A recent paper I published in the Journal of Money Laundering Control looks at a prominent series of cases brought by the United States and France against assets owned by Teodoro Nguema Obiang, Second Vice President of the Republic of Equatorial Guinea and son of the country’s president.
The paper is available here.
The cases produced mixed results on the tracing element.
In the paper, I used a qualitative comparative case analysis to examine the U.S. and French cases. Though the paper is certainly a comparative case study analysis, nearly identical facts and two different jurisdictions reaching separate conclusions bring us in the legal community as close as we can realistically come to quasi-experimental research.
The U.S. results reflect serious weaknesses in the U.S. law as compared to the more effective French asset recovery procedure.
The French procedure is superior due to a burden shifting statute built into several provisions of the French Criminal Code. Burden shifting statutes were recommended by the Inter-American Convention against Corruption (paragraph 3 of Article IX). With such statutes, corrupt officials such as Obiang have the burden to account for the lavish assets they have acquired.
The U.S. system is weaker because of the lack of such a burden shifting statute.
The U.S. position is that it is fundamental to the Constitution and legal system that the burden lies upon the government (in civil asset forfeiture proceedings as well), not on the defendant.
But is that always the case? In fact, it is not.
My paper shows several examples of U.S. criminal law where burdens are shifted from the government to the defendant. Among them are affirmative defenses such as insanity (ALA Code§ 15-16-2) and rebuttable presumptions such as in stalking cases (Tenn. Code Ann. § 39-17-315; Mont. Code Ann. §45-5-220).
Based upon this analysis, I argue for reform of the current asset forfeiture procedures so that corruption such as Obiang’s can be more effectively combatted.
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Peter Leasure (J.D.) is a current Ph.D. candidate at the University of South Carolina, Department of Criminology and Criminal Justice.
1 Comment
You might want to look at customs and export control forfeiture cases which are in rem cases under admiralty rules: An owner or beneficial owner challenging the seizure and forfeiture is the moving party and has the burden of proving that the export or import was legal.
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