Many years ago many of us were taught that before the government could take your property or liberty, constitutional due process required, at a minimum, that it first give you notice and an opportunity to be heard. Apparently now federal prosecutors have found a civil forfeiture process which is subject to a “super seal”. That is, even the individuals targeted don’t know the government’s trying to take their property.
As Bradley Balko of the Washington Post notes here, a federal magistrate in Nevada recently ruled that the government shouldn’t take property from people without notice to the owners.
Specifically, federal prosecutors in the case were trying to take over $13 million from a Las Vegas gambler and his family through civil forfeiture proceedings in U.S. District Court. Federal prosecutors were asking that the proceedings be “super sealed” so that the gambler and his family wouldn’t know that the government was seeking forfeiture of these funds. Under the “super seal” procedure, the court’s clerk apparently files the pleadings in the court’s vault and no record of the proceedings is kept on the court’s electronic case management system. Court documents filed under “super seal” thus “remain secret from the public and opposing parties.”
An earlier article on this particular use of the “super seal” procedure by prosecutors in federal court by Jeff German of the Las Vegas Review-Journal quoted U.S. Attorney Daniel Bogden who justified the super seal procedure and Justice Department policy governing its use, claiming that:
There are instances, such as before persons have been charged with a crime or before assets have been identified and seized, that court papers must be filed in a manner to prevent immediate public disclosure to protect the integrity of an ongoing investigation, prevent defendants from fleeing or hiding evidence and assets, protect witnesses or other persons from potential harm, and to safeguard the right of persons to a fair trial.”
In this case, the government seized the funds pursuant to documents filed under super seal with the court and without prior notice or explanation to the owners six months before those owners were ever indicted for criminal activity. Actually, it was only after the owners initiated judicial proceedings to recover their seized funds that the government indicted them; thereby further delaying any disclosure by the government of the documents that it had earlier filed with the court under super seal.
In short, the government took over $13 million from an individual and his family without prior notice or any explanation pursuant to documents filed with the court under super seal so that no one could learn why the government claimed it could take those funds. When the owners went to court asking the government to justify the taking and return their funds, they were promptly indicted. What isn’t wrong about this picture?