use the fund for the statutory purposes contained in the act, forfeiturerelated expenses. I might parenthetically add that since the authorization of the fund in August, the southern district of Florida alone has contributed $6 million to that fund. In summary, I firmly believe, and our experience has shown, that the forfeiture provisions of the Comprehensive Crime Control Act of 1984 is a major piece of legislation which has had a profound impact on our fight against drug trafficking. We are grateful that this subcommittee has taken the time to come to south Florida to obtain our views on its implementation. Now I believe that my colleagues from the FBI, DEA, Customs, the Marshals Service, and INS will specifically address the figures you have requested. Thank you for your invitation to appear here today. [The statement follows:] |