Western Union Seizures Make for Quirky Hearing

LAS VEGAS (CN) - The 9th Circuit skewered attorneys, much to the amusement of onlookers, while considering the legality of millions of dollars Arizona has seized in a human-smuggling investigation.

Javier Torres leads the class action, which alleges that Arizona Assistant Attorney General Cameron Holmes served warrants on Western Union that required it to hold any transfer that was $500 or more and was sent by any individual.

The class says the Attorney General's Office ultimately seized $9 million, giving notice only to the intended recipients of the transfers, not the senders.

They alleged violations of the Fourth, Fifth and 14th amendments and commerce clause of the U.S. Constitution. Terry Goddard was also named as a defendant as he was the Arizona attorney general at the time of the lawsuit. Western Union is not a party in the lawsuit.

A federal judge ultimately dismissed the complaint in its entirety, leading up to a colorful appellate hearing Tuesday before a three-judge panel of the 9th Circuit at the School of Law for the University of Nevada, Las Vegas.

Chief Judge Alex Kozinski was ruthless in cornering David Weinzweig, the attorney for Arizona, on the capacity in which Holmes served the warrants on Western Union.

"Absolute immunity protects a civil forfeiture prosecutor from liability from his actions and persuading five independent neutral judges that probable cause existed to seize and forfeit wire transfers," Weinzweig said.

Kozinski balked.

"Service of pleading is a function of a prosecutor," he asked. "I thought service is done by service of process agents or by marshals or sheriffs of people like that."

As Weinzweig tried to reply, Kozinski interrupted again.

"Do criminal complaints in the state of Arizona get served by the D.A.," he asked. "Does a D.A. go to someone's house and say, 'Hey, here's a criminal complaint'? Don't they usually send the police or sheriff to service a criminal complaint?"

Weinzweig failed to make his point as he answered about "the civil context of serving a complaint."

"I said criminal," Kozinski said. "Did you hear the word criminal?"

"Criminal... I think that is probably a fair assessment that a prosecutor... " Weinzweig replied.

"Answer the question! Do prosecutors go out and serve criminal complaints?" Kozinski interrupted again.

"It's not a prosecutory function," Weinzweig said. "In the civil forfeiture context, in order to get that warrant hours before it was issued or maybe the day before, Mr. Holmes had his prosecutory hat on and had to establish probable cause in a -"

"You have a picture?" Kozinski asked. "I mean how do we know he has his prosecutory hat on? Is it on his Facebook page?"

Earlier in the hearing, Kozinski had also been quick to interrupt Christopher Wilmes, the attorney for the plaintiffs.

"Western Union is asked to turn over money to the state of Arizona," Kozinski said. "Your client says, 'Well that is of marginal interest to us, we gave you money, now give our money back. You disposed of our money - that is not consistent to our contract, and we want our money back.' Why isn't that the remedy in whatever dispute Western Union has with the state of Arizona for taking money that it, Western Union, had in its possession? That's between them and the state of Arizona. Why aren't your clients, for whatever complaint they have, why isn't it directed toward Western Union?"

Wilmes replied that his clients could bring claims against various actors.

"Just because they may have contract claims, doesn't mean that they also have Fourth Amendment and commerce clause claims against these defendants," Wilmes said.

Kozinski, who heard the case with Judges Stephen Reinhardt and Jay Bybee, did not indicate when they would have a decision.

Christopher Wilmes is with Hughes, Socol, Piers, Resnick and Dym LTD of Phoenix.

David Daniel Weinzweig is with the Arizona Office Attorney General, Phoenix division.

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