Can you make forfeiture of drug money a condition of felony plea and avoid going through civil forfeiture proceedings?

Any helpful advice or answers out there are greatly appreciated.

You wouldn't be using a criminal case to gain an advantage in a civil case, would you? Actually, I think not.

You are simply seeking to include a related issue as part of an agreement to resolve a criminal case. We regularly require a defendant to sign an agreed judgment of forfeiture in connection with a plea agreement on the criminal case. We don't give back part of the money; and we don't let the defense attorney keep a fee. It's either forfeitable or it's not.

In The Perfect Plea, I suggest that this is a perfectly acceptable form of negotiation. But, I must alert you that not everyone feels this way. Some counties think there must be separation between the civil and criminal case.

I think you must at least file the civil forfeiture case, however, in order to make it a true forfeiture of assets. Otherwise you leave yourself open to criticism regarding how the funds are distributed and spent, if not in accordance with Chapter 59.

If you miss the deadline, it is still possible to include as part of the plea agreement that the money which was held as evidence must be paid directly to the clerk's office towards the fine imposed.

If it is a facilitation case, the guilty plea essentially admits the property was contraband, so doesn't seem like anything unethical is occurring. If it is a proceeds case you are still not utilizing the criminal prosecution solely to gain an advantage in the civil proceeding and certainly not manipulating the criminal process "by private interests for personal gain". To me the only problem arises if you have no reasonable basis for asserting the nexus to the money. See Discip. Rule 3.01. Still, we often do not expressly make the disposition of the forfeiture case part of the plea bargain (there is just a gentleman's understanding, or the civil proceeding is reached first).

Count me in the camp that believes that ethical considerations preclude requiring a defendant to sign an agreed judgment of forfeiture as a condition of a criminal plea.

Our office has different persons handling the criminal case and the civil case and I make a concerted effort not to discuss the criminal case with either my co-workers or the defendant's forfeiture attorney.

I don't want the perception to be that we offered a Defendant probation if he would give us his money, but that we threatened to incarcerate him (via a trial or withdrawal of a probation plea offer) if he refused to sign a civil judgment.

Besides, once the defendant has been convicted in the criminal case, the forfeiture case is just a matter of filing a summary judgment with a certified copy of the criminal judgment attached.

I think you should be very careful with this situation. Can you honestly say that your plea offer was completely independent of the forfeiture agreement? In other words, are you making a better offer if the defendant agrees to forfeit the assets? If so, you have at the very least the appearance of impropriety. It sort of makes it look like a drug dealer is buying his way into a better deal. Is that a message we want to send?

Okay, now I'm a little concerned. I have, in the past, when confronted by defense counsel during a plea discussion with a request of a reduced length of probation, negotiated a higher fine in exchange for cutting a year or two off of my offer. In the case of out of state defendants, I will commonly seek to get a hefty fine paid up front along with the court costs, court appointed attorney fees, etc.. My logic here is that if I'm going to reduce a term of probation, there should be some quid pro quo. Or in the case of out of state folks, since they so often abscond I want to get as much as I can out of them up front. Is this type of negotiation strategy likely to be perceived as allowing the defendant to "buy his way out of trouble?"

In the case of asset forfeitures, our office also tries to keep the proceedings separate. However, from a practical standpoint, I wonder if there is any real distinction here from a plea negotiation involving a higher fine or an up front fine.

Lee:

The distinction I see between negotiating the terms of a plea agreement (i.e. a higher fine for a shorter term of supervision or whatever)is that all of the terms negotiated are within the criminal case and are ostensibly related to the punishment and/or rehabilitation of the the offender. Furthermore, there are not ethical rules promulgated by the State Bar which address in any way, shape or form the plea negotiation process on a criminal case.

When you begin to alter a criminal plea (or to agree to probation instead of incarceration) based upon what a Defendant is willing to forfeit to the State, you begin to approach ethical rules regarding the use of a criminal proceeding to gain leverage in a criminal proceeding.

Lee, I have done the same thing on occasion. One I remember was a defendant who was extremely ill but had some cash and preferred to pay a large fine over incarceration. I don't think the ethical rules apply to this situation because there is no accompanying civil case that is being compromised. A fine is actually part of the punishment for the criminal offense, whereas the civil forfeiture is not supposed to be about punishment.

Tim, no one wants to send the message you suggest, yet no one wants to lose whatever leverage the criminal prosecution gives to settlement of the forfeiture case either. And there is no denying that such leverage exists (whether or not you make use of it). Rule 4.04(b)(2) simply does not apply to this situation because the prosecutor is never going to be using the criminal charge solely to gain an advantage in the related civil matter. If he is, then neither case should be pursued. The real issue is whether your discretion in determining the punishment in the criminal case should be influenced in any way by the fact that there is some money on the table, especially when your agency may stand to benefit under a local agreement in the forfeiture. But, as pointed out, there are no disciplinary rules affecting plea bargaining directly. Cf. Rule 3.09(a). Robert, if the public is entitled to whatever benefit the forfeiture statute is designed to confer, then why can't you make a concession in the criminal case to gain that benefit, even if the criminal is ultimately treated somewhat differently than the next guy (who engaged in similar conduct but had no property seized)?

If your plea bargain contains a stipulation of evidence that addresses the asset sought to be forfeited, why wouldn't that foreclose any defense to the forfeiture case?

I agree that there is room for argument on this point as to whether the ethical rules are violated by this type of agreement. But I still have a problem cutting a defendant a better deal on a criminal case if he agrees to give up money or property in the civil case. How many times have we heard lately the old saw about how defendants with money can buy their way out of anything. Doesn't this practice add a bit of legitimacy to that argument? Once again, I have absolutely no problem with resolving both the civil and criminal case together so long as the defendant is not getting a better deal in the criminal case to give up his property.

I appreciate all the responses on this subject. The question came up in our office, and I was tasked with finding out what the legal landscape looked like on this issue.

I agree with Tim Cole that there may be room for argument on this issue, but our office is not looking to push any ethical boundaries on this issue. All of your responses are going to help our office create a clear policy on the issue.

The Legislature apparently doesn't have everyone's concern over the ethics of trading jail time for money. Check out HB 754, which has passed the House and has been referred to the Senate Criminal Justice Committee. It lets a defendant buy his way out of punishment. Come on, we need to catch up with the times.

Chapter 59 of the Code of Criminal Procedure creates a system of rights and protections for the citizen accused.

However, Article 1.14, Tc.C.C.P., provides that "The defendant in a criminal prosecution of any offense may waive any rights secured him by law except that a defendant in a capital felony case ..." We routinely require a defendant to give up rights in a plea bargain that, in my opinion, are much more important than mere property rights and confer a great benefit on the State - saving time and MONEY. How about giving up the right to remain silent, the right to trial by jury, the right to appeal, the right to confront the witnesses against them, ... Can a critic argue with a straight face that these concessions by a defendant are less significant than waiving a property interest in cash or a car?

I too am concerned whenever it appears that "justice is for sale". However, if an agreed "gifting" of money is in the interest of the Defendant from their point of view and in the interest of justice from our point of view, we must remember that we can never make everyone happy all the time and it is best to just try to do the right thing.

If spurning the opportunity in a plea bargain were to leave a criminal with their ill gotten gains, is that justice?

Did you know that the Penal Code expressly authorizes placing a civil penalty into a sentence? See Tex. Pen. Code sec. 12.01(c). Of course, some might describe a forfeiture as something other than a penalty.

I was just searching through the posts for references to Chapter 59 forfeitures, which I've handled for Galveston County for the last four or five years, and saw this post from last year. I never thought of doing this. It sounds like a great idea, but how does the criminal judgment resolve all the factual issues in the forfeiture case? (e.g., "Yeah, I'm a drug dealer, but that's some money I got from my mother, who of course would love to come testify for me"--not a great defense, but they frequently claim something along those lines).

I happen to have a pro se case at the moment that I just set last week for trial in July. If there's a way to make this work (the guy plead on the criminal case a couple months ago), I would really, really love to avoid all the thrills of a pro se trial. Thanks for any ideas,

Elizabeth Foley
Ass't Crim. D.A., Galveston County
adagunn@netscape.net

quote:

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Originally posted by Robert S. DuBoise:
...Besides, once the defendant has been convicted in the criminal case, the forfeiture case is just a matter of filing a summary judgment with a certified copy of the criminal judgment attached.

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Elizabeth,

What is the underlying felony for which your pro se defendant has been convicted?

Drug dealer renting room from House owner keeps money ($1000.00+) in a shoe in a shoebox in his room.

Owner of house claims money is her son's savings from his Summer employment. (She has no idea where the money was found according to her responses to our requests for admissions and interrogatories.) The owner of the house was initially listed as a defendant on the forfeiture petition, AND there's no link whatsoever between her as a 'landlord' and the cash in the bad guy's closet. Yet, she's claiming the cash is her son's income from his Summer occupation that he's saving for college. (Most people just use the mattress.)

So, here's my relevant question:

Does the fact that often there are multiple defendants, and often defendants that have nothing to do with the criminal case affect your ability to negotiate during Criminal plea negotiations?

AND

Because forfeiture cases often and regularly do have multiple parties grabbing at the goodies, shouldn't each case be handled apart from the criminal matter?

SOLUTION: what if you focused on the admissions in the stipulation of evidence as the conditions of your plea bargain? (Admit : a, b, c, and we'll offer DEAL.)

Is there a difference? I think so. I think that if your recitation in the stipulation included slightly more than the standard elements of the crime, you could have a judicial admission to the facts needed for your Motion for Summary Judgment in the Civil case.

But, in my above example, we'd likely have conflicting stories in the motion for summary judgment as to where the money was kept/found which would be a contested fact issue and we'd still have to try the case.

This one involved a charge of Possession with Intent, though not all of them end up that way. I actually don't end up with that many cases with multiple defendants who aren't obviously both involved and charged criminally (roomates running a meth lab or something), aside from parents of 20-ish kids selling pills out of a car registered to Daddy. Those I see a little more often, and decide on them based pretty much on the kid's history, which may or may not kill an innocent owner defense. On single defendant cases, though, I might try the special stipulation on a couple and see how it flies with our judges. Thanks for the suggestion.

Elizabeth Foley
Ass't Crim. D.A.
Galveston County