Appeals court upholds dismissal, on technicality, of forfeiture in drug case Hernandez couple gets profit from house

November 12, 1992|By Darren M. Allen | Darren M. Allen,Staff Writer

C After Fernando and Bonnie Hernandez were indicted on numerous drug-kingpin charges early last year, the county's drug task force seized their Taneytown home and filed a forfeiture suit in Carroll Circuit Court.

The Carroll County Narcotics Task Force had sheriff's deputies serve the Hernandezes with notice of the forfeiture, post notices of the forfeiture on the property and even place notices of the suit on a bulletin board in the courthouse.

But the prosecutor in charge of the task force made one technical mistake: He failed to advertise the forfeiture suit in a local newspaper, as is required under state law.

And that mistake cost the task force the house, Circuit Judge Luke K. Burns Jr. ruled in March 1991.

Last week, the Court of Special Appeals upheld Judge Burns' dismissal of the state's forfeiture case.

"Forfeiture cannot be undertaken at the expense of due process rights," wrote Judge Robert F. Fischer in his opinion filed Friday. "While the Hernandezes were afforded notice and an opportunity to be heard, 'other possible interested parties' were deprived of the opportunity to protect their interest in the [property]."

Judith S. Stainbrook, the couple's attorney, said she was "very pleased and delighted" with the ruling, which marks the Westminster attorney's first courtroom victory of any sort in the legal battle her clients have fought since their indictment.

The case, heard by Judge Fisher and Judges Dale R. Cathell and Diana G. Motz, is the latest fallout of the Carroll state's attorney's first use of the state's drug-kingpin law, a law meant to punish large-scale drug dealers.

Fernando, Bonnie and Henry Hernandez, Fernando's brother, were indicted in January 1991 on drug-kingpin charges. They were believed to have played a major role in a Miami-to-Carroll cocaine ring, the state's attorney said after the indictments.

But none of the three was convicted under the kingpin statute. All entered into plea agreements with prosecutors.

Fernando Hernandez pleaded guilty to charges of conspiracy to distribute cocaine and possession with the intent to distribute cocaine. He is awaiting Judge Burns' decision on his recent request to have his 14-year prison sentence reduced to five years.

Bonnie Hernandez pleaded guilty to conspiracy to distribute cocaine. She was placed on probation.

Henry Hernandez pleaded guilty to a similar charge and was given a suspended 10-year sentence because of his cooperation with state and federal drug officials. He is awaiting deportation to his native Colombia.

Prosecutors seized the Hernandez home under a state forfeiture statute that is meant "not only to curtail drug traffic in this state, but to discourage such a blight from continuing in the future," Judge Fisher wrote in his opinion. "Despite this noble goal, though, forfeiture cannot be undertaken at the expense of due process rights."

The Hernandezes were served with forfeiture papers in January 1991. The forfeiture was thrown out by Judge Burns in March, and the house was sold by the couple that April.

Even though the house was sold for nearly $80,000, the Hernandezes received less than $500 from the sale because they owed mortgages to two lenders.

That $500 is what the task force would have been left with, but that wasn't the issue, prosecutors said.

"The issue isn't money, but whether a proper application of the statute can be thrown out merely because of a technicality," said Assistant State's Attorney Barton F. Walker III, the drug task force's coordinator.

In a rare dissenting opinion, Judge Motz agreed with Mr. Walker.

"Upholding dismissal of the forfeiture complaint, in my view, thwarts the praiseworthy legislative effort to control the awful proliferation of drugs in our society," she wrote.

"Although the procedural error did not prejudice the persons complaining about it or those with any right to complain about it, dismissal will severely prejudice the state in its efforts to control the spread of traffic in illegal drugs," she continued.

Mr. Walker and State's Attorney Thomas E. Hickman said yesterday they have not decided whether to appeal the case to the Court of Appeals.

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