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A Philadelphia prosecutor argued before the state Supreme Court that a burglary defendant has just as much a burden of proof to establish lawful ownership of jewelry seized by police after his arrest and subject to forfeiture as the commonwealth has the burden to prove by a preponderance of evidence that there is a nexus between the jewelry and the defendant’s criminal activities. Justice Debra Todd queried if there were any exigencies of proof by the commonwealth in such civil forfeiture matters, such as whether petitioner John Singleton was wearing the jewelry at the time of his arrest. “This could have been his Holy Communion watch he was wearing,” Todd said. The Supreme Court considered during oral arguments in Ex Rel John Singleton v. Johnson Tuesday in Philadelphia whether the commonwealth can prevail in a forfeiture proceeding when prosecutors did not present evidence that a forfeited Gucci watch and gold-colored bracelet were linked to the burglary crimes that petitioner Singleton was convicted of. In response to Todd, Assistant District Attorney Priya M. Travassos said that the burden of proof of lawful ownership particularly fell on the petitioner during Singleton’s motion for the return of property, while the commonwealth particularly had to demonstrate during its forfeiture petition that the court could make a reasonable inference that “this property more likely than not was derivative contraband subject to forfeiture.” Justice Max Baer called Travassos’ argument about shifting the burden to Singleton clever but expressed concern that the commonwealth has a duty to not unlawfully seize items owned by citizens who happen to be criminal defendants. Singleton sought the return of the jewelry confiscated from him when he was arrested in January 2003 that authorities couldn’t directly connect to any crime. Police seized the Gucci watch and two gold-colored bracelets from Singleton. One bracelet was returned to a burglary victim, but authorities couldn’t identify the other jewelry as items stolen from any burglary victim. Singleton ultimately pleaded guilty to four burglaries in January 2004 and was sentenced to serve five years in prison. Philadelphia Common Pleas Judge Joyce S. Kean ruled that Singleton’s legal ownership was not established with receipts and that the items were therefore forfeited. A split en banc Commonwealth Court panel ruled in July that Singleton wasn’t entitled to the return of the items without the provision of receipts and that because a “nexus” had been established by authorities between the jewelry and criminal activity by Singleton, that Singleton then faced the burden to establish the jewelry “did not have a criminal nexus,” Judge Dan Pellegrini wrote for the five-strong majority. In a two-judge dissent, Judge Rochelle S. Friedman said that inference of criminal activity was not the same thing as proven facts, so forfeiture of the jewelry was not reasonable. In the commonwealth’s brief, the Philadelphia District Attorney’s Office argued that the commonwealth met the burden of proof needed to connect Singleton’s criminal activity and the jewelry by proving “that Singleton was a career criminal who recently had pleaded guilty to four counts of burglary. Second, it established that a number of pieces of jewelry had been seized from him – and returned to their true owners – in connection with the burglary investigation. Third, and perhaps more importantly, the commonwealth established that a similar piece of jewelry in his actual possession at the time of his arrest was also identified as belonging to a burglary victim. Based on the totality of these circumstances, particularly the proximity and similarity of the subject jewelry to a confirmed proceed of Singleton’s criminal activity, it was permissible for the trial court to infer that the subject items were also proceeds of Singleton’s crimes.” L. Roy Zipris of the Defender Association of Philadelphia argued for Singleton before the court Tuesday. He said that the commonwealth is only entitled to use “reasonable evidence” to triumph in a civil forfeiture proceeding. But guilt by association is unreasonable, Zipris said, also noting that Singleton was not brought from prison for the forfeiture hearing. The trial record is incomplete, Zipris said in response to a question from Todd, and it’s not known if Singleton was wearing the jewelry at the time of his arrest. “The record here is so sketchy,” Zipris said, “all you’re left with here is speculation and guilt by association.” “We concede the commonwealth can prosecute forfeiture with circumstantial evidence,” Zipris said, before arguing that circumstantial evidence was not enough in this case for the commonwealth to triumph in the forfeiture matter. Chief Justice Ronald D. Castille asked if Zipris’ admittance made the case a matter of error review, but Zipris said the Supreme Court still had a role in the case to decide if lower courts interpreted the standard of evidence correctly. “As matters of fundamental fairness, equity and common sense, the state should not be permitted to seize whatever it wishes from a criminal defendant, admit it cannot prove the items contraband, then shift the burden to the defendant to prove the items are lawfully his,” Zipris wrote in his brief. “Where the Commonwealth failed to establish, directly or circumstantially, any nexus between the property and the crimes to which Mr. Singleton pled guilty, it was error, as a matter of law, to affirm the forfeiture order merely on conjecture that two pieces of jewelry taken from Mr. Singleton were tainted by their mere proximity to another item that was identifiable as contraband.” Defendants have faced an uphill battle under recent Commonwealth Court precedent in fighting the forfeiture of items seized during criminal investigations. Pennsylvania Rule of Criminal Procedure 588 allows criminal defendants to seek the return of property, and judges must order the return of property unless it is proven that it is contraband. At the close of oral arguments, Castille said that the court wouldn’t be making any law in the case. Travassos agreed that the court wouldn’t be making new law if it just affirmed the lower court ruling.

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