This Friday in Atlanta there is the 26th annual seminar here in Atlanta for criminal defense lawyers. I was asked to talk about civil asset forfeiture, and how that often accompanies or is parallel to a criminal case. Here is the paper that is the subject of my presentation. Asset Forfeiture in Criminal Cases
As readers who waste some of their lives reading this blog know all too well, we have two court systems in this country where criminal cases arise: the federal system that is in all 50 states, and the separate systems used in each of those 50 states (plus the District of Columbia, Puerto Rico, Guam and a few other smaller locations). Asset forfeitures arise in both federal criminal cases as well as the counterpart state criminal matters that I regularly handle in the Georgia court system. While there are many parallels, there also are some differences.
Asset forfeiture is the process by which the government basically takes property, and says that the property belongs to the government because that property was used in, derived from, or is replacement of property used in or derived from a crime. The legal theory behind forfeiture is that the property reverted over to the government at the very point when the criminal conduct took place. As with many parts of the law, the theory and the practice are often very different.
I see a couple of recurring themes in asset forfeiture matters. One thing that occurs regularly is that the asset forfeiture is more and more becoming a part of the criminal case itself. The paper that is linked above describes this process. I see this more and more in federal criminal cases, especially economic crimes like healthcare fraud, white collar crimes and public corruption crimes such as bribery. Asset forfeiture is a matter that more and more federal criminal defense lawyers need to keep in mind. A “deal” in a federal criminal case might not look as good if the client comes to find out that he or she needs to forfeit a substantial amount of money along with going to prison for a while. Furthermore, more and more federal criminal cases include multiple financial punishments along with prison time or even if the client receives probation. We see an increasing number of federal criminal cases in which the Judge imposes forfeiture of assets, a fine, AND restitution, which seems like an unnecessary triple punishment from my vantage point.
Another thing I see more and more often is that a Defendant who pleads guilty to a federal economic crime is required to agree to complete “financial disclosure.” The paper linked above has an example of a federal plea agreement that required the Defendant to provide all documents and sit for a financial deposition. This can be very dangerous, a government lawyer asking my client about his or her finances right after that same client just pled guilty to committing an economic crime. You can imagine that some clients try to protect their assets from being used to pay a fine, forfeiture or restitution, yet at the same time a false statement can ratchet up the prison time for that client. This requires a lot of work by the federal criminal defense attorney when advising a client in such a situation.
Asset forfeiture in Georgia state cases is often more straightforward than the federal cases I handle. For one thing, Georgia more or less requires a full civil trial before the State can forfeit an asset (unless, of course, the Defendant agrees to pay that asset as part of an overall settlement and plea agreement). However, these civil trials are only in front of a Judge, and a jury therefore cannot protect an aggrieved property owner from whom the State has taken property. Also, the State rarely has Assistant District Attorneys who are as well-schooled in the intricacies of asset forfeiture as are the federal Financial Litigation Unit attorneys I see on a regular basis in my federal matters. This often gives defense counsel a slight advantage in State court cases.