By Van Smith
Published by City Paper, Oct. 8, 2013
Maryland U.S. District judge Paul Grimm spent more than 15 years as a federal magistrate judge before being elevated to his current perch in 2012. That’s a lot of time to gain a nuanced understanding of the rules of evidence that must be met before law enforcers can lawfully seize or search property – one of a magistrate’s key bailiwicks.
So now that Grimm is a district judge with a docket that includes civil proceedings, called forfeitures, in which the government seeks to keep criminally derived property it has seized, he has a sensitive nose for the required legal thresholds – and in one case this year, he’s twice cited a dearth of evidence in denying the government’s move to keep convicted drug-dealer John Edward Butler Jr.’s 2003 Mercedes Benz CL500.
Butler was a St. Mary’s County drug dealer who pleaded guilty in a large federal cocaine conspiracy, and in 2011, the government filed a forfeiture case to keep his seized Mercedes. Grimm’s second denial, issued on Oct. 2, was in response to the government’s motion for reconsideration of his first, which was handed down in July. What’s clear from the second is that Grimm’s patience with the government’s arguments is wearing quite thin.
Grimm recapped his July decision by explaining that, “although the Government had shown that” Butler purchased the Mercedes from Gaunzie Hart for $4,000 up front, with the promise of another $9,500 over time, and that “the vehicle was seized in front of a location” that Butler used for drug-dealing, “the Government had not shown that Mr. Butler’s payment to Ms. Hart was proceeds from drug transactions” or that Butler “drove the Mercedes to and from the drug distribution location or that he drove it to distribute drugs, rather than to visit his mother.”
“Significantly,” Grimm continues, “the Government has not alleged that the Mercedes was Mr. Butler’s only vehicle at the time or that he never visited his mother’s residence without engaging in cocaine distribution. If either were the case, then I could reasonably believe that, on at least some of the occasions that Mr. Butler drove the Mercedes to his mother’s residence, he drove it there to engage in drug trafficking.”
Grimm aimed stinging criticism at the prosecutor in the case, assistant U.S. attorney Stefan Cassella – who, as CP has noted before, is considered the nation’s top asset-forfeiture prosecutor, having written a 950-page book on the intricacies of seizing and forfeiting criminally derived property.
In essence, Grimm accuses Cassella of making disingenuous pleadings in the case of Butler’s Mercedes because his arguments ignored the court’s contrary position in prior forfeiture cases Cassella had brought since he was hired in 2009 by Maryland U.S. Attorney Rod Rosenstein.
“While I do not find Counsel’s failure to disclose this history of directly contrary rulings to be a violation of his duty of candor to the Court,” Grimm wrote, “it comes uncomfortably close.”
In order for the government to keep Butler’s Mercedes, Grimm explained, Cassella will need to put on the record enough detailed evidence to support a reasonable belief that “at trial, the Government will be able to prove the nexus between the Mercedes and Mr. Butler’s criminal activity by a preponderance of the evidence.”
Cassella had argued that this threshold could be sidestepped because, despite the fact that all the required public notifications had been made about the impending forfeiture of Butler’s Mercedes, no one came forward with a timely and legitimate court claim to it. Grimm acknowledged that Cassella, citing precedents in various districts, had found “some instances” in which that was sufficient to grant forfeiture – but he implied that Cassella was again being disingenuous by leaving out important elements of the cited cases that cut the other way.
“It appears that the Government has cited these cases selectively to support the proposition that I should reconsider my denial,” Grimm wrote, adding that “far more significant is what the Government has omitted from its discussion of the cited cases.” Looking at them “in their entireties,” Grimm continued, “supports the conclusion reached here, that, at least in this district and perhaps more broadly, the Government has the obligation to provide sufficient facts to support a reasonable belief that the Government will be able to demonstrate a substantial connection between the defendant property and the alleged criminal conduct by a preponderance of the evidence at trial.”
Grimm has invited Cassella, again, to present such facts. Absent that, though, it’s looking like Butler may someday be able to drive his Mercedes to his mother’s house again. Either way, given Grimm’s stern admonishments, it’s a safe bet that the U.S. Attorney’s Office in Maryland will be seeking to tighten up its evidence in future forfeiture cases – and certainly so in cases that come before Grimm, whose name must seem especially poetic these days to Cassella.