Attorney: SCOTT HESS THE LAW OFFICE OF SCOTT F HESS LLC.
DECISION ON MOTION TO RECONSIDER
WILLIAM R. STOKES JUSTICE.
matter before the court is the Motion To Reconsider filed by
Petitioner Holly Holmes from the court's Decision and
Order dated April 8, 2019 denying her Motion For Return Of
Holmes contends that the court applied the wrong legal
standard when it used 15 M.R.S. § 5826 rather than
requiring the State to pursue a civil forfeiture under 15
M.R.S. § 5822. The court disagrees.
15 M.R.S. § 5821 describes what property is subject to
forfeiture by the State and includes money "furnished or
intended to be furnished by any person in exchange for a
scheduled drug in violation of Title 17-A, chapter 45; all
proceeds traceable to such an exchange, and all money, . . .,
used or intended to be used to facilitate any violation of
Title 17-A, chapter 45." 15 M.R.S. § 5821(6). An
exception is explicitly recognized in section 5821(6)(A) for
No property may be forfeited under this subsection, to the
extent of the interest of an owner, by reason of any act or
omission established by that owner to have been committed or
omitted without the knowledge or consent of that owner.
property is subject to forfeiture, the State may file a civil
petition for forfeiture. At any hearing, the State has the
burden of proving by a preponderance of the evidence
"all material facts" and "the owner of the
property, or other person claiming under the property has the
burden of proving by a preponderance of the evidence all
exceptions set forth in section 5821...." 15 M.R.S.
§ 5822(3). In other words, if a civil petition for
forfeiture is filed the person claiming ownership of the
property must prove his or her interest in the property and
that any act or omission was done without his or her
knowledge or consent. At a minimum is the requirement that
the person claiming ownership of the property must prove that
he or she actually has an ownership interest in it.
the State may proceed by way of a criminal forfeiture by
indictment or complaint against the property subject to
seizure. 15 M.R.S. § 5826(2). That is how the State
proceeded in this case. In this case the Defendant, Corey
Schutz, admitted that the property in question was subject to
seizure and forfeiture. As a result, "[a]ll rights,
privileges, interest and title in the property subject to
forfeiture . . . vest[ed] in the State" 15 M.R.S.
§5826(1). Through that admission and the other evidence
presented at the hearing in this matter, the State proved by
a preponderance of the evidence that the money in question
was subject to forfeiture as required by 15 M.R.S. §
5826(4)(A). The criminal forfeiture statute also provides for
an "ancillary" hearing for a person, like Ms.
Holmes, "asserting a legal interest in the property ...
to adjudicate the validity of any alleged interest in the
property." 15 M.R.S. § 5826(5).
"ancillary" hearing must be heard by the court
without a jury. The statute, 15 M.R.S. § 5826(5)(A),
provides, in pertinent part:
The court shall issue or amend a final order of forfeiture in
accordance with its determination if, after the hearing, the
court determines that the petitioner has established by a
preponderance of the evidence that:
A. The petitioner has a legal right, title or interest in the
property and the right, title or interest renders the order
of forfeiture invalid in whole or in part because the right,
title or interest was vested in the petitioner rather than
any defendant or was superior to any right, title or interest
to the exclusion of any defendant at the time of the
commission of the acts that gave rise to the forfeiture of
the property under this section.
the statutory provision the court applied in its Decision and
Order of April 8, 2019 and, in the court's view,
encompasses the exception to forfeiture found in section
5821(6)(A). Moreover, under either section 5822's civil
petition procedure or the criminal forfeiture process
authorized by section 5826, the person claiming ownership in
the property subject to forfeiture has the burden of proving
that ownership. Accordingly, the court rejects the argument
advanced by Ms. Holmes that the statutory scheme
unconstitutionally shifts the burden to her.
the court did not require Ms. Holmes to prove that the funds
in question "were not proceeds from drug
activities." Motion To Reconsider at 3, ¶
6. Rather, the court only required Ms. Holmes to prove
that she had an ownership interest in the funds, which she
failed to do because the court found her testimony and
evidence unbelievable. Moreover, the court specifically found
that the sum of $20, 294 was subject to forfeiture as
proceeds traceable to a violation of Title 17-A, chapter 45.
Ms. Holmes has misconstrued the court's factual findings
in its Decision and Order. The purse containing the MDEA
"buy" money was not found in the safe, but was the
purse or pocketbook being carried by Ms. Holmes when the
officers arrived to execute the search warrant. The
purse-like bag containing approximately $20, 000 was found in
the safe. The court was not confused about that, although its
Decision and Order could have been clearer in that regard. In
addition, the court's finding that there was "strong
evidence that Corey Schutz was using 20 Preble Hill Road as a
base from which he would depart and to which he would return
after conducting drug transactions, including 10 in a single
day, and that at least ...