Policing For Profit: Asset Forfeiture is Legalized Theft

Brendan Keefe
WCPO
February 4, 2013

 

Don't worry, this masked thug has a badge.

Don’t worry, this masked thug has a badge.

MAYSVILLE, Ky. – Cars and cash have been seized by the Buffalo Trace/Gateway Narcotics Task Force. How many and how much?

We don’t know.

Because the seven-county drug task force has not filed a single mandatory report of its forfeitures to the commonwealth in the last five years.

Like most multi-jurisdictional drug task forces, this Maysville-based agency partially funds its operations with money and property forfeited by accused drug dealers. But the I-Team uncovered at least one case where the director of the Buffalo Trace/Gateway Narcotics Task Force let admitted drug dealers go free in order to pursue another suspect who had property the director could seize.

The former director’s name is Tim Fegan. He was a drug agent on the task force for two decades, and its commander beginning in 2010.

Fegan was terminated in November after a surprise audit revealed a significant amount of money missing from the task force, listed as much as $90,000 by Office of the Montgomery County Attorney . Fegan also resigned from the Maysville Police Department, where he was still technically a sworn officer while on the task force.

“I would love to see him go to prison,” said Joey Osborne, “where he tried to put me under false pretenses.”

A Mason County jury found Osborne not guilty of felony drug charges in 2010. Despite the acquittal on drug trafficking and possession charges, a judge ordered the 2006 Dodge Ram pick-up truck Osborne was driving at the time of his arrest to be sold at auction, with half the money going to the task force.

Agent Fegan was the one who arrested Osborne in 2008. The truck has been parked outside the task force offices in Maysville for nearly five years now, through the criminal trial and forfeiture appeal.

Osborne was addicted to pain pills at the time of his arrest, and he had a prescription for Percocet, but no pills were found in his truck that day.

The drug task force wasn’t targeting Joey Osborne the day he was arrested.

Agent Fegan had sent a wired informant into a Maysville house to buy an oxycontin pill from the young parents who lived there. Fegan had given his informant $100 in marked bills to make the buy, and he was listening to the wire during the transaction.

Joey Osborne pulled up in his mother’s new pick-up truck, and Agent Fegan’s focus shifted from the drug-dealing couple to the truck.

“The task force changed its target, because Osborne had something to offer them that they desired more than what they were getting on tape,” defense attorney Alex Lubens-Otto told the jury at Osborne’s trial.

The defense tried to present evidence that the drug task force was “policing for profit” — focusing on asset forfeiture instead of catching major drug dealers. Judge Stockton Wood, himself a former commonwealth attorney who had prosecuted task force cases in the past, limited such evidence, believing the defense was pursuing jury nullification to get an acquittal.

When Fegan was on the stand, Lubens-Otto tried to question him about his attempts to seize the truck before the judge shut her down (You can watch Fegan’s testimony and the entire Osborne trial in the video players above. Mobile users, go to WCPO.com to see the videos):

Fegan: “If a vehicle was involved in a felony drug trafficking act, it is subject to forfeiture.”
Lubens-Otto: “And that’s only if you’ve proven that case, correct?”
Fegan: “That’s what we’re doing here today.”
Lubens-Otto: “No, you haven’t proven the case yet, I’m asking you, you’ve held on to this truck from that day?”
Judge Wood: “All right, we’ve had enough of pursuing this. Let’s move on.”

Part of this could have been a defense tactic to get a not guilty verdict, but Osborne and his attorney said they were approached by the prosecution before trial with an offer to make the felony charges go away if his mother would just sign over the truck.

“That was their words,” said Osborne. “‘This will go away. You’ll have a misdemeanor if you give me your truck.’”

“If I signed over the truck to them, then it would all go away,” said Jewell McLain, Osborne’s mother and the owner of the truck. She’s a retired police officer from Aberdeen, Ohio.

Facing 10 years in prison, Osborne begged his mother to sign over the title to the task force. “He said, ‘just give them the truck,’ and I said ‘it’s not about the truck. It’s about the principle, and you’re not guilty, and we’re going to prove that in court’ — and we did,” McLain said.

So what really happened the day Osborne’s truck was seized?

Osborne said he drove from Aberdeen to a friend’s house in Maysville to collect a debt. The father in the drug house was an old friend from high school, and Osborne said he owed him $100. He said the father had paid him back using the buy money from the informant.

By all accounts, the five marked $20 bills went from Agent Fegan to his informant; from his informant to the young mother; from the mother to the father; and from the father to Osborne

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But did the pill make the reverse trip? The jury said no, agreed with Osborne, and found him not guilty of the felony charges. The 12 jurors said he wasn’t a drug dealer and he didn’t have the oxycontin pill on him, but they did find him guilty of the misdemeanor charge of facilitation, which could have been for simply giving the drug dealer a ride.

The drug-dealing parents were not arrested that day, even though they were recorded on tape selling the pill to Fegan’s informant in front of their 2-year-old son.

They were indicted a year later and had their felony charges reduced in return for testifying against Osborne. They admitted to selling the pill on the stand, but said they got it from Osborne.

After the felony acquittal, did Osborne and his mother get the truck back? No. It’s still deteriorating in the task force parking lot.

It is unusual for police to seize a $20,000 truck on a misdemeanor drug conviction, but Judge Wood ruled that a drug deal did indeed take place in the truck. While the standard of proof for a criminal conviction is “beyond a reasonable doubt,” the standard for asset forfeiture is “clear and convincing evidence.”

Read the full article— Policing for profit?