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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