By Krystal Smalley
ksmalley@wbcowqel.com
When local police took $366,000 worth of drugs off the street in March in the culmination of a drug investigation, Khabeer Brown’s bank accounts were subsequently frozen. Now, the Galion man is looking to use those same funds in his defense.
Thirty-eight-year-old Brown filed a civil suit against the state after the Crawford County Prosecutor’s Office filed a civil forfeiture action and froze five different bank accounts under Brown’s name, all totaling $100,000.
“This is unique to anything I’ve encountered,” Crawford County Common Pleas Court Judge Sean Leuthold said Wednesday afternoon.
Defense attorney Adam Stone’s motion included two parts: the state could not seize assets without probable cause and the forfeiture violated Brown’s Sixth Amendment right to an attorney of his choice. The overriding concern, Stone argued, was that Brown’s right to used seized assets for an attorney outweighed the state’s right to seize said assets.
Stone referred to Luis v. United States, a case where the Supreme Court of the United States determined that the Sixth Amendment prohibited forfeiting assets to be used for a defense’s chosen counsel if those assets had not been used for a criminal enterprise. Though Stone is the court-appointed attorney in Brown’s criminal case, the Galion man planned on hiring a Cleveland-based attorney.
Of the five bank accounts, one was set up to have his paychecks directly deposited, a point that Stone and assistant prosecutor Rob Kidd both focused on, though for different reasons.
Stone argued that the state did not have the ability to determine which funds, if any, had been tainted by criminal activity, and therefore, they had no probable cause to show why all of the funds – totaling $100,000 – had been frozen.
“The overriding right to counsel of his chosen necessitates that,” Stone said.
Kidd argued, however, that Brown’s funds were so interwoven in criminal activity that they would not be able to determine what funds were tainted or innocent. Though Kidd acknowledged the account that was set up for direct deposit, he noted that the latest tax returns obtained by the prosecutor’s office indicated that Brown only made $35,000 through his job at Whirlpool. Kidd believed Brown would have needed to save nearly every cent he made since he began working at the company at the age of 18 in order to have such a large amount of funds available to him.
Kidd also cited the various activities that allegedly took place at the two homes involved in the drug bust, from crack cocaine being cut and packaged to evidence of trafficking to paying the mortgage on the homes and possibly sending drugs through FedEx.
“The question is what happens to the funds when it’s in the defendant’s possession,” Kidd questioned. “It’s all connected.”
Using United States v. Monsanto, which determined that freezing assets a defendant wished to use in order to hire counsel was permissible under the Constitution, Kidd argued that the facts proffered during the hearing were enough to establish probable cause to have the funds forfeited.
After hearing from both sides, Leuthold announced he would not give a final decision from the bench. The judge had no doubt that, under Ohio statutes, funds could be subject to forfeiture if it was determined they were used for criminal enterprises.
However, Leuthold questioned whether probable cause had been established to hold the funds. Though the state established that at least some of the money is instrumentality, Leuthold was not sure it had shown probable cause for withholding all of the funds.
“This court understands how important the Sixth Amendment right to counsel is,” Leuthold conceded, but tempered that statement with the announcement that he would dive into more research on the unique situation before issuing a judgment entry on his decision within the next 48 hours.
If Leuthold rules in favor of the state, the prosecutor’s office would still have to show evidence that the funds were used as part of a criminal enterprise at the full hearing. The allegations made during Wednesday’s probable cause hearing will not be used as part of the criminal hearing.
Brown was arrested on March 23 after Bucyrus and Galion police issued search warrants at 937 N. Sandusky Ave. and 231 Walker St. Between the two homes, police seized large quantities of suspected crack cocaine and heroin, and over $1,200 cash. The heroin weighed in at an estimated 820 grams valued at $16,000 and over four kilograms of crack cocaine valued at $350,000. A press release indicated at the time that law enforcement would continue to pursue asset forfeiture of property, vehicles, and other proceeds from drug activity.
Municipal Court Judge Shane Leuthold set bond at $3 million for Brown after charging him with three first-degree felonies of drug possession, all of which carry a mandatory minimum of 11 years to a maximum of 15 years in prison if found guilty. Additional charges were leveled against him in Common Pleas Court, including first-degree drug trafficking and fifth-degree drug trafficking. The $3 million bond was continued in Common Pleas Court.
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