News

Point-Counterpoint: The Role of Civil Forfeiture

Mr. Smith sparred with Stefan D. Cassella in a point-counterpoint article in the Winter 2016 edition of Judicature, published by the Duke Law School Center for Judicial Studies. The participants tackled the question of whether forfeiture proceedings are in need of reform. Mr. Smith has for years been a leading advocate for reform of the federal criminal and civil forfeiture laws and the rules governing these proceedings.

For a pdf of the full article, click here.


Cato Institute Constitution Day Presentation by David Smith

On September 15, 2016, Mr. Smith gave a talk about the Supreme Court’s decision in Luis v. United States, 136 S. Ct. 1083 (2016), at the Cato Institute’s Constitution Day conference in Washington, D.C.  Luis held that legitimate, “untainted” property may not be restrained or seized prior to trial if the defendant needs the property to retain counsel of choice, even if that property is allegedly subject to forfeiture.


David Smith Appears on Fox News Regarding Structuring Case

Fox News’ Special Report at 6:00 (EST) on August 13, 2015 featured the case of Randy Sowers, a Maryland dairy farmer accused of structuring his farm’s cash bank deposits by the IRS. IRS received harsh criticism over the case, which was highlighted in a February 2015 House Ways & Means Subcommittee hearing on structuring abuse. In an unusual bipartisan move, leaders of the Subcommittee have asked the Department of Justice to return the money it forfeited from Sowers in light of the subsequent change in IRS and DoJ policy, which was not made retroactive.

The Fox News Special Report may be viewed here.


 

Forfeiture Paper by David Smith Published by Heritage Foundation

The Heritage Foundation recently published a report prepared by David Smith entitled “A Comparison of Federal Civil and Criminal Forfeiture Procedures: Which Provides More Protections for Property Owners?” The nine page report is an in-depth analysis of the comparative procedural protections governing civil versus criminal forfeiture. It emphasizes the need for reform of the criminal forfeiture statutes as well as the civil forfeiture statutes.

View the article (Legal Memorandum 159, July 30, 2015) on the Heritage Foundation website here.

Read the article as a pdf here.


 

David Smith Participates as Moderator on Civil Asset Forfeiture at George Mason University’s Judicial Symposium

Mr. Smith participated in the Ninth Annual Judicial Symposium on Civil Justice Issues sponsored by the George Mason University School of Law on June 1, 2015. He was moderator of the segment entitled “Civil Asset Forfeiture: Crime Fighting Weapon or Shakedown Operation?” Joining him as panelists were two colleagues, Dick M. Carpenter, II and Robert E. Johnson, both from the Institute for Justice. The Symposium is a unique opportunity to discuss timely legal issues directly with the judiciary, as the program is offered only to federal and state judges from across the country. The Director of Education at the Law & Economics Center reports that the judges evaluated the program as outstanding.


David Smith Labels Hastert Indictment for Structuring as “Financial Speed Trap”

In an interview with Zoe Tillman for a National Law Journal article (May 29, 2015), Mr. Smith was asked for comments regarding the structuring indictment filed by the government against former House Speaker Dennis Hastert. Although Hastert was reportedly under scrutiny by federal investigators for some time, the indictment was brought after the DoJ had announced in March of 2015 that it would no longer pursue money structuring cases where it appears there is no criminal conduct involved. Interestingly, Hastert seems not to have engaged in structuring to hide his own criminal conduct, but to hide the fact that he was the victim of an extortion scheme.

For those with ALM digital readers, read the article here.

Read the article as a pdf here.


David Smith Featured on C-Span: “The fact is, the idea that we are a rule of law society is largely a myth in many parts of this country.”

On April 3, 2015, David Smith was interviewed on C-Span Washington Journal regarding forfeiture abuse and reform. Several cases were mentioned as examples of police misconduct. Mr. Smith spoke about the various types of forfeiture (civil, criminal and administrative), the crime of “structuring” (which most people do not realize is a felony), and the lack of government oversight. He also discussed several policy changes announced recently by Attorney General Holder regarding the Equitable Sharing Program and prosecution of structuring cases.

David Smith CSpan

See the full interview video here.

David Smith Testifies Before Congress on Civil Asset Forfeiture

On February 11, 2015, David Smith testified before the U.S. House of Representatives Subcommittee on Crime, Terrorism, Homeland Security and Investigations regarding civil asset forfeiture.  His testimony concerned proposed legislative reforms and his written statement includes a comprehensive comparison of civil and criminal forfeiture procedures.

See the video of the full hearing, followed by some interesting questions from the Committee members, here. Mr. Smith’s testimony begins at 1:16:10.
Read Mr. Smith’s written testimony as a pdf here.


Federalist Society Luncheon With David Smith as a Featured Speaker

The Federalist Society for Law & Public Policy Studies sponsored a luncheon at the U.S. Capitol on February 6, 2015 in conjunction with the American Civil Liberties Union and the Institute for Justice.  David Smith was a featured speaker, along with Darpana Sheth of the Institute for Justice, Kanya Bennett, Legislative Counsel for the American Civil Liberties Union, and Bill Piper, Director of the Office of National Affairs for the Drug Policy Alliance.  Before an SRO crowd of Hill staffers, they discussed the need for civil asset forfeiture reform and the impact of Attorney General Eric Holder’s recently announced policy change limiting the Equitable Sharing Program.


David Smith Quoted in Washington Post Blog on AG Holder’s New Policy

Attorney General Eric Holder announced a major reform of the federal government’s much abused “equitable sharing” program which allows state and local police agencies to use federal laws to forfeit seized assets, and then receive 80% of those assets.  While the reform of “equitable sharing” is a step in the right direction, many in Congress believe that the laws governing civil forfeiture still need a radical overhaul.  Mr. Smith provided insight into the matter in a Washington Post blog on January 20, 2015.

Read the blog on the Washington Post website here.
Read the blog as a pdf here.


David Smith Interviewed for USA Today Editorial

On November 20, 2014, USA Today published an editorial stating that “civil asset forfeiture is government at its absolute worst.”  Mr. Smith assisted by providing the information concerning the case of Ming Ton Liu, an innocent citizen from whom the Mobile, Alabama police improperly seized $75,000 in legitimate funds he was going to use to buy a restaurant. The money was later returned after the client filed a federal administrative claim demanding his day in court.

Read the article on the USA Today website here.
Read the article as a pdf here.


David Smith Comments on Meaning of “Super-Sealing” in Federal Court

The practice of  “super-sealing” a civil forfeiture complaint has, according to the U.S. Attorney’s Office in Nevada, been euphemistically renamed as “special processing.”  This “super-sealing” practice allows the government to file complaints in Nevada federal district courts that are excluded from the mandatory electronic filing system and the public record.  These documents are instead stored in the court vault.  Thus, the public (as well as the property owners) are kept completely in the dark about the fact that the government has secretly filed a complaint relating to their seized property.  The time limits on filing a civil forfeiture case are thereby thwarted and the property owners have no ability to remedy that.  Absurdly, the only thing that has changed is the name, and that change only came about after the practice was exposed in a Las Vegas Review-Journal story.  Mr. Smith discussed this topic with the Journal in an article published on November 16, 2014.

Read the article on the Las Vegas Review-Journal website here.
Read the article as a pdf here.


 David Smith Participates in White Collar Seminar

On November 13, 2014, Mr. Smith participated in a friendly panel discussion at the Pennsylvania Association of Criminal Defense Lawyers White Collar Seminar in Philadelphia, Pennsylvania.  The panel on criminal forfeiture issues, which he shared with Assistant United States Attorney Alvin Stout (Chief of the Forfeiture Unit and the Financial Litigation Unit at the United States Attorney’s Office for the Eastern District of Pennsylvania), was well-received.


David Smith Discusses “Well-Intentioned” Federal Law on Structuring With The Virginian-Pilot

The unfairness of the federal structuring statute has become a hot topic of discussion in the news media and in Congress.  On October 28, 2014, Mr. Smith discussed with the Virginian-Pilot one of his many “horror story” structuring cases.

Read the article on the Virginian-Pilot website here.
Read the article as a pdf here.

The House Committee on Ways and Means, Subcommittee on Oversight, held a hearing on IRS’ abuse of the federal structuring law (31 U.S.C. §5324) on February 11, 2015.  Mr. Smith was invited to testify at the hearing but could not appear because he was testifying on civil forfeiture reform that same morning before the U.S. House of Representatives Subcommittee on Crime, Terrorism, Homeland Security and Investigations.

Read the informative statement submitted by Attorney Robert Johnson of the Institute for Justice as a pdf here.


David Smith Featured As Forfeiture Expert in New York Times Article on I.R.S. Abuse of Structuring and Civil Forfeiture

On October 26, 2014, David Smith was quoted on the front page of the New York Times, in an article describing how the I.R.S. seizes the bank accounts of individuals who are never charged with any crime. Instead, the money is seized solely because there were cash deposits in amounts less than $10,000, an offense known as structuring if the deposits were made in order to evade bank reporting requirements. Many individuals who have had their money seized by the government are completely innocent, however, and are unaware of these requirements. “They’re going after people who are really not criminals,” said David Smith, a former federal prosecutor who is now a forfeiture expert and lawyer in Virginia. “They’re middle-class citizens who have never had any trouble with the law.”

Read the full article as a pdf here.
Read the full article on the New York Times website here.


David Smith Quoted in Wall Street Journal Article on Money Laundering in L.A.’s Fashion District
On October 2, 2014, David Smith was quoted in a WSJ piece describing how more than 2,000 businesses in the Fashion District of Los Angeles will be subject to stricter cash-transaction reporting requirements in an effort to halt suspected money laundering by drug cartels. Specifically, the threshold for reporting cash transactions to the federal government has been lowered from $10,000 to $3,000 for a period of 180 days. “It’s a way to let them know you’re under scrutiny, but if they’re not going to abide by the $10,000 reporting requirement, are they going to abide by the $3,000 requirement?” said David B. Smith, a criminal-defense lawyer who served in the Justice Department’s narcotics section.
Read the full article as a pdf here.
Read the full article on the WSJ website here.

David Smith Featured in September 2014 New York Times Video and Story about Hana Beshara, aka Queen Phara, the Founder of NinjaVideo


gngf item 13 beshara interview


David Smith Featured in Washington Post Series Covering Civil Forfeiture Abuse
On September 12, 2014, David Smith was featured in a front page 3 part Washington Post series covering civil forfeiture abuse. “This type of police bounty hunting is antithetical to everything our criminal justice system is supposed to stand for,” said David Smith, who has helped craft asset forfeiture reform legislation. A number of the cases profiled in the series were litigated by Mr. Smith.
DS pic WP series
Read the full article on the Washington Post website here.

David Smith Participates in Federalist Society Discussion on Civil Forfeiture Reform

David Smith was a featured participant in a lunchtime panel discussion sponsored by The Federalist Society on abuse of the civil asset forfeiture laws on September 4, 2014. The luncheon, which took place in the U.S. Capitol rotunda, centered on the idea that it is again time for forfeiture reform.


David Smith Featured on Richmond, VA News Station CBS 6 Regarding RICO Statute

David Smith was featured in a CBS 6 news broadcast on July 21, 2014. CBS 6 reported on the case against the 99-Goon Syndicate, a gang charged with crimes ranging from robbery to murder under the RICO statute. Mr. Smith was interviewed regarding the purpose and scope of the RICO statute.

 

The video is embedded below and can also be viewed here.


David Smith Featured in June 2014 Alaska Dispatch News

In the context of a $1 billion Iranian money laundering scheme, David Smith was quoted discussing civil forfeiture lawsuits that allow federal prosecutors to seize property months or years before they have prepared a criminal indictment.

Read the full article on the Alaska Dispatch New website here.
Read the full article as a pdf here.

David Smith Featured Speaker at NACDL Seminar in New Orleans

On March 7, 2014, David Smith lectured on “Obtaining an Award of Fees and Expenses as the Prevailing Party in a Civil Forfeiture Case,” at the New Orleans Mid-Winter CLE of the National Association of Criminal Defense Lawyers.


David Smith Speaks at Federal Defense Seminars in Mobile, Alabama and Charlottesville, Virginia

On October 17, 2013, David Smith was the featured speaker at a CLE presented in Mobile by the Federal Public Defender’s Office for the Southern District of Alabama. The topic was how to defend restitution and criminal forfeiture cases. Mr. Smith presented the same lecture in Charlottesville, Virginia on April 11, 2014, at the annual seminar presented by the Federal Public Defender’s Office for the Eastern District of Virginia.


David Smith Featured Speaker at Federal Defense Attorney Training Seminar

On May 24, 2013, David Smith was a speaker at the Twenty-Second Annual Maureen Kearney Rowley CJA Panel Training Seminar in Philadelphia, Pennsylvania. Mr. Smith spoke to the assembled group of top attorneys and local federal judges regarding current civil and criminal asset forfeiture issues.


David Smith Featured in Salt Lake Tribune

David Smith was featured in an April 14, 2013, Salt Lake Tribune article that discussed the civil forfeiture of assets in Utah in which related criminal charges were ultimately dismissed. Mr. Smith noted that Utah authorities are under no obligation to return any of the property already forfeited through civil proceedings. “Which is an interesting commentary on the D.A.’s forfeiture cases,” he is quoted as saying. “They’re basically taking money and property from people who can’t afford to contest the forfeiture, so they’re pretty much at the mercy of the police department and D.A. But that doesn’t mean the government can’t give them their property back. If they wanted to, they could probably arrange for the people to be compensated. They could agree to pay the person back the value of the car out of this forfeiture fund.” Mr. Smith said that in many cases, defendants who have property seized don’t have the money to fight to get it back, or it’s not worth the expense. “What this really illustrates is even if the government has a weak or nonexistent case, most people don’t have the money to fight it,” he said. “And it’s very difficult to do it yourself.” The piece noted that David Smith chairs the Forfeiture Committee of the National Association of Criminal Defense Lawyers.

Read the full article as a pdf here.
Read the full article on Salt Lake Tribune website here.

David Smith Featured in Chicago Tribune

David Smith was featured in a February 21, 2013, Chicago Tribune article that discussed assets designated for forfeiture as part of a deal between federal prosecutors and former Rep. Jesse Jackson Jr., who pleaded guilty to orchestrating a scheme to use about $750,000 in campaign funds for personal expenses. The piece stated that Mr. Smith is an expert in forfeiture law and quoted him discussing the potential disposition of the assets.

 

Read the full article as a pdf here


David Smith Featured in New York Times

David Smith was featured in a January 1, 2013, New York Times article that discussed the asset forfeiture unit of the United States Attorney’s Office in Manhattan. The piece noted that he is the author of a leading treatise on forfeiture law. Mr. Smith was quoted as saying, “”Congress needs to revisit the forfeiture laws to curb continuing abuses. The procedures need to be made more fair, particularly for innocent third parties whose property rights can be easily destroyed without even having an opportunity to challenge the basis for the forfeiture.”

Read the full article as a pdf here.
Read the full article on NY Times here.

David Smith Featured on Civil Asset Forfeiture Teleforum

On August 7, 2012, David Smith was a featured speaker on a Federalist Society teleforum regarding civil asset forfeiture. His discussion concerned how forfeiture works and how these laws are abused at the state and federal levels.
http://www.fed-soc.org/events/detail/civil-asset-forfeiture

Read the teleforum description as a pdf here.

David Smith Testified Before Congress Regarding International Money Laundering

On February 8, 2012, Partner David Smith appeared as an expert before the U.S. House of Representatives, Subcommittee on Crime, Terrorism, and Homeland Security. Mr. Smith testified on“Combating Transnational Organized Crime: International Money Laundering as a Threat to our Financial Systems.”

You can download a complete pdf copy of David Smith’s testimony here.

Highway Robbery: Washington Post Editorial and New Yorker Article on Asset Seizure from Church

A January 2, 2012, editorial in the Washington Post describes the unwarranted and unlawful seizure of $28,500 cash by a Virginia state trooper from the secretary of Iglesia Pentecostal Nuevo Renacer, a Pentecostal church that has locations in Virginia, Maryland and New York. David B. Smith, PLLC, along with the Institute for Justice, a libertarian public interest law firm, represented the Church in the fight to have the money returned. This case was featured not only in the Washington Post, but also in a related in-depth article in the New Yorker. For a detailed description of this case, see “2012 Highway Robbery” on our Cases page.

Read the full Washington Post editorial here.
Read the full Washington Post editorial as a pdf here.
Read the full New Yorker article as a pdf here.

David Smith Victory Featured in Wall Street Journal

Partner David Smith was featured in an August 2011 Wall Street Journal article which recounted his successful representation of an individual in which he forced the government to return all of the money it had seized, as well as pay for attorney’s fees. Regarding asset forfeiture, Mr. Smith was quoted as saying, “We are paying assistant U.S. attorneys to carry out the theft of property from often the most defenseless citizens.” For a summary of the case, see “2011 Attorney’s Fee Award and Return of Cash” on our Cases page.

Read the full Wall Street Journal article here.
Read the full Wall Street Journal article as a pdf here.

Supreme Court Decides Forfeiture Case

The Supreme Court held that the important civil forfeiture case of Alvarez v. Smith was moot because all of the actual property disputes between the parties had been settled or otherwise resolved in Illinois state court. The Court vacated the Seventh Circuit’s judgment in favor of the plaintiffs. 130 S. Ct. 576, 175 L. Ed.2d 447 (2009). This is an unfortunate outcome because a clear majority of the Court appeared to agree with at least some of plaintiffs’ constitutional claims at oral argument on October 14, 2009. Plaintiffs’ counsel, from the University of Chicago Law School, vowed to continue the constitutional litigation under §1983 in the district court by seeking damages there. Mr. Smith filed an amicus brief on behalf of the Cato Institute, the Goldwater Institute and the Reason Foundation in support of the plaintiff property owners.