Thank you for lending your personal experience to this thread. I hope you don't mind answering a few more simple questions just so I (and everyone else) can try to get the whole picture of what is going on. Can you please tell me whether the following points are correct or incorrect?
1. At this point, Mr. Ricks' has not permanently lost the money. His money has merely been seized. He will not lose it permanently until a court orders forfeiture. Correct?
2. To obtain the forfeiture order, the FBI will be required to show by a preponderance of the evidence that the money represents the proceeds of criminal activities. The burden of proof will be on the FBI. Correct?
3. Mr. Ricks will be notified of this forfeiture hearing and will have a chance to produce evidence of his own showing that the money was merely his personal savings or was otherwise obtained innocently. Alternately, Mr. Ricks can remain silent and still win the money back if the FBI fails to meet its burden. Correct?
4. Mr. Ricks need not be charged with a crime to permanently lose the money through forfeiture. Since this process is defined as a "civil" procedure, the normal criminal standard of "proof beyond a reasonable doubt" is not required. Correct?
If all of these statements are correct, this paints a very different picture than what is given in the article.
Understand there is a new wrinkle with the Federal involvement but under state law the process is this:
Mr Ricks has not lost the money (yet) After the seizure has taken place, he should have been notified (via certified mail) that the state is starting forfeiture proceedings. By responding to the letter, (it used to be 10 days) he will have established a claim to the funds.
He will also be served with the date, time and courtroom of the forfeiture action. He is entitled to be represented by counsel. Defense counsel can cross examine the state’s witnesses and may also introduce exculpatory evidence, just as in criminal proceeding.
The burden of proof ALWAYS rests with the state. The state also has to publish a “notice of forfeiture” in a local paper to allow anyone else who may have a claim to the funds the ability to come forward and make a claim. The agency detective must also convince the county prosecutor or the prosecutor who handles forfeiture for the office that this is a valid case. The prosecutor is an officer of the court and I don’t know too many who would like to end up in front of a bar committee for playing fast and loose with the forfeiture laws. There are those two wonderful words called misfeasance and malfeasance.
Mr. Ricks has the right to remain silent just as in a criminal proceeding and may introduce witnesses to refute the state’s allegations.
The judge is the determiner of fact. Although the legal standard is lower, (preponderance of the evidence) if the state were to walk into court and tell the judge that they believe the money should be forfeited “just because” and didn’t have the necessary evidence to show this money was gotten illegally, most of the judges that I know (and I know all the sitting judges in Northwest Ohio on ALL the courts, would rip the state a new one and trust me, next time the detective walked into court or tried to get a search warrant, the sitting judge would grill him like a hot ham and cheese sandwich....oh and by the way, they do talk to one another. Ask any cop about certain detectives that have to go through hoops to get a search warrant because their previous cases are BS. Everyone in the courthouse knows who is a straight shooter and who is trying to serve it up.
Also, the “defendant” may file an appeal to a higher court. Usually there is a lag in the time the judge rules from the bench (if he/she does) and the time we get a “true copy” of the order. We cannot remove the money for deposit into the Law Enforcement Trust Fund until we have an original signed order in our hand.
On you last point about Mr Ricks not having to be charged with a crime, technically you are correct, but the only forfeitures that I’ve successfully pursued WITHOUT having a defendant charged are those where no one makes a claim to the money.
I once found 35K, in a garbage bag in the basement of a house we were doing a search warrant on. We seized the money and the owner of the house never claimed it. Therefore, we successfully forfeited it to the state.
One last thing, although just about any beat officer can seize a car or cash, they only start the process. We were on call 24/7 and when the Vice/Drug guys would get a substantial amount of money or thought there may be a substantial amount of money in the house, (usually over $5,000) they would call us out to start doing the processing. In any event, we were always the determiner of what cases went forward for forfeiture. I’ve pissed a lot of detectives off because their cases were weak. I’ve also been to several schools at the Federal Level and was a certified financial investigator. We spent a tremendous amount of resources trying to “follow the money trail” Believe me, working the street was a lot easier and less stressful.
While there are horror stories in regards to asset forfeiture and there probably are cases where the statute could have been abused, considering the sheer number of cases on an annual basis and the small number that don’t look right because of a newspaper story, the process doesn’t change.
It looks as if more information is coming out about this Lima case and I am anxious to see how it is resolved. I would bet this came out of the Federal Task Force in
Toledo. I know most of the guys assigned there and I know most of the Federal Prosecutors who may be handling this case. I also know the judges who are on the Federal bench in Northwest Ohio and I can tell you these guys (TF) better have all the “t’s” and “i’s” crossed and dotted or else they are in for a rough road ahead.
Hope this helps.
5. If Mr. Ricks cannot afford an attorney, one will be appointed by the court at no charge.
6. If Mr. Ricks wins the case, the money will be returned with interest. For him, that means he'll actually make money on the deal. I don't think he'll be compensated for the safe, but he might.
The author of the article might have been using pre-CAFRA 2000 rules or state forfeiture guidelines.