You miscast the burden. The IRS is the party that must prevail by preponderance of the evidence.
A claimant is entitled to a jury trial for a forfeiture under FRCP Rule G(9).
And surely forfeiture is appropriate only when the money is shown to have been illegally obtained. It can’t reasonably be argued that failure to file a reporting form should result in confiscation of all funds.
I think that’s correct. I think forfeiture of all funds raises an Eighth Amendment issue, and I am pretty sure there’s caselaw that says as much.
Got it in one. The purpose of this is so that the organisation can, at all times and in every circumstance, point to rules (and training on the rules) which make it impossible for badness to happen and say “this individual did not follow the rules and so therefore any and all badness is solely the fault of the individual”.
Naturally this leads to situations where either the staff ignore some rules in order to achieve anything (becoming potential scapegoats in the process) or else they become mere rule-following meatbots free of all discretion and judgement, ripe for replacement with computers and/or anyone who can read the same scripts for a few cents less per hour.
From a recent Forbes article about this case:
Richard Weber, the chief of the Criminal Investigation unit at the IRS, released the following statement
“After a thorough review of our structuring cases over the last year… IRS-CI will no longer pursue the seizure and forfeiture of funds associated solely with ‘legal source’ structuring cases unless there are exceptional circumstances justifying the seizure and forfeiture and the case has been approved at the director of field operations (D.F.O.) level.”
Hope that link is clickable…
I’m betting this lady gets her money back. She is essentially naive here, not criminal. With that said, she might consider suing the bank for having allowed any employee to advise her to split her deposits to avoid the “nuisance” (for the bank–there was no nuisance involved for her) of reporting. The bank should have trained its employees NEVER to do this. The bank is legally required to have trained its employees never to do this. The bank, through its employee, advised its client to break the law. (I realize it’s the old bank. Doesn’t matter: when you acquire a company you get its legal liabilities along with its assets unless you have negotiated some kind of way not to.)
It is regrettable that legitimate cash-only businesses generate a lot of reporting paperwork for $10, 000+ deposits (and these days it’s fairly automated anyway) for banks. Yet the alternative is to let your friendly local criminal make his deposits as $7000 here, $3500 there, and so convert the money he gets by selling addictive and soul-corrupting drugs to your kids, or by trafficking in human beings for the purposes of prostitution, into a suburban mansion and several Porsches.
I’m betting that she doesn’t. And the lady admitted that it was her own mom who advised her to structure her deposits in such a way.
But the law says structuring, no matter why, is a felony - so the money is forfeit because the act of structuring itself is the crime. Where the money came from - illegal or legal - is just a bonus question.
That’s why I think if the case went to jury, she’d win but to a judge, strictly letter of the law, she’d lose. So the question is - why isn’t the lawyer pushing for a trial - by jury - as fast as possible? I assume there’s a lot more detail to a case. There usually is…
Again, the issue isn’t the law against structuring, but rather the absence of due process - the IRS is seizing money without even attempting to prove that a crime has been committed.
But this is where I’m confused too. The IRS can and does seize things all the time, just like all law enforcement. They don’t just “take” it. It is held until a judge decides on disposition. Obviously, this is so the items or money - which could be legally forfeit - don’t disappear during the proceedings.
The highway cops in the southern USA do this all the time. “We have this money which we call proceeds of crime, y’all can hire an expensive lawyer and petition the court to return. If y’all fail to do so within the set time, it is considered that y’all conceded the case.”
From the article, it appears the IRS are attempting to do something similar. Go to court, with all attendant delays, or get a portion of the money back by signing away rights to the rest and forgoing the court appearance. So the IRS is committing extortion rather than robbery like the police.
Presumably, the victims’ lawyer could go to the courts and petition for the return of the money. Eventually the result would be a trial. (Civil trial, civil forfeiture) I would suggest that in a jury trial, the IRS would be severely handicapped. I presume they are trying to avoid a jury trial, hence the offers and negotiations. So what is going on?
Is it that the IRS can delay for years while holding the money, to force a settlement? How long can they delay?
Is it that they can avoid a jury trial and guarantee a win on technicalities, so they are simply trying to plea-bargain to avoid a long trial? (Apparently this is the state vs. $330,000, not the state vs. Hinders, so what standing does the owner of the money have to demand a jury?)
Hence my earlier post that a person should be able to go to court for just a filing fee and force the agency to prove to a judge there was probable cause. The reply was this isn’t a civil forfeiture.
In fact, this particular article says it was civil forfeiture.
I presume criminal forfeiture would require a trial and a judgement, and part of the sentence (on conviction) could be forfeiture.
This one - http://theweek.com/article/index/270692/speedreads-irs-seizes-womans-entire-savings-because-she-deposits-less-than-10000-at-a-time - suggests the assets are simply frozen for now pending disposition of the case.
So the question we’re both asking is - how does one expedite disposing of the case, and what are the odds she’ll win?
This article - Time For Civil Asset Forfeiture Laws To Meet The Same Fate As Jim Crow - says that the one person did manage to fight the police seizing his cash, and get a jury trial, and win… too late to save his business.
So presumably the answer to the question is - the IRS probably know they will lose in a jury trial, so they are stalling and probably can do so for years. The first article says, it’s too late, Hinders will fight to get her entire stash back but she has already had to close her business.
In a totally unrelated issue, Techdirt.com had some articles on Kansas City Royals panties. Apparently some shop in KC was selling women’s underwear with something that looked a lot like the Royals logo. The police seized it all for trademark violation. Then they started sniffing around the printing facility where the clothing was screen-printed. Apparently the police tried subterfuge to look inside but were too stupid to pull it off, and the owner told them to come back with a warrant. They told him to sign a waiver letting them look around, or else they would be back with a warrant and basically cart away all his equipment and hold it for trial (a multi-year process quite often) if they found anything questionable - essentially, cooperate, waive your constitutional rights, or we will put you out of business. They did the inspection and found nothing wrong to take. But… that is how law enforcement operates, and hence the Forbes article comparing forfeiture and Jim Crow. Challenge authority and you will be sorry.
The police were sniffing around in a panties case?:dubious:
Then they cracked it wide open!
In other news, local police are investigating a suspicious hole found in the dressing rooms at the local Victoria’s Secret. Officers are looking in to it.