Legislature(2015 - 2016)GRUENBERG 120

03/31/2016 01:00 PM House JUDICIARY

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       HB 317-FORFEITURE: NO CIVIL IN REM; ONLY CRIMINAL                                                                    
1:39:29 PM                                                                                                                    
CHAIR LEDOUX announced  that the next order of  business would be                                                               
HOUSE BILL NO. 317, "An Act  relating to forfeiture to the state;                                                               
relating to  criminal law; amending Rules  3, 4, 11, 12,  16, 32,                                                               
32.2,  32.3,  39,   39.1,  and  42,  Alaska   Rules  of  Criminal                                                               
Procedure, Rules  501, 801,  and 803,  Alaska Rules  of Evidence,                                                               
and  Rules  202,   209,  and  217,  Alaska   Rules  of  Appellate                                                               
Procedure; and providing for an effective date."                                                                                
1:39:51 PM                                                                                                                    
REPRESENTATIVE  KELLER  moved  to  adopt CSHB  317,  Version  29-                                                               
LS1380\W,  Wallace/Martin,  4/4/16,   as  the  working  document.                                                               
There being no objection, Version W was before the committee.                                                                   
1:40:16 PM                                                                                                                    
TAMMIE WILSON, Representative,  Alaska State Legislature, advised                                                               
that  the Departments  of Law,  Public Safety,  the Alaska  Court                                                               
System, Legislative  Legal and Research Services,  and her office                                                               
worked together to offer Version  W, and referred to her document                                                               
entitled "CS for HB 317, Explanation of Changes".                                                                               
REPRESENTATIVE WILSON  referred to  Sec. 12.36.300(3), line  24 -                                                               
changed  to require  a higher  standard of  "beyond a  reasonable                                                               
doubt"  with the  idea of  eliminating  forfeiture all  together.                                                               
She  said  she was  advised  by  Legislative Legal  and  Research                                                               
Services that  otherwise it  would require  going through  all of                                                               
the  different statutes  so the  sponsor raised  the standard  to                                                               
make  it  harder.    She  commented  that  civil  forfeiture  was                                                               
eliminated with this  bill, and that this section  deals with the                                                               
process for criminal forfeiture.                                                                                                
REPRESENTATIVE WILSON referred to  Sec. 12.36.300(e) - paragraphs                                                               
(1) and  (2) deleted  which narrows the  scope by  which property                                                               
subject to  forfeiture under  this section may  be seized  at any                                                               
time with a prior court order, thereby making it more difficult.                                                                
REPRESENTATIVE WILSON  referred to Sec. 12.36.350  (e)(1) - after                                                               
claimant, "and" was added for clarification.                                                                                    
REPRESENTATIVE WILSON  referred to Sec. 12.36.350(e)  - paragraph                                                               
(3) deleted  which excludes  the ability of  a person  to request                                                               
the return of  property in order to pay  for legal representation                                                               
under this section.                                                                                                             
REPRESENTATIVE  WILSON  referred  to  Sec.  12.36.450  -  deleted                                                               
"Chief Public  Defender" and "the District  Public Defender", and                                                               
she described  it as a cleanup  in that the State  of Alaska does                                                               
not have either of the positions.                                                                                               
REPRESENTATIVE  WILSON referred  to Sec.  12.36.450(f) -  deleted                                                               
"clear   and  convincing   evidence"  and   inserted  "beyond   a                                                               
reasonable doubt" requiring a higher standard.                                                                                  
REPRESENTATIVE WILSON  referred to 12.36.450(g) -  added language                                                               
clarifying  that forfeiture  proceedings  after conviction  isn't                                                               
necessary  in  cases  where  forfeitures  are,  by  statute,  not                                                               
challengeable or illegal, for example felony DUI.                                                                               
REPRESENTATIVE WILSON  referred to  Sec. 12.36.460 -  deleted "in                                                               
full or partial fulfillment of  responsibility established in the                                                               
court's proceedings" because the language is not necessary.                                                                     
1:43:30 PM                                                                                                                    
REPRESENTATIVE WILSON  referred to  Sec. 12.36.500 -  deleted "At                                                               
any  time" and  added "within  90  days to  establish a  specific                                                               
timeline under  this section."   Although,  it was  believed that                                                               
people would come sooner rather  than later, it would have opened                                                               
up retroactive  and into  the future  on a  case, which  would be                                                               
costly.   She  commented  that "within  90  days" was  determined                                                               
because if  a person's  property is part  of the  forfeiture they                                                               
would probably be following the case closely.                                                                                   
REPRESENTATIVE WILSON  referred to Sec. 12.36.500  and advised it                                                               
was  rolled into  Sec. 12.36.450(g)  to  prevent duplication  and                                                               
additional cost by having another hearing.                                                                                      
1:44:21 PM                                                                                                                    
REPRESENTATIVE CLAMAN  referred to  the committee  substitute and                                                               
noted he could not locate  Sec. 12.36.500, and referred to number                                                               
9  on her  explanation  of  changes, which  read  the sponsor  is                                                               
deleting Sec. 12.36.500.                                                                                                        
REPRESENTATIVE WILSON responded that  it is two-part because Sec.                                                               
12.36.500 no longer exists; therefore,  Sec. 12.36.500 was placed                                                               
into Sec.  12.36.450(g).   The words "at  any time"  were deleted                                                               
and the  words "within  90 days" were  inserted because  it would                                                               
have caused another hearing, she explained.                                                                                     
REPRESENTATIVE  WILSON  referred  to  Sec.  12.36.600  -  deleted                                                               
"district," which is a cleanup.                                                                                                 
REPRESENTATIVE WILSON  referred to  Sec. 12.36.625 -  deleted "by                                                               
abandonment of the prosecution," which was deleted for clarity.                                                                 
1:45:33 PM                                                                                                                    
CHAIR  LEDOUX expressed  concern  that this  bill  appears to  be                                                               
similar to a  cartoon depicting something simple  and it becoming                                                               
convoluted.  The  bill appears convoluted and  she expressed that                                                               
the committee  just wants  to simply be  rid of  civil forfeiture                                                               
REPRESENTATIVE  WILSON offered  that is  part of  it.   Although,                                                               
criminally there are times things  are taken away especially when                                                               
getting into the  area of fish and game.   She offered that there                                                               
may or may not have  been a violation requiring Wildlife Troopers                                                               
to  check  and the  person  may  have  that their  fishing  boat,                                                               
netting and other  property seized at that time.   Currently, she                                                               
indicated there is not a good  process on how to get the property                                                               
back  when it  is not  required as  evidence and  pointed to  the                                                               
testimony  that it  took 3-4  years before  the person  was found                                                               
correct, and then  get their airplane back.  She  referred to the                                                               
discussion of putting  the airplane in storage  but the testimony                                                               
given doesn't  necessarily happen and  it may sit outside  in the                                                               
weather  until the  case is  completed.   The civil  issue has  a                                                               
lower expectation as  does the process and she  related that this                                                               
is the committee's bill right now.                                                                                              
1:47:32 PM                                                                                                                    
CHAIR LEDOUX  asked whether  there is  any possibility  of asking                                                               
Legislative  Legal and  Research  Services to  go through  Alaska                                                               
Statutes and  just eliminate what  is called a  civil forfeiture,                                                               
although it really is a criminal forfeiture.                                                                                    
REPRESENTATIVE  WILSON  opined  that she  understood  Legislative                                                               
Legal and Research  Services could do it but probably  not in the                                                               
time left for this session.                                                                                                     
1:48:12 PM                                                                                                                    
CHAIR  LEDOUX  listed the  people  on  line available  to  answer                                                               
1:49:50 PM                                                                                                                    
DOUG  WOOLIVER,  Deputy  Director, Administrative  Staff,  Alaska                                                               
Court  System, explained  that the  issues that  would require  a                                                               
fiscal note include  additional hearings and the  length of those                                                               
hearings.  He  pointed out there would be a  whole new scheme for                                                               
forfeitures  and it  has  been  working with  the  sponsor in  an                                                               
ongoing process  because there are  unanswered questions  for the                                                               
court system.                                                                                                                   
CHAIR LEDOUX  pointed out that  civil forfeiture  actually sounds                                                               
like criminal  forfeiture, apparently, due  to the in  rem nature                                                               
wherein the airplane is being sued as opposed to the person.                                                                    
MR. WOOLIVER  agreed that there is  confusion as to what  a civil                                                               
forfeiture means  and what  it doesn't because  these are  all in                                                               
conjunction with  a criminal  case.  He  pointed to  the national                                                               
news comments and  John Oliver's clip wherein "they  just come in                                                               
and take  your money from  your car," and  he opined that  is not                                                               
the process  here.  The Alaska  Statutes did allow "in  rem, just                                                               
simple civil  forfeitures" but  from the  testimony of  others it                                                               
appears  that's not  the norm  here.   These  are forfeitures  in                                                               
conjunction with criminal cases only, he reiterated.                                                                            
REPRESENTATIVE  CLAMAN commented  that John  Skidmore was  in the                                                               
audience and he was not certain  whether he would like to testify                                                               
as to his concerns.                                                                                                             
1:53:06 PM                                                                                                                    
JOHN  SKIDMORE,   Director,  Legal  Services   Section,  Criminal                                                               
Division,  Department of  Law (DOL),  said he  was available  for                                                               
REPRESENTATIVE  KELLER  said  the  Daily  News-Miner  quoted  Mr.                                                             
Skidmore   and  he   paraphrased  "to   say  that   having  civil                                                               
forfeiture,  I believe,  eliminates  the need  for  hiring --  or                                                               
maybe the  resource for  hiring extra help  in the  Department of                                                               
Law."     Representative   Keller  asked   him  to   discuss  the                                                               
MR. SKIDMORE  replied that he  had not  seen the article  and was                                                               
unsure ...                                                                                                                      
REPRESENTATIVE KELLER asked him to explain the implications.                                                                    
MR.  SKIDMORE responded  that he  understood the  question to  be                                                               
what  was [included  in the  bill]  that resulted  in the  fiscal                                                               
note.  He  explained that the elimination of  in rem forfeitures,                                                               
which is the civil component as  he refers to it, does not impact                                                               
the  fiscal  note  because  those   civil  forfeitures  are  used                                                               
infrequently  and the  Department of  Law (DOL)  does not  have a                                                               
problem with eliminating them.   The inclusion of the fiscal note                                                               
is with  regard to  the rest  of HB  371 in  that it  attempts to                                                               
redraft the process that occurs  for forfeiture in criminal cases                                                               
because it creates additional hearings,  the necessity to have to                                                               
file  against particular  pieces of  property.   He related  that                                                               
under  the  bill,  the  department doesn't  just  file  a  charge                                                               
against  someone with  possession of  child pornography,  it then                                                               
has  to file  an action  against the  individual images  of child                                                               
pornography that  the state will  seek to  forfeit at the  end of                                                               
the  case.   Subsequent  to  that, there  is  an opportunity  for                                                               
hearings for  people to try to  get property back, then  a trial,                                                               
then a  forfeiture proceeding after  the trial to deal  only with                                                               
the property,  then a sentencing,  then a reconsideration  of the                                                               
forfeiture  decision,  and  then  a right  of  appeal  about  the                                                               
forfeiture  decision.   He pointed  out that  all of  the various                                                               
hearings resulted  in the fiscal  note and opined there  are ways                                                               
for a process addressing the  concerns of the sponsor.  Although,                                                               
he  did not  believe  there  had been  enough  time  to wrap  his                                                               
suggestions into the committee substitute  today.  He opined that                                                               
the sponsor's  concerns related to consolidating  forfeiture laws                                                               
into  one title  and  clearly  articulate what  the  case law  in                                                               
Alaska says  so it  is easier  to find  and follow.   There  is a                                                               
process  through the  criminal  case to  address forfeiture  that                                                               
would eliminate that  fiscal note and none of  that is associated                                                               
with the in rem forfeitures, he remarked.                                                                                       
1:56:37 PM                                                                                                                    
CHAIR  LEDOUX referred  to in  rem forfeitures  currently in  the                                                               
statutes, and said they have nothing to do with a criminal case.                                                                
MR. SKIDMORE agreed.                                                                                                            
CHAIR  LEDOUX verified  that  Mr. Skidmore  has  no objection  to                                                               
eliminating those forfeitures.                                                                                                  
MR. SKIDMORE agreed.                                                                                                            
CHAIR LEDOUX  continued that there  is another group of  cases in                                                               
which the forfeiture is in conjunction with a criminal case.                                                                    
MR. SKIDMORE agreed.                                                                                                            
CHAIR LEDOUX asked whether people  acquitted in the criminal case                                                               
automatically   receive  their   property   back,  assuming   the                                                               
forfeited  property  is  not  contraband  or  in  and  of  itself                                                               
MR. SKIDMORE noted  that Chair LeDoux placed in  the question the                                                               
caveat of  the items that in  and of themselves are  illegal, and                                                               
said the answer to her question is yes.                                                                                         
1:58:03 PM                                                                                                                    
CHAIR LEDOUX restated  her question to confirm  that the property                                                               
is automatically  given back to the  person at the time  they are                                                               
MR.  SKIDMORE commented  that when  she used  the phrase  "at the                                                               
time that  they are  acquitted," he doesn't  want to  quibble but                                                               
does not want  it to be understood that the  jury comes back with                                                               
the acquittal  and the  person is handed  their property  at that                                                               
moment.  The person does  receive their property and it shouldn't                                                               
be  more than  a  matter  of days,  although  there are  probably                                                               
horror stories of times it has  taken longer than it should.  The                                                               
law does say  that when a person is acquitted  the property is to                                                               
be returned, unless  the possession of those items  is illegal in                                                               
and  of  themselves.    There   are  statutes  that  discuss  the                                                               
disposition  of  property,  and  he   opined  they  do  not  list                                                               
timeframes within them.                                                                                                         
2:00:03 PM                                                                                                                    
KEVIN FITZGERALD, Attorney, said he was available.                                                                              
CHAIR LEDOUX asked Mr. Fitzgerald's  whether he would concur with                                                               
Mr. Skidmore's analysis.                                                                                                        
MR. FITZGERALD responded not entirely, no.                                                                                      
CHAIR LEDOUX  asked him to  explain his understanding of  the way                                                               
the law works that differs from Mr. Skidmore's understanding.                                                                   
MR. FITZGERALD  referred to  the disposition  of property  at the                                                               
conclusion of a  case, and agreed there are  statutes under Title                                                               
12  dealing with  the disposition  of property  and there  are no                                                               
timelines.    Mr.  Fitzgerald  then  expressed  that  he  has  an                                                               
enormous  amount of  respect  for Mr.  Skidmore.   Generally,  he                                                               
opined, the law  is pretty well followed as far  as trying to get                                                               
property back,  and he then  related a horror story.   Subsequent                                                               
to his horror story,  he put forth that the idea  a whole host of                                                               
additional hearings are required  is similar to "Chicken Little."                                                               
For example, with regard to  the opportunity to appeal a decision                                                               
made  as it  relates for  forfeiture is  a right  parties already                                                               
have and  that would not  require additional hearings.   His main                                                               
focus in the current forfeiture law,  has to do with items seized                                                               
pre-charge or  post-charge but pre-conviction,  in that  there is                                                               
little remedy for  the party to whom the property  has been taken                                                               
to seek redress.  In the  instance of pre-charge, he said he does                                                               
not  know of  an  adequate  process and  as  a  result there  are                                                               
situations he  related during yesterday's  testimony.   He opined                                                               
there has  been an  indication from  the Law  Office of  Brent R.                                                               
Cole  of a  similar situation  involving another  client and  the                                                               
situations are not unique.   It is the pre-charge, pre-conviction                                                               
process  in which  there isn't  any appropriate  remedy to  allow                                                               
parties to  seek redress.   He  pointed to  due process  case law                                                               
that indicates  if law enforcement  seizes property  that affects                                                               
someone's livelihood they  have a right to a hearing  within 48 -                                                               
72  hours.    There  is  no  statutory  construct  or  regulatory                                                               
construct that  says that, but  there is case law  that certainly                                                               
suggests that  is the case.   He related that there  is a problem                                                               
in trying  to get  a superior  court to pay  attention to  a pre-                                                               
charge situation,  and "secondly  of all that  law frankly  is --                                                               
that case law  is ignored."  Therefore, even if  a person manages                                                               
to  get a  hearing  all  the prosecution  need  say  is that  the                                                               
property  is needed  for purposes  of  evidence and  there is  no                                                               
further inquiry.   He  opined that violates  due process  and his                                                               
concern is  that there  is no procedural  mechanism to  afford an                                                               
aggrieved party some relief.                                                                                                    
2:05:54 PM                                                                                                                    
MR.  FITZGERALD continued  that  he cannot  say  what the  fiscal                                                               
consequence is  likely to be,  and that  with regard to  the pre-                                                               
charge or pre-conviction process like  the one contemplated by HB
317  there  is  likely  to  be  situations  in  which  there  are                                                               
additional  hearings,  he  could  not  say  how  many  additional                                                               
hearings  but  not  close  to  the  number  contemplated  by  the                                                               
Department of Law (DOL).   He pointed out that the constitutional                                                               
protections require  no less,  so by virtue  of that  hearing put                                                               
into  the   bill  and  a   statute  require  no  less   than  the                                                               
constitution otherwise  requiring and  why shouldn't that  be the                                                               
CHAIR LEDOUX surmised that he  believes the constitution requires                                                               
this   now  and   that   the  courts   are   not  following   the                                                               
constitutional  requirements  as they  exist  now,  asked why  he                                                               
would think the courts would follow a statute.                                                                                  
MR. FITZGERALD responded that the  courts are bound to follow the                                                               
CHAIR LEDOUX interjected, but not the constitution.                                                                             
[Mr. Fitzgerald  continue to speak, thereby,  speaking over Chair                                                               
LeDoux and his conversation was difficult to decipher.]                                                                         
MR.  FITZGERALD ...  follow a  statute, particularly  a statutory                                                               
construct  like  this  dealing  with  the  very  situation  being                                                               
discussed.  He  commented that other states  have recognized that                                                               
the construct that "we have now,  which is really no construct or                                                               
it's certainly  not standardized or  centralized," is in  need of                                                               
fixing  and [the  states]  have done  so.   He  said  he has  not                                                               
researched  and is  unaware whether  other states  having adopted                                                               
similar statutory  constructs are facing the  fiscal consequences                                                               
suggested by DOL.   He reiterated that there  isn't any statutory                                                               
construct   now   and   this  bill   provides   centralized   and                                                               
standardized construct concerning forfeitures.                                                                                  
2:09:04 PM                                                                                                                    
CHAIR  LEDOUX  asked  whether Mr.  Fitzgerald  has  reviewed  the                                                               
committee substitute for HB 317 [Version W].                                                                                    
MR. FITZGERALD said he received  the committee substitute moments                                                               
ago and he  was also provided a copy of  the Alaska State Trooper                                                               
(DPS) summary regarding its concerns with  HB 317, but he has not                                                               
gone through the  documents in great detail.   He then reiterated                                                               
that many  of the concerns or  complaints are a case  of "Chicken                                                               
Little," and he  expressed great respect for  Wild Life Troopers,                                                               
Alaska State Troopers  and Mr. Skidmore as they are  trying to do                                                               
the best they can.                                                                                                              
CHAIR LEDOUX  asked Mr.  Fitzgerald whether  he could  review the                                                               
new  committee substitute  by tomorrow  so the  committee can  be                                                               
assured it takes care of the problems he articulated.                                                                           
MR. FITZGERALD agreed.                                                                                                          
2:10:49 PM                                                                                                                    
REPRESENTATIVE  KELLER  commented that  some  of  the issues  Mr.                                                               
Fitzgerald related are sobering and  that there have been reports                                                               
that  Alaska's  justice  system compared  to  other  states  have                                                               
received low  grades in  this arena.   He expressed  concern that                                                               
when  a person  is  charged  their property  is  taken, and  then                                                               
suddenly the burden  is on the person charged to  keep track, and                                                               
figure  out how  to  get their  property back  when  there is  no                                                               
process or system  that is working.  He pointed  out that that is                                                               
the context  he would  like everyone  to consider  when reviewing                                                               
the committee substitute.                                                                                                       
2:12:02 PM                                                                                                                    
CAPTAIN  JEFF LAUGHLIN,  Alaska  State  Troopers, Statewide  Drug                                                               
Enforcement Unit  Commander, Department  of Public  Safety (DPS),                                                               
said he  is the Alaska  State Troopers Captain and  currently the                                                               
Statewide Drug  Enforcement Unit  Commander.  After  listening to                                                               
the  discussions today,  he said  he  was unsure  whether he  had                                                               
testimony because some  of his concerns appear to  be a confusion                                                               
between  civil  asset  forfeiture   and  forfeiture  pursuant  to                                                               
criminal proceedings, which was  adequately addressed.  Although,                                                               
he has  not had a chance  to review the committee  substitute and                                                               
how the  changes might affect  his concerns that DPS  provided to                                                               
the  [sponsor].   He argued  that, contrary  to Mr.  Fitzgerald's                                                               
testimony,  this  is  not  "Chicken Little"  in  that  these  are                                                               
realities  of what  "those of  us in  the business  of practicing                                                               
this" will  be faced  with if  the bill is  passed as  it stands,                                                               
even  with what  he knows  of  the committee  substitute.   Major                                                               
Chastain  is available  to discuss  wildlife  issues and  Captain                                                               
Laughlin is available for other questions, he offered.                                                                          
2:13:37 PM                                                                                                                    
REPRESENTATIVE  KELLER asked  whether there  is an  incentive for                                                               
law  enforcement to  include a  federal charge  due to  different                                                               
federal  and  state standards  having  to  do with  an  equitable                                                               
sharing agreement.                                                                                                              
CAPTAIN  LAUGHLIN opined  that Representative  Keller was  asking                                                               
about the  Department of Justice  Equitable Sharing  Program, and                                                               
opined that  it is a  large concern  for people and  the national                                                               
dialogue on the  asset sharing program done by  the Department of                                                               
Justice  surrounding civil  forfeitures.    Although, he  offered                                                               
people  may have  looked  like  that in  March  of 2015,  through                                                               
President  Obama's administration,  Attorney General  Eric Holder                                                               
offered  clarification and  new  direction on  the Department  of                                                               
Justice's  assets  sharing program.    He  pointed out  that  the                                                               
biggest change is  that there is no longer the  ability for state                                                               
and  local law  enforcement to  participate in  that program  for                                                               
civil  asset forfeiture  proceedings.   In addition  to that,  in                                                               
order  for state  and  local law  enforcement  to participate  in                                                               
federal  criminal asset  forfeiture, such  that when  a defendant                                                               
has been charged  in drug cases a federal agent  must be involved                                                               
in that  proceeding from the onset.   In the past,  he explained,                                                               
state or local law enforcement  might begin an investigation into                                                               
a drug trafficking  organization, and at a later  date during the                                                               
investigation they  would engage  in conversations with  the drug                                                               
enforcement administration or the FBI.   The federal agency would                                                               
then  adopt  that  case,  see it  through  prosecution,  and  any                                                               
potential  assets would  be forfeited  through the  Department of                                                               
Justice  asset  sharing program.    Currently,  with the  changes                                                               
announced  last   March,  in   order  for   the  state   to  work                                                               
collaboratively with its federal  partners, they must be involved                                                               
in that investigation from the beginning.                                                                                       
2:16:42 PM                                                                                                                    
CAPTAIN  LAUGHLIN   expressed  that  it  is   important  for  the                                                               
committee  to   understand  that  this  change   is  particularly                                                               
important, not  only to  law enforcement  nationally, but  to law                                                               
enforcement in Alaska.   The reason being, he  explained, is that                                                               
Alaska,  with  the  rare  exception   of  marijuana  and  perhaps                                                               
methamphetamine to a  certain degree, is a consuming  state.  For                                                               
example, the state doesn't  produce heroin, opioids, prescription                                                               
medications,   or  cocaine.     Therefore,   in  order   for  law                                                               
enforcement  try   to  effectively  reduce  the   flow  of  those                                                               
controlled substances  coming into  Alaska, it oftentimes  has to                                                               
work beyond  the borders of  Alaska and in  order to do  that its                                                               
best approach  is to partner  with its federal partners  who have                                                               
reached beyond the borders of Alaska.                                                                                           
2:17:33 PM                                                                                                                    
CAPTAIN  LAUGHLIN  related  that  he  can't  in  good  conscious,                                                               
especially  in this  fiscal  climate, send  troopers  out to  its                                                               
source states,  such as Oregon,  Washington or Arizona to  try to                                                               
intercept  or interdict  multiple  kilos of  heroin without  that                                                               
partnership  availability because  law  enforcement  has to  wait                                                               
until the  drug is smuggled  into the  border of Alaska  and then                                                               
try to determine  where it was disbursed to.   He described it as                                                               
a  very, very  difficult challenge  for Alaska's  law enforcement                                                               
and  the  partnership with  its  federal  partners are  extremely                                                               
important.   The  contrast, he  pointed  out is  that the  Alaska                                                               
State Troopers are limited with  the number of personnel assigned                                                               
to its  drug investigative unit so  in turn it relies  heavily on                                                               
its  municipal  partners  to  work together.    For  example,  in                                                               
Fairbanks  they partner  with the  North Pole  Police Department,                                                               
Fairbanks   Police  Department,   Alaska  State   Troopers,  Drug                                                               
Enforcement Administration  and various agencies  to collectively                                                               
and  collaboratively  try  to target  the  state's  mid-level  to                                                               
upper-level drug offenders and the  federal asset sharing program                                                               
goes a long way to allow them to do that.                                                                                       
2:19:00 PM                                                                                                                    
CAPTAIN LAUGHLIN  noted that while he  is on the topic  of assets                                                               
and  concerns  about  state  seized assets  coming  back  to  the                                                               
Department of  Public Safety,  advised that  the statutes  do not                                                               
allow for  that.  For  example, say law enforcement  prosecuted a                                                               
defendant on  a drug charge and  seized $1,000, if it  is a state                                                               
charge and  ordered forfeited by  the judge through  the criminal                                                               
due process, that $1,000 must  be deposited into the general fund                                                               
and  it does  not remain  with  the Department  of Public  Safety                                                               
(DPS).   The exception would be  where the DPS is  engaged with a                                                               
task force  cooperative effort  with its  local partners,  and if                                                               
the local  partners are  part of that  investigation there  is an                                                               
allowance in statute that allows DPS  to share a portion with its                                                               
local partners to  help offset the cost  of those investigations.                                                               
He related  that any remaining amount  and at least a  minimum of                                                               
25 percent must  go into the general fund because  the DPS is not                                                               
allowed  to  receive   any  of  those  funds   from  state  asset                                                               
forfeitures from the court.                                                                                                     
REPRESENTATIVE  KELLER thanked  Captain Laughlin  because it  was                                                               
good information for the record.                                                                                                
2:20:27 PM                                                                                                                    
CHAIR  LEDOUX  related  that  she is  still  confused  and  asked                                                               
whether they can partner with  people without getting involved in                                                               
civil forfeiture.  For example,  say they are trying to intercept                                                               
a  large quantity  of heroin  before it  hits Alaska,  can't they                                                               
partner  with   the  federal  government  without   a  forfeiture                                                               
CAPTAIN LAUGHLIN  replied that they  absolutely can, and  that is                                                               
why  the  confusion  is between  criminal  forfeiture  and  civil                                                               
forfeiture.   In  analyzing  this bill  to  determine whether  it                                                               
would  have any  impact on  DPS, he  said, that  on its  surface,                                                               
because  the  sponsor  appeared  to be  focused  on  civil  asset                                                               
forfeiture, he  looked back  to 2012  and he  could not  relate a                                                               
single  case where  the  State of  Alaska,  particularly in  drug                                                               
investigations, has ever used civil  asset forfeiture or civil in                                                               
rem  to seize  anything.    He offered  that  everything he  just                                                               
referred  to   has  to   do  with   criminal  law   and  criminal                                                               
investigations  and ultimately  criminal  forfeiture through  the                                                               
court  system.   The  department  can  absolutely work  with  its                                                               
partners,  absent civil  asset forfeiture,  "both at  the federal                                                               
level which already exists,  they've discontinued that practice,"                                                               
and if it  is the committee's desire is to  just simply end civil                                                               
in rem, it will have absolutely  no impact on what the department                                                               
does.   However, he pointed  out some stipulations in  this bill,                                                               
for  example, requiring  all proceeds  to be  deposited into  the                                                               
general fund, and there is a  further prohibition that reads if a                                                               
federal partnered agency does not  allow deposit of any forfeited                                                               
funds into the  general fund, then the department  is not allowed                                                               
to participate in it.  He  described that as that having a pretty                                                               
dramatic effect on the department's  partnership with its federal                                                               
taskforce  officers.   In  response  to  Chair LeDoux's  previous                                                               
question,  he   replied  that  the   lack  of   civil  forfeiture                                                               
proceedings, either at  the state or local  level, has absolutely                                                               
no impact on  the department.  He related  his concerns regarding                                                               
HB  317  is  that,  although,   the  discussion  is  civil  asset                                                               
forfeiture,  most of  the suggestions  and change  to law  affect                                                               
criminal seizure and criminal forfeiture,  and those would have a                                                               
dramatic effect on what Alaska does for drug investigations.                                                                    
2:23:04 PM                                                                                                                    
CHAIR  LEDOUX said  she is  still trying  to follow  this because                                                               
civil forfeiture,  which is the  in rem proceeding,  doesn't have                                                               
to have any  criminal case attached to it.   Then, she continued,                                                               
there are two  aspects of the criminal forfeiture,  such as items                                                               
seized which are  evidentiary items, and items  seized that don't                                                               
have anything  to do  with evidence.   For  example, if  they are                                                               
seizing money it could be photocopied  and it is not necessary to                                                               
keep the money for evidence.   She said, other than the fact that                                                               
statutes were enacted a while  ago, she doesn't see justification                                                               
for  grabbing  property until  there  is  a criminal  conviction,                                                               
unless  it is  evidentiary.   It  appears there  are cases  where                                                               
property is  taken that is  not evidentiary and it  is confusing,                                                               
she related.                                                                                                                    
CAPTAIN LAUGHLIN responded that he cannot  think of a case he has                                                               
been exposed  to in which  items were  seized in a  criminal case                                                               
that were  not of  evidentiary value.   The Department  of Public                                                               
Safety (DPS)  absolutely does seize  cash and/or assets  during a                                                               
drug  investigation,  for example.    Generally,  it can  be  for                                                               
reasons such as:  belief to be proceeds  from illegal activities;                                                               
proceeds from ill-gotten gains; a  drug detection canine may have                                                               
alerted on that  money; and in many cases  undercover "buy funds"                                                               
to enact  the transaction  to prove  the illegal  distribution of                                                               
controlled substance.   He  confidentially related  that anything                                                               
seized  during  a  drug  investigation  is  all  believed  to  be                                                               
evidence of the crime of drug  trafficking.  There is no instance                                                               
where DPS would  seize property that cannot be tied  to the whole                                                               
idea  of  drug  trafficking and  drug  trafficking  organizations                                                               
because it  is all  evidence of what  the department  believes is                                                               
evidence of that crime.                                                                                                         
2:26:06 PM                                                                                                                    
CHAIR  LEDOUX remarked  that she  could understand  if there  was                                                               
some question  as to  whether drugs are  literally on  the money,                                                               
but  if   they  don't  have   that  circumstance  and   they  are                                                               
photocopying it  first, before it's  spent, to compare  what they                                                               
get back, asked  why couldn't they photocopy what  they get back.                                                               
It was  photocopied in  the beginning,  why can't  they photocopy                                                               
what they get back, she reiterated.                                                                                             
CAPTAIN LAUGHLIN answered that they  do.  For example, within the                                                               
criminal  justice reform  bills, HB  205 and  SB 91,  one of  the                                                               
ideas  being discussed  is having  law enforcement  not focus  on                                                               
drug addicts or  even low-level drug dealers that  may be selling                                                               
a drug  just so they  can continue with  their drug habit.   What                                                               
that does,  he offered, and even  prior to the bills  is that the                                                               
department focuses on mid-level  and upper-level drug dealers and                                                               
drug trafficking organizations.  One  of the ways they attempt to                                                               
prove to the court and juries  that someone is involved in larger                                                               
scale drug  trafficking is not only  the amount of drug  they are                                                               
able to  seize, but  the amount  of cash  they are  carrying with                                                               
them  at  the  time  those  seizures are  made  because  that  is                                                               
indicative of the sale of controlled substance, he explained.                                                                   
2:28:05 PM                                                                                                                    
CAPTAIN LAUGHLIN  continued that should an  undercover officer or                                                               
an  informant buy  an  ounce  of heroin  from  a  dealer and  law                                                               
enforcement  grabs that  dealer to  effect the  arrest and  finds                                                               
$10,000  cash  in their  pocket  that,  to  the courts  and  most                                                               
juries,  is  indicative of  drug  trafficking  at a  much  larger                                                               
scale.  He further explained that  that is why that money becomes                                                               
important ....                                                                                                                  
CHAIR LEDOUX asked why he couldn't  do the same thing with simply                                                               
photocopying  the  money, and  if  the  person is  convicted  law                                                               
enforcement  could seize  the  money  or fine  the  person.   She                                                               
inquired as  to why the actual  money is needed for  evidence, as                                                               
opposed to a photocopy of the money.                                                                                            
CAPTAIN LAUGHLIN opined  that it is evidence of  crime that needs                                                               
to be  preserved and is  used in trial.   He posed that  the same                                                               
question could  be asked for  different items seized  through the                                                               
investigative processes.                                                                                                        
CHAIR LEDOUX commented that the  question could be asked, and she                                                               
surmised that that is what the committee is doing.                                                                              
2:29:57 PM                                                                                                                    
MAJOR  BERNARD  CHASTAIN,  Deputy Director,  Division  of  Alaska                                                               
Wildlife Troopers,  Department of Public Safety,  referred to Mr.                                                               
Fitzgerald's testimony  regarding seizure and having  the ability                                                               
to remedy the  situation, and pointed to the  remedy under Alaska                                                               
Rules  of  Criminal  Procedure  Rule No.  37(c),  which  read  as                                                               
     A person  aggrieved by an  unlawful search  and seizure                                                                    
     may move  the court in  the judicial district  in which                                                                    
     the  property was  seized  or the  court  in which  the                                                                    
     property may  be used  for the  return of  the property                                                                    
     and  to  suppress  for  use  as  evidence  anything  so                                                                    
     obtained on the ground  that the property was illegally                                                                    
MAJOR  CHASTAIN advised  that Mr.  Fitzgerald has  sometimes been                                                               
the defense attorney  in wildlife cases involving  the seizure of                                                               
aircraft or vessels.   He extended that the  Department of Public                                                               
Safety (DPS)  and the  Department of Law  (DOL) believe  there is                                                               
sufficient  remedy  in place  in  the  criminal rules  for  that.                                                               
Items are  seized for many reasons,  he related, and in  the fish                                                               
and wildlife world  in Alaska it is  worth a lot of  money to the                                                               
residents and the  state.  This arena is worth  over $5 billion a                                                               
year,  which includes  commercial fisheries,  wildlife, big  game                                                               
guiding, sport  fish guiding,  and it is  a substantial  piece to                                                               
Alaska's economy.  He stated  that commercial wildlife violations                                                               
are  about  making  money  illegally,   and  the  primary  reason                                                               
property is  seized in  fish and wildlife  crimes is  because the                                                               
property was the  instrumentality of the crime.   The property is                                                               
seized due  to the re-occurring  nature of a  commercial wildlife                                                               
crime  and they  often happen  more  than once  or several  times                                                               
before law enforcement gets the  ability to contact the violating                                                               
individual.  When the violations occur  they tend to be of a more                                                               
serious nature ...                                                                                                              
2:32:23 PM                                                                                                                    
CHAIR LEDOUX  referred to his  statement that property  is seized                                                               
due to the  re-occurring nature, and asked whether  that means it                                                               
is being seized so they can't do it again.                                                                                      
MAJOR CHASTAIN responded correct, it  is being seized to keep the                                                               
individual from continuing to violate.                                                                                          
CHAIR LEDOUX  argued that law  enforcement is then  presuming the                                                               
individual is guilty before being convicted.                                                                                    
MAJOR CHASTAIN answered that is not correct.                                                                                    
CHAIR LEDOUX  contended that in  his response to her  question he                                                               
agreed that property is being  seized to keep the individual from                                                               
doing  something  again.    Chair   LeDoux  then  reminded  Major                                                               
Chastain that  her response to  his agreement was that  it sounds                                                               
like  law  enforcement  is  presuming  the  individual  had  done                                                               
something wrong in the first place without a conviction.                                                                        
MAJOR CHASTAIN explained  that the items seized  are seized under                                                               
a criminal search  and seizure warrant that a  judge signed under                                                               
"probable cause" that the violation  had taken place, those items                                                               
are seized ...                                                                                                                  
2:33:31 PM                                                                                                                    
CHAIR LEDOUX  pointed out that  "probable cause" is not  the same                                                               
standard as "guilty beyond a reasonable doubt."                                                                                 
MAJOR  CHASTAIN said  she  was correct  and it  is  not the  same                                                               
standard in that "guilty beyond  a reasonable doubt" is used when                                                               
someone is convicted  and the judge decides what  happens to that                                                               
item.  Currently, he reiterated  there is sufficient remedy under                                                               
Alaska  Rules  of  Criminal  Procedure   Rule  No.  37(c)  for  a                                                               
defendant to go  before the court and petition to  have that item                                                               
returned to them.                                                                                                               
2:34:24 PM                                                                                                                    
REPRESENTATIVE CLAMAN asked whether  there are occasions when law                                                               
enforcement  would seize  a  commercial  guide's airplane  before                                                               
ever arresting the guide for hunting violations.                                                                                
MAJOR  CHASTAIN answered  yes, law  enforcement  goes before  the                                                               
court  with a  criminal affidavit  and  a judge  issues a  search                                                               
warrant  as part  of  the  investigatory process.    The item  is                                                               
seized and,  he acknowledged,  that sometimes  the case  takes an                                                               
excess of  months to complete before  it is ready to  be charged.                                                               
Once the case  is charged it goes through the  court process, the                                                               
state is  ready to  proceed in court,  and oftentimes  defense is                                                               
not ready  to proceed and  the case  moves slowly as  the defense                                                               
attorney has the ability to defend their client.                                                                                
REPRESENTATIVE CLAMAN restated his  question, used an airplane as                                                               
an  example, and  said that  law enforcement  seized an  airplane                                                               
that isn't an instrument of  crime and there wouldn't be evidence                                                               
of a crime  in the airplane.  Although, the  guide/owner used the                                                               
airplane to fly to wherever to  take their hunters hunting and it                                                               
happens  to be  the means  by  which they  fly to  the middle  of                                                               
nowhere  to hunt.    He  asked whether,  in  that situation,  the                                                               
department would periodically get a  warrant, not for purposes of                                                               
obtaining  evidence,  but  to actually  seize  the  airplane  and                                                               
prevent the guide/owner from using it for flying any longer.                                                                    
MAJOR CHASTAIN replied  the statute provides that if  the item is                                                               
used  in  commission  of  the  crime itself,  such  as  same  day                                                               
airborne of an animal, the item  itself is subject to seizure and                                                               
subject to forfeiture.                                                                                                          
REPRESENTATIVE CLAMAN said he understands  the statute allows the                                                               
department to  do it,  and asked that  if the  department doesn't                                                               
need that airplane to prove  this person has been committing same                                                               
day airborne hunting and there  is nothing requiring DPS to seize                                                               
the  airplane,  why  does  the department  choose  to  seize  the                                                               
2:37:21 PM                                                                                                                    
MAJOR  CHASTAIN responded  that  it is  in  preservation of  that                                                               
evidence in that the item itself  could be disposed of before the                                                               
court forfeits the  item to the state.  For  example, a defendant                                                               
actually dismantled  his aircraft  so he could  hide it  from the                                                               
Alaska State  Troopers and keep them  from seizing it.   He noted                                                               
that  there have  been several  cases wherein  people have  flown                                                               
their aircraft  out-of-state to different  locations in  order to                                                               
hide the  aircraft and in  those situations oftentimes  it's very                                                               
difficult to find that asset.   Therefore, when a criminal search                                                               
and seizure  warrant is  obtained from  the court  the department                                                               
seeks that asset out to preserve the evidence, he explained.                                                                    
2:38:15 PM                                                                                                                    
CHAIR LEDOUX argued  that there are two questions,  such that the                                                               
property is  seized for evidence  actually necessary in  order to                                                               
present the  item to  the jury  to prove  someone's guilt  is one                                                               
thing, but  if the department  is just  seizing it because  it is                                                               
concerned  that  once the  person  has  been convicted  that  the                                                               
department  will  not get  this  airplane  or other  property  of                                                               
value.    She said  she  doesn't  understand why  the  department                                                               
should be in  such a different position than  any other plaintiff                                                               
who thinks  they have a good  case and do not  want the defendant                                                               
to be able to hide assets.   When she practiced law, she related,                                                               
there were few instances that  the plaintiff could seize property                                                               
before  a court  or  jury determined  someone  had actually  done                                                               
something wrong.   Chair LeDoux acknowledged this is  the way the                                                               
statute  reads and  that it  does so  because a  past legislature                                                               
enacted the  statute.  Even so,  she said she has  a real problem                                                               
with the idea  that the department can seize  property it doesn't                                                               
need for  evidence prior  to a  finding by a  judge or  jury that                                                               
someone committed a crime beyond a reasonable doubt.                                                                            
MAJOR  CHASTAIN  said  that a  neutral  detached  magistrate  has                                                               
already  made a  finding of  probable cause  when the  department                                                               
goes  before a  magistrate or  judge to  get the  warrant issued.                                                               
That  finding is  from a  criminal court  saying there  is enough                                                               
evidence to warrant seizure of that  item.  In addition, the item                                                               
itself  is  subject  to  forfeiture  but  not  evidence,  and  he                                                               
reiterated that  the defendant has  the ability to go  before the                                                               
court under  Alaska Rules  of Criminal  Procedure Rule  37(c) and                                                               
ask the court to find for the item ...                                                                                          
2:41:36 PM                                                                                                                    
REPRESENTATIVE  CLAMAN advised  Major  Chastain that  he was  not                                                               
answering the  question.  In  the event the department  is trying                                                               
to convict someone of same  day airborne hunting, the evidence of                                                               
that  is typically  either  there is  someone  undercover in  the                                                               
airplane  that later  testifies  they were  in  the airplane,  it                                                               
landed and shot  the wolf.  Or, alternatively,  the trooper knows                                                               
enough about the snow conditions  to determine where the airplane                                                               
had to  have landed, finds evidence  of a kill in  that area, and                                                               
puts  the  case together  with  pictures.    He argued  that  the                                                               
airplane  itself  gives  no  evidence  that  the  crime  occurred                                                               
because they don't  put GPS tracker in the  airplanes telling the                                                               
troopers exactly where the airplane went.                                                                                       
MAJOR CHASTAIN responded that he is correct.                                                                                    
REPRESENTATIVE  CLAMAN  surmised that  more  often  than not  the                                                               
department does not seize the  airplane as evidence of the crime,                                                               
but  seizes it  because  the department  is  allowed, during  the                                                               
course of the prosecution, to forfeit  the airplane as it was the                                                               
instrument of the illegal activity.                                                                                             
MAJOR CHASTAIN replied that he is correct.                                                                                      
REPRESENTATIVE CLAMAN  explained that the committee  is trying to                                                               
determine  whether  it likes  the  idea  that Alaska  is  seizing                                                               
airplanes for the  purpose of forfeiture at the end  of the case,                                                               
as opposed to seizing the  airplane because it is evidence itself                                                               
of the crime and is needed to  prove the elements of the crime to                                                               
get the conviction, which is a  rare occasion.  Usually, he said,                                                               
the department  seizes the airplane  because it is  an instrument                                                               
of the illegal  activity and the department's goal  is to forfeit                                                               
2:44:03 PM                                                                                                                    
MAJOR  CHASTAIN related  there are  many reason  for seizure  and                                                               
forfeiture,  and in  fish and  wildlife crimes,  one of  the main                                                               
reasons  is deterrents  of other  violators.   He expressed  that                                                               
deterrents are  a big factor,  especially with the amount  of law                                                               
enforcement patrolling  Alaska for fish  and wildlife cases.   He                                                               
offered that in remote locations  there is not a Wildlife Trooper                                                               
for thousands of miles sometimes.                                                                                               
REPRESENTATIVE CLAMAN  surmised the reason the  department wanted                                                               
it forfeited  was to  send a  message to  the community  that the                                                               
department is  taking this  seriously.  He  referred to  same day                                                               
airborne  hunting, anyone  doing it  needs to  aware of  the risk                                                               
they take  on, going  to court, and  also losing  their airplane,                                                               
which  may  cause  more  concern.     He  extended  that  if  the                                                               
department  didn't have  the right  to seize  it to  be forfeited                                                               
later, people would  have a tendency to  make airplanes disappear                                                               
and the state would no longer  have an airplane to forfeit at the                                                               
end of the case.                                                                                                                
MAJOR CHASTAIN answered that he is correct.                                                                                     
2:45:21 PM                                                                                                                    
REPRESENTATIVE   KREISS-TOMKINS   asked   whether   seizure   and                                                               
forfeiture is effectively used as a deterrent tool.                                                                             
MAJOR CHASTAIN reiterated there are  many reasons for seizure and                                                               
forfeiture, and he  offered a short list of  examples as follows:                                                               
deterrents  of convicted  persons from  the commission  of future                                                               
offenses;  protection,   safety  and   welfare  of   the  public;                                                               
deterrents   of  other   persons  as   potential  offenders;   an                                                               
expression  of   public  condemnation   of  the   seriousness  or                                                               
aggravated nature of the convicted  person's conduct; keeping the                                                               
offender from  benefiting in any  way from ill-gotten  gains; and                                                               
preventing the  ill-gotten gains  from being  used to  promote or                                                               
build criminal  enterprises.  He  noted that fish and  game taken                                                               
illegally  in  the   state  belongs  to  the   State  of  Alaska.                                                               
Therefore, in  regulations and statutes throughout  criminal fish                                                               
and  wildlife law,  the item  itself, such  as the  fish or  game                                                               
taken illegally  does not belong  to the  person - it  belongs to                                                               
the state.   In  addition, he  said, forfeiture  of the  fish and                                                               
game  items  themselves are  an  important  part of  successfully                                                               
enforcing fish and wildlife laws in the state.                                                                                  
2:47:29 PM                                                                                                                    
PETER  SANDBERG, Attorney,  said he  works with  Kevin Fitzgerald                                                               
who had  to step  away, and  he is  making himself  available for                                                               
CHAIR LEDOUX, after ascertaining no  one wished to testify closed                                                               
public  testimony.   She  advised  that  she  is holding  HB  317                                                               
because she likes the concept and wants to get the bill right.                                                                  
[HB 317 was held over.]                                                                                                         

Document Name Date/Time Subjects
HB 236 - Supporting Document - Texas House Passes Pastor Protection Act.pdf HJUD 3/31/2016 1:00:00 PM
HB 236
HB 236 - Supporting Document - SB 2065 - Summary - Texas.pdf HJUD 3/31/2016 1:00:00 PM
HB 236
HB 236 - Supporting Document - SB 2065 - Legislation - Texas.pdf HJUD 3/31/2016 1:00:00 PM
HB 236
HB 236 - Sectional Analysis.pdf HJUD 3/31/2016 1:00:00 PM
HB 236
HB 236 - Sponsor Statement.pdf HJUD 3/31/2016 1:00:00 PM
HB 236
HB 236 - Letters of Support - Received by 3-17-16.pdf HJUD 3/31/2016 1:00:00 PM
HB 236
HB 236 - Letters of Opposition - Received by 3-17-16.pdf HJUD 3/31/2016 1:00:00 PM
HB 236
HB 236 - Legislation Ver. A.pdf HJUD 3/31/2016 1:00:00 PM
HB 236
HB 236 - Backup Documents - Texas Legislation.pdf HJUD 3/31/2016 1:00:00 PM
HB 236
HB 236 -Supporting Document- Letter of Support AK Catholic Conference 3-31-16.pdf HJUD 3/31/2016 1:00:00 PM
HB 236
HB 317 - CS ver W.pdf HJUD 3/31/2016 1:00:00 PM
HB 317
HB 317 - Explanation of Changes - ver A to ver W.pdf HJUD 3/31/2016 1:00:00 PM
HB 317
HB 317 - Letter of Opposition - DPS 03.31.16.pdf HJUD 3/31/2016 1:00:00 PM
HB 317
HB 317 - Fiscal Note -DPS-COMM-03-29-16.pdf HJUD 3/31/2016 1:00:00 PM
HB 317
HB 317 - Fiscal Note -LAW-CRIM-03-25-16.pdf HJUD 3/31/2016 1:00:00 PM
HB 317
HB 317 - Supporting Documents - Side-by-Side Comparison - HB 317 vs Current.pdf HJUD 3/31/2016 1:00:00 PM
HB 317
HB 317 - Supporting Documents - DOJ Asset Forfeiture in AK 2015.pdf HJUD 3/31/2016 1:00:00 PM
HB 317
HB 317 - Supporting Documents - DOJ Memo Structuring Policy-Directive.pdf HJUD 3/31/2016 1:00:00 PM
HB 317