Legal Issues

by Mike Masnick


Filed Under:
doj, forfeiture, guitars, seizure, wood

Companies:
gibson



Gibson CEO: US Government Won't Even Tell Us What Law They Think We've Violated

from the of-course-not,-they're-suing-the-wood dept

We recently wrote about the bizarre Justice Department raids of Gibson Guitar over some questions on the provenance of the wood. Gibson's CEO is now lashing out at the US government for refusing to even say what law was broken:
The raids forced Gibson to cease manufacturing operations and send workers home for the day while armed agents executed the search warrants. “Agents seized wood that was Forest Stewardship Council controlled,” Juszkiewicz said. “Gibson has a long history of supporting sustainable and responsible sources of wood and has worked diligently with entities such as the Rainforest Alliance and Greenpeace to secure FSC-certified supplies. The wood seized on August 24 satisfied FSC standards.”

Juszkiewicz believes that the Justice Department is bullying Gibson without filing charges.

“The Federal Department of Justice in Washington, D.C. has suggested that the use of wood from India that is not finished by Indian workers is illegal, not because of U.S. law, but because it is the Justice Department’s interpretation of a law in India. (If the same wood from the same tree was finished by Indian workers, the material would be legal.) This action was taken without the support and consent of the government in India.”
Now, remember, we noted in the earlier story that a similar raid a few years ago resulted in the feds filing charges against the wood specifically -- and not the company: United States of America v. Ebony Wood in Various Forms. If this all sounds familiar, it's quite similar to what we've seen with the feds seizing domain names. These involve "in rem" claims against property, as opposed to "in personam" claims against people or organizations. We've long been troubled by general seizure and forfeiture law in the US, which basically seems like a license for the US government to, at best, bully and at worst, steal from, anyone they don't like. So just as the US government is now claiming that it's not charging Puerto 80 with anything as it tries to keep its domains, the same thing appears to be happening here. The feds never actually accuse Gibson of violating any laws. They just say the wood is illegal and seize it.

Under seizure laws, no actual lawsuit ever needs to be filed. They can just seize, and later file for forfeiture, in which the government gets to keep what it seized. So they never actually file charges against the company, but just get to keep whatever was seized, claiming that the property itself is illegal or was used for illegal purposes. It's an amazingly Kafka-esque situation for those whose property was seized, and seems ripe for abuse. And, not surprisingly, there's a ton of evidence that law enforcement regularly abuses seizure and forfeiture laws.

Hopefully Gibson will continue to fight this, and draw some more attention to a system that really should be changed. I can understand seizure for the sake of holding onto evidence in an actual criminal trial. But outside of that, it seems difficult to justify the ability of the government to seize property and then claim it just gets to keep it, without filing any actual charges.

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  • icon
    E. Zachary Knight (profile), 2 Sep 2011 @ 9:09am

    The US government: Shoot first, avoid questions later.

    reply to this | link to this | view in chronology ]

  • icon
    Scooters (profile), 2 Sep 2011 @ 9:12am

    Geez.

    Perhaps this is the government's way of making up losses from piracy.

    You know, steal from taxpayers to give to the rich?

    Someone has to fund these seizures. Might as well be us... again.

    reply to this | link to this | view in chronology ]

  • icon
    Matthew (profile), 2 Sep 2011 @ 9:18am

    This must be sc-fi...

    If this whole saga does not culminate in a battle against invading aliens whose only weakness is to exotic woods, i will be sorely disappointed. I expect to be disappointed as a matter of course.

    reply to this | link to this | view in chronology ]

    • icon
      Nathan F (profile), 2 Sep 2011 @ 9:21am

      Re: This must be sc-fi...

      I'ma stick a little closer to earth and say they need the exotic wood to fight Vampires..

      reply to this | link to this | view in chronology ]

      • icon
        :Lobo Santo (profile), 2 Sep 2011 @ 9:36am

        Re: Re: This must be sc-fi...

        Naw, vampires are also destroyed by tax codes.

        Fact: We originally instated the IRS to combat the North American vampire problem. Ever since then most vampires in North America are seen in movies or Mexico.

        ;-P

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 2 Sep 2011 @ 11:05am

          Re: Re: Re: This must be sc-fi...

          actually, its that is a myth. Vampires are not harmed by taxes. All it does to them is make them shiny and they glitter like gold!

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Sep 2011 @ 9:25am

    :facepalm:

    When, precisely, did my government become such a monster?

    reply to this | link to this | view in chronology ]

  • icon
    Thomas (profile), 2 Sep 2011 @ 9:36am

    Another example...

    of the feds trying to destroy jobs for American workers. Gibson has done their best to comply with all laws and yet the feds want them out of business. Why? I start to think that the federal government, with their out of control spooks and Congress that tries to kill jobs, is more of a danger to the welfare of the citizens of the U.S. than the Taliban, Al Queada, and all the islamic jihadists in the world combined.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Sep 2011 @ 4:58pm

      Re: Another example...

      All the laws except perhaps the Lacey Act revision in 2008.

      I'm not saying Gibson is guilty, but my understanding is the package was intentionally mislabeled to get the wood out of India. That would make it smuggled wood.

      I'm not even saying it's a good law, but as my conservative friends always remind of how important it is for illegal aliens to respect our laws, it's probably important for Americans to respect import laws as well.

      Gibson is a great American company, but smuggling for a competitive advantage isn't the answer. They should be lobbying for subsidies on American-grown ebony so they don't have to deal with these import laws.

      reply to this | link to this | view in chronology ]

      • icon
        Manabi (profile), 2 Sep 2011 @ 9:42pm

        Re: Re: Another example...

        If the wood was brought into the country illegally, whether it was by Gibson or someone else, the government's doing everyone a great disservice by not filing charges. Just seizing the wood won't stop the smuggling, but charging the smugglers and putting them in jail will. (It'll also send a strong message to other would-be smugglers that they should reconsider smuggling anything.)

        No matter how you look at this the justice department is not handling it in the public's best interests.

        reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 4 Sep 2011 @ 9:01pm

        Re: Re: Another example...

        Subsidies are not the answer either. Banning (not taxing) the import of unethically grown or harvested materials is a good thing, and I agree with Manabi that there needs to be (reasonable) criminal penalties for violating those laws.

        reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 2 Sep 2011 @ 9:38am

    They needed wood to build a desk for the copyright holders in the Justice Department Office. They way the GAO doesn't call them out on buying a desk that was unnecessary.

    reply to this | link to this | view in chronology ]

  • identicon
    Guitar Guy, 2 Sep 2011 @ 9:43am

    Maybe it's a plot hatched by Fender.

    reply to this | link to this | view in chronology ]

  • icon
    btrussell (profile), 2 Sep 2011 @ 9:44am

    The RealIncredibleAssholesofAmerica cannot have "amateurs" running around everywhere creating/performing quality music. They must use substandard equipment so our "professionals" sound almost as good(After we use autotune and have real musicians in place behind the scenes, performing the actual tune you hear at a concert).

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Sep 2011 @ 9:47am

    Sucks to be in the receiving end of bullying, eh Gibson. Karma for suing game companies for infringement is paying now.

    reply to this | link to this | view in chronology ]

  • identicon
    AJBarnes, 2 Sep 2011 @ 9:51am

    Surprised?

    Justice Department trying to push MORE jobs overseas. Well, Obozo got 0% job growth and is well on his way to ruining the economy. Here's another nail in the coffin. Anybody happy with the CHANGE they voted for? Anyone have even CHANGE left after this administration??

    reply to this | link to this | view in chronology ]

  • icon
    Stephan Kinsella (profile), 2 Sep 2011 @ 9:55am

    Hard to feel sorry for Gibson....

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Sep 2011 @ 10:03am

    Wouldn't the judicious use of replevin be in order for this?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Sep 2011 @ 10:32am

    Curiously, the reason listed for "United States of America v. Ebony Wood in Various Forms" is "Drug Related Seizure of Property"
    Was the wood doing drugs?

    reply to this | link to this | view in chronology ]

  • identicon
    Kb, 2 Sep 2011 @ 11:34am

    Gibson's new line of guitars...

    Raw unpolished wood finish with a stamp on the back that says "BreaKin tha Law" (using, of course, the wood reclaimed from this seizure - *plan fail* - )

    reply to this | link to this | view in chronology ]

  • identicon
    Tony, 2 Sep 2011 @ 12:29pm

    What the heck?

    Knowing how strict US Customs can be and knowing that Fish and Wildlife also have a say in what wood comes into the States, you have to wonder just what the heck is really going on here. At a minimum, two government agencies thought it was just fine that Gibson bring this wood in from other countries, they paid duty on them (minimum 2.5%) and NOW the feds want to jump in and say this isn't legal? It is obvious that their paperwork was in order when the goods made entry into this country, so what is the problem?

    reply to this | link to this | view in chronology ]

  • identicon
    PRMan, 2 Sep 2011 @ 1:05pm

    Officers should be required to cite the law...

    Since, conceivably, they must have a signed warrant to raid a premises, we should have a law that requires law enforcement to notify the raided party of potential laws they have violated within 24 hours.

    reply to this | link to this | view in chronology ]

    • icon
      btrussell (profile), 3 Sep 2011 @ 3:42am

      Re: Officers should be required to cite the law...

      I kinda thought it was already on warrant.

      Cop was here a few years ago saying he had a warrant for my arrest. I asked him why, he told me, reading from the warrant while also showing me. So I agreed to meet him a few days later at the court house so he could arrest me.

      reply to this | link to this | view in chronology ]

  • identicon
    Ken, 2 Sep 2011 @ 1:32pm

    letter to my representative and senators

    If anyone wishes to use some of this text, please feel free (it is not copyrighted :-)

    Perhaps you have heard of the ongoing “situation” between the Justice Department and the Gibson Guitar Company. First let me state that I have no financial interest in the company. In fact I do not own a Gibson guitar nor do I play a guitar. However, as a Unites States citizen I find some very disturbing issues with this case.

    According to news reports and interviews with Mr. Henry Juszkiewicz, Chairman and CEO of the company, on August 24, 2011 a fully armed SWAT team raided two of the companies factories and shut down operations. The issue appears to be related to some of the wood which the company uses in making its products. Workers were allegedly forced from the building by armed agents and later interrogated by these agents without benefit of legal council. The wood in question was apparently purchased from sources in India and had met the necessary requirements and permits from the Indian government. According to Mr. Juszkiewicz “The Federal Department of Justice in Washington, D.C. has suggested that the use of wood from India that is not finished by Indian workers is illegal, not because of U.S. law, but because it is the Justice Department’s interpretation of a law in India. (If the same wood from the same tree was finished by Indian workers, the material would be legal.) This action was taken without the support and consent of the government in India.”

    This case raises several questions which I would like answered and I hope you would like answered as well.
    -Why is the US Justice Department in the business of interpreting Indian law?
    -Why was a SWAT raid necessary in a case which appears to involve at most an esoteric issue regarding what is a “finished product”? This raid was against FACTORY facilities of a long established American company, not crack houses.
    -Why were factory workers questioned by armed agents without the presence of legal council?
    -Is this action related to Gibson Guitar's suit against the government in which the company is trying to recover wood which the government confiscated in a similar raid in 2009? A case in which the government has not filed any charges?

    I would have expected to read about such actions in the history of the former Soviet Union or perhaps Nazi Germany. This sort of action is unacceptable in the United States. I expect you as my Representative to keep the government on a tight leash and to require its organs to work within the limits of the Constitution.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 4 Sep 2011 @ 9:05pm

      Re: letter to my representative and senators

      If anyone wishes to use some of this text, please feel free (it is not copyrighted :-)

      AFAIK, it is. Just saying it's not copyrighted doesn't make it so, thanks to automatic copyright. Actually I don't know of any way to write something and be sure it's public domain in the US.

      reply to this | link to this | view in chronology ]

  • identicon
    Modwild, 2 Sep 2011 @ 3:06pm

    Guitars for the homeless

    Maybe this is a way to give the homeless musical derelicts a good guitar so they can feel proud while they play on street corners. Govt issued guitar program. GISP. Makes as much sense as giving them cell phones.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Sep 2011 @ 6:44pm

      Re: Guitars for the homeless

      Can a guitar connect to a network, measure blood pressure, be used as a sensor, call for help, send automated messages, allow you to learn and have easy access to information, file job applications, find jobs, find counselling?

      If no I have to disagree, cellphones to the poor would be a matter of public utility.

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 4 Sep 2011 @ 9:06pm

      Re: Guitars for the homeless

      They didn't seize guitars, they siezed wood. Double fail. ;-)

      reply to this | link to this | view in chronology ]

      • identicon
        Tim, 9 Sep 2011 @ 5:23am

        Re: Re: Guitars for the homeless

        Yes they did. This must be the extent of your knowledge of this. They seized raw material (wood), finished guitars and electronic property (hard drives)

        reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 3 Sep 2011 @ 12:04pm

    Lacey Act

    Beyond issue of seizure is the problem with this idiotic Lacey Act law, which allows the federal government to enforce foreign environmental laws against US citizens, and the US government puts its *own* interpretation on those laws, which is often at odds with, or even in complete contradiction to, how the foreign country's own courts have ruled.

    Like lobster importer Abner Schoenwetter. He had never before been given so much as a parking ticket in his life, but was convicted, sentenced, and served 69 months in prison for violating the portion of the Lacey Act which makes it a felony to import fish or wildlife in violation of another country’s laws. A small percentage of his lobsters were undersized, which was a violation of a Honduran law which was later struck down by the Honduran courts as invalid *before* Schoenwetter was prosecuted by the DoJ.

    So basically the DoJ charged the guy with violating a non-existent Honduran law and threw him in prison for almost 6 years for it.

    reply to this | link to this | view in chronology ]

  • icon
    Andrea Johnson (profile), 5 Sep 2011 @ 2:55pm

    let's get the facts straight about this action

    Dear Matt and commentators,

    While I respect your position in the post “Gibson CEO: US Government Won’t Even Tell us What Law They Think We’ve Violated” (Sep. 2), I wanted to clarify some facts. I work for the Environmental Investigation Agency, a non-profit that has worked extensively on the problem of illegal logging and associated trade in wood products.

    The law the government thinks Gibson Guitars violated was the U.S. Lacey Act. While the government has not yet released a statement to the public on the case, this fact has been stated in multiple media accounts as well as the official affidavit that was filed to obtain a search warrant for the Fish & Wildlife Service’s August 24th raid and seizure of ebony and rosewood material, guitars and guitar parts. (This affidavit is unsealed and publicly circulating. Ref: “Affidavit in Support of Search Warrant #11-MJ-1067 A,B,C,D”.)

    The Lacey Act is a long-standing U.S. law that was amended most recently in 2008; it is an anti-trafficking statute which prohibits commerce of illegally-sourced wildlife, plants and wood products from either the U.S. or other countries. In this case, a judge granted the search warrant based on probable cause that Gibson imported wood that had been exported from India in violation of Indian laws. The import of illegally-sourced wood is a violation of a U.S. law.

    While an export restriction may not immediately appear to be connected to illegal logging, it is by no means irrelevant. It is common for countries to have bans and restrictions on export of logs or sawnwood; these laws are directly linked to forest management and protection efforts. They are often an important tool to help control export flows of illegally logged timber, and to ensure that the benefits of value-added processing contribute to development within these often poor countries.

    Enforcing the Lacey Act is not in the least an issue of undercutting US workers’ rights. The law was passed precisely to change the dynamics of a global trade that was undercutting US forest producers and wood products industry to the tune of 1 billion dollars annually, according to industry’s own figures.

    Like many new procedures, new laws like the 2008 Lacey Act amendments may create confusion and even fear in the short term, as companies adapt their practices and mindset. But these laws are necessary security measures for the protection of the world’ forests, and this adjustment process is part of creating a “new normal” that will prevent the trees so important to musical instrument makers and other wood industries from disappearing.

    Best regards,
    Andrea Johnson

    reply to this | link to this | view in chronology ]

    • identicon
      Hans, 6 Sep 2011 @ 8:30pm

      Re: let's get the facts straight about this action

      Thanks for the "facts", as you see them. Now it would be great to address the the real issue. That no one getting charged with a crime, instead the property is charged, and it doesn't have rights. Poof! The government takes property without compensation and makes it nearly impossible to get it back.

      reply to this | link to this | view in chronology ]

    • identicon
      Tim, 9 Sep 2011 @ 5:58am

      Re: let's get the facts straight about this action

      I speak as a musician, and more importantly in this case as a luthier and business person developing a business plan to start a small business building custom instruments.

      What "creates confusion and even fear in the short term" is the fact that we must deal with a Justice Department agent's interpretation of foreign law, and that you may have your property seized at the point of a gun, but never have your day in court.

      In this most recent raid, the material in question isn't even questionable. It's not roughsawn lumber. It's processed wood that had been cut to size and planed. It's the same fingerboard blank material that Gibson (and every other guitar manufacturer) has imported for years. The Indian government is well aware of the practice, and sees nothing wrong with it.

      You are quick to point out the merits of the law, rightly so. If Gibson has broken the law they should be charged and have the opportunity to face their accuser and defend themselves before a jury of their peers. I thought those were rights that were protected under our Constitution.

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 9 Sep 2011 @ 6:41am

        Re: Re: let's get the facts straight about this action

        If Gibson has broken the law they should be charged and have the opportunity to face their accuser and defend themselves before a jury of their peers. I thought those were rights that were protected under our Constitution.

        Seizure and forfeiture laws have kind of become an end run around such pesky requirements. :-(

        reply to this | link to this | view in chronology ]

  • identicon
    Androgynous Cowherd, 6 Sep 2011 @ 2:34am

    It seems to me that the courts, or the legislature, should do something simple to rectify this problem:

    1. Things may only be "seized" in the context of a criminal investigation.

    2. Things may only be "forfeit" in the context of a criminal conviction.

    In the event of an acquittal, any seized things must be returned. In the event of the investigation being dropped without charges being filed, or charges dropped without a trial, any seized things must be returned. And there'd have to be a ticking clock on seizures, past a certain time on which the things had to be returned if charges were not filed against their owner. (Once charges were filed, the defendant's right to a speedy trial would kick in.)

    reply to this | link to this | view in chronology ]

  • identicon
    geneandeddie59, 7 Sep 2011 @ 6:39am

    solution....

    ....manufacture Gibson guitars in India to avoid the problem.
    Importing finished products produced in accordance with the laws of the country of origin should work.

    Just look at all the cotton clothing we import from China.

    On another note.. it will help improve the Indian economy so much that they will eventually start exporting jobs to the US.
    ... sound funny.... China has already done that....
    http://www.businessweek.com/blogs/eyeonasia/archives/2006/04/haier_invests_in_south_caroli na.html

    reply to this | link to this | view in chronology ]

    • identicon
      Tim, 8 Sep 2011 @ 1:26pm

      Re: solution....

      Seriously? You're joking right? Send 1500-2000 jobs to India, and in return we start importing (more) cheap guitars. Indian companies, flush with all that money from cheap guitars, has to outsource a few jobs back to the US?

      That's your solution? Do you work in Washington?

      reply to this | link to this | view in chronology ]

  • identicon
    Robert Stevenson, 25 Sep 2011 @ 12:28pm

    Corrupt U.S. Government

    Hello... I am a guitar player myself and so naturally this artical caught my attention. This is just another way this corrupt government is violating our rights and taking them away unconstitutionally. Please lets ban together and fight these criminals.

    reply to this | link to this | view in chronology ]


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