(Some items, articles and comments that appear herein are reproduced from other pages within this web site).
Many of us have been concerned with the conditions that have forced us to question the actions of such agencies as the BLM (Bureau of Land Management), DOI (Department of the Interior), DOE (Department of Energy), DOJ (Department of Justice), the Claims Commission and several others whose primary interests are not in favor of the Western Shoshone, much less any other Native Nation, Tribe or society, and their Constitutional obligations to them as outlined in the treaties that were signed between the Nations and is undeniably the Law of the Land.
We know that they have been lying to everyone. They have proven they have no legal jurisdiction or documentation to backup what they claim. The War between the States taught us how these States exercised their 'States Rights' against an unjust government and it's agencies and should be viewed as a model of how this government handles its internal affairs. If you received any education, whatsoever, then you should have learned, or at least know by now, that this war had nothing to do with slavery anymore than Columbus had anything to do with discovering America.
Then came the Industrial Revolution, WWI, the creation of the Federal Reserve, the Fall of the Stock Markets and the Great Depression, WWII, Korea, Viet Nam, Desert Storm, 9-11, and now the war on Terrorism all over the world. What are we to do now? Wait another 500 years?
This nation, under the Bush, Jr. administration, has taken us into another war with Irag, the occupation of Afghanistan and more recently threats against Cuba. Irag is a war that was his Father's war. Like Father like Son? This war is not necessary to protect America. Irag has not attacked or declared war on the United States or any other nation aside from their brief moment with Iran and Kuwait. Where is the visible threat against America? What nation has called any other nation to arms to help protect their country from invasion from Irag besides the U.S. and Britian? Here again, when the U.S. admits they cannot find Osama bin Laden, what do they do (?), the call on Native Americans to do what they can't. They have called out the Shadow Wolf trackers from Arizona.
With the recent unrest in the Middle East and throughout the Arab nations, the killing of Osama bin Laden, the BP Oil catastrophe in the Gulf of Mexico, not to forget the natural disasters around the world that have escalated in the past decade and entering into this one we find that many Native American issues are not only being shoved to the back burner once again but completely on the floor and out of the building.
We also know that there are many Americans who cannot see clearly what is going on in their own backyard these days. They are hypnotized by the soft life; spoiled beyond compare and freedom will do that to people when it is not respected and understood that freedom comes with responsibilities. This freedom that everyone enjoys has been paid for with an ocean of blood and sacrifice. Many just don't care about that. They make ridiculous comments like, "I wasn't there and it didn't have anything to do with me". Oh really? Yet they continue to support the same old agenda, whether willingly or not.
America has been and is being manipulated by forces within our government that are not recognized by the public at large. The American Nation was established as a diplomatic society. With the Homeland Security Agency and the U.S. Patriot Act I & II being crammed down the throats of every citizen in this country, Native and otherwise, we are daily discovering that this is not the way this nation was designed to work or function. This type of activity is tearing the whole country apart. This type of activity is Treason. This type of activity is the due process of the 'New World Order' and the 'Trilateral Commission'. The 'Secret Government'.
Many companies are down-sizing and moving to other countries putting millions of Americans out of work. They use our raw materials, that we labor to extract, (many from the treaty and reservation lands) then send them to these other countries to make any number of products, and then, sell them back to us at a higher price with lower quality craftsmanship. This really sucks and Native Americans are being taken again.
People throughout the country ask everyday, "What is wrong with the Youth of America?" Well what the hell do they think is wrong? When is the last time you sat down with the kids in your house, neighborhood and in the streets and asked them what they thought about their position as young Native American people in this country or about their country?
Many communities do not do anything for their youth because they don't trust them. Why all the distrust? The top two answers are drugs and gangs. I would like to meet a kid that can afford the next million dollar drug shipment into their neighborhood. Somehow they seem to have access to this stuff. Who makes that possible? The kid next door? Not even. These are our youth; our kids; brothers, sisters, cousins, nieces and nephews. This is our blood.
Many of us have seen what kids in other countries, unfortunately, this country as well, have to live with, the conditions they live in with no water, food or medicine. Yes, we have also experienced kids who can protect or destroy entire villages. We have even said to ourselves that we hope our kids will never have to experience such things. Wake up, they are experiencing these things! More and more everyday.
There are many parents who became apathetic after Viet Nam and are primarily the ones who are responsible for what we all have to deal with now. The Dr. Spocker generation has been manipulating parents to give us the type of youth that are turning around and shooting their own for nothing more than being grounded for back-talking their parents. Our whole damn government right down to the states have been passing laws that make it illegal to spank your own children. Well, in Nevada, a parent has the right, protected by law, to spank their children without the fear of going to prison.
How many of you remember, or know, about Hitler's Youth Camps? Well, we have kids spying on kids; kids spying on their families; we have teachers spying on kids and their families; we have 'so-called' social workers spying on kids and their families; we have Brown Shirts everywhere! The SS lives in your house!
What do you think this whole 'Homeland Security Council' is?
These things have been done by special interest groups, their lawyers, the New World Order and the Trilats. We all need to wake up and start seeing these things. Believe it...it's happening more and more. You need to understand it. All of this goes much deeper and has been going on a lot longer than most of us would have ever imagined and it has been orchestrated by the machinery of the 'New World Order'. Wake up Brothers and Sisters - this is no joke!
Where are we now? What do you see? What are you hearing? What are you going to do about it?
The power of any nation rests in its youth. Damn near every war this country was ever engaged in has been fought by our youth. Do any of you recall this saying: "In times of peace children bury their parents; in times of war parents bury their children?" Who will be buring who in the next one?
You got it Brothers and Sisters, this is the 'wake up call.
"America, where are you now? Don't you care about your sons and daughters?" -John Kay, 'Steppenwolf' (Monster).
For those of us who are Veterans, we all took an oath and just because we may no longer wear our uniforms does not mean that we still don't have A Responsibility to Our Oath, Our Word, Our Honor. One of the most important parts of that Oath is to Protect and Defend Our Nation and its Constitution against ALL Enemies - Foriegn and "DOMESTIC". Therefore, Brothers and Sisters, "Fall In! Lock and Load!" Teach your children. Become active. Wake up! Those who have taken this oath should remind themselves of the words and their meaning. There is nothing contained therein that states anyone is sworn to uphold a president, a particular political, religious or corporate group/organization. The oath is to the Constitution and all the People of this nation.
There's a lot of information contained herein that will assist you in understanding the laws that protect us all and what is going on in our country and around our world in regards to them. It is imperative that you read these things so that you will have a better understanding as to why there is a "Call to Arms! in the Indian Nations."
In view of the current conditions that have evolved, since the 9-11, and being on the edge of another World War, we have all been alerted to a reawakening of our Home Front Defense.
Our Nations do not need a revamped disfunctional government agency to act on our behalf. That's been done and look where we are with that.
Have you noticed that none of these other nations around the world are declaring war on Native American Indians? But, we are being subjected to these attacks just the same. These attacks are not focused at our people or on our lands, well, in a way they are. The American Government has brought these things upon themselves and upon us. What are we, as separate nations - within a nation, going to do to protect ourselves...again and continually?
We must resurface from our traditional ways, which are much older than those we are forced to live by, and apply ourselves here at home, on our own soil, to secure our families, communities, our nations and to educate as many as we can on what to do and how to do it. This is only the beginning.
Unfortunately, we now have to watch both fields.
The bottom line is that we not only have to protect our homeland we also have to protect mankind at large to insure that there are and will be healthy survivors. Look at how many Americans, especially our young people, who are out of shape. They are not healthy. They need our experience to teach them, to train them, to bring them up to a higher standard of self-esteem.
We all know what to do. We've done it before.
Think. Study. Research. Observe. Estimate. Apply.
To make a mistake and do nothing to correct it - is to make another mistake.
The BLM should not be permitted, and with any conscious at all, permit itself, to conduct ANY agency operation anywhere in, on or above, the territory now known as the State of Nevada wherein residing and within the Western Shoshone Nation of Newe Sogobia until they can produce the official written documentation of how they justify their possession of another nations lands and claim them as their own. This so-called documentation must carry the signature and seal of the President of the United States and the U.S.Congress, who are the only ones that can negoitiate, amend, alter or ratify any treaty with any nation. This is the Law of the Land. No court, lawyer, representative or any government agency or sub-agency has the legal authority to do so. Therefore, they must stand down.
Encroachment is to illegally possess the property of another, therefore, by the DOI's and BLM's continued admittance to possessing their so-called righful ownership of these native lands by illegal means is reason enough to arrest all those involved in one of our nations largest illegal land grabs that has been going on for centuries.
There is nothing within the 1863 Ruby Valley Treaty which states or eludes to any fact of agreement between these two nations that this treaty would be dissolved by any means other than what is written therein. This treaty, and the Western Shoshone Lands of Newe Sogobia cannot be lost, taken or possessed by encroachment.
The money that has been held in trust, drawing interest, is NOT buy-out money for these lands in any way, in fact, it is money that is owed to the Western Shoshone People as agreed to by them and by the President of The United States and its government. This money was to be paid for any displacement from ones home to each individual Shoshone; for any disturbance of their livestyle, livelihood, or culture for a period of twenty (20) years. Afterwhich, there is nothing which, once again, states or eludes to any loss, forfieture, sale or time-based possession by encroachment of the Western Shoshone lands.
Not much unlike the U.S. Constitution, which is now under fire from 'special interest groups and their attorneys', along with some circuit court judges, as to what the Forefathers were actually saying and what they meant in the Articles of the U.S. Constitution, we see a manipulation of the truth contained within these documents. We must remember, they were written with a lot of insight into future generations and their decisions were based on real life situations. They did not write these documents to be interpreted to mean something different than what they wrote for all the people then and those to follow. They were written with great care and not full of legal jargen. They wanted even the least educated American Citizen to be able to understand them fully and without any doubt or need for re-interpretation.
The only reason it is in the foregrounds of the American Citizens attention recently is because of the 9-11 events and the creation of the Homeland Security Act and the USA Patriot Act. Everybody in the federal legal system wants to offer their interpretations of the Constitution in a effort to change the laws and rights that have protected everyone of us from the time it was signed. Therefore, the same activity is only fashionable to do the same with all the treaties signed with the Native Americans. What is it they are saying? "Let us re-interpret our own language, our own writings, our own meaning to be something else. We have spent many decades educating these pagen-heathens to our way of life only to have them use it against us." What?! Are we hearing the chatter of the nations elected leaders through old wooden doors in the Capitol saying that we are all stupid enough to buy this line of B.S.? What is written is written. What has become the supreme law of the land is just that. It is their words. It is their law. We have beleived them and we have lived by these laws.
Long ago they were asked why it was necessary to write their 'words', as a representative of their 'honor', on paper? Why was it not good enough to just live up to the word they made between two people? And they responded that it was done this way so there would be no misunderstanding in the future as to what was said between us on this day. Well, what happened?
LEGAL TERMS & MEANINGS - Part I
Fairness; A state of affairs in which conduct or action is both fair and right, given the circumstances. In law, it more specifically refers to the paramount obligation to ensure that all persons are treated fairly. Litigants "seek justice" by asking for compensation for wrongs committed against them; to right the inequity such that, with the compensation, a wrong has been righted and the balance of "good" or "virtue" over "wrong" or "evil" has been corrected.
Proof of fact(s) presented at a trial. The best and most common method is by oral testimony; where you have an eye-witness swear to tell the truth and to then relate to the court (or jury) their experience. Evidence is essential in convincing the judge or jury of your facts as the judge (or jury) is expected to start off with a blank slate; no preconceived idea or knowledge of the facts. So it is up to the opposing parties to prove (by providing evidence), to the satisfaction of the court (or jury), the facts needed to support their case. Besides oral testimony, an object can be deposited with the court (eg. a signed contract). This is sometimes called "real evidence." In other rarer cases, evidence can be circumstantial.
Ex aequo et bono :
Latin for "in justice and fairness." Something to be decided ex aequo et bono is something that is to be decided by principles of what is fair and just. Most legal cases are decided on the strict rule of law. For example, a contract will be normally upheld and enforced by the legal system no matter how "unfair" it may prove to be. But a case to be decided ex aequo et bono, overrides the strict rule of law and requires instead a decision based on what is fair and just given the circumstances.
Culpa lata :
Latin for gross negligence. It is more than just simple negligence and includes any action or an omission in reckless disregard of the consequences to the safety or property of another.
Has two meanings. The first one is a technical word for the monarch (king or queen) of a particular country as in "the Sovereign of England is Queen Elizabeth." The other meaning of the word is to describe the supreme legislative powers of a state: that they are totally independent and free from any outside political control or authority over their decisions. The people of Quebec, for example, has, at times, supported governments which have proposed that Quebec become a "sovereign" state; that all legislative authority of the government of Canada over their territory cease and that the government of Quebec be enabled to regulate in any matter at all; and that the government of Quebec represent itself internationally.
Stare decisis :
A basic principle of the law whereby once a decision (a precedent) on a certain set of facts has been made, the courts will apply that decision in cases which subsequently come before it embodying the same set of facts. A precedent which is binding; must be followed.
A term of international law: those groups of people which have acquired international recognition as an independent country and which have four characteristics; permanent and large population with, generally, a common language; a defined and distinct territory; a sovereign government with effective control; and a capacity to enter into relations with other states (i.e. recognized by other states). The USA, Canada and China are examples of states. States are the primary subjects of international law. The United Nations is comprised of all the states of the world. Some large states have subdivided into smaller units each having limited legislative powers normally restricted to subjects which are more properly regulated at a local, rather than a national level. Thus, the states of the USA are not really "states" under international law. It is common for the general public and English dictionaries to use the word "nations" to refer to what international law calls "states."
Latin: the offspring of a person; his or her descendants. For example, inheriting per stirpes means having a right to a deceased's estate because you happen to be a descendant of the deceased.
Latin: an order of a court which requires a person to be present at a certain time and place or suffer a penalty (subpoena means, literally, "under penalty"). This is the traditional tool used by lawyers to ensure that witnesses present themselves at a given place, date and time to make themselves available to testify (see also duces tecum).
In the USA, this is one of the initial documents issued in a civil suit; giving the defendant notice of the claim and an opportunity to defend it. The summons also gives the court which issues it the authority to dispose of the matter. In Canadian criminal law, this is the document used by the police to compel an accused to attend court to answer the charges. It does not involve the arrest of the accused and is used where the police, either by the relatively less serious nature of the crime or because of the standing of the accused in the community, do not believe that arrest is necessary to ensure the attendance of the accused at court.
To interfere improperly or in violation of the law such as to tamper with a document. The term "jury tampering" means to illegally disrupt the independence of a jury member with a view to influencing that juror otherwise than by the production of evidence in open court.
An unconditional offer of a party to a contract to perform their part of the bargain. For example, if the contract is a loan contract, a tender would be an act of the debtor where he produces the amount owing and offers to the creditor. In real property law, when a party suspects that the other may be preparing to renege, he or she can write a tender in which they unequivocally re-assert their intention to respect the contract and tender their end of the bargain; either by paying the purchase or delivering the title.
Torrens land registration system :
A land registration system invented by Robert Torrens and in which the government is the keeper of the master record of all land and their owners. In the Torrens system, a land title certificate suffices to show full, valid and indefeasible title. Used in Australia and several Canadian provinces.
A legal proceeding taken under the law of equity where the plaintiff attempts to reclaim specific property, through the court, whether the property is still in the first acquirer's hands or it has passed onto others, and even if the property has been converted (related common law terms: conversion, trover and detinue). This is a procedure frequently used by a trust beneficiary to recover misappropriated trust property.
A formal agreement between two states signed by official representatives of each state. A treaty may be "law-making" in that it is the declared intention of the signatories to make or amend their internal laws to give effect to the treaty. The Berne Convention is an example of such as treaty. Other treaties are just contracts between the signatories to conduct themselves in a certain way or to do a certain thing. These latter type of treaties are usually private to two or a limited number of states and may be binding only through the International Court of Justice.
Unlawful interference with another's person, property or rights. Theoretically, all torts are trespasses.
Deceitful conduct designed to manipulate another person to give something of value by (1) lying, (2) by repeating something that is or ought to have been known by the fraudulent party as false or suspect or (3) by concealing a fact from the other party which may have saved that party from being cheated. The existence of fraud will cause a court to void a contract and can give rise to criminal liability.
To take someone away from a place without that person's consent or by fraud. See also "kidnapping".
The act of encouraging or inciting another to do a certain thing, such as a crime. For example, many countries will equally punish a person who aids or abets another to commit a crime.
Action or inaction which binds a person legally even though it was not intended as such. For example, action which is not intended as a direct acceptance of a contract will nevertheless stand as such as it implies recognition of the terms of the contract. For example, if I display a basket of fruit in a marketplace and you come by, inspect an apple and then bite into it, you have acquiesced to the contract of sale of that apple. Acquiescence also refers to allowing too much time to pass since you had knowledge of an event which may have allowed you to have legal recourse against another, implying that you waive your rights to that legal recourse.
Ad infinitum :
Latin: forever; without limit; indefinitely.
Administrative tribunal :
Hybrid adjudicating authorities which straddle the line between government and the courts. Between routine government policy decision-making bodies and the traditional court forums lies a hybrid, sometimes called a "tribunal" or "administrative tribunal" and not necessarily presided by judges. These operate as a government policy-making body at times but also exercise a licensing, certifying, approval or other adjudication authority which is "quasi-judicial" because it directly affects the legal rights of a person. Administrative tribunals are often referred to as "Commission", "Authority" or "Board."
Adverse possession :
The possession of land, without legal title, for a period of time sufficient to become recognized as legal owner. The more common word for this is "squatters." Each state has its own period of time after which a squatter can acquire legal title. Some states prohibit title by mere prescription or possession.
Aggravated damages :
Special and highly exceptional damages awarded by a court where the circumstances of the tortious conduct have been particularly humiliating or malicious towards the plaintiff/victim.
To sell or give completely and without reserve; to transfer title to somebody else. A voluntary conveyance of property, especially real property.
A kind of land ownership that is unfetterred, outright and absolute. It is the opposite of the feudal system and supposes no obligation to another (ie. a lord).
To ask a more senior court or person to review a decision of a subordinate court or person. In some countries such as Canada, the USA and Australia, appeals can continue all the way up to the Supreme Court, where the decision is final in that it can no longer be appealed. That is why it is called "supreme" (although, in Australia the supreme court is called the High Court).
Something that, although detached, stands as part of another thing. An attachment or appendage to something else. Used often in a real estate context where an "appurtenance" may be, for example, a right-of-way over water, which, although physically detached, is part of the legal rights of the owner of another property.
In USA criminal law, the formal appearance of an accused person to hear, and to receive a copy of, the charge against him or her, in the presence of a judge, and to then enter a plea of guilty or not guilty. The arraignment is the final preparatory step before the criminal trial.
Attorn or Attornment :
To consent, implicitly or explicitly, to a transfer of a right. Often used to describe a situation where a tenant, by staying on location after the sale of the leased property, accepts to be a tenant of the new landlord; or where a person consents to ("attorns to") the jurisdiction of a court which would not have otherwise had any authority over that person.
Audi alteram partem :
Latin: a principle of natural justice which prohibits a judicial decision which impacts upon individual rights without giving all parties in the dispute a right to be heard. Habeas corpus was an early expression of the audi alteram partem principle. In more recent years, it has been extended to include the right to receive notice of a hearing and to be given an opportunity to be represented or heard.
A writ of certiorari is a form of judicial review whereby a court is asked to consider a legal decision of an administrative tribunal, judicial office or organization (eg. government) and to decide if the decision has been regular and complete or if there has been an error of law. For example, a certiorari may be used to wipe out a decision of an administrative tribunal which was made in violation of the rules of natural justice, such as a failure to give the person affected by the decision an opportunity to be heard.
Moveable items of property which are neither land nor permanently attached to land or a building, either directly or vicariously through attachment to real property. A piano is chattel but an apartment building, a tree or a concrete building foundation are not. The opposite of chattel is real property which includes lands or buildings. All property which is not real property is said to be chattel. "Personal property" or "personalty" are other words sometines used to describe the concept of chattel. The word "chattel" came from the feudal era when "cattle" was the most valuable property besides land.
Circumstantial evidence :
Evidence which may allow a judge or jury to deduce a certain fact from other facts which have been proven. In some cases, there can be some evidence that can not be proven directly, such as with an eye-witness. And yet that evidence may be essential to prove a case. In these cases, the lawyer will provide the judge or juror with evidence of the circumstances from which a juror or judge can logically deduct, or reasonably infer, the fact that cannot be proven directly; it is proven by the evidence of the circumstances; hence, "circumstantial" evidence. Fingerprints are an example of circumstantial evidence: while there may be no witness to a person's presence in a certain place, or contact with a certain object, the scientific evidence of someone's fingerprints is persuasive proof of a person's presence or contact with an object.
An order of a court to either do a certain thing or to appear before it to answer charges. The citation is typically used for lesser offences (such as traffic violations) because it relies on the good faith of the defendant to appear as requested, as opposed to an arrest or bail. The penalty for failing to obey a citation is often a warrant for the arrest of the defendant.
Civil law :
Law inspired by old Roman Law, the primary feature of which was that laws were written into a collection; codified, and not determined, as is common law, by judges. The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow.
Something that is purposely kept from the view or knowledge of others either in violation of the law or to conduct or conceal some illegal purpose. A "clandestine marriage" would be one which does not comply with laws related to publicity.
Class action :
When different persons combine their lawsuits because the facts and the defendant are so similar. This is designed to save Court time and to allow one judge to hear all the cases at the same time and to make one decision binding on all parties. Class action lawsuits would typically occur after a plane or train accident where all the victims would sue the transportation company together in a class action suit.
Clean hands :
A maxim of the law to the effect that any person, individual or corporate, that wishes to ask or petition a court for judicial action, must be in a position free of fraud or other unfair conduct.
A secret agreement between two or more persons, who seem to have conflicting interests, to abuse the law or the legal system, deceive a court or to defraud a third party. For example, if the partners in a marriage agree to lie about the duration of their separation in order to secure a divorce.
Common law :
Judge-made law. Law which exists and applies to a group on the basis of historical legal precedents developed over hundreds of years. Because it is not written by elected politicians but, rather, by judges, it is also referred to as "unwritten" law. Judges seek these principles out when trying a case and apply the precedents to the facts to come up with a judgement. Common law is often contrasted with civil law systems which require all laws to be written in a code or written collection. Common law has been referred to as the "common sense of the community, crystallized and formulated by our ancestors". Equity law developed after the common law to offset the rigid interpretations medieval English judges were giving the common law. For hundreds of years, there were separate courts in England and it's dependents: one for common law and one for equity and the decisions of the latter, where they conflicted, prevailed. It is a matter of legal debate whether or not common law and equity are now "fused." It is certainly common to speak of the "common law" to refer to the entire body of English law, including common law and equity.
An agreement between two or more persons to commit a criminal act. Those forming the conspiracy are called conspirators.
The basic law or laws of a nation or a state which sets out how that state will be organized by deciding the powers and authorities of government between different political units, and by stating and the basic principles of society. Constitutions are not necessarily written and may be based on aged customs and conventions, as is the case in England and New Zealand (the USA, Canada and Australia all have written constitutions).
A written document which transfers property from one person to another. In real-estate law, the conveyance usually refers to the actual document which transfers ownership, between persons living (i.e. other than by will), or which charges the land with another's interest, such as a mortgage.
A written document in which signatories either commit themselves to do a certain thing, to not do a certain thing or in which they agree on a certain set of facts. They are very common in real property dealings and are used to restrict land use such as amongst shopping mall tenants or for the purpose of preserving heritage property.
Cuius est solum, ejus est usque ad caelum et ad inferos :
Latin: who owns the land, owns down to the center of the earth and up to the heavens. This principle of land ownership has been greatly tempered by case law which has limited ownership upwards to the extent necessary to maintain structures. Otherwise, airplanes would trespass incessantly.
A written and signed document which sets out the things that have to be done or recognitions of the parties towards a certain object. Under older common law, a deed had to be sealed; that is, accompanied not only by a signature but with an impression on wax onto the document. The word deed is also most commonly used in the context of real estate because these transactions must usually be signed and in writing.
De facto :
Latin: as a matter of fact; something which, while not necessarily lawful or legally sanctified, exists in fact. A common law spouse may be referred to a de facto wife or de facto husband: although not legally married, they live and carry-on their lives as if married. A de facto government is one which has seized power by force or in any other unconstitutional method and governs in spite of the existence of a de jure government.
De jure :
Latin "of the law." The term has come to describe a total adherence of the law. For example, a de jure government is one which has been created in respect of constitutional law and is in all ways legitimate even though a de facto government may be in control.
An attack on the good reputation of a person, by slander or libel.
The removal of a foreign national under immigration laws for reasons such as illegal entry or conduct dangerous to the public welfare. The grounds for deportation varies from country to country.
A common law action similar to conversion and also involving the possession of property by the defendant but belonging to the plaintiff but in which the plaintiff asks the court for the return of the property, although the plaintiff may also ask for damages for the duration of the possession.
The right of a landlord to seize the property of a tenant which is in the premises being rented, as collateral against a tenant that has not paid the rent or has otherwise defaulted on the lease, such as wanton disrepair or destruction of the premises. A common way to "distrain" against a tenant is by changing locks and giving notice to the tenant. A legal action to reclaim goods that have been distrained is called replevin.
A rule or principle or the law established through the repeated application of legal precedents.
Dominant tenement :
Used when referring to easements to specify that property (i.e. tenement) or piece of land that benefits from, or has the advantage of, an easement.
Due process :
A term of US law which refers to fundamental procedural legal safeguards of which every citizen has an absolute right when a state or court purports to take a decision that could affect any right of that citizen. The most basic right protected under the due process doctrine is the right to be given notice, and an opportunity to be heard. The term is now also in use in other countries, again to refer to basic fundamantal legal rights such as the right to be heard.
Where a person is prevented from acting (or not acting) according to their free will, by threats or force of another, it is said to be "under duress". Contracts signed under duress are voidable and, in may places, you cannot be convicted of a crime if you can prove that you were forced or threatened into committing the crime (although this defence may not be available for serious crimes).
Eminent domain :
USA: The legal power to expropriate private land for the sake of public necessity.
The inducement, by law enforcement officers or their agents, of another person to commit a crime for the purposes of bringing charges for the commission of that artificially-provoked crime. This technique, because it involves abetting the commission of a crime, which is itself a crime, is severely curtailed under the constitutional law of many states.
Gross negligence :
Any action or an omission in reckless disregard of the consequences to the safety or property of another. Sometimes referred to as "very great negligence" and it is more then just neglect of ordinary care towards others or just inadvertence. Also known as the Latin term culpa lata.
Unsolicited words or conduct which tend to annoy, alarm or abuse another person. An excellent alternate definition can be found in Canadian human rights legislation as: "a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome." Name-calling is a common form of harassment.
Any evidence that is offered by a witness of which they do not have direct knowledge but, rather, their testimony is based on what others have said to them. The basic rule, when testifying in court, is that you can only provide information of which you have direct knowledge. In other words, hearsay evidence is not allowed. Hearsay evidence is also referred to as "second-hand evidence" or as "rumor." You are able to tell a court what you heard, to repeat the rumor, and testify that, in fact, the story you heard was told to you, but under the hearsay rule, your testimony would not be evidence of the actual facts of the story but only that you heard those words spoken.
Incorporeal hereditament :
An incorporeal right which is attached to property and which is inheritable. Easements and profits à prendre are examples of incorporeal hereditaments as are hereditary titles such as those common in the United Kingdom.
ARTICLES OF THE CONSTITUTION
NOTE: Not all of the Articles, Sections or Amendments are listed below. You can read them all by clicking on the link for the United States Constitution further down the page.
The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
(The President of The United States)
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.
LEGAL TERMS & MEANINGS - Part II
A right or title in property that cannot be made void, defeated or canceled by any past event, error or omission in the title. For example, certificates of title issued under a Torrens land titles system is said to be "indefeasible" because the government warrants that no interest burdens the title other than those on the certificate. This makes long and expensive title searches unnecessary.
Interim order :
A temporary court order; intended to be of limited duration, usually just until the court has had an opportunity of hearing the full case and make a final order.
A person who, without legal right, runs a business (eg. without mandatory licenses), or who wrongfully interferes or intercepts another's business.
International law :
A combination of treaties and customs which regulates the conduct of states amongst themselves. The highest judicial authority of international law is the International Court of Justice and the administrative authority is the United Nations.
A false boast designed to increase standing at the expense of another. This used to form the basis of an ancient legal petition called "jactitation of marriage" wherein a person could be ordered by the courts to cease claims of being married to a certain person when, in fact, they were not married. The tort of slander of title is a form of jactitation.
Joint tenancy :
When two or more persons are equally owners of some property. The unique aspect of joint tenancy is that as the joint tenancy owners die, their shares accrue to the surviving owner(s) so that, eventually, the entire share is held by one person. A valid joint tenancy is said to require the "four unities": unity of interest (each joint tenant must have an equal interest including equality of duration and extent), unity of title (the interests must arise from the same document), unity of possession (each joint tenant must have an equal right to occupy the entire property) and unity of time: the interests of the joint tenants must arise at the same time.
Judicial review :
When a court decision is appealed, it is known as an "appeal." But there are many administrative agencies or tribunals which make decisions or deliver government services of one sort or another, the decisions of which can also be "appealed." In many cases, the "appeal" from administrative agencies is known as "judicial review" which is essentially a process where a court of law is asked to rule on the appropriateness of the administrative agency or tribunal's decision. Judicial review is a fundamental principle of administrative law. A distinctive feature of judicial review is that the "appeal" is not usually limited to errors in law but may be based on alleged errors on the part of the administrative agency on findings of fact.
An old English criminal and common law offence covering the unlawful or fraudulent removal of another's property without the owner's consent. The offence of theft now covers most cases of larceny. But larceny is wider than theft as it includes the taking of property of another person by whatever means (by theft, overtly , by fraud, by trickery, etc.) if an intent exists to convert that property to one's own use against the wishes of the owner.
A special kind of contract between a property owner and a person wanting temporary enjoyment and use of the property, in exchange for rent paid to the property owner. Where the property is land, a building, or parts of either, the property owner is called a landlord and the person that contracts to receive the temporary enjoyment and use is called a tenant.
Written and approved laws. Also known as "statutes" or "acts." In constitutional law, one would talk of the "power to legislate" or the "legislative arm of government" referring to the power of political bodies (eg: house of assembly, Congress, Parliament) to write the laws of the land.
Letters of Marque:
written authority granted to a private person by a government to seize the subjects of a foreign state or their goods; specifically : a license granted to a private person to fit out an armed ship to plunder the enemy .
Defamation by writing such as in a newspaper or a letter.
The selling of all the assets of a debtor and the use of the cash proceeds of the sale to pay off creditors.
Long arm statutes :
Each court is bound to a territorial jurisdiction and does not normally have jurisdiction over persons that reside outside of that jurisdiction. For example, a court in Scotland would not normally have jurisdiction over a resident of Ireland. Long-arm statutes are a tool which gives a court jurisdiction over a person even though the person no longer resides in the territory limits of the court. For example, UIFSA allows a court to have jurisdiction over a non-resident support payor.
A writ issued by a competent magistrate authorizing an officer to make an arrest, a seizure, or a search or to do other acts incident to the administration of justice.
Words of purchase :
Words which specifically name the person to whom land is being conveyed. The property is conveyed to specifically and by name in a legal act such as a conveyance or will. This would preclude, for example, transfer as a result of intestacy.
An official court document, signed by a judge or bearing an official court seal, which commands the person to whom it is addressed, to do something specific. That "person" is typically either a sheriff (who may be instructed to seize property, for example) or a defendant (for whom the writ is the first notice of formal legal action. In these cases, the writ would command the person to answer the charges laid out in the suit, or else judgment may be made against them in their absence).
Ultra vires :
Without authority. An act which is beyond the powers or authority of the person or organization which took it.
Unjust enrichment :
A legal procedure whereby you can seek reimbursement from another who benefited from your action or property without legal justification. There are said to be three conditions which must be met before you can get a court to force reimbursement based on "unjust enrichment": an actual enrichment or benefit to the defendant, a corresponding deprivation to the plaintiff, and the absence of a legal reason for the defendant's enrichment. For example (and only theoretically as many countries have laws which have modified equity law in some situations), if you found somebody else's cash and spent it, you might be sued for reimbursement under unjust enrichment. The legal theory behind unjust enrichment is the constructive trust, which the court imposes upon the circumstances to hold the person unjustly enriched as the trustee for the person who should properly get the property back, held to be the beneficiary of the constructive trust.
From ancient Roman law (and now a part of many civil law systems), "usufruct" means the rights to the product of another's property. For example, a farmer may give a right of "usufruct"of his land to a neighbor, thus enabling that neighbor to sow and reap the harvest of that land.
Excessive or illegal interest rate. Most countries now prohibit interest rates above a certain level; and rates which exceed these levels are called "usury".
Search warrant :
A court order (i.e. signed by a judge) that gives a police the permission to enter private property and to search for evidence of the commission of a crime, for the proceeds of crime or property that the police suspect may be used to commit a crime. These court orders are obtained on the basis of a sworn statement by the requesting law enforcement officer and will precisely describe the place to be searched and, in some cases, the exact property being sought.
The legal possession of property. In law, the term refers more specifically to the possession of land by a freeholder. For example, a owner of a building has seisin, but a tenant does not, because the tenant, although enjoying possession, does not have the legal title in the building.
The taking of someone's property, voluntarily (by deposit) or involuntarily (by seizure), by court officers or into the possession of a third party, awaiting the outcome of a trial in which ownership of that property is at issue. Servient tenement The land which suffers or has the burden of an easement. The beneficiary of the easement is called a dominant tenement.
From Roman law, referring to rights of use over the property of another; a burden on a piece of land causing the owner to suffer access by another. An easement is type of servitude as is a profit á prendre.
A legal action taken to reclaim goods which have been distrained.
To abrogate or cancel a contract putting the parties in the same position they would have been in had there been no contract. Rescission can occur in one of two ways: either a contract can be set aside (rescinded) because of some defect in its formation (such as misrepresentation, duress or undue influence) or it can be set aside by agreement by the parties, for example if they reach a new agreement.
Restitutio in integrum :
Latin for restitution to the original position. In contract law, upon breach of contract, the injured party may ask the court to reverse the contract and revert the parties to their respective positions before the contract was accepted. But if the court finds that restitutio in integrum is not possible because of actions or events occurring since the date of acceptance, then the court may order that damages be paid instead.
Under ancient English common law, when a party enforced a court judgment and then that judgment was overturned on appeal, the appellant could ask the appeal court for "restitution", or financial compensation placing that appellant in the same position as if the original legal decision had not been enforced. A new strain of common law has also developed called "restitution", closely associated with unjust enrichment, whereby a person is deprived of something of value belonging to them, can ask a court to order "restitution". The best example is asking a court to reverse or correct a payment made in error.
A future interest left in a transferror or his (or her) heirs. A reservation in a real property conveyance that the property reverts back to the original owner upon the occurence of a certain event. For example, Jim gives Bob a bulding using the words "to Bob for life". Upon the death of Bob, the property reverts back to Jim or to Jim's heirs. Differs from a remainder in that a remainder takes effect by an act of the parties involved. A reversion takes effect by operation of the law. Nor is a reversion a "left-over" as is a remainder. Rather, it reverts the entire property.
Right of first refusal :
A right given to a person to be the first person allowed to purchase a certain object if it is ever offered for sale. The owner of this right is the first to be offered the designated object if it is ever to be offered for sale.
Refers to decisions made by administrative tribunals or government officials to which the rules of natural justice apply. In judicial decisions, the principles of natural justice always apply. But between routine government policy decisions and the traditional court forums lies a hybrid, sometimes called a "tribunal" or "administrative tribunal" and not necessarily presided by judges. These operate as a government policy-making body at times but also exercise a licensing, certifying, approval or other adjudication authority which is "judicial" because it directly affects the legal rights of a person. Some law teachers suggest that there is no such thing as a "quasi-judicial" decision or body; the body or decision is either judicial or not.
A person who is not a lawyer or is not acting in that capacity but who provides a limited number of legal services. Each country differs in the authority it gives paralegals in exercising what traditionally would be lawyers' work.
To kill or take an animal or fish from the property of another.
A word describing evidence that persuades a judge or jury to lean to one side as opposed to the other during the course of litigation. In many states, criminal trials require evidence beyond a reasonable doubt. But in civil trials, evidence is required only by preponderance of the evidence. The judge (or jury, where applicable) will perceive the evidence of one side as outweighing the other based on which side has the most persuasive or impressive evidence. The strength or "weight" of evidence is not decided by the sheer number of witnesses because the judge decides on the credibility of witnesses and give their testimony weight accordingly. The side with the preponderance of evidence wins the case.
The person who has become obliged through a promise (usually expressed in a contract) towards another, the intended beneficiary of the promise being referred to as the promisee. Also sometimes referred to a "obligor."
Property is commonly thought of as a thing which belongs to someone and over which a person has total control. But, legally, it is more properly defined as a collection of legal rights over a thing. These rights are usually total and fully enforceable by the state or the owner against others. It has been said that "property and law were born and die together. Before laws were made there was no property. Take away laws and property ceases." before laws were written and enforced, property had no relevance. Possession was all that mattered. There are many classifications of property, the most common being between real property or immoveable property (real estate such as land or buildings) and "chattel", or "moveable" (things which are not attached to the land such as a bicycle, a car or a hammer) and between public (property belonging to everybody or to the state) and private property.
Public law :
Those laws which regulate
(1) the structure and administration of the government,
(2) the conduct of the government in its relations with its citizens,
(3) the responsibilities of government employees and
(4) the relationships with foreign governments.
Good examples are criminal and constitutional law. It can be distinguished from private law, which regulates the private conduct between individuals, without direct involvement of the government. For example, an unsolicited punch in the nose would constitute a crime for which the government would prosecute under criminal law but for which there would also be a private legal action possible by the injured party under tort law, which is private law although governments can be held responsible under tort law. As you can see, the line is often hard to draw between public and private law.
Punitive damages :
Special and highly exceptional damages ordered by a court against a defendant where the act or omission which caused the suit, was of a particularly heinous, malicious or highhanded nature. Where awarded, they are an exception to the rule that damages are to compensate not to punish. The exact threshold of punitive damages varies from jurisdiction to jurisdiction. In some countries, and in certain circumstances, punitive damages might even be available for breach of contract cases but, again, only for the exceptional cases where the court wants to give a strong message to the community that similar conduct will be severely punished. They are most common in intentional torts such as rape, battery or defamation. Some jurisdictions prefer using the word "exemplary damages" and there is an ongoing legal debate whether there is a distinction to be made between the two and even with the concept of aggravated damages.
Obstructing justice :
An act which tends to impede or thwart the administration of justice. Examples include trying to bribe a witness or juror or providing law enforcement officers with information known to be false. Offense A crime; any act which contravenes the criminal law of the state in which it occurs. Spelled "offence" in Commonwealth countries.
A explicit proposal to contract which, if accepted, completes the contract and binds both the person that made the offer and the person accepting the offer to the terms of the contract. See also "acceptance".
A group or race of people that share history, traditions and culture. The United Kingdom is comprised of four nations or national groups: the English, Scots, Irish and Welsh. Canada includes French-Canadians, English-Canadians and a number of aboriginal nations. Thus, states may be comprised of one or several nations. It is common English to use the word "nation" when referring to what is known in law as "states." National treatment : A tenet of international trade agreements whereby nations must afford imported goods the same treatment that they afford domestic or "national" products (no discrimination).
Natural justice :
A word used to refer to situations where audi alteram partem (the right to be heard) and nemo judex in parte sua (no person may judge their own case) apply. The principles of natural justice were derived from the Romans who believed that some legal principles were "natural" or self-evident and did not require a statutory basis. These two basic legal safeguards govern all decisions by judges or government officials when they take quasi-judicial or judicial decisions.
Not only are people responsible for the intentional harm they cause, but their failure to act as a reasonable person would be expected to act in similar circumstances (i.e. "negligence") will also give rise to compensation. Negligence, if it causes injury to another, can give rise to a liability suit under tort. Negligence is always assessed having regards to the circumstances and to the standard of care which would reasonably be expected of a person in similar circumstances. Everybody has a duty to ensure that their actions do not cause harm to others. Between negligence and the intentional act there lies yet another, more serious type of negligence which is called gross negligence. Gross negligence is any action or an omission in reckless disregard of the consequences to the safety or property of another. See also contributory negligence and comparative negligence.
Non est factum :
Latin for "not his deed" and a special defense in contract law to allow a person to avoid having to respect a contract that she or he signed because of certain reasons such as a mistake as to the kind of contract. For example, a person who signs away the deed to a house, thinking that the document signed was only a guarantee for another person's debt, might be able to plead non est factum in a court and on that basis get the court to void the contract.
Excessive or unlawful use of one's property to the extent of unreasonable annoyance or inconvenience to a neighbor or to the public. Nuisance is a tort.
Nunc pro tunc :
Latin: now for then. It refers to the doing of something late (after it should have been done in the first place), with effect as if it had been done on time.
Doing something which is illegal. Compare with misfeasance and nonfeasance.
A writ which commands an individual, organization (eg. government), administrative tribunal or court to perform a certain action, usually to correct a prior illegal action or a failure to act in the first place.
Bill of Rights to prevent misconstruction or abuse of its powers ] Preamble ["We the people...."]
The 4th AMENDMENT:
The Bill of Rights
The right of the people to be secure in their persons, houses, papers, and effect, against unreasonable searches and seizures, shall not be violated, and no warrents shall issue, but upon probable cause, supported by oath or affirmation, and particularly discribing the place to be searched, and the persons or things to be seized.
9-111.110 Seizure -- General Pre-Seizure Planning Policy Guidelines
What follows are broad pre-seizure planning policy guidelines for all agencies participating in the Asset Forfeiture Program. Minor variations and exceptions to the mandatory aspects of these guidelines are permitted only with the explicit approval of the Asset Forfeiture and Money Laundering Section.
The United States Attorney, or in administrative forfeiture cases, the agent in charge of a field office, is responsible for ensuring that proper and timely pre-seizure planning occurs in the appropriate asset forfeiture cases within that federal judicial district. All pre-seizure planning meetings will include, at a minimum, as applicable, the Assistant United States Attorney or investigative agent in charge of the forfeiture matter (and, if applicable, the Assistant United States Attorney in charge of the related criminal matter), investigative agents, and the appropriate United States Marshals Service representative (which should include a representative from the district where the property is to be seized if different than the district where the action is to be filed). A federal regulatory agency representative will also attend in FIRREA forfeiture cases.
For asset forfeiture cases involving more than one federal judicial district, the United States Attorney instituting the forfeiture action has the primary responsibility to ensure that all Asset Forfeiture Program participants are notified, and that proper and timely pre-seizure planning occurs in those districts where assets will be seized as a result of that asset forfeiture matter.
9-111.120 Net Equity Values
Whether a property should be seized must be documented during the pre-seizure process. These guidelines set minimum net equity levels that generally must be met before federal forfeiture actions are instituted. The net equity values are intended to decrease the number of federal seizures, thereby enhancing efforts to improve case quality and to expedite processing of the cases we do initiate. The thresholds are also intended to encourage state and local law enforcement agencies to use state forfeiture laws. These thresholds are to be applied in adoptive cases. In general, the minimum net equity requirements are:
Real Property -- net equity must be at least 20 percent of the appraised value, or $20,000, whichever is greater. As a general rule, the Department of Justice does not seize or adopt contaminated real properties. See Contaminated Real Property Policy, at 9-111.400.
Vehicles -- net equity must be at least $5,000. However, if the person from whom the vehicle was taken was or is being criminally prosecuted by state or federal authorities for criminal activities related to the property and there is justification for a downward departure, such as the vehicle being used to facilitate criminal activities, the minimum net equity is $1,000. (The arrest of the person from whom the property is taken, for an offense related to the illegal use or acquisition of the property for which a forfeiture action may be brought, satisfies the condition of criminal prosecution.) This restriction does not apply in the case of seizures by the Immigration and Naturalization Service of vehicles used in the smuggling of aliens or in the case of vehicles modified or customized to facilitate illegal activity.
Cash -- amount must be at least $5,000, unless the person from whom the cash was taken was criminally prosecuted or is being prosecuted by state or federal authorities for criminal activities related to the property, in which case, the amount must be at least $1,000.
Aircraft -- net equity must be at least $10,000.
Vessels -- net equity must be at least $10,000.
All Other Personal Property -- net equity must be at least $5,000 in the aggregate. Downward departures should not be made for any individual item if it has a value of less than $1,000.
Exceptions can be made if: (a) the seizure will have a substantial law enforcement effect, e.g., a computer is seized to disrupt a major fraud scheme; or (b) practical considerations support the seizure, e.g., 20 items of jewelry, each valued at $500, might be seized as the total value of the items is $10,000 and the cost of storing 20 small items of jewelry is not excessive.
Heads of investigative agencies may continue to establish higher thresholds for seizures made by their agencies. If an investigative agency head establishes higher monetary thresholds than those set out in the directive, the Asset Forfeiture and Money Laundering Section shall be advised in writing of the change.
Each United States Attorney may institute higher district-wide thresholds for judicial forfeiture cases. In doing so, United States Attorneys should confer with the seizing agencies affected by the change and develop in concert with those agencies written district-wide guidelines for implementation. Written notice of such higher thresholds shall be provided to the Asset Forfeiture and Money Laundering Section. Any threshold higher than those identified in the directive shall not be the basis for failing to assist in seizing property when requested to do so by another district with lower monetary thresholds where the requesting district intends to file the judicial action.
It is understood that in some circumstances the overriding law enforcement benefit will require the seizure of an asset that does not meet these criteria. In individual cases, these thresholds may be waived where forfeiture will serve a compelling law enforcement interest, e.g., forfeiture of a "crack house," or of a conveyance with hidden compartments. Any downward departure from the above thresholds must be approved in writing by a supervisory-level official and an explanation of the reason for the departure noted in the case file.
9-111.123 Avoiding Liability Seizures
When real property and businesses are targeted for asset forfeiture, the potential net equity must be calculated. See the Criminal Resource Manual at 2205. If the financial analysis indicates that the aggregate of all liens (including judgment liens), mortgages, and management and disposal costs approaches or exceeds the anticipated proceeds from the sale of the property, the United States Attorney will either determine not to go forward with the seizure (see Alternatives to Seizure, the Criminal Resource Manual at 2209, or acknowledge the potential financial loss and document the circumstances that warrant the continuation of the seizure and institution of the forfeiture action.
In cases where the integrity of the investigation could be compromised resulting in a seizure without any pre-seizure planning, the seizing agency shall be responsible for custody and maintenance of the property until the United States Marshals Service has had an opportunity to respond. The Marshals Service shall complete a pre-seizure checklist and financial analysis worksheet within 5 business days of the seizure. If the financial assessment indicates that the aggregate of all liens, mortgages, and management and disposal costs approaches or exceeds the anticipated proceeds from the sale of the property, the United States Attorney will either take action to dismiss the forfeiture action, and to void any expedited settlement agreements (if any have been entered into), or acknowledge the potential loss and document the circumstances that warrant the continuation of the forfeiture action.
In making decisions whether and how to proceed with the seizure and forfeiture of assets identified during the pre-seizure phase in judicial forfeitures, the United States Attorney or his or her designee, in consultation with the seizing agency and the United States Marshals Service, and in administrative forfeitures, the agent in charge of the field office responsible for the administrative forfeiture, or his or her designee, in consultation with the Marshals Service, shall evaluate and consider the forfeitable net equity and the law enforcement purposes to be served in light of the potential problems and estimated costs of post-seizure management and disposition.
9-111.150 Dispute Resolution
In instances where a dispute concerning whether or not certain property should be seized for forfeiture cannot be settled between the concerned agencies or other components, alternatives to seizure should be utilized until the issue is resolved. Dispute resolution may be sought from the Asset Forfeiture and Money Laundering Section. Timely resolution of disputes is critical.
9-111.250 Obtaining Criminal Forfeiture Seizure Warrants for Property Located Outside Districts
A seizure warrant for property subject to criminal forfeiture may be issued in the district where the property is located, or it may be issued by the court in the district where the criminal indictment is pending. See the Criminal Resource Manual at 2214.
2214 Obtaining Criminal Forfeiture Seizure Warrants for Property Located Outside Districts
The most commonly used criminal forfeiture statutes authorize the issuance of a warrant for the seizure of property subject to criminal forfeiture "in the same manner as provided for a search warrant." (18 U.S.C. § 1467(d) (obscene material); 18 U.S.C. § 2253(d) (sexual exploitation of minors); 21 U.S.C. § 853(f) (controlled substances); and, by incorporation of 21 U.S.C. § 853(f) by reference, 18 U.S.C. § 982(b)(1)(A) (money laundering) and 18 U.S.C. §§ 793(h)(3) and 794(d)(3) (espionage)). In turn, Fed. R. Crim. P. 41(a), which governs the procedure for the issuance of search warrants, provides that warrants may be issued for property that is "within the district." Fed. R. Crim. P. 41(a). This suggests that seizure warrants for criminal forfeiture may be issued by the court in the district in which the property to be seized is located at the time the warrant is sought.
This authority, however, may not be exclusive. The "Jurisdiction to enter orders" provision in all of the criminal forfeiture statutes that authorize seizure warrants provides that "[t]he district courts of the United States shall have jurisdiction to enter orders as provided in this section without regard to the location of any property which may be subject to forfeiture under this section or which has been ordered forfeited under this section." 18 U.S.C. § 1467(j); 18 U.S.C. § 2253(k); 21 U.S.C. § 853(l); and, by incorporation of 21 U.S.C. § 853(l) by reference, 18 U.S.C. § 982(b)(1)(A) and 18 U.S.C. §§ 793(h)(3) and 794(d)(3). Emphasis added.
Seizure warrants are court orders. Consequently, district courts have jurisdiction to issue seizure warrants for property subject to criminal forfeiture "without regard to the location" of the property, at least to the limited extent necessary to allow the court that has jurisdiction for the criminal forfeiture to issue seizure warrants for property located in other districts. Such jurisdiction is consistent with the jurisdiction of the district courts for the issuance of warrants of arrest in rem in civil forfeitures of property in other districts. See 28 U.S.C. § 1355(d) (authorizing nationwide service of "process" by district courts with jurisdiction over a civil forfeiture action "as may be required to bring before the court the property that is the subject of the forfeiture action"); compare 18 U.S.C. § 981(b)(2)(b), 21 U.S.C. § 881(b) (civil forfeiture seizure warrants "pursuant to" and "in the same manner as provided for a search warrant under the Federal Rules of Criminal Procedure").The conservative approach would be to seek criminal forfeiture seizure warrants in the district court for the district in which the property is located. That approach, however, frequently causes logistical and procedural problems, especially when multiple properties to be seized are scattered around the nation in multiple districts.
In light of the above analysis, Assistant United States Attorneys seeking seizure warrants for the criminal forfeiture of properties located in districts outside of the district where the indictment is pending are authorized to request such warrants either from the district court that has jurisdiction over the indictment or from the district court in the district where the property is located.
When requesting a seizure warrant for the criminal forfeiture of substitute assets located outside of the district where the indictment is pending, Assistant United States Attorneys should consider the applicability of Third, Fifth, Eighth or Ninth Circuit law holding that the pre-trial restraint of substitute assets is not permitted.
Because Fed. R. Crim. P. 41(e) provides that a motion for the return of property may be made in the district court for the district in which the property was seized, it is recommended that seizure warrants state that any questions concerning the property which is the subject of warrant should be directed to the United States Attorney's office or the seizing agency in the district where the indictment is pending.
As always, when requesting a warrant in one district that is to be executed in another district, it is incumbent on the prosecutor requesting the warrant to advise the United States Attorney and the United States Marshal for the district where the property is located that a seizure in that district is contemplated, and to coordinate the seizure with those offices.
9-111.400 Contaminated Real Property Policy
This policy envisions United States Attorneys exercising discretion in the seizure and forfeiture of real property that is contaminated or potentially contaminated with hazardous substances. Normally, such properties should not be forfeited unless there is at least $30,000 in net equity belonging to the defendant. Furthermore, such properties should not be forfeited when there is reason to believe the property is substantially contaminated with hazardous substances and that such contamination would render the property unmarketable. Clean-up costs can be considerable, particularly when the water table is involved. In making this determination, the USA may order an environmental assessment that will be paid from the Assets Forfeiture Fund. (The Chief, Environmental Quality Section, Tulsa District, U.S. Army Corps of Engineers, (918) 581-7877, has agreed to conduct environmental assessments for the Department on a cost basis.) See the Criminal Resource Manual at 2220.
9-111.700 International Seizures
See the Criminal Resource Manual at 2229 (International Seizures), 2230 (Policy on International Contacts), and 2231 (Importance of Reciprocal Cooperation).
2230 Policy on International Contacts
It has long been the policy of the Department that all incoming and outgoing international contacts by prosecutors in criminal justice matters be coordinated with OIA. The Attorney General expects compliance with established procedures for international contacts. Federal prosecutors should not contact foreign officials directly. All such dealings must be through established channels. AFMLS's international forfeiture specialists can expedite such contacts.
2231 Importance of Reciprocal Cooperation
The AFMLS international forfeiture specialists also will coordinate our responses to requests by foreign countries for assistance in immobilizing, repatriating, and forfeiting assets found in the United States that are traceable to violations of their laws. It is important that such foreign requests be given a high priority. Failure to do so may be construed by foreign governments as a sign that the United States lacks the resolve to combat international criminals, particularly drug traffickers, to the fullest extent of the law. Moreover, we can expect cooperation from foreign governments in our efforts to repatriate and forfeit assets found abroad only if we demonstrate that we will reciprocate.