Fuss over forfeitures misses a few points

It's frustrating to work in a field of the law that very few understand and many others distort. Civil asset forfeiture has been taking a beating in the last year. The Washington Post, Reason Magazine, the New York Times, and Sen. (and presidential candidate) Rand Paul have been chiming in with story after story of supposed abuses by the government. They claim the government is running around seizing the bank accounts and other property of perfectly innocent citizens for no reason other than to fill the government's coffers. To be sure, abuses happen. But there are some important points to make.

First, articles lamenting the supposed abuses often conflate the 50 different state-administered forfeiture programs with the federal forfeiture program. They are different - sometimes radically different. The majority of abuses written about come from the state-administered programs. A few stories recounted police departments using forfeited funds to buy award plaques, food for office functions, and even to pay personal expenses. Other stories revealed that some police forces and district attorneys' offices had lax oversight on accounting for seized property, whether it was sold, and where the money went after the sales. Sometimes funds were spent before they were even forfeited. These stories almost universally detail state police abuses.

Second, articles concerning the federal program rarely detail abuses in expenditures (because of the rigorous systems of checks and balances in place), but instead focus on the propriety of the seizures in the first place. Most objections to federal use of asset forfeiture comes from two types of seizures - structuring and traffic stops.

Structuring is the process of depositing or withdrawing just under $10,000 cash in a day or over multiple days to evade reporting the transactions to the government. It is a crime all by itself. It is used to identify money laundering by drug cartels, fraudsters and other criminals. Crime often does pay. And when a criminal starts making a lot of money, he would have a hard time explaining huge cash deposits to banks, who are required by law to report suspicious activity to the government. So, to avoid suspicion, the criminal will get some of his buddies to take some of the cash and, on the criminal's behalf, deposit the funds into his bank account. These deposits will often be made over a series of days or weeks; will occur at bank branches all over the city, state or region; and will be in amounts just shy of $10,000.

Most of us will deposit or withdraw more than $10,000 at a time only a few times in our life. And when we do, we wouldn't even think to break up those transactions to avoid filling out a one-page form at the bank. So when a bank notices that a customers is repeatedly depositing $9,999 twice a day, and at different branches each time, that raises a red flag. And it should. Law-abiding citizens wouldn't do that. They have no reason to. But who does have reason to break up their cash transactions? Criminals, that's who.

Nevertheless, the hew and cry of those opposed to forfeiture has caused the Internal Revenue Service to institute a policy where they will refrain from seizing funds based on "clean structuring," which is when the IRS isn't sure why the structuring is occurring. Instead, they will try to determine what illegal activity is generating the funds and then move to seize the funds.

Traffic stops are another source of lamentation. In these cases, a driver is pulled over for some alleged moving violation. The driver will (almost always) give consent to search his vehicle, which turns up large sums of cash. When the police officer asks the driver where the money came from or what it's for, the driver often has no answer, so the police take the money. That might sound terrible to you. It should. The driver has no obligation to explain where he got his money, right? Well, what if I told you that the driver had actually been under surveillance as he entered a known drug house empty-handed and then a few minutes later exits carrying a weighted duffel bag? What if I told you the driver was unemployed, or had prior convictions for distribution or trafficking in narcotics? Would it change your view of the situation? It should.

In the vast majority of traffic stop cases, the seizure and forfeiture goes uncontested. And that isn't because the process for challenging the seizure is difficult or complicated. It's because the money comes from criminal activity and few criminals want to come forward to further expose themselves to possible criminal liability.

Opponents whine about how money and property are forfeited without a person being charged with a crime, let alone convicted. But that's why civil asset forfeiture is so valuable. There are many cases where the government can prove that the property came from an illegal source, but can't prove that any one person, or the person who possessed it at the time of seizure committed the crime that generated the property.

A recent case in the Central District of California illustrates why both traffic stops and structuring are necessary. The federal government successfully forfeited a Lamborghini that had been purchased using structured deposits. The money came from a man who was affiliated with the Sinaloa drug cartel and even had ties with El Chapo Guzman, the Sinaloa boss who broke out of a maximum security prison in Mexico last month. The government could not prove that the money was drug proceeds because it didn't see the transactions take place, the money didn't go through some official drug cartel bank account such that the government could trace the funds in that manner, and the buyer didn't use his real name. The Lamborghini was seized after an alert police officer noticed the driver behaving suspiciously in the parking lot of a local business. He ran the vehicle's plates and found they were expired by over a decade. The officer approached the driver, who claimed not to be the owner and produced registration that was in a name different than that assigned to the expired plates. The supposed owner shows up a bit later, but is unable to produce any evidence of his ownership, so the officer impounds the car until the owner can provide proof of ownership. Guess what - the "owner" never comes back.

Lastly, at the federal level there are a number of procedural safeguards in place. Contrary to what is often written, the process is not difficult. In fact, most agencies utilize a one- or two-page form where the claimant has to simply check a box, sign his name, and send it back. The process from there is no more burdensome than any other civil lawsuit. The government must prove the property came from some illicit source or was used in a crime, which the claimant can challenge. But if the government meets its burden, which is by a preponderance of the evidence (i.e., "more likely than not"), then the burden turns to the claimant to prove he had no knowledge of the criminality and is an "innocent owner."

Think about how difficult it would be for you to prove that you own your vehicle, that you've made payments on it, and that you have a job. Not too difficult, right. But for a criminal, whose primary source of income is illegal activity, it actually becomes pretty difficult to prove he's an innocent owner - because he isn't.

The truth is that civil forfeiture is an extremely useful tool to deprive criminals of the fruits of their crimes and to repay victims. The abuses so often written about could be righted by tweaks to state laws and law enforcement policies. There's no need, in fact it would be a gross overreaction, to obliterate the program in its entirety.

Lucas Rowe is a special assistant U.S. attorney in the Central District of California. The views expressed are his individually and do not represent the views of the U.S. attorney's office or the Department of Justice.