In a novel ruling, a New Jersey trial judge says a defendant’s answer to a civil forfeiture complaint is admissible in a criminal prosecution arising from the same facts.
Hudson County Superior Court Judge Joseph Isabella found no violation of constitutional rights in eliciting the answer from Luis Melendez, even though he had been indicted and was without counsel.
The charges stem from the Nov. 8, 2010, search of an apartment in Hoboken based on a confidential tip to police that Melendez was selling drugs there.
Authorities seized hundreds of bags of heroin, bottles of oxycodone and other prescription painkillers, drug paraphernalia, bullets, gun-loading devices and $2,928 in cash.
The civil forfeiture complaint was filed in December 2010. Melendez had been indicted on narcotics and weapons offenses by the time he answered it in April 2011.
He stated in the answer that the money seized was what remained of his inmate account from a stint in federal prison and attached a copy of a $3,293 U.S. Treasury check payable to him.
Melendez’s attorney, Deputy Public Defender Joseph Russo, notes that the items were seized from his client’s mother’s apartment and that the prosecution conceded the only competent evidence it had linking those items to Melendez are his statements in the forfeiture case.
Isabella refused to bar use of the answer in April and again, on a motion for reconsideration, on Nov. 14.
At issue was the reach of Simmons v. U.S., a 1968 U.S. Supreme Court holding that statements by criminal defendants at suppression hearings cannot be admitted at trial on the issue of guilt.
Isabella held Simmons applies only to a clash between Fourth Amendment rights and the Fifth Amendment protection against self-incrimination.
Melendez’s situation differed because his statements in the answer were not compelled, he said.
Isabella acknowledged Melendez was in a difficult position but said he had the option of admitting, denying or refusing to answer the forfeiture complaint or asking for a stay until the criminal case was over.
“This court must follow the caselaw, and the majority of the caselaw suggests that a defendant’s statement will be admissible unless he were to face a constitutional dilemma,” Isabella wrote.
“Here the defendant was not facing the dilemma of being compelled to claim ownership of his money or waive his Fifth Amendment rights,” he added.
Russo says Melendez’s case does present a clash of constitutional rights: between the Fifth Amendment and Melendez’s Fourteenth Amendment right to assert his ownership and property interest in the cash.
He “was between a rock and a hard place,” says Russo. “By asserting one right, he’s giving up another.”
Russo also sees equal protection implications. “The result would clearly be different if the defendant was not poor and was capable of retaining counsel in the civil forfeiture case.”
A lawyer would have stayed the case or filed a general denial, and nothing the lawyer said would be usable against the client, Russo observes.
He is preparing a motion for leave to bring an interlocutory appeal.
A brief filed on Melendez’s behalf said he asserted a right to counsel in the forfeiture and, although the prosecutor’s office sent him notice directing him to Northeast Legal Services for help, Northeast does not handle civil forfeitures and is barred by law from representing clients who are incarcerated, as Melendez was.
The Hudson County Prosecutor’s Office did not respond by press time to a request for comment.
Darren Gelber, of Wilentz, Goldman & Spitzer in Woodbridge, who is president of the New Jersey chapter of the Association of Criminal Defense Lawyers, calls the decision “very troubling.”
In his view, it is inconsistent with New Jersey’s broader procedural protections for criminal defendants, as compared with federal law, and its doctrine of fundamental fairness. For example, a New Jersey statute prohibits use of testimony from domestic violence restraining order hearings in criminal cases.
Isabella’s ruling could be applied beyond forfeiture to other types of civil suits, such as litigation over a motor vehicle where the defendant driver also faces criminal charges, Gelber says.