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Restriction on Drug Defendants Ruled Unconstitutional

December 6, 1985

SAN FRANCISCO (AP) _ A year-old federal law allowing the government to prohibit anyone accused of running a drug operation from selling property while charges are pending has been ruled unconstitutional.

In a case from Yuma, Ariz., the 9th U.S. Circuit Court of Appeals said Thursday the law violates the rights of the property owner and anyone else claiming an interest in the property by failing to require a hearing before the property is frozen.

The law, part of the Comprehensive Crime Control Act of 1984, allows federal prosecutors to obtain a restraining order from a federal district court when filing drug-related charges of operating a continuing criminal enterprise or racketeering.

Under previous law, people convicted of those crimes forfeit to the government any property that is the proceeds of their drug operations.

The 1984 law allowed the government to act when charges are filed and get a restraining order, without a hearing, prohibiting the owner from selling, transferring or borrowing against property that may have been the proceeds of drug trafficking.

The government cited that law in defending a restraining order issued by a Phoenix judge in 1981, prohibiting Clarence Crozier of Yuma from selling, transferring or borrowing against almost all of his real estate and personal property.

Crozier’s lawyer, Richard Hove, said officers seized Crozier’s cars and personal property, along with the personal property of Florence Wolke, who shared a home with him. Under the 1984 law, neither of them could seek to regain the property until the charges against Crozier were resolved.

Crozier, Mrs. Wolke and nine other people were indicted in 1980 on charges of manufacturing methamphetamine with intent to distribute. Crozier was also charged with operating a continuing criminal enterprise. The charges are pending.

A three-member panel of the appeals court said the 1984 law could be applied to the case retroactively, but went on to conclude that the law unconstitutionally deprived both Crozier and Mrs. Wolke of property rights without a hearing.

Due process of law requires that both a defendant and a third-party claimant who have ″significant property interests″ at stake be given a timely hearing, said the opinion by U.S. District Judge Gus Solomon, assigned to the appellate panel for the case.

″The risk of an erroneous deprivation under these procedures is high.″

Solomon noted that the criminal case is five years old and may last years longer. If Crozier is acquitted, he said, neither he nor Mrs. Wolke may have any remedy under the 1984 law for the lengthy deprivation of their property.

The court ordered the restraining order lifted and the property returned.

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