The Strange World of Asset Forfeitures [Pt. 2]
Part 2 of 2: A Feature on Asset Forfeitures, Equitable Sharing, and Special Interrogatories by Dallas Fort Worth White Collar Crime Attorney Steve Jumes
Asset Forfeitures: Discovery, Complexity, and Expense
Asset forfeiture cases, if not quickly resolved, can become very expensive because they include massive discovery requirements which are typically handled by attorneys. For example, a claimant may want to depose a seizing officer or the government plaintiff may seek several years of bank statements, check stubs, and tax information. All of these requests as well as the review of such material is typically paid to private lawyers by the billable hour. Other discovery practices include requests for admission and answers to interrogatories. If this sounds intensive and expensive, then you get the point.
Requisites of a Claim
18 USC 983(a)(2)(C) mandate that a claim shall “(i) identify the specific property being claimed; (ii) state the claimant’s interest in such property; and (iii) be made under oath, subject to penalty of perjury. Echoing and expounding upon these requirements, Rule G (5) of the Federal Rules of Civil Procedure require that “a claim must: (A) identify the specific property claimed; (B) identify the claimant and state that claimant’s interest in the property’ (C) be signed by the claimant under penalty of perjury’ and (D) be served on the government attorney designated in the matter.
This means that a claimant cannot simply make a claim by showing a receipt similar to returning an item at Walmart. Instead, a person who claims property musty sign a statement under the penalty of perjury asserting how he or she owns the seized property and how it was legally acquired. Failure to do so can get the claim thrown out or force the claimant to answer further discovery.
Asset Forfeitures and Special Interrogatories
Rule G(6) gives the Government the right to serve discovery process to a claimant on the front end of a case forcing the claimant to state his or her “identity and relationship to the defendant property.”
For example, John Wiley Price, a county judge in Dallas, made a claim to a portion of $250,000 seized from his property. He simply stated the property was his and he wanted it back. The Government filed a special interrogatory in that case to force him to divulge which portion of it was his and how he acquired that money. This step is important because it may help the Government tie him to certain activities it alleges to be illegal.
But even for persons who aren’t themselves the target of a federal investigation, this is a very important consideration for claimants because they cannot be flippant when making a claim. Some people are wary of filing a public document describing what property they owe and explaining how they acquired it. For instance, a spouse who did not participate in a crime may assert an interest in her home on the basis of a community property interest. If combatting a proceeds theory, that spouse would have to explain how much he or she contributed to the value of that home and what the nature of his or her income is.
Just as important as a claimant’s privacy is the reality that deficient claims can cost claimants their standing in the lawsuit.
In Texas, prosecutors also have the right to force such disclosures under Article 59 of the Code of Criminal Procedure by making special exceptions to a judicial answer filed by claimants/respondents. Ultimately, certain aspects of privacy are foreclosed in asset forfeiture proceedings and the ability to navigate substantive and procedural rules is critical in this area.