Monday, 18 April 2016 09:23

Asset Forfeiture

In an era or country where there are corrupt leaders, this is one of the issues they face with the law. This is because most corrupt leaders use the opportunity of their position to confiscate money out of their country to foreign lands, with the hope of never being caught. However, with the amount of money laundering done in these foreign countries, it is difficult for the government to overlook such incidence. This in turn, brings the attention of foreign government leaders to every activity or operations done by these leaders. Once these leaders are caught in their dealings, they then face the issue of Asset Forfeiture.

Asset forfeiture, a practice done by the United States government, is the process of confiscating properties derived from or traceable to a broad range of domestic and foreign offences. These offences refer to criminal proceeds and instrumentalities located outside the United States, that are traceable to a criminal defendant prosecuted in the United States. Asset forfeiture may be administrative, criminal or civil. However, for purpose of this article, more emphasis will be done on civil forfeiture in the following paragraphs.

Civil Forfeiture also known as “an action in rem action” is an action taken against a property rather than a criminal defendant. The goal of this type of asset forfeiture is to remedy any harm caused to a society by criminal activity done by an individual or its leaders. Under well-established principles/law in the United States, forfeited properties are considered properties of the United States government. Just like every other civil case, this case progress with motion practices, discoveries and ultimately bench trial unless a jury trial is requested. During these proceedings, all third party claims must be litigated before the court enters a judgment for the government, by the authority of the Civil Asset Forfeiture Reform Act (CAFRA) of 2000.

Victims associated with this case, should seek the help of an attorney to represent them for asset forfeiture. These attorneys will represent the victim in the following areas:

a) Contest the entire asset forfeiture

b) Request and obtain victim compensation from the United States; or

c) Request and obtain victim compensation from the United States as to the defaulted assets and contest the forfeiture of all these assets.

The advantage of contesting an asset forfeiture is that the victim will be a party to the litigation, thereby controlling the pace and progress of proceedings, which can lead to property recovery. In contesting the entire asset forfeit, the attorney must file a notice of claim followed by an answer to the complaint. Also in this situation, the United States or Claimants can demand a jury, which then leaves the government with the burden to proof forfeitability of each property by a preponderance of the evidence. If this burden is satisfied, all interest on the property is forfeited unless claimants can prove their innocence on legit ownership of the property. That is having no knowledge of the activities leading to asset forfeiture. This aspect is called the Merits of Contesting the Forfeiture. On the other hand, Demerits of Contesting the forfeiture is when a claim, complaint and answer are not made before the deadline. If the deadline is not met and asset forfeiture is not successful, the chances of getting victim compensation might be negatively implicated. To avoid demerits of contesting forfeiture, the following should be done:

1. Motion practice to set aside the default judgment entered by the District Court as to the asset confiscated;

2. Motion practice to enlarge the time for filing a verified claim and answer to the complaint on behalf of the victim, inclusive of any appeals;

3. Preparing and filing verified claim and answer to the complaint;

4. Motion practice to dismiss or strike out the claims and answer filed by the victims’ complaint, inclusive of any appeals;

5. Defending against the victims’ claimants’ claims, if step 4 turns out to be unsuccessful;

6. Hiring additional experts and specialists including forensic accountants and investigators;

7. Conducting extensive fact and expert discovery, including interrogatories, depositions, document production.

8. Preparing for and conducting trial;

9. Appellate litigation

Aside contest filing, another area of focus is the victim’s compensation. Victim compensation in accordance with the Civil Asset Forfeiture Act (CAFRA) of 2000, states that the United States has the authority to return forfeited assets to its victims of any offense that led to forfeiture. This return can be done through remission, which is property distribution done solely by the Attorney General pursuant to the regulation of 28 C.F.R Part 9, and International Asset Sharing which is when the Attorney General has discretionary authority to share forfeited assets to the foreign country, as long as the other country assisted in the proceedings leading to forfeiture. Before this can be done, an agreement must be done between the US governments in order to share these assets with the other nation. However, it is mandatory that the United States retains a portion of the confiscated corrupt-related assets to recoup the cost incurred in confiscating those assets

The main advantage of pursing victim compensation is that there is a higher success rate of recovering all properties confiscated. On the other hand, victim compensation is more time consuming, the procedure is largely discretionary and not subject to judicial review, and the United States Congress may veto an asset sharing approval at any time.

Due to the firms experienced and well established attorneys in the industry, both in civil and bankruptcy, here at A.O.E Law & Associates, we represent victims with Asset forfeiture cases/asset recovery matters. As a firm that deals with bankruptcy cases, we are trained to have in-depth knowledge of asset tracing, asset manipulation and concealment that are often perpetrated by debtors in an effort to prevent recourse of such assets by creditors, hence our wealth of knowledge and skills in areas of asset identification. Simultaneously, our firm has successfully litigated numerous civil and criminal cases, including obtaining multiple rare unanimous jury verdicts in States and Federal Court. In addition to the above points, we are well experienced in international asset forfeiture defense, thereby broadening the firms capability to represent foreign countries in matters of asset forfeiture. This combination, alongside our intense research into Asset Forfeiture cases, makes the firm an ideal representative for victims in Asset forfeiture cases. To get more information on Asset Forfeiture or/and in dire need of a firm to represent you in such cases, I employ you to contact us for our services in this area.