San Diego — Some would say Richard Barnett and Sheldon Sherman are in the ill-gotten gains business. The two downtown attorneys earn money honestly, all right, but not always from honest people: they often help drug dealers get back money seized by the government, even when everybody knows where the cash came from.

"This is how it usually is," says Sherman, speaking by phone from his fifth-floor West Broadway office. "San Diego is one of the points of distribution. Drugs out, money in. So $20,000 is mailed here from across the country. Government intervenes. Seizes it. The frustrated recipient hires me to tell the authorities, 'It was sent by this person to help him open a motorcycle business,' or, 'He was going to buy cars with this.' It is always a business that would involve a transaction where it would not be unusual to have that kind of money in cash. I had another case where the guy told me he was going down to Tijuana, and he was going to bet on football games. The government had intercepted his mail and found about $35,000 in it."

Sherman says in truth he'd be surprised if motorcycles or cars or $35,000 in football bets were what the intercepted money was really sent for. He realizes it was likely drug money being sent back here to suppliers from dealers on the eastern seaboard, where many drugs are sent to earn greater profits than are possible on the West Coast. "We got $18,000 [of the $35,000 seizure] back. And the government gave it to us because it is cheaper for them, once they're facing an attorney. It costs them a lot of money to litigate. The more time their attorneys and agents spend on making their case, the more of that $35,000 they're burning up. So they make a deal.

"Yes," says Sherman, "I get [clients] who are receiving drug proceeds. I won't say always, but I would say most of the time. If you're in a legitimate business, you're not mailing $30,000, $40,000, $50,000 in cash across the country.

"They come to [me] in an effort to get the money back. They're not saying, 'Hey, it's drug money, and let's go get the money back.' That obviously isn't going to fly. I'm not saying you lie, but there is normally a story that can be submitted as to why the money was mailed in that particular [fashion], and what you hope is that you work out some kind of compromise. As they say, 50 percent of something is better than 100 percent of nothing."

At his office in the historic turn-of-the-century residence known as Forward House, attorney Rick Barnett, who says he handles more cash seizure cases than anyone else in town, has similar success stories. "Statistically I can tell you," says Barnett, 46, puffing away on a six-inch cigar in his upstairs office, "we've had a good run lately. In one case I got about $86,000 back from $92,000 worth of money and property the government seized. In another case we got $17,000 or $18,000 out of $20,000 back. In another case we got $27,000 out of $30,000 back. In another we got all $8000 back. But if they hadn't hired a lawyer like me, they probably wouldn't have seen a dime."

Neither Sherman nor Barnett apologizes for doing what he does. Both attorneys say they're on a crusade to defend the U.S. Constitution. Especially its fourth amendment, guaranteeing "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." And the fifth: "No person shall...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

"I think the way [the government] looks at it," says Barnett, "is, 'We'll grab the money and hope that half the people don't even bother to claim it,' because by the time they talk to a lawyer and find out how much it costs to be represented in these cases, they won't bother with it. So whether it's drug money or legitimate money ultimately doesn't matter, because the practicalities of the situation are that a lot of people can't defend themselves in these cases."

But why do people, especially drug dealers, risk sending cash or drugs through the mail in the first place? Sherman says the alternatives are becoming too risky. "It's an unwritten law: you take a car with a California plate, traveling cross-country, the odds are pretty good that that car is going to be stopped for some reason or other. And flying's getting tougher. Security at the airport, the fact they're x-raying all the bags, they have the dogs - it's a more difficult situation for them. And now, because all these mailbox places have cropped up, you can mail the money [or drugs] much more easily. It's less expensive. You don't have the cost of a courier. You don't have the cost of the plane ticket. You can send it overnight, so it's a much more attractive manner of doing it."

Last October the U.S. Postal Inspection Service began targeting U.S. mail distribution centers, starting in the Los AngelesPSan Diego area. By February they had confiscated over four tons of drugs, guns, and more than $15 million, mainly in cash, according to a report in the Cincinnati Enquirer.

Among the millions of parcels, postal inspectors pulled aside any that fit their profile of "suspicious packages." Those criteria for suspicion included handwritten labels, unusual names, packages posted from a zip code other than the sender's return address zip, packets coming from cities' known drug areas, and specific weights and sizes. After pulling a package aside, inspectors would show it to a drug-sniffing dog. Only if the dog "hit" on it, and then if a judge gave the okay, would they open it.

After that, again if a judge approved, they would often set up a "controlled delivery," in which one of their inspectors, disguised as a postal carrier, would deliver the cash or drugs, and as soon as the recipient signed for it, arrest them. In the first 18 weeks of the pilot project, post office inspectors arrested over 600 recipients.

Sherman says that's nothing to crow about. "Here's my bottom line," he says. "I don't think that your mail should be subjected to the intrusion that it's being subjected to. Period. Even if it's catching legitimate [drug money]. If that's [considered justification], why in the world have a constitution? Why don't we just suspend it and say, 'The end justifies the means'? It's an excuse used by the government to step on your civil rights in the name of the war on drugs."

Barnett says the criteria are too vague and don't force inspectors to find out specific evidence about the parties involved before ripping open their packages. "And don't forget, many are innocent," says Barnett. "It's the poor who are most likely to be the mailers of innocent money. The poor who can't afford to sue. Many immigrants don't have bank accounts. Banking facilities are not nearly as available to poor people as they are to people with better means. Banks have traditionally moved out of poor neighborhoods. Credit cards are less available to people from those types of neighborhoods. And so you see them buying more airline tickets with cash, you see them sending money through the mail. In this community, for instance, we have many people who send money to Mexico through the mail." What gets Barnett is the fact that mailed packages of money are often seized with nothing more than a "positive dog alert" on the money. "Oh yes, the dogs smell drugs. But the reason they smell drugs is that, according to numerous studies, over 90 percent of all currency, twenty dollar bills and above, throughout this country are contaminated with drugs. "Yet [in many cases] they're relying on that dog-alert factor and seizing the money without any information concerning the owner."

The 25 postal inspectors assigned to San Diego don't want to talk about their operation. For starters, they don't want to give away any of their interception techniques. But David Fast, an inspector who's spent the last 26 years trying to nail "the bad guys" who commit mail theft, mail fraud, make letter bombs, embezzle, and distribute drugs and child pornography by mail, says there are plenty of safeguards for the public.

"John Citizen has the Constitution to back him," Fast says, "and when a federal law enforcement agent believes there are drugs or [money] in a parcel, he's got to prove to the court's satisfaction that there's probable cause to get a search warrant to open that parcel. So it's a checks and balances system that we use. We're not just out there shooting in the dark."

Sherman and Barnett don't buy it. "By [our] representing a clearly tiny minority," says Sherman, "just the drug dealers, an infinitesimal percentage of the population, you're protecting a very important right, the right to be free from government intrusion. The constitution says that before you invade a person's rights, you need probable cause to do so. Well, probable cause is not taking a dog and going into a ups room and sniffing everybody's mail."