Lecture: Asset Forfeiture in the United States
| Autor | Stefan D. Cassella |
| Cargo | Asset Forfeiture Law, LLC, Estados Unidos |
| Páginas | 173-189 |
LATIN AMERICAN LEGAL STUDIES Volume 4 (2019), pp. 171-190
LECTURE: ASSET FORFEITURE IN THE
UNITED STATES
Stefan D. CaSSella*1
I. INTRODUCTION
I have been asked to provide an overview of the recovery of criminal assets in
the United States, but rst I must provide some context by answering a few questions:
How does the criminal justice system work in the United States, and how does
asset recovery t into it?
Are we talking about a federal program? A state program? Is this something
that is always done in criminal court? Are there separate civil courts?
And what is the scope of the program? What types of property can be recovered?
In what kinds of cases? How much money is recovered and where does it go?
Then I should talk about goals:
What is the objective of asset recovery? Is it punishment, deterrence, or some-
thing else?
And I should talk about procedure:
How does a typical case develop?
What are the roles of the investigators, prosecutors and the courts?
When would we try to recover the property as part of a criminal case, and
when would we begin a separate civil (or NCB) action?
That last point will bring me to some examples of asset recovery in the inter-
national context.
Can we use asset forfeiture to recover property in the US that was derived from
a foreign crime?
Can we recover property in a foreign country that was derived from a crime
that occurred in the US?
Can we recover property if the defendant has ed and is now a fugitive in an-
other country?
Can we enforce a forfeiture judgment issued by a foreign court, and can foreign
courts enforce our judgments?
*1 Asset Forfeiture Law, LLC, Estados Unidos (Cassella@Asset ForfeitureLaw.us). This article is an
edited version of a presentation given at the Seminar on Recovery of State Assets and Regulation
of Conscation in Chile, April 9, 2018 at Adolfo Ibanez University, Santiago, Chile.
Stefan D. Cassella
174
LATIN AMERICAN LEGAL STUDIES Volume 4 (2019)
Finally, I would like to discuss how we have addressed some constitutional is-
sues that arise in asset recovery cases. For example:
Who has the burden of proof ?
Is there a right to assert an innocent owner defense?
Can criminal proceeds be used to pay for a lawyer?
Does the forfeiture have to be proportional to the offense?
II. STRUCTURE OF CRIMINAL JUSTICE IN THE U.S.
Let me start with some context: how does the criminal justice system work in
the United States.
We are a federal system with a national government and 50 separate state
Governments. So, we have a federal criminal justice system, and 50 separate state
criminal justice systems. That means that we have federal asset forfeiture laws and
federal prosecutors who enforce them in federal courts, and state asset forfeiture laws
with state prosecutors who enforce them in state courts.
The state laws vary from state to state in terms of how frequently they are used,
what resources are devoted to them, what procedures are employed, and how much
property is recovered. One big variable is the size of the state: Forfeiture under state
law in a large state like California might be very different from forfeiture in a smaller
state like Alaska or New Hampshire.
2.1 The federal forfeiture program
My focus, however, is on the federal system. All of the major cases –the huge
drug cases, the huge fraud cases, the major public corruption cases, the international
cases (including the allegation of Russian tampering in the US elections), and the
cases involving the proceeds of foreign crime laundered in the US– are all federal
cases. And the federal forfeiture program is very large and robust: In a typical year we
recover over $2 billion in criminal assets: about half in drug cases and half in cases
involving fraud, corruption and other sophisticated crimes.
I was a federal prosecutor for 30 years, specializing in money laundering and
asset recovery. I worked out of the Department of Justice in Washington, which is the
national headquarters of the federal asset forfeiture program, and I also worked out
of two of our regional ofces. The Department of Justice has 93 district or regional
federal ofces in the U.S. and I ended my career a few years ago as the Chief of the
Money Laundering and Forfeiture Section of the federal prosecutor’s ofce in Balti-
more, MD, which is one of the 93 ofces.
So, what I am talking about today is forfeiture in the US in the federal system.
2.2 Where does the money go?
Now I’ve said that we recover more than $2 billion per year in the federal asset
forfeiture program. In some years, when there has been a recovery in a major fraud
case, it is much more. I had a case many years ago in which we recovered $1.2 billion
in a single case. But where does the money go?
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