S&D E18 - The Legal Landscape of Asset Forfeiture

In our final conversation of the year, our SVP of Client Relations, Joanna Summers, sits down with Stefan Cassella, a former federal prosecutor with more than three decades of experience in international asset forfeiture who has authored over 50 law review articles and played a pivotal role in shaping and advancing federal asset forfeiture laws in the USA and abroad.

In this episode, Joanna and Stef explore the growing role of cryptocurrency in criminal investigations and asset forfeiture, highlighting its use in money laundering, investment fraud, and sanctions evasion.  Together, they unpack the complexities of high-profile cases like Bitcoin Fog, the challenges posed by mixers and decentralized exchanges, and the significance of recent court rulings in legitimising blockchain analysis tools. 

Stefan also shares practical advice for law enforcement and attorneys navigating the crypto landscape, highlighting the need for enhanced training and resources to address these evolving threats and the critical role of non-conviction-based asset forfeiture, or civil asset forfeiture, as a key law enforcement tool.

Timestamps

02:00 - Stef’s Background

03:00 - The Growing Role of Cryptocurrency in Asset Forfeiture

07:00 - Understanding Civil Asset Forfeiture

11:00 - Regulatory Challenges and the Future of Crypto Laws

14:30 - Complexities of Crypto Mixers and Decentralized Exchanges

19:30 - The Legitimacy of Blockchain Analysis Tools in Court

23:00 - Practical Advice for Law Enforcement and Attorneys in Crypto Forfeiture

24:00 - Insights from Stefan’s Money Laundering and Forfeiture Digest

26:00 - Key Challenges in Crypto Asset Forfeiture

Resources Mentioned

• https://www.trmlabs.com/tackling-crypto-crime-2023-survey-of-law-enforcement 
• https://www.justice.gov/opa/pr/operator-helix-darknet-cryptocurrency-mixer-sentenced-money-laundering-conspiracy-and 
• https://www.nortonrosefulbright.com/-/media/files/nrf/nrfweb/knowledge-pdfs/us_59864_reprint--when-blockchain-analytics-meet-the-daubert-test_r3.pdf 
• https://assetforfeiturelaw.us/  
• https://www.fatf-gafi.org/en/publications/Fatfrecommendations/Bestpracticesonconfiscationrecommendations4and38andaframeworkforongoingworkonassetrecovery.html 
• https://sherwood.news/crypto/momentum-builds-for-a-strategic-national-bitcoin-reserve-but-what-does-that/ 
• https://academy.assetreality.com/student/page/149456-virtual-asset-transfer-fundamentals 

About our Guest

Stefan Cassella is a former federal prosecutor with more than three decades of experience in international asset forfeiture who has authored over 50 law review articles and played a pivotal role in shaping and advancing federal asset forfeiture laws in the USA and abroad.

Today, as the founder of Asset Forfeiture Law, he continues to provide invaluable guidance to law enforcement, private law firms, and financial institutions by providing expert witness services, training, and legal guidance to law enforcement agencies, private law firms, and financial institutions, solidifying his position as a leading authority in the field.

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The views expressed by guests are their own and their appearance on the program does not imply an endorsement of them or any entity they represent. Views and opinions expressed by Asset Reality employees are those of the employees and do not necessarily reflect the views of the company. 

‍Asset Reality does not guarantee or warrant the accuracy, completeness, timeliness, suitability or validity of the information in any particular podcast and will not be responsible for any claim attributable to errors, omissions, or other inaccuracies of any part of such material. 

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Transcription

Tobias Furneaux

Welcome to Seize & Desist. In our final conversation of the year, our SVP of client relations, Joanna Summers, sits down with Stefan Cassellaan Cassella. He has authored over fifty law review articles and played a pivotal role in shaping and advancing federal asset forfeiture laws in the US and abroad. Today, as the founder of asset forfeiture law, he continues to provide invaluable guidance to law enforcement, private law firms, and financial institutions by providing expert witness services, training, and legal guidance. In this episode, Joanna and Stef explore the growing role of cryptocurrency in criminal investigations and asset forfeiture, highlighting its use in crimes like money laundering, investment fraud, and sanctions evasion. Together, Joanna and Stefan Cassellaan unpack the complexities of high profile cases like Bitcoin fog, the legal challenges posed by mixers and decentralized exchanges, and the significance of recent court decisions in legitimizing blockchain analytics tools. Stefan Cassellaan also shares practical advice for law enforcement and attorneys navigating the crypto landscape, highlighting the need for enhanced training and resources to address these evolving threats and the critical role of non conviction based asset forfeiture or civil asset forfeiture as a key law enforcement tool. Let's get into the conversation.  

Joanna Summers

Stef, I can't think of anyone more appropriate to discuss the legal landscape of asset forfeiture with and what an essential tool forfeiture is for law enforcement. Before we dive into today's episode and some questions, Stef, you were a federal prosecutor for the Department of Justice for thirty years. At one point, you and I overlapped at DOJ. I know you specialized in money laundering and asset forfeiture while you were there. You've also written over fifty law review articles on these topics, and you've been instrumental in the use of federal asset forfeiture laws. Can you tell us a little bit more about your experience at DOJ and then more recently starting your own consulting company when you retired?  

Stefan Cassella

Well, yes. Thank you so much, Joanna, for having me. It's great to be with you. I was at DOJ for thirty years, and for most of that time, money laundering and forfeiture were my areas. I did training. I tried multiple cases, some of them high profile. I drafted legislation, and I had a supervisory responsibility for policy development, All of which was interesting because those were cutting areas of the law that were just emerging. A lot of it we were making it up as we went along and a lot of what we do today in federal law enforcement is based on what we developed in the 1990s and early 2000s. Since then, I've been working as a consultant. I consult with federal law enforcement agencies. I consult with private law firms. Anyone who would like to have some better understanding of what forfeiture is or what money laundering is, a lot of it is done overseas. And I do that to help countries that wanna develop their capacity in forfeiture and in recovery of assets and in prosecuting money laundering cases.  

Joanna Summers

Well, we love to hear that. I'll dive into the questions today. Asset forfeiture has long been a powerful tool in combating various types of crime from drug trafficking and counterterrorism to complex fraud schemes. Are we now seeing that cryptocurrency is following a similar pattern where it's a significant asset in a wide range of forfeiture cases? I mean, you've seen it all over the years.  

Stefan Cassella

That's exactly right. One of the things that I do in my current business is to publish a monthly digest of asset forfeiture money laundering cases that is summaries of all the cases decided by the courts in the previous month. And I've been seeing a tremendous number of cases in which cryptocurrency is a factor. Is that maybe the major factor? And so I did a deep dive into that and I look back five years and it turns out there are more than fifty reported cases in which cryptocurrencies are a major factor. And they have a there's a wide variety. I mean, there's some of them are old wine in new bottles. I mean, there's not a whole lot difference when it comes to investment fraud between convincing someone to invest in a nonexistant cryptocurrency and trying to get him to invest in a non existent gold mine or, non existent oil well. And so there's some of that, but there are also many new schemes or ways in which old crimes are being committed in totally new ways because of the advent of crypto. Money laundering is a good example. Commingling funds from an illicit source with funds from a legitimate source was always a way of committing money laundering. It helps to conceal or disguise the illicit assets. But now we have these tumbling operations like Bitcoin fog and Helix and others where you've raised that to a new level. You know, merge commingling cryptocurrency derived from a crime with cryptocurrency that other people are investing and making it impossible to trace the money. So those are two of the ways in which we're seeing crypto, and I can give you some other examples if you'd like.  

Joanna Summers

Please do give us some other examples. I I love the analogy of old wine in a new bottle because I think that really fits.  

Stefan Cassella

Well, sure. You have cases where people wanted to engage in the purchase of contraband, child pornography or drugs, and they use cryptocurrency to do it because they think that that gives them some level of anonymity. You have extortion cases. People are trying to blackmail or they've shut down your business and they want you to pay a ransom and they ask for the ransom to be paid in crypto called ransomware because it's more difficult for law enforcement than to figure out who is receiving the money and therefore who committed the extortion. There are people who are evading sanctions, sanctions on countries such as North Korea and Iran where they transfer the money in crypto because it's more difficult to determine that the money is being held by a sanctioned person or that it's going to a sanctioned country. You have people who are being defrauded in crypto. You get a phone call. Hey. Your bank account is being compromised. You need to secure it by transferring the money to this crypto wallet, this Bitcoin wallet. And people do that, and they find that they've, of course, transferred their money to the bad guy, where you have people committing embezzlement where they get the bank to transfer their employer's money in crypto out of the bank account. And then finally, you have people actually stealing crypto from each other. They get each other's personal keys and they go into wallets and they transfer the money and they steal it. There was a very famous case involving hundreds of millions of dollars stolen by North Korean operatives who got private keys and transferred the money to the North Korean nuclear weapons program. So you see all of that. And what's important to understand is that these are a mix of criminal cases, criminal prosecutions for money laundering and the underlying fraud or embezzlement or whatever it might be, and civil forfeiture cases because civil forfeiture turns out to be, for good reason, essential in being able to recover the money for the benefit of the victims and to make sure that the bad guys don't get to keep it.  

Joanna Summers

Absolutely. I read a really interesting survey from TRM. It was a twenty twenty three survey of law enforcement that found sixty percent of crypto investigations started off without an obvious crypto component, which says to me everything that you just said is completely spot on. That in the future, the vast majority of cases will include cryptocurrency, and there's just so many different types of cases that they could be. And I wanna come back to a point you just made on civil forfeiture. Let's talk a little bit about why civil asset forfeiture is such an important tool for all of the categories you just discussed. Can you explain what civil asset forfeiture is or non conviction based forfeiture and why in particular it's so important for cryptocurrency?  

Stefan Cassella

Sure. Absolutely. The the term the rest of the world uses is non conviction based forfeiture and that sort of tells you what the essence of it is. You still have to prove, if you're the government, you still have to prove that a crime was committed and you have to prove the connection between the property and the crime. But you're not trying to put someone in jail. You're not trying to obtain a criminal conviction of someone. You're trying instead to recover the property. So the focus is not on who the bad guy is and what he did and how he should be punished. The focus is on where did this money come from and and should it be recovered because it was involved in or derived from a crime. So the government still has to prove a crime and it still has to prove the property is connected to the crime, but it doesn't have to have the bad guy in hand because, again, you're not trying to punish him. You're trying to take the property. That's why the cases have funny names. The United States of America versus a hundred and fifty three virtual currency accounts or something of that nature. It's not that the property did something wrong or that the property has to hire a lawyer to defend itself in court. It's that the government is able to establish that a crime was committed and that this is the property involved in the crime and this is the property the government wants to recover. And anybody who wants to contest that has the right to intervene and put the government to its proof. Now why is it essential in these cases? Because you don't need to have identified the wrong door. You may have clear evidence that this property was stolen by someone operating from overseas, an obvious fraud. It's an obvious theft, but you don't know who the bad guy overseas is. Or even if you do know who he is, you don't have him within your jurisdiction to prosecute him. He may be somebody in Russia. He may be someone in China. He may be someone in an African country, and you just don't know how you would ever obtain a conviction of him or her or how you would get the money recovered as part of the criminal sentence without being able to get that person in your jurisdiction. But you have the money. The money is in a crypto wallet in the United States or the money is in a the money is being held by a currency ex cryptocurrency exchange like Coinbase or the money is in account in another country that will honor and enforce an American forfeiture order. So as long as you can establish the property was derived from a crime and that the and you can prove the crime and you know where the property is, you go after the property and you recover it, make sure the bad guys don't get to keep it, and make sure that if there are victims, it can be restored to victims. So there are a lot of examples of that cases where law enforcement has traced the money stolen in a fraud scheme to a crypto wallet and a cryptocurrency exchange at Binance or Coinbase or some place, and they just bring a civil action against that property, invite anybody who wants to contest it to do so, often no one does, and then recover the money.  

Joanna Summers

I think the need for speed in cryptocurrency is so important. We know the funds can move at the click of a button, and that's really helpful to have civil forfeiture. Otherwise, we really wouldn't have very many crypto asset recoveries. And as you mentioned, so many of these cases are victims' cases. The first question victims always ask is how do I get my money back? So I think a lot of the time we focus on, you know, we really wanna get the bad guy and and lock him up, but really, the victims would prefer to see their funds back before anything else happened. I agree. It's a really powerful tool, and that was a great summary of what civil asset forfeiture can do.  

Stefan Cassella

I don't think most laypersons understand that the vast majority of civil forfeiture cases that the government brings are brought for the purpose of recovering money for victims. If you have a victim in a case, the first priority of the government once it recovers the money is to use it to reimburse the victims. It's only in the victimless crimes like drug trafficking where you the government ends up holding on to the money.  

Joanna Summers

Absolutely. So thinking about some of the issues we face in the United States, we know there's a lot of regulatory gaps in crypto in the US. And with Trump coming into a second presidency in twenty twenty five, do you think we'll see any of those gaps filled? Do you think the regulatory gaps that we have right now are making crypto difficult for law enforcement? Is poor regulation a factor in some state or local or even going up to federal agencies having difficulty working these cases?  

Stefan Cassella

Well, I think all of that is true. The lack of regulation and the and the lack of expertise within law enforcement, are both considerable problems. Crypto is attractive because it's the shiny new object. Right? It's the bright new ornament on the Christmas tree. So if you're looking to get rich quick and you want to invest in something that seems to be going up every day, you you invest in crypto. If you're looking for anonymity, you think it's anonymous to purchase your child pornography using crypto, then you do that. But it's a technology that people know very little about over which there's virtually very little regulatory oversight and that leads to problems. So I call it an ephemeral asset that is marked by complexity that few understand in a vocabulary that few have mastered. And those are the things that make victims vulnerable when crypto was involved, but they're also the same things that create challenges for law enforcement. Law enforcement agents have as much trouble wrapping their minds around the concept of what is a cryptoasset asset and learning the vocabulary as as anyone else does. There are experts. You and I both know who they are. They're not very many. They're very, very good, but they're very few. But we need to have all of law enforcement because these cases cases that we started off talking about are showing up everywhere in every context. We need all of law enforcement to have training, to have access to advanced technology. They need to know what a crypto asset is. They needed to know how to trace it, to find out where it is and where it came from, and they need to know how to seize it. How do you take that into possession of law enforcement? The lack of regulatory oversight makes these crimes easier to commit and harder to detect. That's certainly the case and I fear that it's likely to be a situation that's going to get worse rather than better if the president-elect is serious about reducing the already lacks regulation of the crypto industry. And there's one other thing about crypto that it's really problematic for law enforcement and that are sovereignty issues. We in law enforcement are still working under sort of nineteenth century concepts of operating within the sovereign borders of our countries. The advent of online banking made that a problem because we could easily bad guys could easily move the money between jurisdictions across borders much more quickly than law enforcement could could exercise law enforcement powers across borders because of rules relating to sovereignty and jurisdiction. While crypto operates in a world where there are no borders, never mind across borders, there are no borders. Where is the crypto? Where is it located? Is it in your country or in my country? And those create jurisdictional problems for law enforcement in almost every case.  

Joanna Summers

Those are really great points. And you mentioned that a lot of people don't understand the complexity. If you understand the vocabulary, it's still an uphill battle. And even though I'm still a little mad at John Oliver for his hit piece on civil forfeiture a few years back, he has a really good quote that says, Bitcoin is everything people don't know about computers combined with everything they don't understand about money.  

Stefan Cassella

That's very good.  

Joanna Summers

I think it's really fitting. And to your point on training too, you know, I think this is why we've had such a focus at Asset Reality on training as well. We've just developed our virtual asset transfer fundamentals course. We wanna make sure everyone understands how to do transfers, how to seize cryptocurrency, how to custody it. So I think training and resources go a long way in in making sure that everyone can work these types of cases. Let's get into some specific cases. We've talked about how crypto has reinvented traditional crimes like money laundering by introducing more complex ways to obscure the source of funds. While laundering itself isn't new, you've got Helix, Bitcoin Fog, and other mixers that have allowed criminals to take these schemes to a new level of sophistication. Recently, the operator of Bitcoin Fog was sentenced to twelve and a half years in prison. He was ordered to forfeit approximately half a billion dollars. We're incredibly proud at Asset Reality to say two of the agents who worked on that case are now part of the team at Asset Reality too. How do cases involving technologies like mixers and decentralized exchanges, how do they complicate the asset forfeiture process? Were there any notable aspects of how the court approached these arguments in Bitcoin Fog, like what could be forfeited?  

Stefan Cassella

Well, yeah. There are two really interesting aspects to the Bitcoin fog case in the context in which we are speaking. One is, as I mentioned before, in a civil forfeiture case and in some criminal forfeiture cases as well, you have to be able to trace the money you wanna recover back to the crime. In a civil forfeiture case, you have to do that in order to establish that this money is the fact is the thing that was involved in the criminal defense. In a money laundering case, you need to do that because there's no money laundering crime unless the property that the subject matter of the transaction is criminal proceeds. So in both context, you need to be able to establish that these bits and bytes on on a computer that represent someone's assets in a Bitcoin wallet or some other cryptocurrency tether or whatever it might be are traceable back to a crime. And how do you do that? And it turns out that the bad guys think that it's impossible to do that and that's why they use crypto because everything moves in in what appears to be an anonymous setting. But our colleagues in the private sector who have developed these software packages such as in the case of Bitcoin fog, it was chain analysis in their reactor program. They have sophisticated software which can analyze the blockchain. The umbrella term is the blockchain, but there are many variations on that. But it actually looks at all the transactions on this publicly available register of all the cryptocurrency transactions, and it can look for patterns and it can establish, for example, that if the same person is accessing multiple crypto assets, then the same person must be the owner of those because he has to be the one who has the private keys to all of those assets. Or if multiple transactions are being conducted in the same manner then there is a presumption that those are being conducted by the same person and so what they had developed through this software was a a law enforcement tool that establishes to some degree of certainty that the particular assets in question belong to this particular person and were derived from this particular event, which would have been a criminal offense. Now in the Bitcoin case, the government wanted to introduce that evidence, those findings that the results of use of that software into evidence. And the defense said, well, this is junk science. This is not something that anybody could rely on to establish that this is correct. Sort of like in the early days of fingerprints. If a law enforcement officer came in and said I've matched the fingerprints on the on the firearm, the murder weapon to this guy's fingerprints that that should be admissible into evidence because that establishes that he's the guy. Someone at the time might have said, but that's junk science. There's no reason to believe that fingerprints are unique and that they're reliable. And ultimately, the courts decided that they were unique and they were reliable. Well, that's what's happening now with respect to this blockchain analysis. In the Bitcoin fog case, the court held what's called a Daubert hearing, a hearing on the reliability of scientific evidence and decided that this blockchain analysis that they used in that case was reliable, that it was scientifically valid, that it was a way of determining the source of and the ownership of the cryptocurrency and so it was found in that case that it was admissible into evidence. Now the defendant was entitled to object to that to argue that it was not reliable to cross examine the witnesses but nevertheless the point was that it was admissible and it was going to be given to the jury and the jury could then decide whether it was, admissible. In these cases, we're talking about our tumbling cases where the assets of many people are commingled in in various ways and they hop from one crypto wallet to another and so forth in a way that's supposed to make it impossible to tell which assets are listed and which ones are illicit or to trace them to a particular owner. But these technologies are making that possible. The bottom line being, crypto is not as anonymous as the bad guys believe. It really can be traced. And in fact, it's sometimes it's actually easier to establish the tracing in a crypto case if you can do the technical analysis that we're talking about. Then if they were going through bank accounts, because if you go through bank accounts in jurisdictions like the British Virgin Islands or the Cayman Islands or places where the government has no access to the records because of bank secrecy rules, you have less information than you do when it's on a blockchain analysis because that's all public. So ironically, there are ways in which this technology is making it easier for law enforcement to trace the assets and connect them to the bad guy. Yeah.  

Joanna Summers

And you bring up a a great point on the Sterlingoff case. It highlighted that scope of money laundering facilitated by cryptocurrency and mixers, but it did also bring attention to the tools that were used to investigate the crimes. During the Dawbert hearing, Chainalysis' reactor license was deemed admissible and credible as evidence, and I know that that's been a huge point. It's something that we're actually going to touch on in an upcoming episode as well. We'll do a deep dive on that and why it was not considered junk science. But in your opinion, how significant is this decision for the future of crypto investigations, and what does it mean for the legitimacy of block chain analysis tools in court?  

Stefan Cassella

Well, I think it's incredibly important because now we have a tool that not only is alerting law enforcement to the connection between the particular property and the illicit source and the particular owner, but that it's going to be something that jurors can consider. And taken together with other decisions in similar cases besides Bitcoin FOB case, which is the Sterling Gove case, this means that there'll be more money laundering convictions. That means there'll be the recovery of more assets through criminal civil forfeiture. So it's one of the most significant developments that's come along so far. The other major legal decision that was made in the Bitcoin FOG case had to do with what is forfeitable. We talked a bit about the technology that was used to prove the case but then at the end of the day once you've proven the case what does the bad guy have to forfeit? In a money laundering case the law is that the defendant has to forfeit all property involved in the offense. Not just the illegal proceeds being laundered but all property involved in the offense. So if he commingled a million dollars in illicit cryptocurrency with three million dollars in other funds to conceal or disguise it, he has to forfeit the entire four million dollars. That's straightforward money laundering forfeiture law. How does it apply in this case? Well, he's a money launderer who didn't own the money. He was laundering it on behalf of third parties. He took somebody's dirty money and combined it with somebody else's clean money and tumbled it around so that as its concealer disguise the dirty money and then he returned it all minus his fee to the original owners. Some of the original owners were bad guys, some of the original owners were not. But in doing this, he commingled almost half a billion dollars. His argument was, yeah, but I didn't keep it. I gave it back to these other people. And the holding that's so significant in this case is that doesn't matter. You're liable for it anyway because you're the money launderer. And the money launderer has to pay a judgment equal to the amount of money that he laundered, the dirty money and the commingled clean money, even if he didn't keep it but gave it to his client minus his fee. And so that's why he ended up liable for this enormous sum of money even though what his fee was was a much smaller amount. He also argued that they should get credit for the amount that the government was able to recover from some of his clients. He said, but the government would recover twice if I have to pay after the client paid. And the court said, no. No. The purpose of forfeiture is not to make the government whole. This is not a double counting situation. The purpose of forfeiture is to punish. And there's no punishment to you if you get to get a get out of jail free card because the government recovered the money from your client. No. You're both going to pay. The client is gonna forfeit the illicit money that he got back, and you're gonna forfeit the amount of money that that was involved in your money laundering offense. And that's what the holding was in Sterling Gov.  

Joanna Summers

Yeah. That's a great point that the defendant gets no credit for what was returned, and the point is to punish. And I think it's really interesting that this was the first case to uphold all of this in the context of cryptocurrency. So really interesting case for sure. You are such a wealth of knowledge on so many different cases. I have to ask, what advice would you give attorneys or law enforcement agents that are new to handling crypto asset forfeiture future cases. What are your pro tips?  

Stefan Cassella

Well, they need training. They need to understand the vocabulary. I mean, when you're in a conference and you say, well, the money moved into a Bitcoin wallet and then the hidden when no one had access to the private key, I mean, eyes glaze over. And you say, well, think bank account when you think wallet, think password when you think private key. Everyone goes, oh, is that what you're talking about? So you need the training. You need to understand the vocabulary. You need to be familiar with the wide variety of cases or schemes in which crypto has become a factor, and they need to understand civil forfeiture and how it works because that's the essential tool in so many of these cases.  

Joanna Summers

And can you tell us a little bit more about your Money Laundering and Forfeiture Digest? How long have you been publishing it? Where can we sign up? I assume that the December edition includes the recent decision on Sterlingov?  

Stefan Cassella

Yeah. As a matter of fact, it does. It's we lead this month with the Sterlingov decision and explaining what I was just saying earlier about the scope of what's forfeitable in a money laundering case involving tumbling crypto. I started doing a a summary of, forfeiture and money laundering cases for the Department of Justice when I was still employed there and I continued that into the private sector, publish a monthly digest. It's available on asset forfeiture law dot US by subscription. About three quarters of the US attorney's offices subscribe, almost all the federal law enforcement agencies do, and a lot of, private law firms, particularly the private law firms to which a former prosecutor has migrated when they when he or she left government. When they leave government and go to the private sector, they say, hey. I need to get the digest, and they get the firm to subscribe to it. It's not just the summary. It's also access to all of the cases that I've collected basically since nineteen ninety three, believe it or not. So we have that many years of thirty years plus of collecting cases organized topically. So every month we summarize the cases from the previous, month decided by the federal courts. And this month, we lead with the Sterling Gov case talking about what's forfeitable in a money laundering case, but we also have many other cases involving, procedural issues that arise in forfeiture and, you know, interesting facts involving money laundering. So we're we're glad that people still find it useful.  

Joanna Summers

That's incredible. What a summary of cases to have that much history. And what an awesome research tool for anyone who's just coming into this field too.  

Stefan Cassella

I guess I shouldn't admit this, but I don't get on Westlaw anymore to do research. I know that all the forfeiture of my laundering cases are in those compilations. So I don't I don't have to go find another one. I know if it's not in the compilation, then it doesn't exist. So that's my shorthand. I save a lot of research time and a lot of money, not going on Westlaw because I know I've already got it.  

Joanna Summers

That's awesome. Last question for you, Stef. If you could wave a magic wand and instantly resolve one challenge in this space, what would it be?  

Stefan Cassella

Well, I think that every country that has a cryptocurrency problem, which is every country, needs to enact civil or or non conviction based, forfeiture, and they need to train their people. They need to train their judges, their prosecutors and their law enforcement agents, their police in how to use them because we are increasingly going to find that these crimes are being committed by people we can't identify or who are living in the functional equivalent of, the couch in their mother's basement some place in some faraway place, and we're not gonna get our hands on them, but we're gonna be able to recover the money through civil or non conviction based forfeiture. And And so a lot of my time these days is spent helping other countries develop that capacity, and that's what I think they all are going to have to do to get their arms wrapped around this problem.  

Joanna Summers

I think that's a really great point. And one of the problems I see in a lot of countries is even if they do have a non conviction based forfeiture option, they either haven't used it before or they're a little leery to do so. I think sometimes it's getting over that hump to do the first case and just get it in the books and and get going so you've got a process and you document it and just knowing that it's an option. Having that is is a huge solid approach. And also FATF has released, you know, best practices on confiscation and a framework for ongoing asset recovery, in particular recommendations four and thirty eight, really focusing on the fact that countries should have this civil forfeiture or non conviction based forfeiture set up.  

Stefan Cassella

Yeah. That's right. I mean, the English common law countries, the United States, Canada, Britain, Australia, South Africa have had non conviction based forfeiture for a long time and use it effectively. It's a strange new animal in a lot of the rest of the world in the civil jurisdictions mostly in Europe and elsewhere and as more and more countries adopted, recently been adopted in Argentina, I helped to draft the statute in Malta. There are ongoing discussions in the Baltic countries in Eastern Europe, some of which already have enacted it. All of that is to the good but then of course putting it on the books isn't the end of the day. It's the beginning. It's the sunrise, not the sunset. You need to be able to get people to be comfortable using it, and, judges are going to be skeptical. Judges are typically conservative people, not politically conservative, but you're traditionally conservative. They don't wanna do something new that departs from precedent unless they are convinced that it's fair and that all aspects of due process are being observed and if you properly draft the statute and use it properly then that's not a concern but you need to convince everyone that's the case. And so all of that has to happen and it has to happen now in the FATF's recommendation or now requirement that all countries include non conviction based confiscation, I think is extremely helpful and is gonna push this forward.  

Joanna Summers

I think so too. And I know you've done an incredible amount of work in other countries helping them develop that framework for this. And there are just so many considerations to it. It's not just the court piece. Right? It's it's bringing the case forward. It's setting up a seized asset deposit fund or an asset forfeiture fund, and it's really drafting all the documentation that goes along with that and all the processes. So it's a heavy lift, but I think it's really worth it. And I think that there's so many cases that we can point to around the world that show how helpful it's been to have that in place.  

Stefan Cassella

Well, you're absolutely right on that last point about asset management. I was privileged to attend a seminar in, Vancouver, British Columbia last summer in July, and I met with the people in British Columbia who do a civil forfeiture. And they're doing great work, and they've got great cases, but they hadn't had a crypto case yet because they didn't know how you seize the crypto assets. And they say, how do you folks in the United States do this? That's fundamental. I mean, you can't start a case, and if you can't seize the property, and if they haven't learned what the process is by which you take possession of money in a crypto wallet, then you can't get these cases started. So that was one example of where even in a in a very sophisticated country where they have the resources and where they have the expertise and the political will to do this, they still needed some assistance in figuring out how you take possession of the assets.  

Joanna Summers

Training is really key in all of this, isn't it? Because if you don't even know what to look for, how to seize it, or how to transfer it, you're just not gonna get anywhere. So I I think that that's a really important point, and I think, you know, learning is ongoing. It's not the type of thing you just do it once and and you're good to go forever. I think especially in the world of crypto, things change pretty frequently and it's something you need to be working in fairly frequently to stay up to date with it. So I think annual training is really important when it comes to that. And I agree with you. You know, we hear this in a lot of countries. Either like, oh, we don't have cryptocurrency here, or we don't have any of those cases. And  

Stefan Cassella

Mhmm.  

Joanna Summers

We know that they do. It's just a matter of where to look to find it. And and if you don't know where to look, you think you don't have it.  

Stefan Cassella

That's right.  

Joanna Summers

Stef, thank you so much for joining us today. This has been so informative, and we've loved having you on the show. We so appreciate your time today.  

Stefan Cassella

Well, it's been a pleasure to be with you. We'd love to do this again sometime if I could be helpful. So best of luck with what you do. It's all important works. It'll be great to see how this develops in the years to come.  

Joanna Summers

Absolutely. Thank you, Stef.  

Stefan Cassella

Bye bye.  

Tobias Furneaux

Thank you to Stef for sharing his valuable perspective with us today. If you've enjoyed today's conversation, like and subscribe to the Seize and desist podcast on your preferred platform. Leave a comment and any suggestions for guests you'd like to hear from in the future. Next time, we look back at the 2024 highlights of the Seize and Desist podcast, exploring how asset seizures deter crime and the impact of returning forfeited funds to victims. Seize and desist is brought to you by Asset Reality. Thank you for listening.  

Lo Furneaux

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