ASSET FORFEITURE FUNDAMENTALS OF PROSECUTION

Transcription

1 ASSET FORFEITURE FUNDAMENTALS OF PROSECUTION Presented by: Gary D. Bergman Prosecuting Attorneys Council of Georgia State Prosecution Support Division THE GEORGIA UNIFORM CIVIL FORFEITURE PROCEDURE ACT Standardizes the procedure for all forfeiture statutes New Chapter 16 in Title 9 TWO PRIMARY LEGISLATIVE GOALS OF THE UCFPA PROVIDE GREATER ACCESS TO COURTS FOR CLAIMANTS PROVIDE FOR GREATER TRANSPARENCY IN THE USE OF FORFEITED ASSETS 1

2 WHEN DID IT TAKE EFFECT? July 1, 2015 Applies to all seizures of property for forfeiture that occur on or after July 1. THEORIES OF FORFEITURE (b) Facilitation Proceeds Close Proximity Weapons CASH SEIZURES IF NOT NEEDED FOR EVIDENTIARY PURPOSES DEPOSITED IN A SEPARATE ACCOUNT BEAR INTEREST, IF SUCH ACCOUNT IS AVAILABLE DEPOSITED IN A FINANCIAL INSTITUTION THAT HAS A BRANCH LOCATION WITHIN THE COUNTY WHERE THE CIVIL FORFEITURE PROCEEDING IS LOCATED 2

3 CASH SEIZURES The account holder is required to pay any accrued interest into the County Drug Abuse Treatment and Education Fund (OCGA ) Must be paid at the same time the account holder files its annual report under (g). CASH SEIZURES The account holder is required to pay any accrued interest into the county drug abuse treatment and education fund (OCGA ) Must be paid at the same time the account holder files its annual report under (g). Real Property Seizures Real property cannot be seized without a pre-seizure hearing. U.S. v. James Daniel Good Real Property, 510 US 43 (1993). 3

4 TIME REQUIREMENTS 30 days from seizure 60 days from seizure Types of Forfeiture Proceedings Quasi-judicial forfeiture proceedings under Code section In Rem forfeiture proceedings under Code section In Personam forfeiture proceedings under Code section Forfeiture Proceedings Special Statutory Proceedings OCGA

5 Quasi judicial Proceedings under Estimated value Notice of Seizure Claims Owners and Interest Holders In rem Proceeding Under OCGA Complaint for forfeiture Answers Owners and Interest Holders Discovery Hearings Under (f) Bench trials required in all forfeiture cases Burden of proof is preponderance of evidence Shifting Burdens 5

6 Innocent Ownership Objective and Subjective Components Vehicle Exception Fourth Amendment Fifth Amendment Sixth Amendment Eighth Amendment Constitutional Issues DISPOSITION AND DISTRIBUTION Forfeited assets, other than currency, are disposed of and distributed in one of three ways: SOLD IN KIND DISTRIBUTION DESTROYED 6

7 DISPOSITION AND DISTRIBUTION THE FORFEITURE POOL IS MADE UP OF THE FOLLOWING: FORFEITED CURRENCY THE PROCEEDS FROM THE SALE OF FORFEITED ASSETS; THE FAIR MARKET VALUE OF ASSETS TO BE DISTRIBUTED IN KIND DISPOSITION AND DISTRIBUTION The Forfeiture Pool is then paid out as follows: First: the payment of costs Second: 10% to the district attorney, if requested Third: pro rata to the state, local law enforcement agencies, or multijurisdictional task force according to the role each played. DISPOSITION AND DISTRIBUTION ORDERS OF DISTRIBUTION SUBMITTED BY STATE ATTORNEY Specify the time frame for the transfer of the forfeited asset and the entity responsible for the transfer. Provide a copy of the order to the CEO of each political subdivision whose LEA receives a distribution Provide a copy to any entity making a transfer of forfeited assets 7

8 DISPOSITION AND DISTRIBUTION Forfeited assets may be used at the discretion of the chief officer of the LEA for any OFFICAL LAW ENFORCEMENT PURPOSE DAs may use their forfeited assets for any OFFICIAL PROSECUTORIAL PURPOSE Reporting Requirements of OCGA (g) Who is required to report? Law enforcement agencies Multijurisdictional task forces District Attorneys State agencies receiving forfeited assets Reporting Requirements When is the annual report to be made? The annual report is to be submitted by January 31 each year for the previous calendar year 8

9 Reporting Requirements Where is the report to be submitted? LEAs to the political subdivision governing the jurisdiction Multijurisdictional Task Forces to each political subdivision governing the jurisdictions involved State Agencies to the State Auditor DAs to the PAC and to the State Auditor Reporting Requirements All reporting may be submitted electronically so long as it complies with the Uniform Electronic Transactions Act, OCGA , et seq. Reporting Requirements Where is the report to be submitted? Everyone must electronically transmit a.pdf copy to the Carl Vinson Institute of Government at UGA 9

10 Reporting Requirements Is there a form and if so, where can it be found? The PAC is required to create the forms used for law enforcement and for DAs The forms must be used in reporting The forms will be on the PAC website: SURPLUS PROPERTY When a state agency or DA determines that the property received as an in kind distribution is no longer needed, it shall be delivered to the Dept. of Administrative Services. - OCGA (f)(4)(B)(i) SURPLUS PROPERTY All other agencies shall dispose of in kind property in accordance with the political subdivision s policy and procedure. - OCGA (f)(4)(A)(i) 10

11 QUESTIONS??? Gary D. Bergman (770) (d) (770) (c) 11