Pubdate: Thu, 13 Oct 2005
Source: Las Vegas City Life (NV)
Copyright: 2005sLas Vegas City Life
Contact:  http://www.lasvegascitylife.com/
Details: http://www.mapinc.org/media/1653
Author: Steve Sebelius
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)

SMALL-TOWN EXTORTION

We know what the Clark County District Attorney's office thought 
about the marijuana case filed against Cynthia Warren of Boulder 
City. Although she was initially charged with felonies including drug 
trafficking, prosecutors let her pled no contest to possession of a 
controlled substance. She paid a $500 fine, got a 30-day suspended 
sentence and was ordered to drug counseling.

We also know what the Boulder City Attorney, Dave Olsen, thought of 
the marijuana case. He filed a civil action to seize Warren's Boulder 
City home, which he claims was part of the "instrumentality" of the 
crime of marijuana trafficking. The home is worth an estimated 
$400,000, according to the Las Vegas Sun.

In order to seize the house, Olsen would have to prove it was used to 
grow, package and sell marijuana. But he'd only be required to prove 
that case by a preponderance of the evidence, a much lower standard 
than Warren would have faced in criminal court, had the D.A. decided 
to prosecute. And, to prevail in Olsen's civil lawsuit, Warren would 
perversely have to prove that her house wasn't used in the crime, 
rather than Olsen having to prove it was.

No wonder they're talking settlement. Olsen says Boulder City will be 
satisfied if Warren coughs up a sum not to exceed $100,000.

For a crime that, as far as the criminal justice system is concerned, 
Warren never committed.

"The criminal justice system did its job," Olsen said. "I'm not 
trying to punish her. I'm trying to send a message to everyone in 
this community." That message: Sell drugs, lose your house. (In fact, 
in what attorneys call a "legal fiction," the case is literally 
called "the city of Boulder City vs. the house and real property" at 
Warren's address.)

What about the Fifth Amendment's prohibition on double jeopardy? 
Olsen says appeals courts have not sided with defendants when the 
government is trying to seize their allegedly crime-related property. 
(And for that matter, while Warren may have been charged with 
trafficking in marijuana, but she was never tried for it, so jeopardy 
doesn't apply.)

How about the Eighth Amendment's prohibition on imposing excessive 
fines? There, courts have rule that some forfeitures are excessive. 
But if Boulder City and Warren reach a settlement before the cases 
goes to court, the Eighth Amendment wouldn't apply.

What about simple extortion? Olsen knows if a civil case were to go 
to court, he could depose Warren under oath, and require her to 
produce tax records, financial records and other paperwork that could 
prove if she did have a burgeoning marijuana business, it wasn't 
shared with the IRS. Add to that her burden of proof and the fact 
that, if she loses, she loses her home, and there's a coercive nature 
to the lawsuit that cannot be denied.

Olsen, for his part, says Boulder City should be reimbursed for the 
costs of its investigation into Warren. But why did the city spend so 
much time and money investigating Warren in the first place? Olsen 
admits no Boulder City residents have been killed by marijuana, 
although he repeats the drug warrior's line about marijuana being a 
"gateway drug." The fact is, almost all illegal drug use is a 
victimless crime: A willing seller sells to a willing buyer, who 
parts with hard-earned cash for a specific product. If cops really 
wanted to shut down home-based marijuana growing businesses, they 
could always legalize, tax and regulate the drug, like alcohol. 
When's the last time the Boulder City cops were called to bust a 
bootlegger? (I'm guessing Dec. 5, 1933.)

But, for good or ill, marijuana isn't currently legal, and Olsen 
pursues Warren to send his message. "She's going to suffer some 
consequences from what I'm doing," he candidly admits. And, he says, 
even if the district attorney had prosecuted her on all the felony 
counts with which she was initially charged, he still would have gone 
after the house.

Warren, however, has already suffered all the consequences she 
should. She was arrested, and she paid a fine. If prosecutors wanted 
to send her away on felony charges, they had their chance. Olsen's 
civil action is a frustrated try to get Warren for what he thinks she 
did, and the fact that the justice system allows it at all is a pathetic joke.

Steve Sebelius Is Editor Of Citylife.