THE COUNSELOR’S CORNER

Have you ever seen those government auctions advertised in the newspaper which mention upcoming events where you can buy cars, boats and other items formerly owned by high flyers who have now landed on the wrong end of the prison bars? Well, you might want to pay more attention in the future and if you are going to attend an auction you may really want to be careful. This was the unfortunate lesson learned by Jose Cervantes who bid on and won a car at a July 1999 auction. Mr. Cervantes left his home in Tijuana, Mexico to go to San Francisco for the festivities. He drove his new car home and later that year decided to return to the United States for a visit. Unfortunately, Mr. Cervantes was stopped by U.S. Customs agents who searched the car and found 119 pounds of marijuana. The marijuana had been hidden in the bumper by the previous owners and had not been found by the officers who had seized the vehicle, as it's owner had been smuggling aliens, not drugs and it was not properly searched. The officers did not look for drugs and therefore, did not find any.

Mr. Cervantes, at the age of 67, and with no prior criminal history, spent the next three months of his life in jail. It took his defense attorney that period of time to show the court that the marijuana had been in the car long before the auction won by Mr. Cervantes. The attorney was able to do this by testing the pot along with the rust that encrusted the bumper of the car.

Mr. Cervantes was subsequently released and he then sued for false imprisonment, false arrest and negligence. The trial court judge hearing the case dismissed all three causes of action. He was then reversed by the The United States District Court of Appeal, which reinstated one of Mr. Cervantes' three claims.

The government claimed immunity from this type of litigation and it is, in fact, immune from false arrest and false imprisonment claims as long as probable cause for the arrest exists. The government has no immunity, however when it comes to Mr. Cervantes' claim of negligence.

Believe it or not, it appears that this is not a once in a lifetime situation. According to one federal public defender, several of these types of cases come up on a yearly basis. Perhaps most egregious is the matter of two Mexican printers who spent a year in jail after Mexican police found 40 pounds of marijuana hidden in the vehicle they bought at a government auction. That case is still pending.

As for the matter of Mr. Cervantes, the appellate court was extremely upset with the government for attempting to wiggle out from under the negligence cause of action, as it found the government's defense to be “so off-the-mark as to be embarrassing.” The court ordered lawyers from both sides to have settlement talks and attempt to negotiate a resolution, however that has not proved successful. Apparently the government did not offer much money. Mr. Cervantes' attorney claims that Mr. Cervantes lost his liberty for three months and was forced to sleep in a cot on the floor as he was the third person in a two person cell. That should be with at least six figures in damages.

Beware the next time you see one of those government auctions advertised in the newspaper. They look good, they look flashy, they look appealing, but it has been my experience that whenever it looks like you can get something for nothing or in this case, something at a very low price, it is important to proceed with caution.

Mr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger & Grover, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues. He can be reached at charlieunger @hotmail.com