Lawyer: Concerns in US over civil forfeitures such as in the 1MDB case

SHAH ALAM: There are concerns in the United States over civil forfeiture suits like the one involving 1Malaysia Development Bhd (1MDB), said prominent US lawyer Thomas C. Goldstein.

These lawsuits are contentious due to concerns they violate due process, said Goldstein, an appellate advocate in the US Supreme Court.

“This is a very controversial practice, and there has been a push back in the US in the past three to four years as it was being used excessively,” he said.

Goldstein, during a talk at Universiti Teknologi Mara (UiTM), said civil forfeitures were different from criminal charges as they were initiated only against property and not against individuals.

The problem with civil forfeiture suits was that the burden of proof lay with the accused who had to prove it was their property and no criminality was involved.

“So it is quite anomalous to seize the property and ask questions later,” he said during the talk titled Criminal Litigation in the United States of America.

He claimed the suits also create an enormous incentive for the law enforcement agencies involved in the forfeiture.

“If they get a bounty in effect it doesn’t just go into the general treasury, the law enforcement agency itself can buy new police cars or whatever it is,” he said, adding that this difficulty has caused the Department of Justice (DoJ) to recognise that it was creating an unfortunate set of incentives.

But Goldstein said in regard to 1MDB, the DoJ’s goal was not for the United States to keep any money but rather to try and “determine whether the money can somehow be traced back to the fund”.

The DoJ is currently conducting a criminal probe into 1MDB and has applied a stay on its civil forfeiture suits in connection with assets that were allegedly purchased using misappropriated funds from the sovereign wealth fund.

Goldstein said as there were parallel civil and criminal proceedings ongoing, the stay requested by the DoJ was probably due to the United States identifying more assets that were tied back to what it believed to be 1MDB.

“What they wanted to do was to make sure those assets were not dissipated, so that they can be held onto and be determined that it was related to 1MDB,” he said, adding the US Supreme Court was starting to confront the question of when civil forfeiture suit goes too far.