ASSET FORFEITURE TCOLE Course 3255 AND BCCO PCT
ASSET FORFEITURE TCOLE Course # 3255 AND BCCO PCT #4 Power. Point
ADMINISTRATIVE • Please complete the BCCO PCT #4 Registration form and turn it in now. • Make sure you sign TCOLE Report of Training (PID#, Full Name and DOB). • All cell phones off please – pay attention to course materials and show common respect & courtesy.
Your Instructor – Course Facilitator and Mentor Trainer Deputy Chief George D. Little A. S. & B. S. Criminal Justice & Sociology B. S. CJ Wayland Baptist University, San Antonio M. S. Criminology & Counter-Terrorism University of the State of New York(P) 2012 T. C. O. L. E. Professional Achievement Award Certified Crime Prevention Specialist (C. C. P. S. ) TCOLE Basic Instructor Certificate 1984 TCOLE Advanced Instructor 2012 TCOLE Master Peace Officer 1991 MP Special Operations Operator Counter-Terrorism 1988 Military Police Investigations (MPI) & Criminal Investigation Division (CID) Special Agent Graduate Drug Enforcement Administration Academy 1977 43 - years Law Enforcement Experience 11/26/2020 39 -Years Teaching & Instructor Experience 3
COURSE/LESSON OVERVIEW - Forward This course will cover the forfeiture of seized property. The student will be able to demonstrate understanding of this area to the level required by the Texas 77 th in Senate Bill 563.
Learning Objectives Learning Objective 1. 1: Participant will be able to identify the requirements for officers as to asset forfeiture training as established by the legislature in Chapter 1701 Occupations Code. Learning Objective 1. 2: Participant will be able to identify the philosophy behind forfeiture and the extent to which it is appropriate. Learning Objective 1. 3: Participant will be able to identify definitions of contraband proceeds. Learning Objective 1. 4: Participant will be able to identify defenses to forfeiture.
Learning Objective 1. 5: Participant will be able to identify issues regarding pre-seizure planning. Learning Objective 1. 6: Participant will be able to identify search and methods of seizure Learning Objective 1. 7: Participant will be able to identify post seizure procedures. Learning Objective 1. 8: Participant will be able to identify forfeiture proceedings under 59. 04 Learning Objective 1. 9: Participant will be able to identify other considerations in forfeiture cases
ASSET FORFEITURE
1. 1 Asset Forfeiture Required Training for Law Enforcement A. Occupations Code, Section 1701. 253 (g) As part of the minimum curriculum requirements, the commission shall establish a statewide comprehensive education and training program on asset forfeiture under Chapter 59, Code of forfeiture
A. Occupations Code, Section 1701. 253 (g) – Cont’d: Criminal Procedure, for officers licensed under this chapter. An officer shall complete a program established under this subsection not later than the second anniversary of the date the officer is licensed under this chapter or the date the officer applies for an intermediate proficiency certificate, whichever date is earlier.
See more at: http: //codes. lp. findlaw. co m/txstatutes/OC/10/1701 /F/1701. 253#sthash. Mgj Cxv. Ze. dpuf
B. Occupations Code, Section 1701. 402 (d): Training in documentation of cases required by Subsection (b) shall include instruction in: (1)making a written account of the account extent of injuries sustained by the victim of an alleged offense;
B. Occupations Code, Section 1701. 402 (d): Training in documentation of cases required by Subsection (b) shall include instruction in: (2) recording by photograph or photograph videotape the area in which an videotape alleged offense occurred and the victim's injuries; and
C. All officers are required to complete this training by September 1, 2002. (See Section 10, SB 563. ): ASSET FORFEITURE TRAINING
B. Occupations Code, Section 1701. 402 (d): Training in documentation of cases required by Subsection (b) shall include instruction in: (3) recognizing and recording a victim's statement that may be statement admissible as evidence in a proceeding concerning the matter about which the statement was made.
See more at: http: //codes. lp. findlaw. co m/txstatutes/OC/10/1701/ F/1701. 253#sthash. Mgj. C xv. Ze. dpuf
C. All officers are required to complete this training by September 1, 2002. (See Section 10, SB 563. ) VICTIM STATEMENTS RECORDING EVIDENCE
1. 2 Philosophy of Asset Forfeiture A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) 1. Definitions: (1) "Attorney representing the state" means the prosecutor with felony jurisdiction prosecutor in the county in which a forfeiture proceeding is held under this chapter or, in a proceeding for
A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) 1. Definitions: (1) Cont’d: forfeiture of Cont’d contraband as defined under Subdivision (2)(B)(v) of this article, the city attorney of a municipality if the property is seized in that municipality by a peace officer employed by that municipality and the governing body of the municipality has approved
A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) 1. Definitions: (1) Cont’d: procedures Cont’d for the city attorney acting in a forfeiture proceeding. In a proceeding forfeiture of contraband as defined contraband under Subdivision (2)(B)(vi) of this article, the term includes the attorney general. (See Participant Handout for Text of subdivision as amended by Acts 2013, 83 rd Leg. , R. S. , Ch. 427 (S. B. 529), Sec. 2 )
A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) 2. Proceeds versus instrumentalities Proceeds "Proceeds" includes income a person accused or convicted of a crime or the person's representative or assignee receives from: (A) a movie, book, magazine article, book tape recording, phonographic record, radio or television presentation
telephone service, electronic media format, including an Internet website, or live entertainment in which the crime was reenacted; or (B) the sale of tangible property the tangible value of which is increased by the notoriety gained from the conviction of an offense by the person accused or convicted of the crime.
A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) 3. What is eligible forfeiture? a. “Innocent” owner defense, defense see art. 59. 02 (h) CCP: (h)(1) An owner or interest holder's interest in property may not be forfeited under this chapter if at the forfeiture hearing the owner or interest holder proves by a preponderance of the evidence that
A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) 3. What is eligible forfeiture? a. Cont’d: the owner or owner interest holder was not a party to the offense giving rise to the forfeiture and that the contraband: (A) was stolen from the owner or stolen interest holder before being used in the commission of the offense giving
A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) 3. What is eligible forfeiture? (A) rise to the forfeiture; (B) was purchased with: (i) money stolen from the owner or money interest holder; or (ii) proceeds from the sale of property stolen from the owner or interest holder; or
A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) 3. What is eligible forfeiture? (C) was used or intended to be used without the effective consent of the consent owner or interest holder in the commission of the offense giving rise to the forfeiture. (2) An attorney representing the state who has a reasonable belief that belief
A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) 3. What is eligible forfeiture? (C) (2) Cont’d: property subject to forfeiture is described by Subdivision (1) and who has a reasonable belief as to the identity of the rightful owner identity or interest holder of the property shall notify the owner or interest holder as provided by Article 59. 04
Required Notification If a peace officer seizes property under this chapter, the attorney representing the state shall commence proceedings under this section not later than the 30 th day 30 th after the date of the seizure. Art 59. 04 Code of Criminal Procedures
A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) 3. What is eligible forfeiture? (C)(3) An attorney representing the state is not liable in an action for liable damages resulting from an act or omission in the performance of the duties imposed by Subdivision (2).
A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) 3. What is eligible forfeiture? ( C ) (4) The exclusive remedy for failure by the attorney representing the state to provide the notice required under Subdivision (2) is submission of that failure as a ground for new trial in failure a motion for new trial or bill of review.
Property that is contraband is subject to seizure and forfeiture under this chapter. “Substitute property" means property that is not contraband; and that is owned by a person who is or was the owner of, or has or had an interest in, contraband with an aggregate value of $200, 000 or more. (See Page 21 in your handout)
A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) 4. Methods of seizure seized by any peace officer under authority of a search warrant. search Seizure of property subject to forfeiture may be made without warrant if: the owner, operator, or warrant agent in charge of the property knowingly consents.
A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) 5. Time limits for filings If a peace officer seizes property under this chapter, the attorney representing the state shall commence proceedings under this section not later than the 30 th day 30 th after the date of the seizure.
Required Notification The attorney representing the state, not later than the third day third after the date proceedings are commenced, shall file a lis pendens notice describing the property with the county clerk of each county in which the property is located.
B. Philosophy of forfeiture 1. Should forfeiture be a form of forfeiture “extra punishment? ” 2. Proportionality of property to be Proportionality forfeited and to the seriousness of the offense 3. Jeopardy issues (See Pages 30 - 40 Jeopardy of your handout)
• B. 2 Proportionality • 40 percent to a special fund in the department to be used solely for law enforcement purposes; • 30 percent to a special fund in the county treasury for the benefit of the office of the attorney representing the state, to be used by the attorney solely for the official purposes of the attorney's office; and • 30 percent to the general revenue fund.
B. Philosophy of forfeiture 3. Jeopardy issues House that belongs to someone else Heirlooms What are some other Jeopardy issues?
1. 3 Definitions of Contraband & Proceeds A. Contraband Definitions Property used in the commission of: 1. Any first or second-degree felony under Penal Code (PC)
A. Contraband Definitions Property used in the commission of: 2. Felony under Chapters. 29, 30, 31, 32, 35 or Section 38. 04 (Robbery, Burglary, Theft and Robbery Fraud) 3. Any felony under the Securities Act
A. Contraband Definitions Property used in the commission of: 4. Proceeds gained from any of the Proceeds above felonies 5. Property acquired with proceeds Property of any of the above felonies or a crime of violence 6. Any felony under Chapter 481 Health & Safety Code (most illegal drug offenses) drug
A. Contraband Definitions Property used in the commission of: 7. Any felony under Chapter 483 Health & Safety Code (includes dangerous drugs) 8. Any felony under Chapter 153 Finance Code (Currency Exchange, Transmission & Transport)
A. Contraband Definitions Property used in the commission of: 9. Any felony under Chapter 34 Penal Code (Money Laundering) Laundering 10. Proceeds gained from any of Proceeds the above felonies 11. Property acquired with Property proceeds of any of the above felonies or a crime of violence
B. Proceeds Definitions What are Proceeds? 1. Commonly understood meaning prevails 2. Property derived from an event or transaction 3. Conviction of criminal offense criminal not necessary
1. 4 Defenses to Forfeiture A. Defenses to Forfeiture 1. Statutory Defenses, Chapter Defenses 59. 02 Code of Criminal Procedures a. Innocent Owner Defense (Non–Consentual)
A. Defenses to Forfeiture 1. Statutory Defenses, Chapter Defenses 59. 02 Code of Criminal Procedures b. Owner acquired the property before illegal act and owner did before not know or should not reasonably have known of the illegal act before acquiring the illegal property
A. Defenses to Forfeiture 1. Statutory Defenses, Chapter Defenses 59. 02 Code of Criminal Procedures c. Family violence defense 1) Community property 2) Act of family violence prevented stopping illegal act
A. Defenses to Forfeiture 1. Statutory Defenses, Chapter Defenses 59. 02 Code of Criminal Procedures d. Dismissal of Dismissal Acquittal of Acquittal Related Charges 1) Raises presumption property should not be forfeited
A. Defenses to Forfeiture 2. Non-Statutory Defenses a. Controlled Substance Analogue 1) Denial that a substance is an analogue of a controlled analogue substance, however,
A. Defenses to Forfeiture 2. Non-Statutory Defenses a. Controlled Substance Analogue 2) State need only show the substance is analogue by structure of structure effect (not both) effect
21 USCS § 802 (32) (A) except as provided in subparagraph (C), the term controlled substance analogue means “a substance-(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;
(A) except as provided in subparagraph (C), the term controlled substance analogue means “a substance—(Cont’d) (ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or
(A) - (Cont’d) (iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.
A. Defenses to Forfeiture 2. Non-Statutory Defenses b. Suppression of Evidence in Criminal Case 1) Defendants may try this Defendants but court should not grant
A. Defenses to Forfeiture 2. Non-Statutory Defenses c. Fifth Amendment 1) During discovery and trial make defendant aware of rights 2) Invocation of right can Invocation comment on any inference it may support
A. Defenses to Forfeiture 2. Non-Statutory Defenses d. Homestead 1) Homestead protection not Homestead resolved in Texas e. Community Property 1) Not a valid defense
A. Defenses to Forfeiture 2. Non-Statutory Defenses f. Legitimate Source of Income 1) Discovery before trial Discovery essential to establish supporting evidence 2) When, where, & how check negotiated
A. Defenses to Forfeiture 2. Non-Statutory Defenses f. Legitimate Source of Income 3) Whether deposited and deposited where and history before and since. . 4) When converted to cash
1. 5 Issue Regarding Pre. Seizure Planning A. Ownership Problem 1. Community vs. Separate Property Separate
B. Businesses 1. Leases of real property 2. Liens against inventory C. Equity over mortgage
D. Risks/Liabilities Risks E. Costs Cost F. Rented and owner’s consent to criminal activity
G. Bank Accounts 1. Identify account numbers and numbers signatories 2. Monitor the account to determine best time to seize 3. Know whether it is collateral for a collateral loan
1. 6 Search & Methods of Seizure A. Without Warrant 1. Owner, operator or agent knowingly consents 2. Incident to search consented to consented
A. Without Warrant 3. Property subject to prior judgment of forfeiture 4. Incident to lawful arrest, search, arrest or lawful search incident to arrest
B. Probable Cause for Seizure 1. Reasonable belief that a belief substantial connection exists between the property to be forfeited and the criminal activity defined by statue
C. Exceptions to Warrant Requirement 1. Plain view 2. Emergency searches Emergency (exigencies) 3. Area within immediate control at control time of arrest 4. Safety sweep of adjacent rooms Safety
D. With Warrant 1. Rules apply from Chapter 18 Code of Criminal Procedures 2. Contraband warrant must also Contraband show in affidavit the specific felony offense committed and the described property complies with the definition of contraband from 59. 01
1. 7 Post Seizure Procedures A. Peace Officer who seizes has custody
B. Must provide attorney representing state a sworn statement containing: 1. Schedule of property seized Schedule 2. Acknowledgment that officer seized property 3. And list of reasons supporting reasons seizure
C. Not later than 72 hours after seizure must: 1. Place property under seal; seal 2. Remove property to a place property ordered by court; or 3. Require law enforcement agency to take custody of the property and custody property move it to a proper location.
D. Currency 1. May be deposited in interest bearing account 2. In jurisdiction of state attorney jurisdiction
E. Waivers 1. Interest a. Article 59. 04 (possession) e) If a financing statement is required by law to be filed to perfect a security interest affecting the property, and if there is reasonable cause to believe that a financing statement has been filed, the attorney representing the state who commences
E. Waivers 1. Interest a. Article 59. 04 (possession) e) Cont’d: proceedings shall ask the appropriate official designated by Chapter 9, Business & Commerce Code, to identify the record owner of the property and the person who is an interest holder.
E. Waivers 2. Service of Process a. Rule 119 Rules of Civil Procedure: be served on the following persons in the same manner as provided for the service of process by citation in civil cases: (1) the owner of the property; and owner (2) any interest holder in the property. interest
E. Waivers 3. Evidence of Lawsuit 4. Standing ability of a party to demonstrate to the court sufficient connection to and harm from the law
E. Waivers • Official Oppression 39. 03 Oppression § 39. 03. OFFICIAL OPPRESSION. (a) 39. 03 A public servant acting under color of his office or employment commits an offense if he: (1) intentionally subjects another to mistreatment or to arrest, detention, arrest search, seizure, dispossession, seizure assessment, or
§ 39. 03. Cont’d: that he knows is Cont’d unlawful; (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or right immunity, knowing his conduct is unlawful; or (3) intentionally subjects another to sexual harassment. sexual
1. 8 Forfeiture Proceedings Under 59. 04 Forfeiture Proceeding 1. Civil Proceeding Civil
59. 04 Forfeiture Proceeding 2. District Attorney must begin Attorney proceedings within 30 days of your 30 date of seizure
59. 04 Forfeiture Proceeding 3. Service of civil citation upon civil parties
1. 9 Considerations in Forfeiture Cases A. Things to consider in forfeiture cases 1. Civil Discovery Civil
1. 9 B - Interrogatories interrogatories are part of the pretrial discovery process, either party to a lawsuit may send a set of written questions to the other party. These questions (interrogatories) must be answered in writing under oath or under penalty of perjury within a specified time (such as 30 days).
1. 9 C. - Depositions testimony of a party or witness in a civil or criminal proceeding taken before trial, usually in an attorney's office.
1. 9 D. Settlement offers (Negotiations) In law, a settlement is a resolution between disputing parties about a legal case, reached either before or after court action begins. The term "settlement" also has other meanings in the context of law. Structured settlements provide for a periodic payment.
DISPOSITION All forfeited property shall be forfeited administered by the attorney representing the state, acting as the agent of the state, in accordance with accepted accounting practices and with the provisions of any local agreement entered into between the attorney representing the state and law enforcement agencies.
E. Trial F. Local agreement G. Federal adoption Federal
H. Drug trafficking largest Drug
I. Estimated that $57 billion generated annually J. Estimated $34 billion laundered through financial institutions
SOURCES All Course Sources and/or Resources are listed in your Participant Handout
Questions?
COURSE & INSTRUCTOR EVALUATION Form • Please complete a course and instructor evaluation form. • If you rate 2 or below you must justify on reverse side. • Constructive Criticism helps all, being negative helps no one.
FINAL TEST • Test Review • Final Test – Exam • Grade Papers
GR AD UA N O TI CER TIFI CAT E The instructor staff of the Bexar County Constable’s Office PCT #4 Training Division Concurs, confirms and hereby certifies that: Deputy Constable John Q. OFFICER has successfully completed all the requirements of the 2 -hour Asset Forfeiture Course Texas Commission on Law Enforcement (TOCLE) Course # 3255 at the Bexar County Constable Office, PCT #4 Training Division on this 6 th day of April 2014 ______________________ George D. Little, C. C. P. S. , Deputy Chief INTEL – Homeland Security & Training Robert M. Blount Constable, PCT #4
STAY SAFE Stay VILIGANT Stay Informed
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