As war wages on in Cambria County over District Attorney Kelly Callihan’s spending of drug forfeiture monies, Activist John Debartola awaits a decision by Judge Krumenacker to decide whether or not the records should be made public. These secret slush funds are known for rampant and illegal abuses across the state.
A dispute over whether expenditures from Cambria County’s drug forfeiture account should be public will reach President Judge Norman Krumenacker III’s courtroom Wednesday – the latest chapter in a legal battle that started last year. John DeBartola, of Johnstown, requested in January 2017 information on wages and overtime paid to county employees and police officers through drug forfeiture funds overseen by the district attorney’s office since 2000, along with copies of prior audits of that account.
Probably the highest profile criminal use of drug forfeiture money by law enforcement was exposed at the end of Attorney General Kathleen Kane’s tenure. After $1.77 million dollars was seized by agents of Kane’s Narcotic Strike force, it was revealed that $300,000 of that money had mysteriously disappeared. Adding to the confusion, the $1.77 million was never (as legal protocol) reported to the DEA, and sat in the basement of the Attorney General’s evidence room for months, all the while battles waged in criminal court about the legality of the seizure in the first place.
The Attorney General Narcotics Strike Force came into being in 2014 after Kane took office. For a while, her co-conspirator – convicted-felon John Duecker – led the task force. Duecker was later tried and convicted relating to crimes of conspiracy in the Kathleen Kane grand jury criminal indictment. Criminal spending of drug forfeiture money by this office should come at no surprise given the lengthy criminal history of those in leadership.
Attorney General Kathleen Kane’s administration secretly sat on the confiscated cash, roughly $1.77 million, for nearly two years as internal questions were raised about the legality of the seizure and how some agents suspected money had been skimmed from some of the seven boxes they found in the van. Sources, speaking on condition of anonymity for personal and professional safety reasons, also described how a subsequent federal wiretap, made in 2015, picked up a drug dealer complaining that the van should have been carrying more money than agents had counted on official paperwork.
Despite almost a 3 year long investigation, it should be noted that the FBI has announced that there has been at least “one other person not indicted.” While Kathleen Kane may or may not be the last remaining person not to be held accountable for drug forfeiture money, what is clear is that she was the individual responsible for the safe keeping and spending of those siezed monies in the first place.
In Friday’s news release, Freed said the FBI and IRS determined that after agents seized the money from the van, $800,000 of it was stolen by the driver and at least one other person who has not been indicted.
Abuses of drug seizure monies and property were very apparent throughout the tenure of Kathleen Kane. Duecker drove a Mercedes R-350 that had been sEIzed in a drug busts, and later records would show that Pennsylvania tax payers spent $6,000 in making repairs to the vehicle.
Pennsylvania and Federal codes specifically disallow for use of vehicles seized in drug cases to be used in drug investigations, or driven for personal use by law enforcement officers. Despite these laws, Kathleen Kane’s office used 52 seized vehicles worth a combined $456,187, records show. Only a few high-end cars are among them, including two Cadillacs and the Mercedes-Benz that Duecker drives.
Why law enforcement needs to be driving a high end Mercedes SUV on the job is beyond me, particularly since tax payers are responsible for gas, insurance and repairs. More economical cars are available for such purposes. Furthermore, cars seized by drug task forces are considered “evidence” in any pending criminal cases. Driving these cars, instead of storing them in evidence rooms, as future exhibits, seems legally irresponsible in the way that by operating these vehicles, officers are compromising or altering “evidence.” CITATION
According to the American Institute for Justice: Pennsylvania has some of the worst civil forfeiture laws in the country. Earning a D-, Pennsylvania law only requires law enforcement to tie property to a crime by a preponderance of the evidence in order to forfeit it. Innocent owners are required to prove that they did not participate in, give consent to or have knowledge of the criminal activity with which their property is associated. Worst of all, law enforcement agencies have every incentive to seize: They retain 100 percent of all forfeiture proceeds. Law enforcement agencies in Philadelphia have taken full advantage of the money-making opportunity afforded by Pennsylvania law. Between 2002 and 2013, forfeiture revenues were equivalent to nearly one-fifth of the Philadelphia district attorney’s budget. CITATION
Fueling this problem is a complete lack of any laws requiring transparency. Law Enforcement can sieze property by parties who may be later deemed “innocent,” and spend and/or use that seized property with unfettered discretion: Each county[in Pennsylvania] is required to make annual reports of its forfeitures and forfeiture fund expenditures to the attorney general, who aggregates the reports and sends them to the Legislature. However, these reports would be more helpful if they included such features as itemized lists of forfeited assets or breakdowns of civil versus criminal forfeitures. The reports are not available online, forcing interested parties to file a request under the Pennsylvania Right-to-Know Law. CITATION
The lack of transparency laws governing drug forfeiture seizures make this a hotbed of abuse in Pennsylvania, and great money making SCHEME across the state. Among many notorious Counties, Philadelphia and York are some of the very worst in the state.
Here is a story out of York County:
Ashley Owens’ brother wanted more heroin, so he made a phone call.
The buy was a setup. Police arrested Robert Cummings at a gas station on South Queen Street in York Township. He was charged with possession of a controlled substance.
The criminal complaint doesn’t mention Owens or her husband’s 2003 Mitsubishi Lancer. She had been in the restroom when her brother got arrested — and was never charged with a crime, she said.
It didn’t matter. Prosecutors tried to keep the car anyway — multiple times.
Their aggressive approach illustrates how the York County District Attorney’s Office, through a process called civil asset forfeiture, takes vehicles at the highest rate in Pennsylvania. Through six years of drug investigations, the office took in about $4.4 million in cash and property, which ranks near the top of the state. That includes almost $900,000 from selling vehicles. CITATION
The District Attorney in York County, of course, defends these practices. D.A. Tom Kearney is the chief law enforcement for a county that leads the state in vehicle seizures. He vigorously defends the practice, and his office has indeed profited very handsomely from it. Despite his objections to criticism, the fact remains that York County leads the state in taking vehicles through forfeiture, when you adjust for population size. In fact, even in raw numbers, it reported taking more vehicles than Philadelphia, Allegheny and Montgomery counties combined in fiscal year 2015-16.
There are some reasonable advances being made to address some of these rampant abuses by prosecutors. In Commonwealth of Pennsylvania vs. 1997 Cheverolet and Contents seized from James Young, the Supreme Court made a very favorable decision. In that case a 72 year old little old lady Elizabeth Young had her home and car seized by district attorney’s office, and was told that because her son “may have” conducted some drug sales from home and car, they had a right to take both her home and car. While Elizabeth Young was not charged with any crime, and owned both her home and her car indpendently, Law Enforcement argued that these assets were eligable for seizure because they were part of a crime. Elizabeth Young hired a lawyer and sued to get her belongings back. Now homeless and impoverished, her case eventually reached the Pennsylvania Supreme Court. Her attorney brought an Eighth Amendment Civil Rights Violation, which “prohibits government or it’s agent imposing excessive fines” and applies it to civil forfeiture. He argued that this eight amendment right must be interpreted to limit law enforcement agencies from confiscating property or assets of great value from people who have not been found guilty, or in Elizabeth Young’s case, directly charged with any crime.
In 2016, Senator Mike Folmer (republican, who also spearheaded the initiative to legalize weed in Pennsylvania), also took interest in civil asset forfeiture and wrote a bill. Folmer’s bill would require a conviction on a drug crime before cash, property, cars or other goods can be forfeited to the government. Folmer is also seeking to have any money generated through forfeiture of assets go to a general fund instead of special funds controlled by the district attorney in each county. CITATION
In addition, Folmer’s bill would have required records drug forfeiture money spending to be disclosed to the PA Generally Assembly, in addition to the Pennsylvania Attorney General. The problem with requiring the only accountability for spending of drug forfeiture money being to the PA Attorney General, is often times (including in the present administrations) the PA Attorney General is also misspending the drug forfeiture money. It’s a fox guarding the henhouse.
The Pennsylvania District Attorney’s Association was up in arms about this bill, and hired high powered lobbyists to attend the senate judiciary committee meetings. They fought it tooth and nail. Centre County District Parks Miller was also under allegations during this time that she had illegally spent drug forfieture money, and was clawing through litigation attempting to prevent any release of such records that would expose her illegal spending. She was alleged at this time to be spending drug forfeiture money on her personal attorney Bruce Castor, which included paying him for his legal services, putting him up in fancy hotels, travel expenses, and fine dining expenses.
The thought of this new transparency on “secret” bank accounts stemmed massive anxiety from many Pennsylvania District Attorneys, and the bill ultimately flopped.
Fast forward to the present, and while some progress has been made with Centre County District Attorney Bernie Cantorna voluntarily opening his office records up for total transparency, other counties are still suffering under rampant lawless abuses. In Cambria County, District Attorney Kelly Callihan is alleged to have been spending drug monies on expensive designer handbags, country club dues, yoga instructor (@$200/hour), $13,000 in eating out among other things. Pennsylvania code strictly limits the uses of drug forfeiture monies to very narrow categories, yet Pennsylvania prosecutors are brazen enough to flagrantly break these laws for one reason: They do not fear being caught. Though reports have been made to AG Josh Shapiro, including records, no investigation has been ensued and Activist John Debartola reports that no response was given by the Attorney General’s office after he submitted his complaint.
The idea that you can seize people’s home, money, cars, boats etc, without convicting them of a crime, and then are free to spend/use those items pending any final disposition of a case is flat out scary. I hope that Bernie Cantorna’s fine example of making these records transparent will encourage other prosecutors to take the high road, but I have a serious doubt that this will occur without some sort of law being in place to force District Attorneys to seize frugally, spend responsibly and operate with a level of inscrutable transparency. I hope this progression will SCARE law breaking prosecutors into not using these accounts as their personal bank accounts, but putting the people and their constitutional rights before any love of money.