Joanna H. Kunz

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Twelve minutes ahead of the deadline set by Congress back in August, the U.S. Treasury Department issued a highly anticipated report listing Russian oligarchs and senior political figures.  That sound you heard at 11:48 last night?  A host of wealthy Russians heaving sighs of relief.

The “Countering America’s Adversaries Through Sanctions Act,” (CAATSA) which was passed with overwhelming bipartisan support last summer, instituted new sanctions against Russia related to its interference with Ukraine and its alleged tampering with the 2016 presidential election.

But it also required the Treasury Department to issue, no later than yesterday, a report identifying Russian oligarchs with close ties to Vladimir Putin. The report was to identify “the most significant senior political figures and oligarchs in the Russian federation . . . as determined by their closeness to the Russian regime and their net worth.”  The report was required to detail the relationship between identified oligarchs and President Vladimir Putin or “other members of the Russian ruling elite,” “any indices of corruption with respect to those individuals, “their net worth and known sources of their (and their families’) income, and the non-Russian business affiliations of those individuals.”

In addition to reporting on individuals, the report was to identify “Russian parastatal entities,” their leadership structures and beneficial ownership, and the scope of their non-Russian business affiliations.
Continue Reading  Nothing to See Here:  Treasury Report Naming Russian Oligarchs Rehashes Old News and Provides No New Sanctions

On June 5th, the United States Supreme Court held in Honeycutt v. United States that a criminal defendant is not jointly and severally liable for property his co-conspirator derived from the crime, and that he only can be ordered to forfeit property he actually obtained from the crime.  Although the decision was unanimous (with Justice Gorsuch abstaining), the outcome was far from preordained.

Until 2015, courts applying the forfeiture statute, 21 U.S.C. § 853, had uniformly held that co-conspirators are jointly and severally liable for amounts received pursuant to the conspiracy.  That rule was adopted by nine circuits.  However, in 2015, the D.C. Circuit split with its sister circuits in United States v. Cano Flores, rejecting joint and several liability for co-conspirators.    The district court in Honeycutt sided with the D.C. Circuit, but the Sixth Circuit reversed, following the overwhelming majority view of the other Courts of Appeal.

The result in Honeycutt, and the underlying analysis and related policy arguments, may have implications in other government enforcement contexts, including in securities cases. Further, the result appears to obligate the government to perform some degree of a tracing analysis to tie individual defendants to specific tainted funds – an analysis which might be difficult in complex fact patterns involving multiple defendants and the use of multiple entities or financial accounts.
Continue Reading  A Criminal Defendant Cannot Forfeit Property He Never Received

Gavel on sounding block

Ballard Spahr LLP Legal Team Obtains Key Court Victory

It is with great pleasure that I introduce the following post by our colleague and fellow blogger Joanna Kunz.  She was part of a team of Ballard Spahr lawyers who, working pro bono, recently obtained a landmark victory for their client — and for property owners throughout Pennsylvania — when the Pennsylvania State Supreme Court unanimously affirmed a lower court decision defining the parameters of civil forfeiture and arming Pennsylvanians involved in such cases with robust constitutional and statutory protections.  The team also included Jessica Anthony, who argued the case before the Supreme Court, and Jason Leckerman. — Peter D. Hardy

Elizabeth Young is a 72-year-old grandmother whose home and car the government sought to forfeit based on several relatively minor drug sales her adult son conducted out of the house and car. Young fought the forfeiture and lost at the trial level. However, last week the Pennsylvania Supreme Court affirmed the Commonwealth Court’s en banc reversal of that decision. Its 73-page opinion ends years of uncertainty in the law regarding the constitutional limits on civil forfeiture where the property owner often is not charged with any crime.
Continue Reading  Pennsylvania Supreme Court Strengthens Protections For Property Owners In Landmark Civil Forfeiture Decision

Department_of_Justice_Office_of_the_Inspector_General_seal_svgIn this post, we consider the Department of Justice’s (DOJ) Office of the Inspector General report (OIG Report), released on March 29, 2017, evaluating the DOJ’s oversight of its cash seizure and forfeiture operations.  This post is a companion to yesterday’s piece addressing the Treasury Inspector General for Tax Administration (TIGTA)’s recent report on IRS civil forfeiture for structuring violations.  Read in tandem, the OIG and TIGTA Reports suggest that many forfeitures occur without conclusive information about the details of the potential underlying crime, or even whether an underlying crime was involved at all.  The OIG Report concludes that more robust investigations and data collection on forfeitures would both allow DOJ monitor the effectiveness of its forfeiture efforts and increase public confidence in the forfeiture process.  Improved investigations and data collection also may lead to greater enforcement opportunities by tying forfeitures to ongoing investigations or initiating new enforcement actions based on findings in forfeiture investigations.

This OIG Report is the latest in a series of recent OIG evaluations of DOJ forfeiture initiatives which respond, at least in part, to civil liberties concerns raised by forfeiture reform advocates. (See OIG’s January 2015 report on so-called “cold” consent encounters at mass transit facilities, and its September 2012 investigation of forfeiture enforcement by a local Florida police department).  Both of those investigations concluded that more data analysis was needed to ensure that forfeiture operations were serving legitimate law enforcement interests.

The most recent report continues with the same theme, finding that the DOJ and its investigative components do not collect or use sufficient data to properly oversee seizure operations, or to determine whether those operations relate to or benefit criminal investigations. The OIG report focuses on three main topics:  (1) the lack of data assessing the relationship between seizure and forfeiture activities and investigative outcomes; (2) in the absence of such data, the OIG itself sampled 100 DEA cash seizures that had characteristics OIG believed made them “particularly susceptible to civil liberties concerns”; and (3) the DOJ’s relationship to state and local law enforcement, through both training and equitable sharing arrangements.  This post addresses topics (1) and (2).  As we have previously written, equitable sharing arrangements raise their own issues of balancing individual property rights against law enforcement objectives, which are conceptually distinct from the issues addressed here.
Continue Reading  Civil Forfeiture Under Fire – Part II

Forfeiture actions by Internal Revenue Service Criminal Investigation (IRS CI) based on alleged structuring activity have come under fire, yet again. Specifically, the Treasury Inspector General for Tax Administration (TIGTA) issued on March 30, 2017 a detailed report (Report) which evaluates IRS CI’s use of seizures for property owners suspected of structuring financial transactions. The Report sets forth detailed criticisms of past practices, as well as nine pointed recommendations for future forfeiture actions, which received a mixed response from IRS CI. This report was followed very shortly by the bipartisan re-introduction on April 3, 2017 of the “Restraining Excessive Seizure of Property through the Exploitation of Civil Asset Forfeiture Tools Act,” or RESPECT Act, which seeks to limit the ability of the IRS to conduct civil forfeitures based on structuring activity without underlying criminal activity.Suitcase full of money

We previously have discussed the growing resistance to IRS forfeiture actions based on the structuring of “legal source” funds, and the initial introduction of the RESPECT Act. In this two-part blog entry, we discuss in detail immediately below the new TIGTA Report and the mixed reaction to it by IRS CI.

However, it is not just IRS CI that is undergoing criticism. We will follow up tomorrow with a related post on the recent report by the Office of the Inspector General for the Department of Justice (DOJ). The DOJ report provides some similar critiques of the entire landscape of federal forfeiture, and makes additional recommendations on asset seizure and forfeiture in general.

These two Inspector General reports set forth some common criticisms of forfeiture enforcement. They also can be interpreted as suggesting that law enforcement agents could minimize some of the criticisms of civil forfeiture by reducing the total amount of forfeiture cases undertaken, while simultaneously increasing the amount of time and effort spent on investigating the remaining cases which are pursued. This is because the reports suggest that additional investigation – which often seems to be scant – may produce in many cases facts supporting forfeiture that could satisfy even some critics of civil forfeiture.
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Continue Reading  Civil Forfeiture Enforcement Under Fire – Part I

One of the many potential consequences of a criminal conviction is that the government may seize assets held by the defendant’s family to satisfy a criminal forfeiture order against the defendant himself. In United States v. Daugerdas, the Southern District of New York held that the wife of a lawyer convicted of a tax shelter fraud scheme lacked standing to raise questions about the underlying forfeiture of $32 million held in accounts which she controlled, and that she also was incapable of showing that any of her legal interests in the funds were superior to the government’s interests in forfeiture, which vested earlier when her husband began his scheme. The Daugerdas opinion illustrates the potential futility of transferring the proceeds of illegal activity to third parties. When it comes to criminal forfeiture, the U.S. is a special creditor.

Broken piggy bank

The order of criminal forfeiture at issue arose out of a well-publicized and significant tax shelter prosecution involving various tax professionals, including lawyers and accountants. Although criminal forfeiture cannot rest upon a substantive criminal tax violation under Title 26 (the Internal Revenue Code, or IRC), the government sometimes maneuvers around that statutory rule by charging what are really violations of the IRC as mail or wire fraud under Title 18. There is a DOJ policy which generally prohibits the use of the mail or wire fraud statutes to turn traditional tax violations into mail fraud, wire fraud or money laundering charges and/or forfeiture counts; this issue represents a complicated topic all by itself. Suffice it to say for the purposes of this discussion that the $32 million forfeiture order in Daugerdas rested on mail fraud convictions. The petitioner’s husband, former tax attorney Paul Daugerdas, was convicted and jailed for running an alleged tax fraud scheme from about 1994 to 2004, which produced at least $180 million in illegal proceeds. Approximately $32 million of these same proceeds – the subject of the contested forfeiture – were deposited between February 2000 and July 2009 into accounts held in the petitioner’s own name, a trust controlled by the petitioner, or a corporation the petitioner owned because her husband had assigned the corporation to her in 2002.
Continue Reading  Friends and Family and Criminal Forfeiture