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Wayne County Prosecutor KYM L. WORTHY

This Forfeiture presentation, offered by the Wayne County Prosecutor’s Asset Forfeiture Unit, is for educational purposes and uses only.

OMNIBUS FORFEITURE

Presented by: Walter H. Bentley III

Assistant Prosecuting Attorney

What is Forfeiture?

• The divestiture without compensation of property which is illegally used or obtained. • The government’s authority to forfeit assets is authorized by statute.

What is Omnibus Forfeiture?

• • • A Michigan statute (MCL 600.4701).

Definition of “Omni”: a combining form meaning “all.” Random House Dictionary.

It is a civil action based on criminal conduct by a named defendant. Meaning?… if a person commits a crime as named in the Omnibus Act, certain property is subject to forfeiture.

25 COMMON CRIMES

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Fighting Animals Arson – Insured Property B & E Building Burglary w/ explosives Bribery – Public Official (MCL 750.117) Bribery – Public Official (MCL 750.121) Child Sexually Abusive Activity Computer Internet Crimes

25 COMMON CRIMES

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FTD – Use, Sale FTD – Forgery Embezzlement Extortion False Pretenses Possession Dangerous Weapon Forgery Uttering & Publishing

25 COMMON CRIMES

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Counterfeiting Larceny Larceny from a Person Larceny in a Building Robbery Unarmed Robber Armed Bank Robbery

Receiving or Concealing Stolen Property

Accepting Bribe – Public Official

Omnibus Forfeiture

MCL 600.4701 et. seq.

• Police agencies can pursue forfeiture against

personal

property if: – the crime with which an individual is charged falls within the Omnibus Statute, and – the personal property seized is either: • An instrumentality of a crime, • • Proceeds of a crime , or Substitute proceeds of a crime.

Omnibus Forfeiture

MCL 600.4701 et. seq.

• Agencies can pursue forfeiture against

real

property if: – the crime with which an individual is charged falls within the Omnibus Statute, and – the real property seized is either: • Proceeds of a crime , or • Substitute proceeds of a crime.

Omnibus Forfeiture

MCL 600.4701 et. seq.

• Caveats of forfeiting

real

property: – Cannot be considered an “instrumentality” of the crime for forfeiture. – Cannot be forfeited under any theory if it is the primary residence of defendant’s spouse or dependent child UNLESS the spouse and child consented to the commission of the crime. – Real property not subject to administrative forfeiture.

Defenses to Omnibus Forfeiture

MCL 600.4702

• Innocent owner: – No prior knowledge of, or consent to, the commission of the crime.

– Property subject to securing interest who did not have prior knowledge or consent to the commission of the crime.

– Land contract vendor may re-claim property.

Methods of Seizing Personal Property

• • With Court Order authorizing seizure.

Without process if: – Proceeds, instrumentality, or substituted proceeds.

– Valid search warrant.

– Valid administrative inspection warrant.

– PC property is dangerous to health or safety.

– Property subject of prior judgment of forfeiture.

Notice Provisions - Very Strict

MCL 600.4704

• • • Within 7 days after personal property is seized, the seizing agency must serve a Notice of Seizure and Intent to Forfeit upon the charged defendant and each person with a known ownership interest.

Service of NOS may be by personal service or certified mail. May publish notice in newspaper of general circulation for 10 successive days.

A warrant must be issued within 7 days after property is seized for forfeiture.

More Notice Requirements:

• When personal property is seized, MCL 600.4704(3) requires the seizing agency to immediately notify the prosecuting attorney’s office for the county in which the property was seized.

After Charging and Notifications…

• • • • • Await adjudication of criminal case.

If no conviction, cannot proceed.

Frequent review of case status required.

This means calling trial and forfeiture APA regarding next action date.

When discussing potential disposition of criminal case w/ APA docket attorney or Diversion Unit, be aware of potential undermining of forfeiture case by any disposition that does not result in a conviction of a statutory enumerated crime.

After Criminal Conviction

MCL 600.4707

• Cases valued at less than $100,000.00: – Must serve defendant w/ Notice of Intent to Commence Proceedings within 7 days of conviction. – No bond requirement.

– Defendant has 21 days from the date of notice to file written claim of interest in property. If NO claim: property is administratively forfeited.

– If DOES claim interest, WCPO must file Complaint w/in 7 days after expiration of 21-day period.

After Criminal Conviction

MCL 600.4707

• Cases valued at more than $100,000.00: – WCPO must file Complaint w/in 7 days after conviction.

After Criminal Adjudication:

• • • • Jurisdiction is in District Court – Prosecutor must file complaint in District court where crime originated. (MCL 600.4709).

Civil case: – Burden of Proof = Preponderance of the evidence. Prosecutor has affirmative duty to prove that a non-convicted owner had knowledge of, or consented to, the commission of the crime. If win forfeiture case…….

Disposition of Property

MCL 600.4708

• • • …Property may be sold by the seizing agency.

Proceeds or other forfeited property may be disposed as prioritized in the Omnibus Forfeiture statute. If lose case, must return property within 7 days.

Contact Information:

• This presentation was prepared by: Brian T. Moody,

Deputy Chief of Special Operations-Forfeiture

. – E-mail:

[email protected]

.

–

Telephone: (313) 224-1954.

• Presented by: Walter H Bentley III,

Assistant Prosecuting Attorney

.

– – E-mail: [email protected]

Telephone: (313) 224-5843 .

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