“My dad wouldn’t know cocaine from flour.”
Government bounty hunters netted $26 million in San Diego County last year by seizing the property of people believed to be selling, transporting, or manufacturing illegal drugs. This was the seventh largest take in the nation’s 94 federal law-enforcement districts. The latter-day revenuers, officially known as the asset forfeiture unit of the U.S. Attorney’s Organized Crime/Drug Enforcement Task Force, use civil statutes to penalize people suspected of drug crimes on the theory that depriving a person of his property can be more effective than putting him in jail. And all those pesky legal protections that extend to criminal suspects don’t apply in a civil case. “You don’t have to read Miranda rights to a baseball card,’’ explains Lee Hill, an attorney in the forfeiture unit.
No proof is needed to deprive Flint of his house and business.
Hill was referring to one of the more complicated seizure cases brought by his unit last year, The United States of America vs. Sport Stop, Robert P Flint’s baseball card and memorabilia shop on Fletcher Parkway in El Cajon. The shop contained about 520,000 baseball cards and other sports collectibles valued at about 175 thousand dollars. Also seized were Flint's house in El Cajon and a piece of commercial property he owned in Santee. Agents came into his house with guns drawn on July 17, 1990, armed with a seizure warrant. “Yeah, it's a civil case, and 15 guys had their Uzis drawn,” remarks Robert Flint. “That’s real civil.”
The Flint case is a good example of how easy it has become for the government to punish people suspected of being involved in the drug business without actually having to charge them with or convict them of a crime. A 30-page affidavit put together by a DEA agent in San Diego was all it took for a federal magistrate to order the confiscation of every tangible asset traceable to Flint. Although the affidavit alleges that Flint has been involved in smuggling drugs from Colombia, the government is not currently pursuing a criminal case against him. “If any of that stuff in the affidavit was true, why don’t they arrest me?’’ Flint asks. James Clem, the DEA agent who wrote the affidavit, replies, “There’s statute of limitation problems. Most of his drug activities took place more than five years ago."
Flint claims the seizure of his property is retaliation for his refusal to testify for the feds in a case involving a former friend of his who embarrassed the government by escaping federal custody in San Francisco. Lee Hill scoffs at this. Hill is the attorney representing the government in Flint’s case. But he won’t “confirm or deny” that the government is still trying to make a case against any government officials involved in the San Francisco escape. “The baseball card business was a means of masking his drug profits," Hill contends. “All he has to do is show that the money he used to set up the business and to buy his house and his other property came from a legitimate source. If he does that, he gets his property back.”
Flint and his wife Dianna, who claim to be legally separated, say they are eager to go to trial, even though they have a higher standard of proof than the government has. Under the existing rules of engagement in the government drug war, all it takes to authorize the government to seize property is “probable cause” to believe that drug money was used to acquire that property or that a piece of property was used to commit a violation of any drug laws (including simple possession). If the owner contests the seizure, he has to prove ‘‘by a preponderance of the evidence," a much higher burden of proof, that drug money was not involved or the property was not used to break any drug laws. “Scary is not the word,” says Dianna Flint. “They are all powerful. It’s incredible. Eventually they’ll have Bob with Lee Harvey Oswald at the Kennedy assassination.”
Seized property is held by U.S. marshals until the owners prove that it was not related to drugs. According to government attorneys, this is a rare occurrence. Many people who have their property seized don’t even contest it. When ownership of the property formally reverts to the government, it is sold and the proceeds go into the federal asset forfeiture fund. The law-enforcement agencies involved in the investigation get a percentage of the money seized, based on how much they contributed to the case.
The county of San Diego stands to gain a significant portion of Flint’s estimated $1.2 million estate because Lee Hill is an assistant district attorney for San Diego County who has been “cross-sworn” as a special assistant U.S. attorney. The San Diego Police Department also has a piece of the action, since James Clem is a detective with the SDPD assigned to work for the DEA. In this way, asset seizure has become something of a budget windfall for law-enforcement units.
The Flint property is now in legal limbo, pending his civil trial. Robert and Dianna still reside in the house, even though U.S. marshals do have the option of kicking them out. The baseball card shop is closed and vacant now, its contents moved to a secure location. The lease payments on the Santee property go directly to the mortgage holder, not to the Flints.
Lee Hill remarks that “it’s nothing personal against the Flints. Our case is not against them, it’s against their property.” To which Dianna retorts, “You’re guilty until you prove yourself innocent. This is the United States? Right, it’s not personal. Sure. It’s about as personal as you can get.”
As his case moves slowly toward trial, Robert Flint is back in business dealing baseball cards and mementos in the Sports Exchange, a narrow shop above Sluggo’s restaurant in La Jolla. He says he doesn’t own a single card in the shop but is just an employee of the owner, Sylvia Brister, who is his girlfriend. Brister put up all the money to open the shop, Flint says, and after she sells it in a couple of years, he’ll receive a portion of the profits in return for supplying the know-how to build the business. He reluctantly agreed to talk about his case on a recent morning before the shop opened.
“The government can seize your house right now” he stated angrily. “All I have to do is call and say you and I shared some lines after the interview, and I saw it at your house. That’s all it would take. No proof, no nothing, your house is gone.”
Flint “categorically” denies that he has been in the drug business as late as 1988, as the government’s affidavit alleges. He admits that he once was a drug pilot and that he made some deliveries to the U.S. ‘‘20-some-odd years ago.” He was busted and served two years in prison in the early 1970s for drug smuggling. “All they have is a bunch of third- and fourth-hand information that would be laughed out of a criminal trial. I can account for every cent, but they seized all my papers. They won’t release the papers for us to defend the case.” Lee Hill says Flint and his attorney have been given access to Flint’s seized business records, and they made copies of everything they wanted.
On the surface, the government’s affidavit, prepared by DEA agent James Clem, is pretty convincing. It concludes:
- As documented in this affidavit, Robert Paul Flint has been involved in drug smuggling and trafficking for approximately twenty years. He has admitted to smuggling and trafficking in many large loads of cocaine and other controlled substances.-
- Robert Paul Flint has admitted to making “millions of dollars” in smuggling and trafficking in cocaine and other controlled substances.
- Robert Paul Flint did not file income tax returns from 1977 through 1987 inclusive...
- In 1983, Robert Paul Flint completely remodeled the residence at 657 Tyrone Street, El Cajon, California. Flint paid for the work (approximately $150,000) by cash or cocaine...
- Robert Paul Flint has in the past, and is still using the names of other persons to hide his ownership of other real properties and a business.
- Robert Paul Flint has used Dianna Flint’s name on the title of two other properties to hide his ownership.
- Dianna Flint’s reported income would not support the purchase and improvements of the residence...
- Based on the information listed in this affidavit, your affiant believes that there is probable cause to believe that the property located at 657 Tyrone Street, El Cajon, California, was purchased, maintained, and remodeled with money that represented proceeds of drug smuggling and trafficking.
The same affidavit was used, with slightly different wording in its conclusions, to confiscate Flint’s baseball card shop and his piece of commercial property in Santee.
“Clem has gone around telling people he’s been after me for 22 years,” Flint claims. He believes that the relationships between drug-enforcement agents and their quarry has become less professional and more personal as the national drug mania has intensified. Agents have followed him into church, Flint claims, and even taken Communion while they strove to maintain visual contact with him. ‘‘The harassment has been unbelievable. All I’ve done is try to work. I guess you can never escape your past,” he remarks glumly.
As detailed in Clem’s affidavit, Flint’s past is a tantalizing morsel for any cash-hungry law-enforcement unit. Clem writes that his report is based on discussions he had with law-enforcement officials who investigated Flint “or have otherwise been involved with him in their professional capacities.” Clem reviewed “files and investigative reports” belonging to law-enforcement agencies, including the DEA, where Flint’s name allegedly appears in at least 40 cases. The DEA agent asserts that much of his information came from “confidential informants and concerned citizens” who spoke with other DEA agents.
Flint may be guilty of everything Clem dredges up, but many citizens would probably shudder to learn that everything they own could be taken away on the strength of an investigator’s report. One of the most chilling statements in the 30-page affidavit reads, “I have also attempted to corroborate information or allegations whenever possible.” “Concerned citizens?” Flint sputters. “Our system of government is now based on anonymous phone calls from concerned citizens?”
Still, some of the most damning information in the affidavit is attributed to named law-enforcement officers. One such, San Francisco police detective James Deeley, “worked with” Flint in late 1987 and early 1988 after a federal prisoner named Doug Costa was mistakenly released from custody. Costa was a close friend of Flint’s who was serving 45 years in Texas for narcotics violations when he was transferred to San Francisco in December of 1987 to face California drug charges. But a supposed mix-up in paperwork led to Costa’s bail being set at a low $200,000. Flint posted his bond by pledging a house Flint owned in Mono County.
Costa was released and remained fugitive number three on the U.S. marshal’s top-15 wanted list until March of 1990, when he was pulled over in Fremont, California, driving a 1970 Cadillac. Costa shot at the police officer who was writing him a citation, and the officer returned fire, killing him. During the time Costa was a fugitive and because Flint had offered his house for Costa’s bond, a federal search warrant was served at a condominium where Flint had lived in Foster City. It turned up some fairly incriminating information on Flint.
Flint “agreed to cooperate” with Detective Deeley, according to the government affidavit, and provided details about some of the items confiscated during the search. “They were working the Costa case, and I was forthright and honest with them, and they used it against me” is Flint’s version. The affidavit lists certain information supplied to Deeley by Flint, including:
- A. The radio frequencies found were used by Flint when he flies airplanes into the jungles of Colombia to pick up loads of cocaine.
- B. Flint has been to the jungles of Colombia and at cocaine processing labs and was at one lab when it blew up.
- C. Flint has flown loads of cocaine into both Arizona and Idaho from Colombia.
- D. Flint was now (1987/1988) being used by the Colombians to arrange landing places and provide radio frequencies which could be used.
- E. In 1987, Flint paid off a $250,000 drug debt incurred by Jerome Friedman and Floyd Dillon. This was in connection with drug deals that Flint had arranged with Colombians for Friedman and Dillon. He told Deeley that the Colombians had come to the Bay Area to kill Friedman and Dillon because of the debt....
Flint has some explanations. He claims he hasn’t done any drug deals in ten years. The affidavit “convoluted” information regarding his supplying frequencies and landing sites to the Colombians. “I told them that in 1988, but I wasn’t doing it in 1988. I had done it years before and had quit.” As for his paying off the drug debt to save two associates from the Colombian hit men, “I can’t remember.”
In an interview, Clem said that the information he received from Detective Deeley over the phone was oral, “But I think he was reading from a report.” The agent was unimpressed with Flint’s quibbles over some of the details in the affidavit. “The bottom line is, all he has to do is show us where the money came from. If the government seized my business, I’d be down there the next day with proof of how I obtained it.”
Flint's contention is that the seizure of his property is a “personal vendetta” because he refused to testify in an ongoing investigation concerning Costa’s release from jail. At various times Flint stated, “They want me to testify against a judge” and “They’re after the deputy Doug [Costa] bribed.” He also stated that he’d be a dead man if he testified. He says that federal agents came to him “four or five months before they seized my house and business,” offering to place him in the witness protection program if he would cooperate. He says he refused, and that is what prompted the government to seize his property.
Lee Hill, the government’s attorney on the case, denies Flint’s version of the motives behind the property seizure. “It does relate somewhat to the Costa case,” Hill explains. “Flint put up a house worth about $400,000 for Costa’s bond. Agents up there called agents down here asking about Flint, and our investigators started looking into it. Whenever agents run across valuable property during investigations, they’re starting to think forfeiture. For someone who reported a very small amount of income over the last four years, Flint seemed to have a lot of property.”
Clem’s investigation of Flint was helped along by an IRS special agent who looked into Flint’s taxpaying history. There wasn’t much there, since no returns were on record between 1977 and 1987. He filed a return in 1988 claiming a loss of $767.00 from his baseball card shop. On this subject, Flint is uncharacteristically mum. “I’m not gonna say anything about taxes.”
On the question of whether his property holdings were bought with drug proceeds, Flint says he can account for all the money that went into the business, the house, and the commercial parcel. The baseball card shop, he insists, was opened with a $24,000 loan from his wife Dianna and $12,000 he received for selling a truck. Another investor, Lena Pellegrino, later put up $65,000. He claims to have been interested in baseball cards since he was a kid in the late 1950s and had bought 200,000 cards from a man in El Cajon for $4000. Coincidentally, the baseball card business lends itself well to laundering large amounts of cash since, according to Lee Hill, many baseball card dealers don’t keep written records of their business transactions.
As for the house on Tyrone Street, Flint says that it was purchased with proceeds from the sale of another house he and his wife once owned in Campbell, California. The affidavit points out that Flint was making the $943-a-month house payments, even though the house was in Dianna’s name. Flint explains that the terms imposed by a judge in the legal separation from Dianna required that he give her half of his income, and this was the source of the house payments.
So where was Flint’s money coming from? He says he was making money in baseball card deals throughout the 1980s and that his father left him more than $400,000 in the form of cash, a gold coin collection, two airplanes, and other vehicles after he was killed in June 1984 while flying a small airplane from Puerto Rico to Santo Domingo. Flint says his grandmother left him $230,000 when she died in 1982. The affidavit alleges that Flint’s father was also in the drug business. “My dad wouldn’t know cocaine from flour,” Flint remarks.
The down payment on the Santee property, according to Flint, came mostly from the sale of a Cessna airplane that had belonged to his father. The rest came from the sale of another truck. “After that, we leased the property and it paid for itself. Tell me, how criminal is that?” Clem declares that the only source of information about Flint’s father’s death is Flint himself. Clem checked FAA records of plane crashes and turned up nothing that might have involved the elder Flint, and he has been unable to locate a death certificate. “Nobody has established that his dad’s dead,” Clem asserts. Clem also says that he has been unable to find any official record of a legal separation for Robert and Dianna Flint.
Though the government’s affidavit details a clear history of Flint’s activities as they relate to drug smuggling, including a rap sheet with arrests dating back to the early 1970s, many of the sources of information are listed as “confidential informants” or simply “source of information.” Some apparently damning information seems innocuous when Flint explains it. An arrest in 1988 by agents from the Bureau of Alcohol, Tobacco, and Firearms for being a felon in possession of a firearm concerned sporting rifles Flint says his father left him. The guns were found when Flint’s house was being searched in connection with the Costa case.
Another allegation in the affidavit asserts that “At approximately the same time that Flint was working with the FBI regarding the Colombian hit men killing Dillon and Friedman, telephone calls were placed from... Flint’s baseball card shop to [Colombian drug dealers].” The government also emphasized this point in the civil lawsuit filed in federal court against the Flint property.
Flint howls at this one. “Those phone calls were placed by the FBI! They were trying to find Costa. They came to the shop three different times and had me sign an authorization for them to make those phone calls. That will come out in court. But the point is, if you make a call to a Colombian drug dealer, they can take your house?”
Flint and his attorneys will be trying to put as many of the government’s sources of information on the witness stand as the court will allow. Gaining access to a confidential informant is difficult, since the government can invoke a privilege and argue that revealing the source would jeopardize the person’s life or blow a criminal investigation. “I just want my day in court, that’s all I want,” Flint declares. “We want a chance to confront my accusers. They’ve got me involved [in the affidavit] with a gang of people I’ve never even heard of before. How does this happen? Where’s the proof?”
In this case, no proof is needed to deprive Flint of his house and business. The burden will be on Flint himself to prove his innocence, as in Mexico where the Napoleonic Code still mandates a presumption of guilt, not innocence. President Bush himself recently expressed consternation at the punitive power that mere accusation has taken on in this country when he protested that his nominee to head the CIA, Robert Gates, was laboring under a presumption of guilt about his Iran /contra activities.
The basis of forfeiture law is in fact older than Napoleon, dating back to medieval England and the institution of the “deodand,” the curious practice in which any object that caused a man’s death was forfeited to the king. According to a massive treatise on forfeiture law written by David B. Smith, a former associate director of the Justice Department’s asset forfeiture office, the deodand was adapted to admiralty law, wherein ships can be confiscated for any number of infractions. From there the practice became a part of common law. “Seizure law is harsh and the reverse of what we’re used to in terms of presumption of innocence and procedural protections,” remarks Kevin Mclnerney, a San Diego lawyer who once worked in the government’s forfeiture unit but is now in private practice. “The only consolation is, it’s been that way for 200 years.” Mclnerney represents three people who have claims pending on Flint’s baseball card business, including Lena Pellegrino and another man who paid $20,000 to Flint just before the shop was seized. “All the government needs to present is probable cause, and they can do that with hearsay,” Mclnerney explains. “But the defendant’s burden is by a preponderance of the evidence. That means he has to go at least 51 percent toward proof.” Mclnerney says there have been several constitutional challenges to the forfeiture laws, all of which were settled in the government’s favor.
As the Smith treatise points out, “The use of ostensibly civil statutes for punitive purposes raises a genuine, if infrequently noted, civil liberties issue.” He draws a parallel to the Soviet model of using various euphemisms to mete out civil punishment to political offenders, thereby preventing the person from appealing for his rights under the Soviet Code of Criminal Procedure. But, Smith notes, in a political climate in which the government is overtly trying to punish drug users outside the confines of the criminal justice system, asset forfeiture is a perfect tool.
Still, one has to wonder if law-enforcement units would be so aggressive in pressing forfeiture cases if the cops and prosecutors weren’t direct beneficiaries of the proceeds. What if the confiscated assets were liquidated and used to establish drug-treatment programs, jobs programs, city parks and athletic programs, or to aid education? It is reasonable to expect, in that case, the forfeiture efforts would soon dry up for ‘‘lack of manpower.” In 1990, $90 million from the federal asset forfeiture fund — which contains about $1.4 billion — went toward construction of new federal prisons. None of the seized money is spent trying to attack the drug problem from other than a law-enforcement perspective.
This fact was implicitly acknowledged in Smith’s book. Smith writes that given the enormous profits available in drug dealing, not even the threat of forfeiture of ill-gotten gains can significantly reduce drug trafficking. Giving credence to the Flints’ claims that there was something spiteful and personal in the seizure of their property, the major treatise on forfeiture law concludes, ‘‘Forfeitures are being used most in the one area of law enforcement where they are least likely to have a deterrent effect.