2011 law enforcement conference presentation - asset forfeiture

8/3/2019 2011 Law Enforcement Conference Presentation - Asset Forfeiture

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and the Application ofand the Application of

Ohio Revised Code Title 2981Ohio Revised Code Title 2981

John D.John D. FerreroFerreroStark County Prosecuting AttorneyStark County Prosecuting Attorney

Presented b : Gerard T. YostPresented b : Gerard T. YostAssistant Prosecuting AttorneyAssistant Prosecuting AttorneyCivil DivisionCivil Division Asset ForfeituresAsset Forfeitures

(330) 451(330) 451--78567856EE--mail [email protected] [email protected]


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Purpose governing ForfeiturePurpose governing Forfeiture

Provide economic disincentives and remedies toProvide economic disincentives and remedies to

deter and offset the economic effect of offensesdeter and offset the economic effect of offenses Ensure proportionality of forfeituresEnsure proportionality of forfeitures

rdrd

Prioritize restitution for victimsPrioritize restitution for victims

Property subject to Forfeiture *Property subject to Forfeiture *

Contraband involved in an offenseContraband involved in an offense

Proceeds of the crimeProceeds of the crime

Money derived directly from the offenseMoney derived directly from the offense

Instrumentality of the CrimeInstrumentality of the Crime

Used or intended to be used in the commission orUsed or intended to be used in the commission orfacilitation of an offense if:facilitation of an offense if:

Felony offenseFelony offense Misdemeanor with forfeiture specifically authorizedMisdemeanor with forfeiture specifically authorized

An attempt to commit a felonyAn attempt to commit a felony

And:And:

Offense could not have been committed without the itemOffense could not have been committed without the item

Primary use of the item was to commit the offensePrimary use of the item was to commit the offense

Extent the item furthered the commission of the offenseExtent the item furthered the commission of the offense


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Abandoned PropertyAbandoned Property

Property collected as evidenceProperty collected as evidence

Found propertyFound property

Seized items for forfeiture but not filed because ofSeized items for forfeiture but not filed because oftiming or amount too smalltiming or amount too small

Can lump numerous small cases togetherCan lump numerous small cases together

Must give notice to owner and allow them to pick upMust give notice to owner and allow them to pick upitem (use reasonable efforts to notify them by certifieditem (use reasonable efforts to notify them by certifiedmail)mail)

Publish notice in newspaperPublish notice in newspaper

Special RemediesSpecial Remedies 2981.032981.03

Court may, upon application of State, issue an orderCourt may, upon application of State, issue an ordertaking any reasonable action necessary to preserve thetaking any reasonable action necessary to preserve thereachability of the propertyreachability of the property

Restraining ordersRestraining orders

Requiring a bond postingRequiring a bond posting

Insurance policyInsurance policy

Inspection(s)Inspection(s)

Order placement of a lien against the propertyOrder placement of a lien against the property

Appointment of receiver or trusteeAppointment of receiver or trustee

Seizure and notificationSeizure and notification

Law Enforcement officer may seize property withLaw Enforcement officer may seize property withProbable Cause to believe it is subject to forfeiture.Probable Cause to believe it is subject to forfeiture.

If property is titled or registered:If property is titled or registered: Shall give Certified mail notice at Last known address asShall give Certified mail notice at Last known address as

soon as practical after seizure.soon as practical after seizure. May also give notice orally or by any means includingMay also give notice orally or by any means including

telephonetelephone

If unable to notify after reasonable good faith efforts, thoseIf unable to notify after reasonable good faith efforts, thosedocumented efforts will constitute fulfillment of the noticedocumented efforts will constitute fulfillment of the noticerequirementrequirement


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TimingTiming

If property is seized and no criminal forfeiture is filedIf property is seized and no criminal forfeiture is filedthe county prosecutor where the seizure occurred shallthe county prosecutor where the seizure occurred shallcommence a civil forfeiturecommence a civil forfeiture

Within 30 days for Mobile instrumentality and personal,Within 30 days for Mobile instrumentality and personal,business or overnmental recordsbusiness or overnmental records,,

Within 60 days for all other itemsWithin 60 days for all other items

Time may be extended by agreement of the partiesTime may be extended by agreement of the parties

Time may be extended by the court for good causeTime may be extended by the court for good cause

Automatic StayAutomatic Stay

The filing of a charging instrument for an offenseThe filing of a charging instrument for an offensethat is also the basis of a civil forfeiture actionthat is also the basis of a civil forfeiture actionshall stay the civil actionshall stay the civil action

This is newThis is new under the old law a stay was granted ifunder the old law a stay was granted ifrequested by the prosecutorrequested by the prosecutor

Underlying Criminal OffenseUnderlying Criminal Offense

A civil action for forfeiture may be commencedA civil action for forfeiture may be commencedregardless of whether the offender has:regardless of whether the offender has:

Pleaded Guilty to the underlying offensePleaded Guilty to the underlying offense

Been convicted of the underlying offenseBeen convicted of the underlying offense


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Advantages in Civil ForfeitureAdvantages in Civil Forfeiture

Can utilize the civil discovery process to discover assetsCan utilize the civil discovery process to discover assetsthat may have been missed and include themthat may have been missed and include them

Use civil discovery to gain evidenceUse civil discovery to gain evidence interrogatories,interrogatories,depositions, admissions etc. are all good tools and a lotdepositions, admissions etc. are all good tools and a lotof times not understood by the claimants and even theirof times not understood by the claimants and even theirattorneys that are more familiar with criminal casesattorneys that are more familiar with criminal cases

The approach to the claimants 5The approach to the claimants 5thth amendment privilegeamendment privilegeis different and proves to be an advantage (negativeis different and proves to be an advantage (negativepresumption if used)presumption if used)

Can call the defendant himself to the witnessCan call the defendant himself to the witnessstand and question himstand and question him

Can introduce prior convictions and criminalCan introduce prior convictions and criminalhistor in the hearinhistor in the hearin

Can use remedies available under the Civil rules:Can use remedies available under the Civil rules: Default JudgmentDefault Judgment

Summary JudgmentSummary Judgment

Diminishing or interfering with forfeitableDiminishing or interfering with forfeitableproperty 2981.07property 2981.07

It is a separate criminal offense to destroy,It is a separate criminal offense to destroy,damage, remove, or transfer property subject todamage, remove, or transfer property subject toforfeitureforfeiture

It is also an offense to take action re ardinIt is also an offense to take action re ardinproperty subject to forfeiture to:property subject to forfeiture to:

Prevent the States seizure of the propertyPrevent the States seizure of the property

Prevent the Courts jurisdiction over the propertyPrevent the Courts jurisdiction over the property

Devalue the property (place liens on it)Devalue the property (place liens on it)


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PenaltiesPenalties

Based on value of the forfeitable property similarBased on value of the forfeitable property similar

to a theft offense:to a theft offense: Under $500Under $500 M1M1

$500 to $4999$500 to $4999 F5F5

$5000 to $99,999$5000 to $99,999 F4F4

$100,000 or more$100,000 or more -- F3F3

Forfeiture assetsForfeiture assets

$$ Cash $$$$ Cash $$

Do we have enough evidence to seize?Do we have enough evidence to seize?

Do we have enough evidence to forfeit?Do we have enough evidence to forfeit?

We must prove cash is proceeds so if he gives anWe must prove cash is proceeds so if he gives an

explanation for the cash we will have to proveexplanation for the cash we will have to proveotherwiseotherwise

We need more than cash and drugs on the individualWe need more than cash and drugs on the individualat the time of arrest!at the time of arrest!

This is the beginning of your forfeiture case not the end ofThis is the beginning of your forfeiture case not the end ofit.it.


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Evidence to assist the forfeitureEvidence to assist the forfeiture

Test money for drug tracesTest money for drug traces

Get statements from individuals (Miranda mayGet statements from individuals (Miranda mayapply so be aware)apply so be aware)

certainly doesnt apply to these)certainly doesnt apply to these)

Include observations in reports (such as youInclude observations in reports (such as youwitnessed a hand to hand transaction prior towitnessed a hand to hand transaction prior tocontact)contact)

Document Buy Money in the cashDocument Buy Money in the cash

Detail how and where the cash was received (was it inDetail how and where the cash was received (was it inwallet or money clip or stuffed in shoe or crotch)wallet or money clip or stuffed in shoe or crotch)

Document if drugs and money found together (in theDocument if drugs and money found together (in thesame can box or crown ro al basame can box or crown ro al ba

Document the denominationsDocument the denominations -- they may matter (allthey may matter (alllarge bills, all $20s, etc.)large bills, all $20s, etc.)

Prior record and prior forfeitures are also importantPrior record and prior forfeitures are also importantconsiderationsconsiderations

VehiclesVehicles

Proceeds or instrumentality (or both)Proceeds or instrumentality (or both)

ProceedsProceeds evidence is the same as cashevidence is the same as cash

Instrumentality:Instrumentality:

Could Defendant have committed the offense withoutCould Defendant have committed the offense withoutthe vehiclethe vehicle

Was the primary use of the vehicle to commit theWas the primary use of the vehicle to commit theoffenseoffense

To what extent did the vehicle further the commissionTo what extent did the vehicle further the commissionof the offenseof the offense


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Innocent OwnerInnocent Owner

A true Innocent owner has a defense toA true Innocent owner has a defense toforfeitureforfeiture

Determine if a true innocent owner or merely aDetermine if a true innocent owner or merely astraw title holder to insulate the defendant fromstraw title holder to insulate the defendant fromor e ureor e ure

Interview registered owner ASAP (even by phone) beforeInterview registered owner ASAP (even by phone) beforedefendant has the time to organize a storydefendant has the time to organize a story

Check title history to learn when they took ownership andCheck title history to learn when they took ownership andwhat they paid for the vehicle (was it a gift or less thanwhat they paid for the vehicle (was it a gift or less thanvalue transfer)value transfer)

Real PropertyReal Property

Instrumentality (grow or storage facility)Instrumentality (grow or storage facility)

Proceeds (paid for with drug money)Proceeds (paid for with drug money)

Proportionality test applies to instrumentality but notProportionality test applies to instrumentality but notproceedsproceeds

May have an argument for bothMay have an argument for both

Personal propertyPersonal property

Should you seize the 52 plasma TVShould you seize the 52 plasma TV

Should you seize the 13 color TVShould you seize the 13 color TV

Should you seize the slate pool tableShould you seize the slate pool table

Should ou seize the leather livin room suiteShould ou seize the leather livin room suite Should you seize the video game systemShould you seize the video game system

Should you seize the power toolsShould you seize the power tools

Should you seize the diamond ringsShould you seize the diamond rings


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ConsiderationsConsiderations

Can you move itCan you move it is it worth tryingis it worth trying

Can you store itCan you store it Can you safe guard itCan you safe guard it

itit

What is its true valueWhat is its true value

Can you insure it wont get lostCan you insure it wont get lost

DocumentationDocumentation

ReportsReports

Copy reports and narrative supplements for all seizureCopy reports and narrative supplements for all seizurecases (Do narrative reports if a seizure has occurred)cases (Do narrative reports if a seizure has occurred)

Seizure files should be maintained with the informationSeizure files should be maintained with the informationfor forfeiture case preparationfor forfeiture case preparation

Nature of property to the offenseNature of property to the offense

Location of the property at seizureLocation of the property at seizure

Condition of the property at seizureCondition of the property at seizure

Statements of Defendant and others involvedStatements of Defendant and others involved

Conditions of arrest or warrant executionConditions of arrest or warrant execution


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Investigative PlanningInvestigative Planning

Stop and arrest seizuresStop and arrest seizures

No particular planning involved but be alert andNo particular planning involved but be alert andobservantobservant

Question defendants employment or source for the itemQuestion defendants employment or source for the item

Test cash for drug tracesTest cash for drug traces

Check ownership of assetsCheck ownership of assets

Interview (even by phone) alleged innocent ownersInterview (even by phone) alleged innocent owners Opens the door for falsification if we can prove they are fronting for theOpens the door for falsification if we can prove they are fronting for the

defendant to avoid forfeituredefendant to avoid forfeiture

Long term investigationsLong term investigations

Continue the investigation under the same caseContinue the investigation under the same casenumber or have an easy way to cross referencenumber or have an easy way to cross referenceto ease compiling the evidence for a pattern orto ease compiling the evidence for a pattern or

course of conductcourse of conduct Maintain consistence of investigatorsMaintain consistence of investigators

Although not always possible or practicalAlthough not always possible or practical it is best whenit is best whenone officer or unit follows a case throughone officer or unit follows a case through


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Forfeiture InvestigationsForfeiture Investigations

Vs.Vs.

Criminal case InvestigationsCriminal case Investigations

Forfeiture usually focuses on pattern, life style orForfeiture usually focuses on pattern, life style orbig picturebig picture

Criminal case usually focuses on the point in timeCriminal case usually focuses on the point in timeof the articular crimeof the articular crime

Nature or conduct of the DefendantNature or conduct of the Defendant

Is the defendant making a living from the activityIs the defendant making a living from the activityor supplementing a legitimate income or businessor supplementing a legitimate income or business

Is the obvious asset(s) the proceeds or shouldIs the obvious asset(s) the proceeds or should

we di further to discover other assetswe di further to discover other assets How big is our fish?How big is our fish?

Street dealer or supplier or major playerStreet dealer or supplier or major player


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Nature of the underlying offenseNature of the underlying offense

Is this a possession or a trafficking caseIs this a possession or a trafficking case

Are the assets truly proceeds or instrumentalityAre the assets truly proceeds or instrumentality Possession of drugs and money at the same time is notPossession of drugs and money at the same time is not

enoughenough look furtherlook further

Investigation considerationsInvestigation considerations

Be alert and aware of possible forfeitures with all arrestsBe alert and aware of possible forfeitures with all arrests especially drug arrestsespecially drug arrests

Follow the moneyFollow the money asset tracing is very important toasset tracing is very important toforfeiture casesforfeiture cases

Bac groun in ormation is importantBac groun in ormation is important Employment historyEmployment history

Family history (finances)Family history (finances)

Potential for assets to be giftsPotential for assets to be gifts

InheritanceInheritance

Criminal history (especially crimes that might be income generatingCriminal history (especially crimes that might be income generating

Preliminary informationPreliminary information

Begin financial profile at the beginning of theBegin financial profile at the beginning of thecriminal investigation to determine what you arecriminal investigation to determine what you aredealing withdealing with

Unexplained standard of livingUnexplained standard of living Lots of home improvements (may be money laundering atLots of home improvements (may be money laundering at

Home Depot)Home Depot)

Frequent vacations (most legitimate jobs and businessesFrequent vacations (most legitimate jobs and businessesdont afford this)dont afford this)

Assets frequently listed in other peoples nameAssets frequently listed in other peoples name


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Even in stop and arrest cases a preliminaryEven in stop and arrest cases a preliminary

investigation is essentialinvestigation is essential Explanation for the asset in his possessionExplanation for the asset in his possession

EmploymentEmployment

Ownership of the item (Who owns the car and talk toOwnership of the item (Who owns the car and talk tothem)them)

Search WarrantsSearch Warrants

Application should always include:Application should always include:

Financial recordsFinancial records

Bank recordsBank records

Asset ownership recordsAsset ownership records

Evidence of money launderingEvidence of money laundering

Business recordsBusiness records Remember it is always easier to obtain financial information andRemember it is always easier to obtain financial information and

records from the defendant himself than it is to shoot in the dark torecords from the defendant himself than it is to shoot in the dark tolocate the informationlocate the information

Other sources of financial informationOther sources of financial information

SubpoenasSubpoenas once a case is openonce a case is open

Civil discovery processCivil discovery process once case is openonce case is open

Mail coversMail covers who is suspect getting mail fromwho is suspect getting mail from

Grand JuryGrand Jury Requires a strict policy and compliance with the policyRequires a strict policy and compliance with the policy nono

fishing expeditionsfishing expeditions


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CautionsCautions

Dont lose sight of the criminal investigationDont lose sight of the criminal investigation

Primary focus is to stop criminal activity notPrimary focus is to stop criminal activity notgenerating revenuegenerating revenue

Careful not to appear to be selling criminal pleaCareful not to appear to be selling criminal pleabargainsbargains

Adhere to forfeiture policy to avoid appearanceAdhere to forfeiture policy to avoid appearanceof haphazard approachof haphazard approach

Recognize real innocent ownersRecognize real innocent owners

Networking and cooperationNetworking and cooperation

MultiMulti--jurisdictional pacts are helpful whenjurisdictional pacts are helpful whenproperty is in multiple locationsproperty is in multiple locations

Agency cooperation is essential within a countyAgency cooperation is essential within a countyor geographic area as big cases frequently crossor geographic area as big cases frequently crossur s c ona nesur s c ona nes

Equitable sharing agreements with federalEquitable sharing agreements with federalagenciesagencies

Frequently local jurisdictions can pick up asset forfeituresFrequently local jurisdictions can pick up asset forfeituresthat dont meet the federal threshold to forfeitthat dont meet the federal threshold to forfeit

2011 law enforcement conference presentation - asset forfeiture

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