Virginia appeals court rules judge wrongly dismissed asset forfeiture challenge

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A Virginia court erroneously ruled authorities could keep $35,293 seized from a Chesterfield County auto repair shop by setting the bar too high for the owner to prove the cash wasn’t connected to a crime, according to a state Court of Appeals opinion released this week.

The case dealing with asset forfeiture laws centers on the legal hoops Virginians have to jump through in court to argue they should get their money back after law enforcement officials take it.

State law allows authorities to seize money and other assets suspected of being connected to drug trafficking or other criminal activity, but gives people who had their assets taken a chance to argue those suspicions are unfounded.

The dispute over the ruling in Chesterfield was largely about a procedural technicality, but it highlights the hurdles people can face when trying to argue the government wrongfully took their money.

As part of a drug operation in 2020, Chesterfield authorities seized money from an auto shop owned by Roger McMillian.

A small amount of drugs was found on the second floor of the business where McMillian lived, court records show, and he was ultimately convicted of a drug possession offense. Another man arrested in connection to the case at a different location pleaded guilty to a drug distribution charge, according to court documents. But McMillian argued the cash police took from the business was legitimate and had no connection to drug dealing, money laundering or other crimes.

Though state law gave McMillian the right to fight the asset seizure in court, a Chesterfield judge ruled that his six legal filings were insufficient and dismissed his effort to reclaim the money without holding a trial. The court’s order in February of 2023 allowed local officials to keep the cash and said Chesterfield police could use it for “law enforcement purposes.”

In his filing arguing the money should be returned, McMilllian said about $31,000 came from the sales of several vintage vehicles, two carports, a shed and an above-ground pool. The rest of it, he contended, came from customers of the auto body shop who paid in cash.

In response, the Chesterfield commonwealth’s attorney’s office claimed all McMillian’s responses were faulty because they didn’t include concrete evidence of those transactions apart from McMillian’s sworn statements.

Chesterfield Circuit Court Judge Edward A. Robbins Jr. agreed, ruling last year that McMillian had failed to make a legally proper claim to the money. The court issued a default judgment allowing the government to keep the cash, but McMillian appealed that decision.

The appellate court decided McMillian was right, ruling the Chesterfield judge had incorrectly sided with prosecutors who insisted state law didn’t allow McMillian to fight the asset seizure unless his initial court filing included harder evidence like a bank statement, bill of sale or check register.

“The examples of evidence listed by the circuit court all constitute exhibits, but exhibits are only one type of evidence that a litigant may use to ultimately prove his case at trial,” Judge Randolph A. Beales wrote in the appellate opinion.

McMillian’s sworn statement about the money’s origins, Beales wrote, should have been enough to prevent the lower court from ruling against him without a trial to examine the case further.

The appellate court sent the case back to the Chesterfield court “to hold a trial on the merits of the forfeiture of these assets if the Commonwealth wishes to so proceed to a trial.”

The final outcome of the case is unclear. The lack of a trial also meant Chesterfield authorities didn’t have to put forward all evidence they might have disputing McMillian’s explanation of where the money came from.

McMillian’s attorney, John Mann, said his client was “pleased with the ruling.”

“It tells the circuit courts what is required of a person who’s contesting the order,” Mann said. “You don’t have to attach documents and things like that. You can make a good faith statement.”

The Chesterfield commonwealth’s attorney’s office, which pushed for the default judgment against McMillian, said it could not comment on the ruling Wednesday because the prosecutor who handled the case was tied up with other business.

Juli M. Porto, an attorney with the Blankingship & Keith law firm who follows appellate decisions, said the ruling could result in fewer asset forfeitures in cases where the accused has a “meritorious defense.” A clearer standard for what counts as a sufficient response to an asset forfeiture, she said, means more cases could be decided on the merits.

“A clear standard is good for all involved — defendants, the Commonwealth, and trial courts — because there is less room for confusion and disparate decisions on the same issue,” Porto said in an email. “Consistent rulings are in everyone’s best interests.”

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