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Asset Forfeiture and Money Laundering Law

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Asset Forfeiture and Money Laundering Law DEPARTMENT OF JUSTICE JOURNAL OF FEDERAL LAW AND PRACTICE Volume 67 September 2019 Number 3 Acting Director Corey F. Ellis Editor-in-Chief Christian A. Fisanick Managing Editor Sarah B. Nielsen Associate Editor Gurbani Saini Law Clerks Joshua Garlick Emily Lary Mary Harriet Moore Niki Patel United States The Department of Justice Journal of Department of Justice Federal Law and Practice is published by Executive Office for the Executive Office for United States United States Attorneys Attorneys Washington, DC 20530 Office of Legal Education Contributors’ opinions and 1620 Pendleton Street statements should not be Columbia, SC 29201 considered an endorsement by Cite as: EOUSA for any policy, 67 DOJ J. FED. L. & PRAC., no. 3, 2019. program, or service. Internet Address: The Department of Justice Journal https://www.justice.gov/usao/resources/ of Federal Law and Practice is journal-of-federal-law-and-practice published pursuant to 28 C.F.R. § 0.22(b). Page Intentionally Left Blank Asset Forfeiture and Money Laundering In This Issue Introduction ........................................................................................ 1 By Corey F. Ellis Civil Asset Forfeiture: Purposes, Protections, and Prosecutors .................................................................................. 3 By Money Laundering and Asset Recovery Section The Post-Honeycutt Landscape of Asset Forfeiture .................. 33 By Sonja Ralston and Michael Anthony Fazio Financial Tracing in Asset Forfeiture Cases .............................. 65 By Sean Michael Welsh Money Moves: Following the Money Beyond the Banking System ................................................................................ 95 By Elizabeth Boison and Leo Tsao The Intersection of State and Federal Law in Asset Forfeiture Cases: Concurrent Jurisdiction, Turnover Orders, and Emerging State Law Trends ............... 127 By Curt Bohling, Alice W. Dery, and Carly Diroll-Black Forfeiting Cryptocurrency: Decrypting the Challenges of a Modern Asset ..................................................... 155 By Neal B. Christiansen and Julia E. Jarrett Alternative Remedies: Statutory Remedies Available to Seize and Restrain Assets ..................................... 181 By James S. Alexander Asset Forfeiture and Money Laundering In This Issue Transferring Forfeited Assets to Victims Through Remission, Restoration, and Restitution .................................. 219 By Alice W. Dery and Jennifer Bickford Money Laundering Venue ............................................................ 235 By Marion Percell Merger Issues in Money Laundering Cases .............................. 253 By Stephen M. May Note from the Editor-in-Chief ..................................................... 299 By Christian A. Fisanick Introduction Corey F. Ellis Acting Director Executive Office for United States Attorneys Asset Forfeiture plays a critical role in disrupting illegal enterprises, depriving criminals of the proceeds of illegal activity, deterring crime, and compensating victims. The effective use of criminal and civil asset forfeiture is an essential component of the Department of Justice’s efforts to combat the most sophisticated criminal actors and organizations—including terrorist financiers, cyber criminals, fraudsters, human traffickers, and transnational drug cartels. There is authority to forfeit assets in nearly all of the types of cases prosecuted by the Department, including cases that fall in the highest priority areas. The U.S. Supreme Court has recognized the importance of forfeiture, noting that “[f]orfeitures help to ensure that crime does not pay[.]”1 The Court explained that forfeitures “at once punish wrongdoing, deter future illegality, and ‘lessen the economic power’ of criminal enterprises” and that “[t]he Government . uses forfeited property to recompense victims of crime, improve conditions in crime-damaged communities, and support law enforcement activities like police training.”2 “Accordingly, ‘there is a strong governmental interest in obtaining full recovery of all forfeitable assets.’”3 Asset forfeiture provides powerful tools to seize and restrain criminal proceeds that can later be used to compensate crime victims. Realistically, a crime victim’s hope of getting paid often rests on the government’s superior ability to collect and liquidate a defendant’s assets under the asset forfeiture laws. In fact, from FY 2002 until the present, over $8 billion was paid to victim compensation from the proceeds of forfeited assets.4 1 Kaley v. United States, 571 U.S. 320, 323 (2014). 2 Id. (citing Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 630–31 (1989)). 3 Id. (citing Caplin & Drysdale, 491 U.S. at 631). 4 See, e.g., Press Release, U.S. Dep’t of Justice, Department of Justice Compensates Victims of Bernard Madoff Fraud Scheme with Funds Recovered Through Asset Forfeiture (Nov. 9, 2017); Press Release, U.S. Dep’t of Justice, Department of Justice Begins Second Distribution of Funds September 2019 DOJ Journal of Federal Law and Practice 1 In addition, effective money laundering enforcement can identify and disrupt illicit financial networks. Such efforts not only assist in the prosecution of all kinds of criminal activity and the forfeiture of assets, but also enable law enforcement to halt and dismantle criminal organizations and other bad actors before they harm our citizens or our financial system. This issue of the Department of Justice Journal of Federal Law and Practice highlights recent developments in asset forfeiture and money laundering law. When used in a coordinated manner, these statutory remedies are powerful tools that assist in the government’s law enforcement efforts. Recovered Through Asset Forfeiture Totaling $1.2 Billion to Compensate Victims of Bernard Madoff Fraud Scheme (Apr. 12, 2018); Press Release, U.S. Dep’t of Justice, Department of Justice Begins Third Distribution of Funds Recovered Through Asset Forfeiture to Compensate Victims of Bernard Madoff Fraud Scheme (Nov. 29, 2018); Press Release, U.S. Dep’t of Justice, Department of Justice Begins Fourth Distribution of Funds Recovered Through Asset Forfeiture to Compensate Victims of Bernard Madoff Fraud Scheme (July 31, 2019). 2 DOJ Journal of Federal Law and Practice September 2019 Civil Asset Forfeiture: Purposes, Protections, and Prosecutors Money Laundering and Asset Recovery Section Criminal Division U.S. Department of Justice I. Introduction On July 5, 2006, Kenneth Lay died in his bed while on vacation near Aspen, Colorado. Lay, who was the founder and Chief Executive Officer (CEO) of Enron Corporation (Enron), had been convicted earlier that year in federal court of ten counts of fraud and making false statements related to Enron.1 Lay’s fraud victimized Enron’s shareholders and employees, as well as energy consumers in California and across the country.2 At the time of his death, the United States was seeking more than $43 million from Lay in criminal forfeiture and approximately the same amount from one of Lay’s co-defendants, Jeffrey Skilling. While Skilling would later pay his forfeiture as part of his criminal sentence,3 the death abated Lay’s conviction and any chance the United States had of obtaining a criminal forfeiture judgment against him. To recover some portion of these funds, the United States instituted a civil forfeiture action against specific property owned by Lay,4 including an expensive condominium owned by Lay and his wife that was potentially 1 Jeremy W. Peters & Simon Romero, Enron Founder Dies Before Sentencing, N.Y. TIMES (July 5, 2006), https://www.nytimes.com/2006/07/05/business/05cnd-lay.html. 2 Enron’s Many Victims, L.A. TIMES (Nov. 28, 2001), https://www.latimes.com/archives/la-xpm-2001-nov-28-me-9068-story.html (noting it has been widely reported that some 20,000 people lost their jobs in the wake of the Enron fraud). 3 See Karen Freifeld, Skilling Restitution to go to Enron Victims’ Fund, REUTERS (May 9, 2013), https://www.reuters.com/article/us-enron-skilling- victims/skilling-restitution-to-go-to-enron-victims-fund- idUSBRE94818B20130509. 4 See Victim Notification Program, United States v. Kenneth L. Lay, Court Docket Number: H-04-0025-SS, U.S. DEP’T OF JUST., https://www.justice.gov/criminal-vns/case/layk (outlining “13 million civil forfeiture action pending against Lay’s estate”). September 2019 DOJ Journal of Federal Law and Practice 3 protected from civil suits by the homestead laws of Texas.5 The federal government could use a civil forfeiture action where criminal forfeiture had become impossible due to Lay’s death because all forfeiture is designed to deny individuals the benefit of ill-gotten gains and property used to facilitate crime. In the end, the Department of Justice (Department) released approximately $65 million in forfeited funds for distribution to 128,200 victims of the Enron securities fraud who suffered losses at the hands of its principals, whose illegal actions caused Enron’s stock price to drop from more than $80 per share to less than $1.6 As the Enron case demonstrates, both criminal and civil forfeiture have much needed roles to play in our justice system. Forfeiture is a critical part of the Department’s law enforcement authorities. The Attorney General’s Guidelines for the Asset Forfeiture Program (AG Guidelines) set forth the primary goals of asset forfeiture (both civil and criminal), including to “punish and deter criminal activity by depriving criminals of property used in or acquired through
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