Military Asset Forfeiture

Sunday, August 12th, 2012

by Eapen Thampy, Americans for Forfeiture Reform.

The Department of Defense Criminal Investigation Service now has the ability to use federal asset forfeiture and “Equitable Sharing” provisions to seize and forfeit property:

In order to gain sharper teeth in its investigations and prosecutions, DCIS added something more to its arsenal in 2007. A Memorandum of Understanding outlining basic functions and guidelines of DCIS’s participation in the DOJ’s Asset Forfeiture Program was formalized on May 25, 2007. Before this MOU became official, DCIS could only seek civil judgments and settlements for large sums of money as some form of financial punishment.

Assets being sought for forfeiture by DCIS are entered into DOJ’s Consolidated Asset Tracking System (CATS). DOJ’s CATS system, a controlled DOJ database, tracks assets through the forfeiture process and gives the Attorney General a good picture of what assets are being forfeited, in what amounts, from whom, and by what investigative agency. CATS, however, is only as accurate as the end user or data entry specialist who inputs the information at the local level. If assets are being forfeited but are not entered into CATS, DOJ has no other way to know what assets are being forfeited by each investigative agency.  As the forfeiture partnership progresses, CATS should provide an accurate reflection of the assets being forfeited by DCIS.

Another aspect of the DOD/DOJ MOU is that the United States Marshal’s Service (USMS) will be the custodian of all assets seized when DCIS is the lead investigative agency. This is common practice for other DOJ criminal investigative agencies such as the DEA, FBI, and some non-DOJ participating investigating agencies such as the United States Postal Inspection Service (USPIS).

Part of the rationale for establishing DCIS as a participating agency in the DOJ Asset Forfeiture Program, specifically the Assets Forfeiture Fund, are the two DCIS capabilities that were not available before 2007. As previously described, DCIS now has the ability to take  [*204]  the profit out of crime affecting DOD and its sub-agencies. Additionally, the MOU gives DCIS the ability to receive equitable sharing funds directly from the DOJ Assets Forfeiture Fund. Equitable sharing is available to DCIS if it was not the lead investigative agency seeking forfeiture on a case but contributed to the investigation. The MOU establishes that DCIS can not only seek equitable sharing from DOJ criminal investigative agencies, but also investigative agencies that participate in the Treasury Fund and Postal Fund. An example of this would be when IRS Criminal Investigations is the lead agency on a forfeiture case that DCIS substantially assisted. Funds shared and received must be used in accordance with 28 U.S.C. § 524(c), the Attorney General’s Guidelines on Seized and Forfeited Property (July 1990), and DOJ’s policies.

Interesting legal twist:

Unique problems may exist when the federal government seeks to civilly forfeit assets from active duty personnel and national guardsman or reservists called to active duty under Title 10 of the United States Code. Under the Servicemembers’ Civil Relief Act of 2003 (SCRA), service members have certain protections against default judgments being entered against them. While the language of the statute states that the act “applies to any civil action or proceeding in which the defendant does not make an appearance,” it is unclear if this protection applies specifically to civil forfeiture actions. In order to comply with the statute, a plaintiff must provide an affidavit to the court stating whether or not the defendant is in military service or showing that the plaintiff is unable to determine whether or not the defendant is in military service. Due to the in rem nature of civil forfeiture actions, the defendant is the asset itself, and thus will never be in military service within the meaning of the SCRA. Any property subject to a civil forfeiture action cannot defend itself against a default judgment unless a third party intervenes and files a claim to the property. Therefore, in the case that a service member is the owner of assets being sought in civil forfeiture, the service member is not the defendant in the action, but rather the claimant if he or she files a timely claim to the subject property. No precedent exists on the SCRA’s prevention of default judgment in federal civil judicial forfeiture actions. Historically, the SCRA’s language was intended to prevent the entry of default judgments against service members who were named parties to common place civil actions such as tort actions, small claims lawsuits, copyright  [*208]  infringement, civil rights lawsuits, bankruptcies, debt and foreclosure actions, divorces, or any child custody proceeding.

Some data:

As previously discussed, assets are entered into the DOJ CATS system for tracking purposes by the lead investigative agency in a forfeiture case. In 2008, DCIS judicially forfeited over $ 238,000 in assets coming from Virginia, Texas, and Pennsylvania. Currently in CATS, n65 DCIS is seeking forfeiture of over $ 10.5 million in assets ranging from televisions, jewelry, gold coins, computer equipment, cash, bank accounts, vehicles, watercraft, real property, stock shares, and other items. Because federal asset forfeiture is still new for DCIS, not all states have active DCIS judicial forfeiture cases pending. But many states and districts are quickly joining with DCIS as a viable and strategic partner in combating crime and punishing criminal activities within the DOD.

This is all from the article “Federal Asset Forfeiture and the Military”, in the 2009 Air Force Law Review, authored by Staff Sergeant Steven Morley.


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10 Responses to “Military Asset Forfeiture”

  1. #1 |  Phil in Parker | 

    Due to the in rem nature of civil forfeiture actions, the defendant is the asset itself, and thus will never be in military service

    If inanimate objects can be accused of a crime, why shouldn’t they be allowed to proudly serve their country?

  2. #2 |  Jamie | 

    Every time I see it, I’m amazed by the legal fiction that the asset is the defendant, rather than the person from whom it is taken. How can that possibly square with legal precedent, which has a strong presumption of agency running throughout it? Does a pile of money get a public defender? Can a car plead the 5th? (I realize these are mostly civil actions, but the point remains.)

    Perhaps we should bring charges against the rock that I stubbed my toe on the other day. I seem to recall there being a trend of sentencing animals to death for various reasons in Africa and medieval Europe.

  3. #3 |  Leon Wolfeson | 

    @2 – If a company is a person, why can an asset not be a defendant? You’ve already held a legal fiction to have substantially equivalent rights…

  4. #4 |  Felix | 

    Waaaay back in the 70s, when I was a member of Uncle Sam’s canoe club, the joke was that the Coast Guard, whose mission was always being expanded while its budget was being cut, should raid an aircraft carrier, find a marijuana seed, and confiscate the carrier. They could secure budgets for years to come.

  5. #5 |  John David Galt | 

    The legal notion that the property is the defendant *is* ridiculous, obviously nothing but an end run against the Bill of Rights, and should have been scuttled along with its authors’ careers the first time it ever came up in court. Even today I don’t see why some judge doesn’t simply take judicial notice that inanimate objects are incapable of mens rea, boom, case dismissed!

    But as long as that notion does stand, I doubt that SCRA will help anyone. The property owner is lucky to be considered to have standing, since he isn’t even a party to the case.

    I like the aircraft carrier comment, though. Maybe Willie Nelson can bring a case to have the White House forfeited since he got Jimmy Carter high on its roof.

  6. #6 |  SJE | 

    The rationale behind making the property the defendent is that the owner is not always clear. e.g. you come upon an abandoned car with 100kg of cocaine and a million dollars. When the owner IS clear, this is a bogus scheme to deny defendents their constitutional rights. It is made worse with the defendent/claimant is in the military: the government is your employer AND the claimant on the property AND can send you overseas etc making it very difficult to assert your claim.

  7. #7 |  Yizmo Gizmo | 

    So let me get this right–now the cops AND the military
    can come take my shit?

  8. #8 |  Bergman | 

    Legally speaking, text is speech, right?

    A civil asset forfeiture is a court action against an object, not a person, right?

    Interesting fact: ANY elected member of the executive branch can call up militia within their area of authority. If your city dog catcher is an elected position, then he can deputize people to catch dogs.

    So stick a label containing a service oath on a piece of property and have an elected official administer that oath to it, reading the label as a reply.

    Voila! The object is now a member of the military and cannot be the subject of a summary judgment under the SCRA!

  9. #9 |  » US Military can steal your stuff Neo Abolition | 

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  10. #10 |  The Slow Motion Coup « Scott Rhymer | 

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