Ted Cruz: All Hat, No Cattle, Again

Ted Cruz is hardly the first to propose using forfeited assets from Mexican drug traffickers to pay for a border wall. In February, Rep. James Sensebrenner introduced H.R. 1067: Build up Illegal Line Defenses with Assets Lawfully Lifted Act of 2017, aka the "Build Act." You can read it here. (It's gone nowhere, and Sensenbrenner seems to have pulled his news release on it from his website.)

Despite being unoriginal, Ted Cruz' "El Chapo Act" will not get a border wall built, even in the unlikely event it passes Congress.

First, El Chapo is facing a criminal, not civil forfeiture. Before anything can be criminally forfeited, a criminal conviction is required. Unless El Chapo pleads guilty (and why would he since he's likely to get the same life sentence handed down last month to Alfredo Beltran-Leyva who also pleaded guilty) a conviction will take a year or two or more. If he loses and appeals, the conviction and judgment aren't final until the appeals are over. No money could be distributed or spent before then.

Second, there isn't any evidence El Chapo has money or property in the U.S. If his assets are in Mexico, the U.S. can't get its hands on it without Mexico's agreement. There's a treaty on the topic.

Why would Mexico agree to let the U.S. have El Chapo's assets to be used for a border wall when it doesn't want a wall? [More...]

Even the DOJ Manual recognizes that the attempt to collect a forfeiture judgment in another country could be viewed as an affront to sovereignity and a waste of time:

For instance, there are some countries which may perceive the mere filing of a forfeiture action here against property within their borders as an affront to or infringement on their sovereign prerogatives. The invocation or attempted enforcement of extraterritorial forfeiture jurisdiction in such circumstances could well prove prejudicial to legitimate foreign policy interests or to other law enforcement initiatives or activities involving the country in question.

Moreover, when it is known or can be ascertained in advance that a particular foreign government either cannot or will not recognize, enforce, or otherwise make beneficial use of a forfeiture order obtained in this country, it would clearly be a waste of U.S. prosecutorial and judicial resources to pursue the forfeiture action.

Mexico is not obligated to comply with any U.S. judgment against El Chapo. There's a treaty that says such compliance is voluntary. Mexico also has its own forfeiture act that addresses the topic.

Even if Mexico was willing to turn over assets of El Chapo, it would certainly demand its fair share. The U.S. would not have been able to extradite El Chapo if Mexican authorities hadn't captured him. Even if the U.S. obtains a $14 billion forfeiture order against El Chapo, and Mexico agreed to split it 50/50 with the U.S., that would only leave $7 billion, hardly enough for the wall.

Nor is Mexico is under an obligation to search out and identify El Chapo's assets for the U.S.

One reason El Chapo is unlikely to have any identifiable assets in the U.S. is that he's been on the designated kingpin list for years, which prohibits anyone in the U.S. from doing business with him. So there won't be any assets here in his name.

Unlike civil forfeiture orders which are "in rem" (against the property), criminal forfeiture orders are in personam -- against the person. Given the unsurprising decline in El Chapo's mental state since being put in solitary in Mexico and now here, what if he becomes incompetent? Proceedings would have to be stayed until his competency was restored. If that's not possible, he might continue to be detained, but there'd be no forfeiture order because there would be no conviction.

If he is convicted but dies before all his appeal rights have been exhausted, there's no forfeiture because his conviction, including a criminal forfeiture order, would abate "ab initio" and the case would be dismissed.

One other sign that El Chapo's assets are not a top priority: Just last week, Jeffersion Sessions met with the attorney general of Mexico. From the readout of their meeting.

Both Attorneys General briefly discussed the arrest of Edgar Veytia Cambero, the former Attorney General of the Mexican State of Nayarit, in the United States , agreeing to mutually coordinate on this matter in both the United States and Mexico, and identify assets in both countries to be seized and forfeited.

Notice there is no mention of El Chapo or his assets.

More reasons El Chapo is unlikely to plead guilty: DOJ is unlikely to guarantee him in a plea agreement he won't go to Supermax. That's up to the Bureau of Prisons, not the Attorney General (and as his former partner "El Guero", Hector Luis Palma Salazar, found out the hard way, BOP can send you anywhere they want. El Guero pleaded guilty to 390 kilos of cocaine, no counts of violence or guns, and got sent to Supermax anyway and lost every legal battle challenging the placement. He eventually worked his way down to maximum security, got released in 2016 and put in a Mexican prison, where he remains.)

Ted Cruz's proposal is nothing but a soundbite. Even if Congress passes it, it will be years before the U.S. gets its hands on even $1 billion, let alone enough to make a dent in the cost of the wall.

Also, local and state law enforcement that participated in the investigation of El Chapo's case in any of the jurisdictions charging him are likely to oppose Cruz' bill, which reserves all the money for a wall and doesn't provide for equitable sharing. If the families of victims of the drug war in Mexico think El Chapo's to blame for their losses, or there are other people who claim an interest in property or businesses the government seeks to forfeit as belonging to El Chapo, their claims have to be litigated before a forfeiture order can enter against El Chapo. That alone could take years.

Other problems with Cruz' bill: Cruz' law doesn't provide for the government to be reimbursed for its expenses in seizing, maintaining and forfeiting the property. That's contrary to the Attorney General's guidelines on disposition of forfeited property. Also see here. And the IRS has similar restrictions on funds forfeited by the Treasury Department.

The wall is still a bad idea. It won't stop drugs or crime and it will harm our relationship with Mexico and other countries. It shouldn't be funded by any source. Funds forfeited from drug traffickers can be put to much better use.

Bottom line: Donald Trump will be an old man, long gone from his desk in the oval office, before the U.S. gets its hands on enough money from El Chapo to even start a wall, let alone finish one. And Ted Cruz is still full of baloney.

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