Federal asset forfeiture and the military

Air Force Law Review, Spring, 2009 by Steven A. Morley

  I. INTRODUCTION

 II. FEDERAL ASSET FORFEITURE LAW
     A. Overview
     B. Administrative Forfeiture
     C. Criminal and Civil Judicial Forfeiture

III. DEPARTMENT OF DEFENSE--DEFENSE CRIMINAL
     INVESTIGATIONS SERVICE (DCIS)

 IV. DOD/DOJ ASSET FORFEITURE PARTNERSHIP

  V. HOW WILL THE PARTNERSHIP WORK?
     A. From Whom Can DCIS Forfeit Assets?
     B. Can DOD Bring UCMJ Charges While DOJ Brings an
        Independent Civil Forfeiture Case?
     C. Can DCIS Seek Administrative Forfeiture?
     D. Civil Forfeitures and the Servicemembers Civil
        Relief Act

 VI. EFFECTIVENESS OF THE PARTNERSHIP THUS FAR

VII. CONCLUSION

I. INTRODUCTION

Prior to May 25, 2007, (1) the Department of Defense (DOD) and it subordinate branches could only seek forfeiture of pay and allowances from military members and select civilians subject to the Uniform Code of Military Justice who either received nonjudicial punishment under Article 15 (2) or were convicted by a court-martial. (3) Military forfeiture of assets that were used to facilitate or were proceeds of certain federal crimes committed by military members or others was previously non-existent. Such seized assets would have to be returned to the service member or abandoned.

While it is still not possible for an Air Force commander, for example, to seek criminal forfeiture of seized property in a standard court-martial proceeding, (4) the ability to forfeit beyond pay and allowances in military and other DOD settings became a reality when the DOD announced that it had joined the ranks of the Federal Bureau of Investigation (FBI), Drug Enforcement Administration (DEA), Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF), and others to become a participating member of the Department of Justice's (DO J) Asset Forfeiture Program. (5) This article discusses DOD's participation in DOJ's Asset Forfeiture Program. Section II gives a brief overview of federal asset forfeiture law and describes the several methods of accomplishing a successful federal forfeiture. Section III outlines DOD's designation of the Defense Criminal Investigation Service (DCIS) as the investigative agency used by DOD. A look at the DOD/DOJ forfeiture partnership will be discussed in Section IV. Section V will address the functionality and scope of the partnership paying particular attention to the unique aspects of forfeiture now available to DCIS and DOJ. And finally, Section VI will review the effectiveness of the partnership thus far.

II. FEDERAL ASSET FORFEITURE LAW

A. Overview

Federal asset forfeiture divests one who owns criminally obtained or facilitating property of all his or her right, title, and interest therein and vests such right, title, and interest in the government. In other words, because of the property's or its owner's involvement in criminal activity, forfeiture extinguishes all of the former owner's interests in that criminally derived or criminally involved asset, and vests title in the United States. (6) The United States, by way of the many law enforcement investigative agencies, forfeited more than $1 billion dollars each year for the past three years (7) from criminal assets that were proceeds of, facilitated, or used in connection with certain federal crimes. Not all federal crimes allow for forfeiture of assets, however. Understanding why some federal crimes allow for forfeiture and others do not can be a painstaking task. (8) Because forfeiture law is piecemeal and not all centrally located in one statute, it can be difficult to know what crimes allow for forfeiture of assets connected to those crimes. The most powerful forfeiture statute enacted by Congress is 18 U.S.C. [section] 981(a)(1)(G), which authorizes the forfeiture of all of a terrorists assets, foreign or domestic, whether the property was involved in the terrorism activity or not. (9) This statute attempts to incapacitate the terrorist completely by leaving him with no assets whatsoever to perpetrate further acts of violence against governments, their citizens, or their property. (10) Currently, forfeiture laws and statutes are such that the DOJ allocates an entire section of its Criminal Division to asset forfeiture and money laundering. (11)

Among the many purposes for asset forfeiture, some more prominent reasons are: (1) to punish the criminal; (2) to help restore the victim, (12) if any; and (3) to send a message to society that crime really does not pay. If a crime is one for which forfeiture is authorized, then the criminals will feel the impact where it hurts the most: the pocketbook. Those engaged in criminal enterprises who have their assets forfeited will not be financially well off once they are released from prison. Once assets have been forfeited, be they cash proceeds, bank accounts, vehicles, real property, or anything else seized in connection with certain federal crimes, the Attorney General has the authority to transfer forfeited property to any federal agency, or to any state or local law enforcement agency that participated in the seizure or forfeiture of the property. (13) More commonly known as "equitable sharing," state, local, and even federal law enforcement agencies that substantially assisted in the investigation or seizure may receive a portion of the sale proceeds of those forfeited assets. While some have argued that equitable sharing is the motivating factor behind investigating and prosecuting certain crimes, (14) the reality is that many ill-equipped state and local law enforcement agencies receive badly needed funding that would not come to them otherwise. These agencies are then able to purchase needed equipment and supplies that allow for continued successful investigations and prosecutions.