Proving a negative

Can the county take first and ask questions later?



A Missoula County forfeiture case involving a Cadillac Escalade, $44,360 and an AR-15 semiautomatic rifle isn’t just about cash and flash. Ask Martin Judnich, the defendant’s attorney, and he’ll say it’s about government maneuvering that undermines fairness in Montana’s justice system. Ask Deputy County Attorney Jennifer Clark, and she’ll say it’s about legitimately seizing illegal proceeds from an alleged drug dealer. On Feb. 6, both sides will try to convince District Judge Dusty Deschamps at a forfeiture hearing that will determine whether Missoula County or former Missoulian Erik Branam gets the goods.

The case began on April 21, 2005, when a Missoula County sheriff’s deputy investigating a reported assault in East Missoula pulled over a 1999 Cadillac Escalade with 19-year-old Branam at the wheel. When all of its several occupants—including Branam—fled, the deputy called a private towing company to haul away the SUV. The next day, a towing company employee called the sheriff’s department saying he’d found stacks of cash and a rifle inside, which the deputy promptly seized along with the SUV. During a drug sniff, a drug dog alerted on the cash but not the Escalade itself, and a vehicle search yielded no drugs. Deputies continued their investigation, and on May 10, Missoula County filed a petition seeking forfeiture of Branam’s vehicle and its contents. The county’s key information against Branam came from unnamed informants, who told deputies Branam transported and sold marijuana in the Escalade, and that he kept large amounts of money on hand for drug deals. Aside from minor charges relating to Branam’s flight from officers, no criminal charges were filed against Branam.

In court, Judnich successfully argued the county had gathered evidence supporting forfeiture only after seizing the vehicle, and that despite allegations about Branam’s drug-dealing, no criminal charges had ever been filed. District Judge John Henson dismissed the case. County officials then appealed to the Montana Supreme Court, which reversed Henson’s decision and found the deputy had probable cause to seize the Escalade and further investigate a forfeiture case. Additionally, the court agreed the county wasn’t required to press criminal drug charges against Branam to proceed with a civil forfeiture case. When Judnich argued that a forfeiture law without underlying charges didn’t make much sense, justices replied that it was a question for the Legislature to address.

In a criminal case, the county would need to prove “beyond a reasonable doubt” that Branam was dealing drugs to claim ownership of Branam’s possessions under criminal forfeiture statutes. But in this case, the county is using Montana’s civil forfeiture statutes, which automatically presume that forfeiture is justified once a petition is filed, but do allow for that presumption to be rebutted. That, both Judnich and Clark say, means Branam has the burden of proving “by a preponderance of the evidence” that his car, money and gun are not linked to drugs. Otherwise the county gets to keep them.

Judnich says he’ll show, through the testimony of Branam and others, that Branam isn’t the drug dealer the county’s confidential informants allege.

“I can’t get into too many specifics without really showing our hand, but what I can tell you is we’ll have a couple of witnesses come testify who will show [the car and gun] were legitimate purchases and how my client acquired the money,” Judnich says. “It wasn’t drug money. He wasn’t involved in any drug stuff, and the confidential informants they say they have aren’t telling the truth.”

The challenge lies not in explaining the legitimacy of Branam’s property, Judnich says, but rather being put in the awkward position of rebutting county claims when the county hasn’t filed any criminal charges alleging drug-related wrongdoing.

“They went through his house, through his vehicle, and never found any drugs…There’s nothing to show he is a drug dealer, otherwise they would have charged him with a drug count,” Judnich says.

Clark says the county had hoped to file criminal drug charges against Branam but ran short of time and witnesses.

“We had actually thought about it and were going to and I didn’t get the reports I needed to do it as a criminal case,” Clark says.

She says two informants will testify that they saw Branam dealing drugs in his Escalade. And she says that though the county doesn’t have the drugs, it has enough to prevail.

“…It stands to reason that if we have the proceeds, we wouldn’t have the drugs, because he sold the drugs and got cash and that’s what we’re left with,” Clark says.

Det. Sgt. Jason Huntsinger, with Missoula’s High Intensity Drug Trafficking Area (HIDTA) Task Force, which comprises city, county and state agencies and is funded largely with federal dollars, says in 2006 HIDTA secured about $48,000 and two vehicles through about nine criminal and civil forfeiture cases. He says when HIDTA wins forfeitures, it splits the money among partnering agencies to fund drug-related training or equipment, and vehicles can be used officially or auctioned. In this case, the investigation was handled solely by the sheriff’s department, Huntsinger says, so HIDTA wouldn’t get a cut of the proceeds.

Clark acknowledges that civil forfeiture is usually accompanied by criminal charges, but says there’s nothing odd about a stand-alone civil forfeiture case.

But Judnich says the county’s strategy is to circumvent the criminal justice system’s higher standard of proof to seize valuable personal property.

Clark unequivocally disagrees, saying the county isn’t out to get property, but rather to thwart an alleged drug dealer by utilizing a punishment established in civil statutes “[because] criminal statutes don’t really slow many people down. It’s when you hit them where it hurts—money, cars, things like that—when they start to care.”

If that’s the case, Judnich says, then Missoula County should have to prove its drug-dealing allegations.

“There’s no reason a citizen in this town should have all of his property taken by the county without having the county prove his guilt beyond a reasonable doubt,” he says. “To have them take your stuff and then have to prove your own innocence is the complete opposite of how the American criminal justice system was founded.”


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