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From Flashcardlet > SABT 2 (J) Asset Fortfeiture and Property > Flashcards

SABT 2 (J) Asset Fortfeiture and Property Flashcards

0
Q

2 ID the diff methods by which the ATF takes property into custody

A
  • Purchased
  • Electronic Surveillance Evidence
  • Seized as Evidence
  • Abandoned
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1
Q

1 State the purpose and types of Forfeiture

A
  • Proceeds- any property real or personal traceable to illegal activity need PC
  • Facilitation-anything that makes the crime easier to commit or harder to detect (require NEXUS)
  • Involved in money laundering- proceeds of the SUA, any property used to facilitate the money laundering offense, Property involved in the SUA
  • Racketeer influenced and Corrupt (Organization) RICO - organized conspiracy to commit or attempt to commit certain crimes by extortion or coercion
  • Involved in or used in FA offenses (ATF specific jurisdiction)
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2
Q

3 Describe the diff between

  • The legal process/Forfeiture process in which the Bureau can forfeit property without judicial action,
  • based on PC pursuant to warrant
  • Agency must provide timely notice to the person from whom the property was seized, if not property must be returned
  • Level the playing fields, changed the burden of proof
  • Applies to NFA cases
  • custom carve out (NFA forfeiture operated under title 26 of Internal Revenue Code)
  • No time deadlines, notice requirements governed by due process
  • Cost bond
  • shifting burden of proof
  • No innocent owner defense
  • Attorney fees
A

Administrative Forfeiture (civil in nature)

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3
Q

3 c
is an action that charges a crime against a person and includes the forfeiture of property. Criminal forfeiture is in personam and punitive
-Indictment or information (must provide notice of forfeiture) not a substantive count
-charges a crime against a person and also includes an allegation that property is forfeitable bc of the alleged crime
-criminal offense charged must support forfeiture
-forfeits only the defendants interest
-Mandatory part of defendants sentencing

A

Criminal forfeiture

not authorized to seize until criminal forfeiture until court enters a preliminary order

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4
Q

-Criminal Forfeiture

A
  • Money judgements are substitute assets
  • criminal forfeiture judgement may include
  • specific property
  • Money judgement
  • Substitute assets
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6
Q

3d-
In rem proceeding is brought against the property rather than individual
-Based upon the legal fiction that the property itself is guilty
-filing of verified in rem complainant
-may be initiated where there is no administrative forfeiture proceeding at the discretion of AUSA
-Require for real property and for any property that exceeds administrative forfeiture thresholds
-Death penalty for failure to meet deadline
-must be filed within 90 days

A

Civil judicial forfeiture

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7
Q

Civil Judicial Forfeiture (CAFRA)

A

-burden of proof
-US must prove forfeitable of defendant property by preponderance of evidence
-Proceeds always remain proceeds
-Facilitating property required substantial connection (nexus0 between property and illegal activity
-US can use evidence acquired after the filing of the complaint
-Burden of proof then shifts to claimant
-two pronged innocent owner defense
1 Legal interest heald at time of illegal conduct
Did not know of conduct giving rise to forfeiture or
-upon learning of offense, did all that could be reasonably expected under circumstance to terminate such illegal use of property ie call police revoked permission.
Innocent owner defense
2 Bona fide purchaser for value (BFP) of interest acquired after illegal conduct
-Did not know and had no reasonable cause to know property was subject to forfeiture

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11
Q

4 List the deadlines for administrative forfeiture under Civil Asset Forfeiture Reform Act of 2000 (CAFRA)

A
  • imposes strict time deadlines on gov
  • Applies to most administrative and civil forfeitures including GCA cases
  • imposes strict notice requirements on Gov
  • No cost bond
  • Burden of proof on Gov
  • Innocent owner defense
  • Attorney fees
  • ATF = 60 days to send notice
  • 90 days if an adoption case
  • Claimant has -30 days to file a claim
  • Gov = 90 days to respond to the claim by taking judicial action or returning the property
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12
Q

5 Recognized elements of an effective pre seizure plan

  • Prevent costly mistakes
  • Allows ATF to effectively prepare to manage the asset until it can be disposed
  • Clarifies role and responsibilities of the LEO entities
  • Prevents the asset from being devalued, damaged, destroyed, or used to further the criminal enterprise
A
  • Seize asset
  • store asset
  • Notice / advertisement
  • Claims and petitions
  • Disposition
  • Asset sharing

ID assets and their location

  • Determine value, including any liens
  • ID owners, potential title problems
  • Determining whether claimant 3rd party is “straw” or nominee owner
  • Evaluating other potential problems
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13
Q

6 ID FAST members and their roles

A
  • each division has the following
  • A contracted person who work to assist with asset forfeiture and pre seizure planning
  • Asset forfeiture inv AFI
  • Seized property inv SPI
  • Records examiner analyst REA
  • data analyst DA
  • Property custodian PC
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14
Q

7 Stated the time frame for entering property into N Force

A

-all property taken 5 days of date property enter ATF custody

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15
Q

8 Discuss how seized property should be packaged

A
  • FA must be rendered safe bf they are stored in the evidence vault
  • Tie wraps or zip ties must be used to secure the FA to render it inoperable
  • Magazine may not be stored in the magazine well
  • Other FA related material must be entered into N Force and the evidence vault as separate items
  • Do not place FA in bags Gun boxes can be used
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16
Q

Contraband per se = child porn counterfeit currency, no right to legal ownership , forfeiture wo formal process

A

Summary Forfeiture

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17
Q

3 B Define
non Judicial Civil Forfeiture
-Conduct by ATF as the seizing agency, Authorized by statue, Favored method in all applicable cases, Petitions for Remissions or Mitigation
-Certain property thresholds, personal prop up to $500,000 except conveyances
-All monetary instruments, regardless of value
-Bank accounts are not monetary instruments
-No real property

A

Civil Forfeiture

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18
Q

9 Describe how to process and store currency

A
  • accurate account of all money should always be made in presence of a witness (another agent or TFO)
  • may be transported to a financial institution for counting
  • any currency seized for administrative or judicial forfeiture shall be converted into casher check made payable to USMS and transferred to USMC within 5 working days of seizure.
  • only when retention serves a significant evidentiary purpose
  • less that $5,000 the AUSA must provide a memo of authorization from a superv AUSA
  • higher than $5, 000 approval must be obtained from DOJ ASSet Forfeiture and Money Laundering section (AFMLS)
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19
Q

10 define
Transfer of cash, forfeited property, or proceeds from the sale of forfeited property to a state or local LEO that directly participated in the forfeiture
-Authorized by FED Law
-FA that have veen forfeited to the US are never sold

JOINT INV mult Fed agencies working together on a case that result in a seizure, or with a state or local LEO joins force with FED inv agency
-ADOPTION-stated or Local LEO conduct 100 % of the pre seizure then request FED to take that seizure for Forfeiture under law

A

equitable sharing

20
Q

11 State when to use a Federal Contribution Form and A DAG-71 Form

A
  • FED agencies, when working a joint federal investigation with Stated or local agencies
  • based upon net proceeds
  • 20 percent min FEDERAl share
  • Administrative forfeiture share determined by fed seizing agency
  • Judicial Forfeitures share determined by the USAO
21
Q

12 Recognize permissible and impermissible uses of Equitable Sharing Funds

A
  • Future inv
  • LEO training
  • LEO equipment and operations
  • LEO facilities
  • Drug education and awareness programs
  • Asset accounting and tracking
  • Match funds
  • Non LEO enforcement use of share property
  • Payment of non LEO expenses
  • USE contrary of the laws of the stated or local jurisdiction
  • Extravagant expenditures
  • Salaries
22
Q

Adoptive Seizure

A

exception to SW requirement under 18 USC 981 b 2 C

  • Process by which a state or local LEO request a Fed LEO agency to adopt its seizure.
  • must still comply with due process requirements
  • may require turnover order from state coure
23
Q 
Neither FA (GCA and NFA) nor ammo are contraband per se
-May be taken from their owners and forfeited only pursuant to law
A

Forfeiture of FA

24
Q

Abandonment

A

1 Property is abandoned pursuant to GSA guidelines when the owner intent and voluntarily give up title to such property and title vests in the GOV
2 No forfeiture authority exist for abandoned property
3 Abandonment is the least desirable method of obtaining property
4 Property taken as on abandonment must be advertised for 3 consecutive weeks, in an ad containing a description of property, the location it was found, and the procedure to file a claim Furthermore, ATF must send notice via certified mail to any identifiable owners
5 BF taking property into ATF custody as abandoned, ATF S/A should first consider whether the property was inv
6 abandoned property must be maintained in ATF custody for a min of 3 yrs

25
Q

Review

Facility property got to prove the money was connection bt the property
-money launder -finance trans and evade taxes
-PC to seize for forfeiture , proof = preponderance of evidence
admin Fort= everything done in ATF
Summary Fort= contraband
-FA and Ammo = no thresh old of value (cannot be sold, or transferred) get destroyed
-Civil Asset CALFRA= 60 days to get notice out
-PRE seizure plaining get USMS involved
-There are FAST TEAMS in each Field Div
-N Fore = 5 days sized items
-Gun-zip tie, racks, no ammo
-Money u and witness get cashier check to USMS
-Forfeit money is ATF want to retain up to 5K supervisor or AUSA for approval
-Stated and local can share is directly participate DAV 71 if they want a share (FCF= FED for their share)

A

-

26
Q 
crime to knowing conduct a financial trans with proceeds from a specific unlawful activity SUA with the intent to 
1 conceal or disguise proceeds 
2 Promote SUA
3 Evade reporting requirements 
4 Evade Taxes
A

18 USC 1956 a 1 (20 year felony) interstate or foreign commence

27
Q

Types of Forfeiture

A
  • Summary
  • Non Judicial Civil
  • Administrative
  • Judicial
  • Civil
  • Criminal
28
Q

Deadlines for Administrative forfeitures Non CAFRA cases

A

ATF has =no specific deadline, notice must simply comply with due process

  • claimant has= 20 days to file a claim and post bond
  • Gov= mp specific deadline but action must comply with due process
30
Q

Seizure VS Forfeiture

A
  • taking temp custody of property bc based on Probable Cause
  • Legal process by which the title to property is permanently vested in the US based upon preponderance of the evidence (both civil and criminal)

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