In a review of New York Governor Andrew Cuomo’s proposed forfeiture bill, the New York Law Journal interviewed Steven L. Kessler.  In the January 20, 2012 issue of the Journal, Kessler criticized the proposal, citing the state prosecutors’ attempts to “federalize” New York’s statute, which was the product of years of discussion and analysis and which is more protective of innocent parties than its federal counterparts.  For the complete article, please click here.

Steven Kessler, a New York-based attorney and expert on asset forfeiture says that is not unusual.

“It’s now almost become something where you can’t arrest people because you know when they go to trial no one is going to convict them,” Kessler says. “So you say ‘OK, let’s make things miserable for them and take their property and cash and the like.’”

United States v. Peterson

In a forfeiture proceeding ancillary to a criminal conviction, the New York District Court in Manhattan upheld a Claimant’s property interests under Marvin v. Marvin, granting the criminal defendant’s domestic partner a community property interest in the home they shared in San Francisco.  In addition, in an unusual twist, the Court used the date of the issuance of the criminal defendant’s indictment as the date when the government’s interest in substitute assets vests.

Steven Kessler, a lawyer for Janet Schaberg, said he was “cautiously optimistic” about the case’s ultimate outcome.

“The only issue before the 2nd Circuit was the validity of the injunction,” he said in an interview. “It is now up to the agencies to negate the presumption that the divorce agreement fairly and equitably distributed the marital assets.”

To read the full article about this case involving asset forfeiture attorney Steven L. Kessler, click here.

Cuomo v. Levy, slip op., Indictment No. 17655/09 (Sup. Ct. Kings County Nov. 12, 2009) (Ingram, J.). In a case of first impression under CPLR Article 13-A, New York’s civil forfeiture statute, the Court quashed subpoenas – issued by the New York State Attorney General’s office as a matter of course – which were served on two forfeiture defendants on the ground that all discovery was stayed until the resolution of the parallel criminal proceedings.

Commodity Futures Trading Commission v. Walsh, 618 F.3d 218 (2d Cir. 2010) (certifying questions to New York Court of Appeals) and Commodity Futures Trading Commission v. Walsh, 17 N.Y.3d 162 (June 23, 2011) (answering certified questions) and Commodity Futures Trading Commission v. Walsh, et al., ___ F.3d ___, 2011 WL 4090758 (2d Cir. Sept. 15, 2011) (vacating the injunctions based on the law as set forth by the New York Court of Appeals)

Pending appeal involves issues of first impression regarding the scope of the relief defendant doctrine and availability of the bona fide purchaser for value defense to an ex-spouse of the defendant in a securities fraud disgorgement proceeding. Making new law, the New York Court of Appeals found that (1) fraud proceeds are “marital property” under section 236 of the New York Domestic Relations Law, available for distribution upon the termination of a marriage, and (2) an innocent spouse who receives such proceeds in good faith pursuant to an arms-length divorce for fair consideration acquires ownership of that property superior to the rights of the original property owners.

The United States Court of Appeals for the Second Circuit confirmed the decision of the New York Court of Appeals and vacated the injunctions imposed by the federal District Court.

United States v. Surgent, 2009 WL 2525137 (E.D.N.Y. Aug. 17, 2009).

In a ground-breaking 57-page opinion, District Judge John Gleeson brilliantly reasoned through first impression issues of the legitimacy of so-called ‘money judgment forfeitures’ and the government’s burden of proof in criminal forfeiture ancillary proceedings under Rule 32.2 of Federal Rules of Criminal Procedure and 21 U.S.C. § 853(n).

United States v. Currency in Sum of Six Hundred Sixty Thousand, Two Hundred Dollars, 242 Fed. Appx. 750, 2007 WL 1959049 (2d Cir. July 2, 2007), aff’g 423 F. Supp. 2d 14 and 438 F. Supp. 2d 67 (E.D.N.Y. 2006).

The United States Court of Appeals for the Second Circuit affirmed two District Court Memorandum Decisions granting a motion against the United States government to enforce the settlement of a civil forfeiture matter and awarding attorneys’ fees under the Equal Access to Justice Act because the government, in reneging on the settlement, took a position that was not “substantially justified”.

An innocent party’s money is returnable if it’s clearly separate from the fraud. Mr. Lieto’s two sealed and marked bank bags with the $392,000 qualified, his attorney, Mr. Kessler, argued in court filings. Others among the scores of customers made similar claims.

To view this full article online featuring Steven L. Kessler, asset forfeiture attorney, click here.

DiFiore v. Armstrong, slip op., Index No. 08-15266 (Sup. Ct. Westchester County Oct. 1, 2008) (Molea, J.). The Court found that the District Attorney’s office in a civil forfeiture proceeding commenced under CPLR Article 13-A had failed to meet its evidentiary burden on a motion to attach a vehicle seized incident to a drug arrest, where there was no showing that the owner of the vehicle – the spouse of the arrestee – had reason to know that the vehicle would be used for criminal activity.