Bars, jewelry, even chickens subject to drug forfeitures

All types of property subject to drug forfeitures

July 27, 2013
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One of the chickens seized last August in a raid at the MacFann farm in Daisytown
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This Ford Mustang was sold and the proceeds used by the Washington County Drug Task Force.
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Money and drugs seized in a police raid in Donora earlier this year

Citizens of Washington County: Did you know you own a bar?

Sort of. But don’t look for your name on a liquor license anytime soon at 421 Fallowfield Ave., Charleroi.

Assistant District Attorney Joe Zupancic refined the phraseology.

“It’s a piece of business property that formerly was a bar,” he explained about Domenico’s.

The establishment’s former owner, Domenico Varrone, 34, of Bentleyville and Charleroi, pleaded guilty in October 2011 to a charge of possessing drug paraphernalia and possession of a controlled substance. Judge Phil Melograne placed him on probation for a year, ordered him to participate in a drug or alcohol treatment program and to complete a total of 67 hours of community service.

While this was not the most severe of sentences, other consequences were quite significant. Varrone had shuttered the business, and former District Attorney Steven Toprani sought an injunction to close it permanently as a nuisance bar.

Zupancic, an assistant under Toprani’s successor, Gene Vittone, petitioned for forfeiture and condemnation of the property on behalf of the county. Varrone did not contest Zupancic’s forfeiture petition, and Judge John DiSalle, finding that the property “was furnished or intended to be furnished in exchange for a controlled substance in violation” of the Drug Act, awarded it last year to the county.

The actual piece of furniture known as the bar was sold for $800, “along with quite a bit of stuff that was in there,” Zupancic said.

“What we’re going to try to do now, we’re going to try to get the thing sold,” Zupancic said of the real estate. “We’re trying to figure out what to do with this thing.”

Because of back-tax issues, three levels of governments – borough, school district and county – would have to waive their claims to the property, which stands in the Charleroi historic district.

Washington Countians came to own this real estate because state law allows both district attorneys and the state attorney general to not only seize contraband, such as drugs which are illegal to possess, but property associated with illegal activities.

“In common law, which is what we had before we had statutes in merry old England, if someone committed treason all lands in an estate would go to the crown,” Vittone explained. “We still have a vestige of that. It’s called common-law forfeiture, which is the nexus between the property and the criminal activity.”

More recently, Pennsylvania passed the Controlled Substance Forfeiture Act, which allows not only contraband, such as drugs, to be forfeited to the commonwealth, but also equipment such as scales and vehicles or homes from which drugs are sold, because these are considered tools used to further a drug transaction or things of value obtained as a result of a drug transaction.

Amendments to the act in 1994 and 2006 also permit the forfeiture of property purchased from the proceeds of drug activity when a defendant can show no legitimate income. There is a similar federal law.

Criminals, aware of the consequences of forfeiture, will transfer property to the name of a “sham” owner, but the law has a remedy for this ploy, too.

“We’ll do it,” Vittone said. “There’s all kinds of ways to skin the cat. Make the dealers start paying the taxpayers.”

The term “derivative contraband” means there is a connection between whatever property the commonwealth is trying to obtain through forfeiture and the illegal activity that’s associated with it. In cases where a defendant pleads guilty, the district attorney can make it part of the plea agreement.

Vittone said forfeiture “makes perfect sense because we as taxpayers are paying to fight these things, and it partially offsets the expenses. For example, this funds our drug task force. We’re up to 45 undercovers and two full-time detectives.

“They do respond to complaints from the citizens on that 800 line we have,” he said, putting in a plug for the District Attorney’s Drug Task Force phone number, 800-281-0070.

In addition to drug law enforcement, proceeds of forfeiture can be used for community-based crime-fighting programs or witness protection or relocation.

At last week’s meeting of the South Strabane Township supervisors, Vittone remitted $4,109 from an $8,218 forfeiture, the most recent round of money stemming from arrests by South Strabane police.

The vast majority of property forfeited to the Washington County district attorney’s office is drug-related. Since Vittone took office in January 2012, Zupancic has handled 90 forfeiture petitions, 31 of which have been closed.

“You had vehicles dating back to the (former district attorney John C.) Pettit administration,” Vittone said. “I don’t want this stuff sitting around. Get it where it needs to go.

“That’s why I brought Joe on board to get those resolved. Ninety petitions is a lot of petitions. Not every drug arrest has forfeitable property.”

Zupancic said 90 percent of the petitions he’s filed are money-only forfeitures. Property forfeited has included jewelry – diamond earrings, for example – and collectible coins. Real estate is a different animal, he said, because the owner has to have insurance on it.

His choice of the words “different animal” was interesting, because not all forfeitures deal with inanimate objects. Since a raid related to cockfighting charges in West Pike Run Township last year, the county is seeking forfeiture of 92 chickens.

The criminal case of cockfighting was called recently before visiting Judge Edward Borkowski of Allegheny County, who scheduled it for a jury trial in September.

“We had to do something with the chickens,” Zupancic said. “We actually have to keep those chickens alive. They’re being taken care of. (State Sen.) Tim Solobay has some legislation to correct that situation.”

Solobay is a co-sponsor of a bill called the “Costs of Care of Seized Animals Act.”

Bill 1527 of 2012, which has been referred to the state Senate Judiciary Committee, would shorten the length of time that law enforcement authorities would be required to care for animals, ending at least 30 days after a hearing on the costs of care or when the seized animals are no longer under the control of the petitioner, whichever is earlier.

Proceeding in a separate court case is the district attorney’s petition to have the defendant forfeit nearly eight-dozen fowl, out of 127, and his farm, which prosecutors claim was used for either cockfighting or breeding fighting roosters. Prosecutors allege many of the birds seized by state police had been surgically altered, and some of the birds’ combs and wattles had been removed. Some also had natural projections between their leg feathers and feet cut back or removed so they could be fitted with knives or gaffs, a kind of metal spur.

Thomas MacFann’s attorney, Martin A. Dietz of Pittsburgh, claimed in court documents in the forfeiture case that his client’s chickens and farm were illegally seized. He also said MacFann denies that he ever admitted to a federal agent that the chickens on his property were used for fighting and that he was raising fighting cocks.

“At the conclusion of the search, Mr. MacFann indicated that he had been … showing them in contests and at county fairs,” Deitz wrote in documents filed with Washington County Court.

He also denied that breeding chickens were producing birds for fighting. “Mr. MacFann was not engaged in any illegal activity at the time of the search,” Dietz wrote, and contended that any trophies at the farm were more than seven years old.

MacFann’s property “is not contraband, nor is it derivative property,” Dietz wrote in asking that the forfeiture be denied. No hearing date has been set.

A man with MacFann stopped him from speaking with a reporter outside his recent Washington County Court appearance.

While charges were filed against MacFann nearly a year ago, not all forfeiture cases move slowly.

“A forfeiture can occur quickly,” Vittone said. “There doesn’t have to be a criminal conviction. It can take place even in the absence of a criminal conviction. One of the reasons is that the case is technically against the property itself.”

A tavern or farm animals are two of the more unusual forfeitures that the district attorney’s office has completed.

Zupancic said the most common property forfeited, after cash, is the automobile, which presents its own set of unique circumstances.

“Cars have titles,” Vittone said. “It’s a transfer thing. Other property may not. The paperwork is more time-consuming.”

Nine vehicles have been forfeited so far, according to a list Zupancic compiled. While the car afficionado’s eyes may light up at the thought of acquring a Jaguar for a song, the one that the district attorney’s office had by forfeiture was in such bad shape that it was sold for scrap. Forfeitures of six more vehicles are pending. Zupancic didn’t want to publicly discuss some of the makes or models of vehicles because the county uses them in undercover drug operations.

In addition to the cars, the district attorney’s office has seized 11 video-slot gaming machines in raids since the beginning of the year after the state reauthorized the illegal slot machine task force.

Barbara S. Miller covers politics, Washington County government and a variety of other topics for the Observer-Reporter. She is a graduate of Washington & Jefferson College, majoring in English and history. Follow her on Twitter @reporterbarb.

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