Get documents about "DEFENDING FEDERAL ASSET FORFEITURE
Document Sample
DEFENDING FEDERAL
ASSET FORFEITURE:
CJA PANEL TRAINING
SACRAMENTO
October 15, 2008
John Balazs
Attorney At Law
916 Second Street, Suite F
Sacramento, CA 95814
(916) 447-9299
John@Balazslaw.com
INDEX
PART 1--The Basics
FEAR PAMPHLET, “What To Do When Your Property 1-5
Has Been Seized”
FEAR’S GIDEON PROJECT 6-9
Federal Offenses That Trigger Potential Forfeitures 10-21
Federal Forfeiture Procedural Statutes 22-24
PART 2--Intro to Law And Available Resources
Criminal Forfeiture Procedure, Stephan D. Cassella, 25-45
DOJ Publication
Asset Forfeiture Policy Manual, Table of Contents, 46-53
U.S. DOJ, May 2007
(available at www.usdoj.gov/criminal/foia/docs/policy07.pdf )
FEAR Asset Forfeiture Defense Manual, Table of Contents 54-66
Fear Brief Bank, Index of Pleadings 67-68
Sample Motion for Bifurcation 69-77
Dwight Samuel’s Notes on Settlements, 1997 78-81
1
PART 3--Sample Administrative and Judicial Forfeiture Pleadings and Orders
Sample Administrative Forfeiture Documents
Forfeiture Notice and Administrative Claim 82-84
Remission Petition 85-86
Hardship Motion for Return of Property 87-94
Sample Criminal Forfeiture Documents
Preliminary Order of Forfeiture and Notice 95-97
Final Order of Forfeiture 98-103
Findings of Fact and Conclusions of Law, U.S. v. Decker 104-110
Sample Civil Forfeiture Pleadings
Notice and Complaint (93-113), 111-122
Verified Claim (114-15), 123-124
Answer (116-19), and 125-128
Stipulation and Order To Stay Proceedings Pending 129-132
Criminal Proceedings
PART 4--Court-Appointed Representation In Civil Forfeiture Cases
Law re Appointments (18 U.S.C. § 983(b)) 133
Sample “Ancillary”Appointments Under CJA 134-138
Sample Appointment in Civil Forfeiture Case Under LSC 139-143
2
What to do if your property has been seized Page 1 of 5
What To Do
When Your Property Has
Been Seized
Forfeiture Endangers American Rights Foundation
F. E. A. R.
The police took my property. What do I do to get it back?
If your property was seized as evidence of a crime, you should get it back when the case is over,
unless it is contraband or held for forfeiture. If it is contraband (drugs, illegal weapons, etc.) you
can’t get it back. If it is being forfeited, you'll have to win the forfeiture case to get it back.
What is forfeiture?
Asset forfeiture is a process that allows the government to take property away from people
permanently, without paying for it, if the property or its owner is alledgedly involved in certain
criminal offenses, such as drug offenses or gambling. Any kind of property — cars, boats,
airplanes, cash, bank accounts, homes and even businesses — can be forfeited.
If I am found not guilty in my criminal case or they drop the charges, won’t I get my
property back automatically?
No. If the government decides to "forfeit" it, you have to win the forfeiture case to get it back. That
would mean a separate civil trial.
What do I do if they say it is going to be forfeited?
Start by shopping around for a forfeiture lawyer. Ask the lawyer how many forfeiture cases he or
she has defended. Comparison shop. The lawyer who hasn’t handled a forfeiture case before may
make mistakes that ruin your chances of winning. Forfeiture procedures differ from ordinary civil
procedures. Sometimes criminal procedures apply -- as well as admiralty law and quaint "in rem"
procedures.
The process you’ll have to undergo depends a lot on whether the seizure will be federal, state or
local. Often you won’t know at the beginning whether the forfeiture case will be state or federal.
Even if the state cops seized your property, they can turn it over to the federal government for
forfeiture and get a kickback of up to 80% of the value of the property forfeited, under the
"equitable sharing" program. The procedures described below are those used in federal forfeiture.
You should get a copy of your state’s forfeiture statutes and read them to see how the procedures
differ in your state. Some of the state statutes can be found in the FEAR website’s Law Library. If
your state’s statute is not there, check online at other legal websites, or go to the nearest law
library (there’s probably one in your nearest large courthouse or college library). Please send us a
1
http://www.fear.org/whatodo-1.html 10/3/2008
What to do if your property has been seized Page 2 of 5
copy to add to our collection.
Federal cases usually start with a notice of forfeiture or a civil (judicial) forfeiture complaint, which
will come by registered mail.
If you haven’t received a notice of forfeiture or any court documents, all you can do is wait. The
forfeiture law prohibits property owners from filing civil suits to get their property back. Instead, the
government is supposed to start the forfeiture process within a "reasonable time", and if it doesn’t,
you can raise the Unreasonable Delay defense later. In the meantime, there’s not much you can
do to speed up the process except to call or write the police demanding they start the process. If
you call them, be careful what you say — everything you say can and will be used against you in
court. It’s better to write, so they don’t get a chance to ask questions — and keep to the subject of
asking about your property. Don’t discuss the alleged crime that led to the seizure of the property.
Keep copies of your letters — they can be used later to support a motion to dismiss for undue
delay.
Make sure the police know you are claiming the property, and that they have your correct address.
And be sure to pick up your mail promptly.
What do I do once I receive notice?
In federal cases, you will get a Notice of Forfeiture, usually from the DEA or FBI. The notice will
tell you the process, but it’s sometimes confusing. The important thing to remember is this: In
order to have the right to any hearing in court to defend your property, you'll have to file a timely
Administrative Claim -- and post a cost bond if one is required. The Civil Asset Forfeiture Reform
Act of 2000 (CAFRA) abolished cost bonds in the most common types of civil forfeiture cases, but
forfeitures for violations of U.S. Customs laws and some other cases still require you to post a
cost bond of 10% of the value of your property at the time you submit your claim. If you are
indigent you can request a waiver of the cost bond. The forfeiture notice will tell you whether the
cost bond is required or not. The cost bond is not like a bail bond — paying the cost bond will not
get your property released pending trial, and you can’t get a bondsman. The bond is to pay for the
government’s costs in forfeiting your property. If you win your case, you will probably get the entire
bond back (it’s up to a judge). If you lose the case, you only get back the portion of the bond left
over after deductions for storing your property and other expenses.
You only have about 35 days after receiving the notice to file the claim. Check the forfeiture notice
for the exact deadline. Your claim must be sworn to under penalty of perjury, it must identify your
interest in the property (owner, co-owner, lienholder, etc.), and it must state that the claim is not
frivolous.
The notice of forfeiture may also tell you that, instead of paying the cost bond and filing the claim,
you can file a Petition for Remission or Mitigation. Beware of that option! Petitions for Remission
are decided by the seizing agency, and they almost never decide to return the property. You don’t
get a hearing, and you can’t appeal their decision.
Once you file your claim and cost bond, the United States Attorney’s Office reviews the case. If
they decide to go ahead with the forfeiture (which they usually do), they will file a civil case in U.S.
District Court, and serve you with a Complaint. Under CAFRA, the government has 90 days after
receiving your administrative claim to file a judicial forfeiture action. If they miss this deadline, they
can't forfeit the property.
2
http://www.fear.org/whatodo-1.html 10/3/2008
What to do if your property has been seized Page 3 of 5
After you are served with a Complaint, you have 30 days to file a Verified Claim. A verified claim is
a statement under penalty of perjury stating your interest in the property. This is separate from the
Administrative Claim you had to file earlier with the seizing agency. Once you file your verified
claim, you have 20 days to file an Answer. Your Answer must state whether you "admit", "deny",
or "don’t have enough information to admit or deny" each allegation in the Complaint. Then you
list your defenses. The defenses to forfeiture are listed below. Be sure to include a demand for a
jury trial in your answer, or you won’t get one. Ask for a jury of twelve or you’ll get a jury of six.
Be careful what you say in any other documents you file. Anything you say can be used against
you in a separate criminal or tax proceeding. If you have a pending criminal case, consult your
lawyer before you answer any questions that could be incriminating. You can assert the Fifth
Amendment in answer to some questions and still keep your forfeiture case alive, but you will
have difficulty defending your forfeiture case if you take the Fifth as to everything. The best thing
to do when you have a criminal case and a civil forfeiture case pending at the same time is to get
the civil forfeiture case stayed until the criminal case is resolved. Under CAFRA you have an
absolute right to a stay if there is a pending criminal case or investigation against you -- but you
have to ask for the stay. You can still try to settle it in the meantime, but answering civil discovery
questions is not a good idea with a criminal case pending.
If your property is being forfeited by a state or D.C. law enforcement agency, the procedures will
be different. Read the statute and consult your lawyer to make sure you know your deadlines and
the steps you’ll have to take to defend your case so you can react promptly. If you cannot afford a
lawyer, contact FEAR’s victim support committee (victims@fear.org) and we’ll try to find a lawyer
who can answer questions for you.
What are the defenses to forfeiture?
Innocent Owner defense — Under most forfeiture laws, if you can prove that you didn’t
know of or consent to the illegal use of your property, you win the forfeiture case. If the
forfeiture law does not include an innocent owner defense, the U.S. Constitution does not
imply one, the Supreme Court held in Bennis v. Michigan, 516 U.S. 442 (1996).
Unreasonable delay defense — When the government delays too long in filing the
forfeiture case or in bringing it to trial, you win if you can show that the delay is excessive
and not justified, and that it harmed your ability to put on a defense.
Illegal search & seizure — Just as in criminal cases you can move to suppress evidence
which is illegally seized. If the judge suppresses the evidence, the government may be
unable to prove its case.
Statutory defenses — Each forfeiture statute contains additional defenses which may apply
to you. Look at the statute to see what your other defenses are.
Disproportionality — The U.S. Supreme Court decided in Austin v. United States, 113
S.Ct. 2801 (1993) that forfeitures of property that are disproportionate to the offense
committed are unconstitutional. Austin also held that civil forfeiture is punishment.
Can I get a court-appointed attorney to defend me in my forfeiture case?
Under CAFRA (except in Customs cases), indigent claimants may get a court appointed attorney
to defend them in two situtations: (1) If your primary residence is being forfeited, you have an
absolute right to court appointed counsel, but you have to ask for it. (2) If you have a pending
federal criminal case in which you are already represented by a court appointed attorney, the
judge has the discretion to appoint the attorney to represent you in the forfeiture case too -- but is
not required to.
3
http://www.fear.org/whatodo-1.html 10/3/2008
What to do if your property has been seized Page 4 of 5
For others who fall through the cracks in CAFRA's court appointed counsel scheme, you may still
be able to get an attorney to represent you on a contingency, or on the expectation of getting a fee
award. Under CAFRA if you win your forfeiture case, you are entitled to have your attorney's fees
reimbursed. That's true whether you can afford to pay for counsel or not.
Should I keep up my mortage payments and insurance?
If you stop making payments on your car note or mortgage, you will ruin your credit. You’ll need to
keep your credit in good standing in case you need to borrow money to "pay a settlement" — in
other words "buy back your house." If you lose the forfeiture case and the government sells the
property, the government has to pay off legitimate liens from the proceeds of sale. Any mortgage
payments you made while the case is pending is just more money the government won’t have to
pay from the proceeds of sale. Still, it’s better to keep the payments current if you can. You don’t
want to face a foreclosure and a forfeiture at the same time. As for insurance, check your
insuance policy to see if it mentions any exclusion for damages in the event the property is seized
by police.
How long does the forfeiture case take?
It takes anywhere from a few months to several years. It’s important that you plan for the long
haul. Know that your forfeiture case will cost money to litigate, and budget wisely. If you run out of
money to pay your forfeiture attorney, you may end up representing yourself. Most forfeiture
litigants who are forced to represent themselves lose. Shop around for a forfeiture lawyer you can
afford. As the years drag on, there will be many times when the stress is overwhelming. You don’t
have to face it alone.
Build a support network of friends and family members sympathetic to your plight, and turn to
them for moral support. If you need more moral support than they can give — or if they’re just not
sympathetic enough — contact FEAR’s victim support committee (victims@fear.org) This
committee has several members who were forfeiture victims themselves, who can telll you how
they coped with the stress and overcame the obstacles.
How can these procedures be constitutional?
Although these statutes take away virtually every procedural safeguard that citizens normally have
in civil cases, and provide far less protection to innocent third parties than criminal defendants
have in their criminal cases, they have been upheld over many constitutional challenges. The U.S.
Supreme Court decided in 1996 that forfeiture is not punishment for double jeopardy purposes,
and that there’s nothing unconstitutional about forfeiting the property of a truly innocent person.
We can’t depend on the Supreme Court to correct the abuses of these horrible laws.
If you think these laws are unfair, write your Congressman and ask that the laws be changed. Tell
them that the meager reforms that were left in CAFRA after the Senate compromise are not
enough, and that you support the version of the Hyde bill that was passed in the House of
Representatives on April 11, 2000 -- by a vote of 375 to 48.
If you are a victim of asset forfeiture or would like to join with some people who have been
victimized by harsh forfeiture laws in rallying for reform, there is a national organization to
reform forfeiture laws called F.E.A.R. ("Forfeiture Endangers American Rights"). To find out
more about F.E.A.R. call or write us:
4
http://www.fear.org/whatodo-1.html 10/3/2008
What to do if your property has been seized Page 5 of 5
Forfeiture Endangers American Rights
20 Sunnyside Suite A-419
Mill Valley CA 94941
(415)380-9108
888-FEAR-001
Revised 8/25/02
5
http://www.fear.org/whatodo-1.html 10/3/2008
FEAR's Gideon Project Page 1 of 4
Forfeiture Endangers American Rights Foundation
is a 501(c)(3) charitable organization. Donations are tax deductible.
20 Sunnyside Suite A-419, Mill Valley, CA 94941 Phone: 415-389-8551 or toll-free 888-FEAR-001
FEAR's Gideon Project
Implementing the right to effective
assistance of counsel for asset forfeiture
victims
FEAR's Gideon Project seeks to afford owners of
seized property a fair chance in court by:
educating judges, court clerks, and criminal
defense attorneys about forfeiture claimants’
statutory right to counsel; and
providing research materials and the nation's
only forfeiture training program for criminal
defense attorneys and pro-se litigants, which
will be made available nationwide, at low cost
to participants.
Click here to save or print FEAR's tri-fold Gideon Project
brochure (PDF file).
Congress responded to numerous stories of abusive forfeitures by enacting our
nation’s only federal forfeiture reform, the CIVIL ASSET FORFEITURE REFORM ACT OF 2000.
CAFRA’s 18 U.S.C. § 983(b) requires courts to appoint counsel to indigent owners of
seized homes, and allows appointment of counsel in other types of civil forfeitures
where the claimant has appointed counsel in a related criminal case. Both provisions are
available only upon request.
But in most courtrooms today nobody knows to tell the judge of these provisions!
Sadly, the overwhelming majority of lawyers and judges apparently still do not even know that
homeowners have a right to assistance of counsel in forfeiture proceedings1 — and many
well-meaning attorneys risk malpractice suits for causing irreparable damage because they
don’t know the arcane rules governing forfeiture procedures.
6
http://www.fear.org/gideon/GideonPage08.html 10/3/2008
FEAR's Gideon Project Page 2 of 4
Congress charged the Legal Services Corporation with providing attorneys for indigent
claimants whose residence has been seized, and estimated it would cost $5 million over the
2001-2005 period.2 However, LSC reported to Congress only “one request from court
personnel” prior to 2003, plus “several additional requests for cases in Washington DC and
California” during the year ending March, 2004. Then, during their 2004-2005 reporting period
“LSC obtained representation for a claimant in California.”3 In February 2008, LSC said
CAFRA appointments “are approaching one a month” — nationwide! That is abysmally low.
In U.S. v. 130 High Rock Acres Drive (2007) — the only case reported on Lexis involving
CAFRA’s appointment of counsel to defend claimants’ primary residence — the court
appointed counsel to represent two minors, whose mother did not know she could ask the
court to appoint counsel.
Without attorneys, forfeiture victims are left defenseless against prosecutors,
who continue to routinely overreach in seeking assets and money judgments.
4
FEAR’s first goal in the Gideon Project is to educate lawyers, victims, and the court system
about CAFRA’s appointment of counsel process.
But simply getting courts to appoint counsel achieves little without a pool of
lawyers trained in forfeiture law to effectively defend the cases.
The wise judge in 130 High Rock Acres Drive warned counsel about the complexity of
forfeiture procedure:
"Recognizing that Legal Services Corporation may have little experience in civil
forfeiture actions, [counsel] is respectfully advised that civil forfeiture actions are
governed by unique rules that require claimants to file both claims and answers
within very specific time frames. Specifically, this action is governed by the
Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions. Such rules may be found… ."
The government spends “vast sums of money to establish machinery”5 to deprive
people of their property. It offers extensive Continuing Legal Education courses on
forfeiture exclusively for prosecutors — but no CLE course on substantive forfeiture
law and procedure exists for defense attorneys!
Defense attorneys often unwittingly waive their client’s right to jury trial on the forfeiture, either
by failing to file a jury demand in the civil forfeiture case, or, in criminal forfeiture cases, by
failing to assert the right before the jury panel is excused after the guilt phase.
Often, attorneys trying diligently to assist their clients in the new and unknown area of law,
choose the administrative petition for remission process instead of filing an administrative
claim, and thereby forever waive their client’s rights to any hearings in court on the forfeiture
case.
Even the best attorneys when handling their first forfeiture cases make mistakes that cause
their clients to lose by default. Numerous courts have held that failure to file a verified claim
7
http://www.fear.org/gideon/GideonPage08.html 10/3/2008
FEAR's Gideon Project Page 3 of 4
with the court in strict compliance with the rules deprives the claimant of standing to defend
against the forfeiture. “Under such circumstances, a litigant's [only] appropriate remedy is a
suit against his attorney for malpractice.”6
Now: at long last, 8 years after CAFRA’s right to counsel provision took effect, we
have a functioning process for appointing counsel to represent indigent homeowners!
Claimants who want to request an attorney can find free sample appointment of counsel
applications and forms by clicking the red “Victim Support” button on FEAR’s main page at
www.fear.org.
Defense lawyers new to forfeiture law should check out the free and low cost materials on
FEAR’s website. In addition to numerous free materials in the public section of FEAR’s
website, even forfeiture veterans benefit from purchasing FEAR’S ASSET FORFEITURE
DEFENSE MANUAL (500 pages, $119). And for $100 per year FEAR offers an on-line BRIEF
BANK containing over 200 sample motions, forms and briefs, plus several complete
Department of Justice manuals and many other research materials — all indexed by topic.
Coming soon: the first in a series of CLE forfeiture law training videos on DVD, which
can be purchased for low cost on the FEAR website. These materials are also designed for
use by pro se litigants who fall through the cracks in CAFRA’s right to counsel provisions.
Please help us level the playing field for victims of overreaching forfeiture
prosecutions!
Spread the word. If you are a court-appointed attorney or work in the criminal justice field,
please tell forfeiture victims, judges and other lawyers about CAFRA’s right to counsel
provisions.
Please click here to save or print FEAR's tri-fold Gideon Project brochure (PDF file)
Or click here to:
purchase FEAR's Asset Forfeiture Defense Manual;
subscribe to FEAR's extensive cross-indexed forfeiture online Brief Bank II &
Private Collection; and/or
make a tax-deductable donation to FEAR Foundation.
Donations and proceeds will help produce future CLE forfeiture training videos.
Endnotes:
1. A Lexis search revealed only one case in which a court appointed counsel under CAFRA’s 18 U.S.C. § 983(b)
(2), which requires the judge to appoint counsel for claimants whose primary residence was seized and who
cannot afford a lawyer: U.S. v. Real Prop. at 130 High Rock Acres Drive, 2007 U.S. Dist. LEXIS 59601 (2007) —
and only one case in which a court appointed counsel to represent a criminal defendant’s interest in property
subject to forfeiture in the related civil forfeiture pursuant to § 983(b)(1): U.S. v. One 2000 Wells Cargo 24 Foot
Long Trailer, 2002 U.S. Dist. LEXIS 6554 (2002). See also notes 2-3 below.
2. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE H.R. 1658, Civil Asset Forfeiture Reform Act of 2000.
3. Legal Services Corporation Semiannual Report to the Congress for the Period October 1, 2003 - March 31,
2004, page 11; LSC Semi-Annual Report to Congress for the Period October 1, 2004 – March 31, 2005 (page
8
http://www.fear.org/gideon/GideonPage08.html 10/3/2008
FEAR's Gideon Project Page 4 of 4
17).
4. While the federal government obtained 92% of the criminal convictions it sought in Fiscal Year 2007, U.S.
Attorneys vastly overreached for assets and money judgments – litigating over $3.8 billion in assets –
nearly three times the $1.3 billion value of civil and criminal forfeiture judgments obtained (United States
Attorneys' Annual Statistical Report: Fiscal Year 2007). During fiscal years 2005 and 2006, U.S. Attorneys
obtained a 91% conviction rate, but pursued litigation of assets valued over four times the value of
forfeiture judgments obtained (United States Attorneys' Annual Statistical Report: Fiscal Year 2005; same,
Fiscal Year 2006.).
5. Quoting Gideon v. Wainwright, 372 U.S. 335 (1963). In Fiscal Year 2007 United States Attorneys filed asset
forfeiture counts in 5,131 criminal cases, and filed 2,105 civil asset forfeiture actions, obtaining a total appraised
value of $1,323,035,714 in civil and criminal forfeiture judgments. These figures do not include assets forfeited
through federal administrative procedures (in which owners lost property without any litigation). U.S. Attorneys'
Annual Statistical Report: F.Y. 2007.
6. U.S. v. Indoor Cultivation, 55 F.3d 1311, 1318 (7th Cir., 1995); see also: U.S. v. Commodity Acct #549, 219
F.3d 595, 598 (7th Cir., 2000) (quoting U.S. v. 8136 Dobson St., 125 F.ed 1076, 1084: “Claimants in this
forfeiture proceeding pose the question whether their former attorney's gross negligence in representing their
interests entitles them to another opportunity to litigate.. The answer is No."); U.S. v. 817 NE 29th Dr., Wilton,
175 F.3d 1304, 1311 n.14 (11th Cir, 1999) (claimant’s “only remedy for the alleged incompetence of his attorney
is a suit for malpractice”).
9
http://www.fear.org/gideon/GideonPage08.html 10/3/2008
FEAR Law Library - Federal Statutes Page 1 of 6
Offenses that trigger federal forfeiture
arranged alphabetically by topic A-G
Go to: | A | B | C | D | E | F | G |
Last update May 24, 2008
Note: A large number of forfeiture statutes are stand-alone statutes, prescribing forfeiture as a penalty for a
single offense or related group of offenses. Other forfeitable offenses have been added by incorporating by
reference other statutes listing numerous offenses. The largest number of the incorporated by reference
statutes were incorporated through 18 U.S.C. § 981(a)(1)(C), which incorporates by reference "any offense
constituting 'specified unlawful activity' as defined by 18 U.S.C. § 1956(c)(7)(B). Section 1956(c)(7)(B)
names numerous specific criminal statutes and incorporates by reference the racketeering offenses listed in
18 U.S.C. § 1961(1), which in turn lists a large number of specific criminal statutes as well as several broad
categories of crimes. Any crimes from those lists can be prosecuted as a civil forfeiture under § 981.
Many of the same offenses listed in § 981 trigger criminal forfeiture under statutes incorporated by
reference in 18 U.S.C. § 982. Additionally, any civil forfeiture statute which does not have a criminal
forfeiture counterpart -- either under a specific criminal forfeiture statute or § 982 -- can be prosecuted as a
criminal forfeiture under 28 U.S.C. § 2461.
* denotes criminal statutes added by 18 U.S.C. § 981(a)(1)
** denotes criminal statutes incorporated by reference as "specified unlawful activities" in 18 U.S.C. §§ 981(a)(1)
(C) & 1956(c)(7)
*** denotes criminal statutes incorporated by reference as "racketeering offenses" in 18 U.S.C. §§ 981(a)(1)(C),
1956(c)(7) & 1961(1)
Agriculture
7 U.S.C. § 608, exceeding agricultural quotas, agricultural marketing order violations
7 U.S.C. § 1595, Federal Seed Act violations
Aircraft and airports
18 U.S.C. § 32, destruction of aircraft [**]
18 U.S.C. § 37, violence at airports [**]
49 U.S.C. § 46502, aircraft piracy [**]
Animals
7 U.S.C. § 2156, Animal Welfare Act violations
Antitrust
15 U.S.C. § 1, 15 U.S.C. § 6, conspiracy in restraint of trade, antitrust
15 U.S.C. § 8, 15 U.S.C. § 11, trust in restraint of import trade
10
http://www.fear.org/fedstat2a.html 10/3/2008
FEAR Law Library - Federal Statutes Page 2 of 6
Archeological treasures
16 U.S.C. § 470gg, Forfeiture of archeological resources excavated from Indian Lands
Automobiles
8 U.S.C. § 1324, Forfeiture of vehicles used to transport illegal aliens
18 U.S.C. § 512, Forfeiture of automobiles and parts with altered VIN numbers
18 U.S.C. § 511, altering or removing automobile VIN numbers [*]
18 U.S.C. § 553, importation or exportation of stolen vehicles, vessels or aircraft [*]
18 U.S.C. § 2119, carjacking [*]
18 U.S.C. § 2312, transportation of stolen vehicles [*]
18 U.S.C. § 2313, sale or receipt of stolen vehicles [*]
18 U.S.C. § 2321, trafficking in vehicles or auto parts with altered VIN numbers [***]
49 U.S.C. § 80303, forfeiture of vehicles used to facilitate transportation of contraband
Banking
18 U.S.C. § 215, Corruptly giving or receiving a commission or gift for procuring loan [*]
18 U.S.C. § 656, Theft, embezzlement or misapplication by bank officer or employee [*]
18 U.S.C. § 657, Theft, embezzlement or misapplication by officer or employee or FDIC or other
bank regulator or receiver [*]
18 U.S.C. § 658, Conversion, removal or concealment of property mortgaged to farm credit agencies
[**]
18 U.S.C. § 1005, False or fraudulent statement by officer or employee of bank [*] [**]
18 U.S.C. § 1006, False or fraudulent statement by agent or employee or FDIC, RTC or other banking
regulator or receiver [*] [**]
18 U.S.C. § 1007, False or fraudulent statement to FDIC [*] [**]
18 U.S.C. § 1014, False or fraudulent statement to loan officer [*] [**]
18 U.S.C. § 1029, Fraud in connection with bank account access device [*]
18 U.S.C. § 1032, Concealment of assets from receiver or liquidating agent of financial institution [*]
[**]
18 U.S.C. § 1344, Bank fraud [*]
18 U.S.C. § 1956, Money laundering of proceeds of "specified unlawful activity" [*]
18 U.S.C. § 1957, Engaging in monetary transaction with proceeds of specified federal crimes [*]
31 U.S.C. § 5313, § 5317, Violating reporting requirements for domestic currency transactions
31 U.S.C. § 5316, § 5317, Violating reporting requirements for importing and exporting monetary
instruments
31 U.S.C. § 5324, § 5317, Structuring transactions to avoid financial transaction reporting
requirements
42 U.S.C. § 1490s(a)(1), Equity skimming by owner from property where loan is federally guaranteed
[**]
Bankruptcy
18 U.S.C. § 152, Concealment of assets, false oath or claim, bribery in bankruptcy proceeding [**]
18 U.S.C. § 1961(1)(D), Any offense involving bankruptcy fraud except 18 U.S.C. § 157 [***]
Cigarettes, contraband
18 U.S.C. § 2344, Penalties for trafficking in contraband cigarettes [***]
11
http://www.fear.org/fedstat2a.html 10/3/2008
FEAR Law Library - Federal Statutes Page 3 of 6
Copyright and Trademark Infringement
17 U.S.C. § 509, Phonorecords manufactured, distributed, etc. in violation of copyright laws
18 U.S.C. § 1834, Criminal forfeiture relating to protection of trade secrets
18 U.S.C. § 2318(d), Trafficking in counterfeit labels, packaging, & supporting documentation for
audio recordings or computer programs
18 U.S.C. § 2319, criminal infringement of copyright [**] [***]
18 U.S.C. § 2319A, trafficking in unauthorized audio recordings and videos of live performances
18 U.S.C. § 2320, trafficking in goods or services with counterfeit copyright marks [**] [***]
Counterfeiting
18 U.S.C. § 492 Forfeiture of counterfeit money, securities, and counterfeiting devices
18 U.S.C. § 471, counterfeiting, altering, or forgery of U.S. obligation or security [*]
18 U.S.C. § 472, uttering (passing or selling) counterfeit obligations or securities of U.S. [*]
18 U.S.C. § 473, dealing in counterfeit obligations or securities of U.S. [*]
18 U.S.C. § 474, possession of plates for counterfeiting obligations or securities of U.S. [*]
18 U.S.C. § 476, taking impression of tools used for counterfeiging obligations or securities of U.S.
[*]
18 U.S.C. § 477, possessing or selling impression of tools used for counterfeiging obligations or
securities of U.S. [*]
18 U.S.C. § 478, forging or counterfeiting obligations or securities of foreign countries [*]
18 U.S.C. § 479, uttering (passing or selling) counterfeit obligations or securities of foreign countries
[*]
18 U.S.C. § 480, possession of counterfeit obligations or securities of foreign countries [*]
18 U.S.C. § 481, possession of plates for counterfeiting obligations or securities of foreign countries
[*]
18 U.S.C. § 485, counterfeiting, uttering or possession of counterfeit coins or silver or gold bars [*]
18 U.S.C. § 486, making, uttering or passing counterfeit coins [*]
18 U.S.C. § 487, making or possessing dies used for counterfeiting coins of U.S. [*]
18 U.S.C. § 488, making or possessing dies used for counterfeiting coins of foreign countries [*]
18 U.S.C. § 500, making, forging or possessing counterfeit money orders [**]
18 U.S.C. § 501, making, forging or possessing counterfeit or forged U.S. postage stamp, or postage
meter stamp [**]
18 U.S.C. § 502, making, forging or possessing counterfeit or forged foreign postage stamp, or
revenue stamp [**]
18 U.S.C. § 500, making, forging or possessing counterfeit postmarking stamp [**]
18 U.S.C. § 513, counterfeiting securities of state or private organization [**]
Currency Transaction Reporting Violations
31 U.S.C. § 5313, § 5317, Requirement that reports be filed for monetary transactions (including bank
deposits exceeding a certain dollar value, the amount set by regulations of Secretary of the Treasury)
31 U.S.C. § 5316, § 5317, violating reporting requirements for importing and exporting monetary
instruments
31 U.S.C. § 5321, Civil penalties for Monetary Transaction Reports
31 U.S.C. § 5324, § 5317, Structuring transactions to evade monetary transaction reporting
requirements
31 U.S.C. § 5332, Bulk cash smuggling into and out of U.S.
Customs and Import/Export violations (see also Smuggling)
12
http://www.fear.org/fedstat2a.html 10/3/2008
FEAR Law Library - Federal Statutes Page 4 of 6
18 U.S.C. § 541, Entry of goods falsely classified [**]
18 U.S.C. § 542, Entry of goods by means of false statements [*]
18 U.S.C. § 545, Smuggling goods into the U.S. [*]
18 U.S.C. § 549, Removing goods from Customs' custody [**]
18 U.S.C. § 553, Importation or exportation of stolen vehicles, vessels or aircraft [*]
19 U.S.C. § 1497, Penalties for failure to declare imported goods to customs upon entry (including
forfeiture of such goods)
19 U.S.C. § 1584, Penalties for false or no customs manifests (including forfeiture)
19 U.S.C. § 1594, Forfeiture of conveyances for Customs violations
19 U.S.C. § 1595a, Forfeiture for aiding unlawful importation
22 U.S.C. § 401, Exportation of arms or munitions of war
31 U.S.C. § 5316, § 5317, Violating reporting requirements for importing and exporting monetary
instruments
<>50 U.S.C Appx. § 16, Violating Trading With the Enemy Act [**]
<><>50 U.S.C Appx. § 2410, Violating Export Administration Act [**]
Drug Offenses
18 U.S.C. § 1956(c)(7)(D), Any felony violation of the Chemical Diversion and Trafficking Act of
1988 (relating to precursor and essential chemicals) e.g. 21 U.S.C. § 971 [**]
18 U.S.C. § 1961, state felonies involving dealing in a controlled substance or listed chemical [***]
21 U.S.C. § 844a, Civil penalty for possession of small amounts of certain controlled substances
21 U.S.C. § 848, Continuing Criminal Enterprise
21 U.S.C. § 853, Criminal Forfeiture for Drug Violations
21 U.S.C. § 862, Denial of Federal Benefits To Drug Traffickers and Possessors
21 U.S.C. § 863, Transportation of Drug Paraphernalia [**]
21 U.S.C. § 881, Civil Forfeiture for Drug Violations
Espionage
18 U.S.C. § 793, Civil forfeiture for gathering, transmitting or losing national defense information
[**]
18 U.S.C. § 794, Civil forfeiture for gathering or delivering national defense information to aid a
foreign government [**]
18 U.S.C. § 798, Disclosure of classified information [**]
22 U.S.C. § 611 et seq., Felony violation of Foreign Agents Registration Act of 1938 [**]
Explosives
18 U.S.C. § 842, importing or dealing in explosives without a license [*]
18 U.S.C. § 844, penalties for explosives violations [*] [**]
Extortion, racketeering - (See also Racketeer Influenced Corrupt Organizations)
18 U.S.C. § 1951, interference with commerce, robbery, extortion [***]
18 U.S.C. § 1952, transportation in aid of racketeering [***]
18 U.S.C. § 1961, state felonies involving extortion [***]
Firearms
18 U.S.C. § 922, Unlawful importation of firearms [**]
13
http://www.fear.org/fedstat2a.html 10/3/2008
FEAR Law Library - Federal Statutes Page 5 of 6
18 U.S.C. § 924, Penalties for firearms importation violations [**]
26 U.S.C. § 5872, forfeiture of machine guns, destructive devices and certain other firearms
Fish & Game
16 U.S.C. § 3372, Fish & wildlife offenses (Lacey Act)
16 U.S.C. § 3374, Forfeiture for fish & wildlife offenses (Lacey Act)
Forgery
18 U.S.C. § 471, counterfeiting, altering, or forgery of U.S. obligation or security [*]
18 U.S.C. § 478, forging or counterfeiting obligations or securities of foreign countries [*]
18 U.S.C. § 501, making, forging or possessing counterfeit or forged U.S. postage stamp, or postage
meter stamp [*]
18 U.S.C. § 502, making, forging or possessing counterfeit or forged foreign postage stamp, or
revenue stamp [*]
18 U.S.C. § 510, forging endorsements on Treasury checks, bonds or U.S. securities [*]
Food, Drug & Cosmetic Act
21 U.S.C. § 334, Seizure of articles of food and drug for FDA violations
Fraud
7 U.S.C. § 2024 Civil forfeiture for illegal food stamp transactions
18 U.S.C. § 1001, false or fraudulent statement to government agency [*]
18 U.S.C. § 1005, false or fraudulent statement by officer or employee of bank [*]
18 U.S.C. § 1006, false or fraudulent statement by agent or employee or FDIC, RTC or other banking
regulator or receiver [*]
18 U.S.C. § 1007, false or fraudulent statement to FDIC [*]
18 U.S.C. § 1014, false or fraudulent statement to loan officer [*]
18 U.S.C. § 1028, identity theft [*]
18 U.S.C. § 1029, fraud in connection with bank account access device [*]
18 U.S.C. § 1030, fraudulent or unauthorized access to government computer [*]
18 U.S.C. § 1031, major fraud against U.S. [*]
18 U.S.C. § 1032, concealment of assets from receiver or liquidating agent of financial institution [*]
18 U.S.C. § 1341, mail fraud [*]
18 U.S.C. § 1343, wire fraud (radio or television) [*]
18 U.S.C. § 1344, bank fraud [*]
18 U.S.C. § 1961(1)(D), any offense involving bankruptcy fraud except 18 U.S.C. § 157 [***]
18 U.S.C. § 1961(1)(D), fraud in the sale of securities [***]
28 U.S.C. § 2514, Forfeiture of Claims Against the U.S. for Fraud or Attempted Fraud
42 U.S.C. § 1786(p), Criminal forfeiture for food stamp and public assistance fraud
Gambling
15 U.S.C. § 1177, Forfeiture of gambling devices
18 U.S.C. § 1953, interstate transportation of wagering paraphernalia [***]
18 U.S.C. § 1955, Forfeiture of property, including money, used in violation of federal gambling law
18 U.S.C. § 1961, state felonies involving gambling [***]
Government agencies, officials and employees
14
http://www.fear.org/fedstat2a.html 10/3/2008
FEAR Law Library - Federal Statutes Page 6 of 6
18 U.S.C. § 641, Embezzlement or theft of public money [**]
18 U.S.C. § 666, Theft or bribery concerning agency or organization receiving federal funds [**]
18 U.S.C. § 1001, False or fraudulent statement to government agency [*]
18 U.S.C. § 1005, False or fraudulent bank entries, reports and transactions [*]
18 U.S.C. § 1006, False or fraudulent statement by agent or employee or FDIC, RTC or other banking
regulator or receiver [*]
18 U.S.C. § 1007, False or fraudulent statement to FDIC [*]
18 U.S.C. § 1030, Fraudulent or unauthorized access to government computer [**]
18 U.S.C. § 1031, Major fraud against U.S. [*]
18 U.S.C. § 1032, Concealment of assets from receiver or liquidating agent of financial institution [*]
18 U.S.C. § 1361, Willful injury of public property [**]
18 U.S.C. § 1961, State felonies involving bribery [***]
Click here to go to Part II - Federal Offenses That Trigger Forfeiture - H-Z
15
http://www.fear.org/fedstat2a.html 10/3/2008
FEAR Law Library - Federal Statutes Page 1 of 6
Offenses that trigger federal forfeiture
arranged alphabetically by topic H - Z
Go to: | H | I | J | K | L | M | N | O | P | Q | R | S | T | U | V | W | X | Y | Z |
Last update May 24, 2008
Note: A large number of forfeiture statutes are stand-alone statutes, prescribing forfeiture as a penalty for a
single offense or related group of offenses. Other forfeitable offenses have been added by incorporating by
reference other statutes listing numerous offenses. The largest number of the incorporated by reference
statutes were incorporated through 18 U.S.C. § 981(a)(1)(C), which incorporates by reference "any offense
constituting 'specified unlawful activity' as defined by 18 U.S.C. § 1956(c)(7)(B). Section 1956(c)(7)(B)
names numerous specific criminal statutes and incorporates by reference the "racketeering offenses" listed
in 18 U.S.C. § 1961(1), which in turn lists a large number of specific criminal statutes as well as several
broad categories of crimes. Any crimes from those lists can be prosecuted as a civil forfeiture under § 981.
Many of the same offenses listed in § 981 trigger criminal forfeiture under statutes incorporated by
reference in 18 U.S.C. § 982. Additionally, any civil forfeiture statute which does not have a criminal
forfeiture counterpart -- either under a specific criminal forfeiture statute or § 982 -- can be prosecuted as a
criminal forfeiture under 28 U.S.C. § 2461.
[*] denotes criminal statutes incorporated by reference in 18 U.S.C. § 981(a)(1)
[**] denotes criminal statutes incorporated by reference as "specified unlawful activities" in 18 U.S.C. §§ 981(a)
(1)(C) & 1956(c)(7)
[***] denotes criminal statutes incorporated by reference as "racketeering offenses" in 18 U.S.C. §§ 981(a)(1)(C),
1956(c)(7) & 1961(1)
Health care
18 U.S.C. § 1956(c)(7)(F), federal healthcare offense [**]
Immigration
8 U.S.C. § 1324, Bringing In and Harboring Certain Aliens, if done for financial gain [***]
8 U.S.C. § 1327, Assisting Aliens to enter US, if done for financial gain [***]
8 U.S.C. § 1328, importation of aliens for immoral purpose, if done for financial gain [***]
18 U.S.C. § 1425, unlawful procurement of citizenship or nationalization papers [***]
18 U.S.C. § 1426, reproduction of citizenship or nationalization papers [***]
18 U.S.C. § 1427, sale of citizenship or nationalization papers [***]
18 U.S.C. § 1542, false statement in obtaining or using passport [***]
18 U.S.C. § 1543, forgery or false use of passport [***]
18 U.S.C. § 1544, misuse of passport [***]
18 U.S.C. § 1546, fraud and misuse of visas and permits [***]
Internal Revenue Service
26 U.S.C. § 7302 Forfeiture of Property Used in Violation of Internal Revenue Laws
26 U.S.C. § 7303 Other property subject to forfeiture under IRS laws, including counterfeit tax
16
http://www.fear.org/fedstat2b.html 10/3/2008
FEAR Law Library - Federal Statutes Page 2 of 6
stamps, contents of packages with fraudulent tax stamps or fraudulent bonds, permits or entries
Labor unions
29 U.S.C. § 186, restrictions on payments and loans to unions [***]
29 U.S.C. § 501(c), embezzlement of union funds [***]
Money laundering & the catch-all forfeiture statutes
18 U.S.C. § 981, Civil forfeiture for property used to facilitate, or proceeds of violations of any of the
following statutes:
18 U.S.C. § 1956, money laundering the proceeds of Specified Unlawful Activity
18 U.S.C. § 1957, engaging in transactions with the proceeds of federal crimes listed under 18
U.S.C. § 1956
18 U.S.C. § 1960, conducting an illegal money transmitting business
18 U.S.C. § 1956, financial transctions involving the proceeds of "specified unlawful activity"
18 U.S.C. § 152, Concealment of assets, false oath under penalty of perjury, fraudulent claims,
bankruptcy fraud
18 U.S.C. § 215, corruptly giving or receiving a commission or gift for procuring loan
18 U.S.C. § 500, making, forging or possessing counterfeit or forged money orders
18 U.S.C. § 501, making, forging or possessing counterfeit or forged U.S. postage stamp, or
postage meter stamp
18 U.S.C. § 502, making, forging or possessing counterfeit or forged foreign postage stamp, or
revenue stamp
18 U.S.C. § 503, forging or counterfeiting postmarking stamps
18 U.S.C. § 513, making, possessing or uttering (passing) forged securities
18 U.S.C. § 542, entry of goods by means of false statements
18 U.S.C. § 545, smuggling goods into the U.S.
18 U.S.C. § 549, removing goods from customs, breaking customs seals or affixing false
customs seals
18 U.S.C. § 641, theft, embezzlement, etc. of government property
18 U.S.C. § 656, theft, embezzlement or misapplication by bank officer or employee
18 U.S.C. § 657, theft, embezzlement or misapplication by officer or employee or FDIC or
other bank regulator or receiver
18 U.S.C. § 658, fraudulently removing or concealing property mortgaged by the government
18 U.S.C. § 666, theft or bribery by employee of agency or organization receiving federal funds
18 U.S.C. § 793, gathering, transmitting or losing defense information
18 U.S.C. § 794, gathering, transmitting or losing defense information to aid foreign
government
18 U.S.C. § 798, disclosure of classified information
18 U.S.C. § 875, interstate communication of kidnapping ransom demands or threats
18 U.S.C. § 1005, false or fraudulent statement by officer or employee of bank
18 U.S.C. § 1006, false or fraudulent statement by agent or employee or FDIC, RTC or other
banking regulator or receiver
18 U.S.C. § 1007, false or fraudulent statement to FDIC
18 U.S.C. § 1014, false or fraudulent statement to loan officer
18 U.S.C. § 1032, concealing assets from conservator, receiver or liquidator of financial
institution
18 U.S.C. § 1201, kidnapping
17
http://www.fear.org/fedstat2b.html 10/3/2008
FEAR Law Library - Federal Statutes Page 3 of 6
18 U.S.C. § 1203, hostage taking
18 U.S.C. § 1708, theft or receipt of stolen mail matter
18 U.S.C. § 1961(1) - incorporating by reference all "racketeering offenses"
18 U.S.C. § 2113, bank robbery
18 U.S.C. § 2114, robbery of postal worker or other person having lawful control of property of
the United States
18 U.S.C. § 2319, criminal infringement of a copyright
18 U.S.C. § 2320, trafficking in counterfeit goods or services
19 U.S.C. § 1590, aviation or maritime smuggling
33 U.S.C. § 1251 et seq., felony violation of the Federal Water Pollution Control Act (pollution
of U.S. waterways)
33 U.S.C. § 1415, ocean dumping
33 U.S.C. § 1908, felony violation of the Act to Prevent Pollution from Ships
42 U.S.C. § 300f et seq., felony violation of the Safe Drinking Water Act
42 U.S.C. § 6901 et seq., felony violation of the Resources Conservation and Recovery Act
(solid waste disposal violations)
Money transmittal businesses
18 U.S.C. § 1960, Forfeiture relating to the unlicensed operation of a money transmittal business [*]
Obstruction of justice
18 U.S.C. § 1503, obstruction of justice - influencing juror [***]
18 U.S.C. § 1510, obstruction of criminal investigation [***]
18 U.S.C. § 1511, obstruction of state or local law enforcement [***]
18 U.S.C. § 1512, tampering with witness, victim, informant [***]
18 U.S.C. § 1513, retaliation against witness, victim, informant [***]
Polluting
33 U.S.C. § 1251 et seq., felony violation of the Federal Water Pollution Control Act (pollution of
U.S. waterways) [**]
33 U.S.C. § 1415, ocean dumping [**]
33 U.S.C. § 1908, felony violation of the Act to Prevent Pollution from Ships [**]
42 U.S.C. § 300f et seq., felony violation of the Safe Drinking Water Act [**]
42 U.S.C. § 6901 et seq., felony violation of the Resources Conservation and Recovery Act (solid
waste disposal violations) [**]
Pornography & child sexual exploitation - (See also Slavery and trafficking in persons)
18 U.S.C. § 1461, mailing obscene or crime-inciting material [***]
18 U.S.C. § 1462, importation or transportation of obscene matters [***]
18 U.S.C. § 1463, mailing indecent matter on wrappers or envelopes [***]
18 U.S.C. § 1464, broadcasting obscene language [***]
18 U.S.C. § 1465, production and transcportation of obscene matters for sale [***]
18 U.S.C. § 1467, Criminal Forfeiture relating to obscene materials
18 U.S.C. § 1961, state felonies involving murder, kidnapping, gambling, arson, robbery, bribery,
extortion, deadling in obscene matter or deadline in a controlled substance or listed chemical [***]
18 U.S.C. § 2251, Sexual exploitation of children (child pornography) [***]
18 U.S.C. § 2251A, Parent selling or transferring custody of child for purpose of producing child
pornography [***]
18
http://www.fear.org/fedstat2b.html 10/3/2008
FEAR Law Library - Federal Statutes Page 4 of 6
18 U.S.C. § 2252, Possession, transportation and sales of child pornography [***]
18 U.S.C. § 2253, Criminal forfeiture penalties for child pornography
18 U.S.C. § 2254, Civil forfeiture for child pornography
18 U.S.C. § 2260, Civil forfeiture for child pornography [***]
Prison-made goods -- shipping regulations
18 U.S.C. § 1762, Penalties for failure to mark packages containing prisoner made goods
Public assistance
7 U.S.C. § 2024, felony food stamp fraud > $5,000[**]
18 U.S.C. § 1954, unlawful welfare payments [***]
Racketeer Influenced Corrupt Organizations (RICO)
18 U.S.C. § 1952, transportation in aid of racketeering [***]
18 U.S.C. § 1962, RICO "prohibited activities"
18 U.S.C. § 1963, RICO criminal penalties
Slavery, trafficking in persons
18 U.S.C. § 1581, Peonage, obstructing enforcement [***]
18 U.S.C. § 1582, Vessels for slave trade [***]
18 U.S.C. § 1583, Enticement into slavery [***]
18 U.S.C. § 1584, Sale into involuntary servitude [***]
18 U.S.C. § 1585, Seizure, detention, transportation or sale of slaves [***]
18 U.S.C. § 1586, Service on vessels of slave trade [***]
18 U.S.C. § 1587, Possession of slaves aboard vessel [***]
18 U.S.C. § 1588, Transportation of slaves from United States [***]
18 U.S.C. § 1589, Forced labor [***]
18 U.S.C. § 1590, Trafficking with respect to peonage, slavery, involuntary servitude or forced labor
[***]
18 U.S.C. § 1591, Sex trafficking of children or by force, fraud or coercion [***]
18 U.S.C. § 1592, Unlawful conduct regarding documents in furtherance of peonage, slavery,
involuntary servitude or forced labor [***]
18 U.S.C. § 2421, transportation of person for prostitution [***]
18 U.S.C. § 2422, coercion or enticement of person to travel in interstate commerce for prostitution
[***]
18 U.S.C. § 2423, transportation of minors for sexual activity or prostitution [***]
18 U.S.C. § 2424, harboring alien for prostitution [***]
Smuggling
18 U.S.C. § 545, Smuggling goods into the U.S
18 U.S.C. § 549, Smuggling goods out of the US [**]
19 U.S.C. § 1590, Aviation smuggling [**]
22 U.S.C. § 2778(c), Entry of goods falsely classified [**]
Specified Unlawful Activity - this long laundry list of offenses from 18 U.S.C. § 1956(c)(7) is
19
http://www.fear.org/fedstat2b.html 10/3/2008
FEAR Law Library - Federal Statutes Page 5 of 6
incorporated by reference into 18 U.S.C. § 981(a)(1)(C)
18 U.S.C. § 1956(c)(7), Specified Unlawful Activity, defined
OR - See the table of SUA crimes from the DOJ publication Selected Federal Asset Forfeiture
Statutes (in PDF format)
Terrorism & crimes against foreign countries (see also Violent crimes; War and National Defense)
18 U.S.C. § 175, Prohibitions with regard to biological weapons [***]
18 U.S.C. § 175b, Possession of biological agents by restricted persons [***]
18 U.S.C. § 175c, Prohibited conduct regarding variola virus (smallpox) [***]
18 U.S.C. § 176, Seizure and forfeiture of biological agents
18 U.S.C. § 229, Possesion or production of chemical weapons [***]
18 U.S.C. § 831, Possesion or production of nuclear weapons or materials [***]
18 U.S.C. § 1956(c)(7)(B), Ttransaction inside US involving offense against a foreign nation
involving drug violations, murder, kidnapping, robbery, extortion, destruction of property by fire or
explosive device, crime of violence, fraud by or against a foreign bank, bribery of a public official,
embezzlement of public funds by public official, smuggling munitions or controlled substances, an
offense which multilateral treaty requires extradition, trafficking in persons or children, child sexual
exploitation [**]
18 U.S.C. § 2332, Terrorist acts abroad against US nationals [**]
18 U.S.C. § 2332a, Weapons of mass destruction [**]
18 U.S.C. § 2332b, Terrorist acts transcending national boundaries [***] (Note: § 2332b(g)(5)(B)
contains another long list of criminal statutes incorporated by reference - but the criminal acts must be
designed to intimidate, coerce or retaliate against a government)
18 U.S.C. § 2332g, Missile systems designed to destroy aircraft [**]
18 U.S.C. § 2332h, Radiological dispersal devices [**]
18 U.S.C. § 2339A, Providing material support to terrorists [**]
18 U.S.C. § 2339B, Providing material support to foreign terrorist organizations[**]
18 U.S.C. § 2339C, Financing terrorism [**]
18 U.S.C. § 2339D, Receiving military training from foreign terrorist organization [**]
Theft and stolen property
18 U.S.C. § 553, Importation or exportation of stolen vehicles, vessels or aircraft [*]
18 U.S.C. § 641, Embezzlement or theft of public money [**]
18 U.S.C. § 666, Theft or bribery concerning agency or organization receiving federal funds [**]
18 U.S.C. § 1708, Theft from the U.S. mails [**]
18 U.S.C. § 2113, Bank robbery [**]
18 U.S.C. § 2114, Postal robbery and theft [**]
18 U.S.C. § 2314, Transportation of stolen goods, securities, moneys, fraudulent state tax stamps or
articles used in counterfeiting [***]
18 U.S.C. § 2315, Sale or receipt of stolen goods, securities, moneys, fraudulent state tax stamps
[***]
Transportation Of Contraband
49 U.S.C. § 80302, Prohibitions
49 U.S.C. § 80303, Seizure and forfeiture
Violent crimes (see also Terrorism)
20
http://www.fear.org/fedstat2b.html 10/3/2008
FEAR Law Library - Federal Statutes Page 6 of 6
18 U.S.C. § 37, Violence at airports [**]
18 U.S.C. § 115, Threats or violence against US official, judge, law enforcement (or family member
thereof) to impede or retaliate for performance of official duties [**]
18 U.S.C. § 351, Assassination of Congressman, cabinet officer [**]
18 U.S.C. § 844(f) or (i), Destruction by fire or explosives of government property or property
affecting commerce [**]
18 U.S.C. § 875, Transmitting kidnapping threat or ransom demand, or threat of extortion [**]
18 U.S.C. § 956, Conspiracy to kill, kidnap, maim or injure property in foreign country [**]
18 U.S.C. § 1111, Murder [**]
18 U.S.C. § 1114, Murder of federal employee [**]
18 U.S.C. § 1116, Murder of foreign official [**]
18 U.S.C. § 1201, Kidnapping [**]
18 U.S.C. § 1203, Hostage taking [**]
18 U.S.C. § 1363, Destruction or injury of property within special maritime or territorial jurisdiction
[**]
18 U.S.C. § 1751, Presidential assassination [**]
18 U.S.C. § 1958, Murder for hire [***]
18 U.S.C. § 1961, State felonies involving murder, kidnapping, gambling, arson, robbery, bribery,
extortion, deadling in obscene matter or deadline in a controlled substance or listed chemical [***]
18 U.S.C. § 2113, Bank robbery [**]
18 U.S.C. § 2280, Violence against maritime navigation [**]
18 U.S.C. § 2281, Violence against maritime fixed platforms [**]
War and National Defense (see also Terrorism)
15 U.S.C. § 77, Discrimination against neutral Americans in time of war
18 U.S.C. § 793, Gathering, transmitting or losing defense information [**]
18 U.S.C. § 794, Gathering or delivering defense information to aid foreign government [**]
18 U.S.C. § 831, Transactions involving nuclear materials [**]
18 U.S.C. § 1956(c)(7)(D), "Any felony violation of the Foreign Corrupt Practices Act" [**] (this
probably refers to 15 U.S.C. § 78dd-2)
22 U.S.C. § 401, Exportation of arms or munitions of war
42 U.S.C. § 2122 et seq., Any felony violation of the Atomic Energy Act of 1954 [**]
50 U.S.C. § 1702, Patriot Act, Presidential authority (& International Emergency Economic Powers
Act) [**]
50 U.S.C. Appendix § 16, War and National Defense forfeiture provisions
Welfare and public assistance
42 U.S.C. § 1786(p), Criminal forfeiture for food stamp and public assistance fraud
Click here to go to Part I - Federal Offenses That Trigger Forfeiture A - G
21
http://www.fear.org/fedstat2b.html 10/3/2008
FEAR Law Library - Federal Statutes Page 1 of 3
Federal Forfeiture Procedure
Note: Forfeiture procedures applicable to federal civil forfeiture after the effective date of the Civil Asset
Forfeiture Reform Act of 2000 ("CAFRA") vary depending on whether the forfeiture statute relied upon
falls within the "Customs carve-out" or not. If it does not fall within the Customs carve-out, we refer to it as
a "CAFRA case." To determine which category your forfeiture case falls into, click here.
Corrected December 26, 2007
Procedures applicable to forfeiture cases in general:
18 U.S.C. § 981, Civil forfeiture procedure
18 U.S.C. § 982, Criminal forfeiture - This catch-all provision incorporates numerous federal crimes
by reference; other forfeiture statutes are scattered throughout US Code. (See FEAR website law
library's Federal Forfeiture Offenses A-G or H-Z for a comprehensive subject matter index to
forfeitable offenses under federal law.) Subsection 982(b)(1) incorporates by reference the criminal
forfeiture procedures of 21 U.S.C. § 853 other than § 853(d) into all criminal forfeiture cases.
<>
18 U.S.C. § 984, Civil forfeiture of fungible property
18 U.S.C. § 985, Civil forfeiture of real property
18 U.S.C. § 986, Subpoenas for bank records
28 U.S.C. § 1355, Jurisdiction of the U.S. District Courts for Recovery of Fine, Penalty or Forfeiture
28 U.S.C. § 1395, Venue of the U.S. District Courts for Recovery of Fine, Penalty or Forfeiture
28 U.S.C. § 1964, Federal lis pendens statute
28 U.S.C. § 2001, Sale of real estate
28 U.S.C. § 2002, Notice of sale of real estate
28 U.S.C. § 2004, Sale of personal property
18 U.S.C. § 2232, Criminal penalties for removal of property to prevent seizure & forfeiture
18 U.S.C. § 2233, Criminal penalties for rescuing property seized by the government
28 U.S.C. § 2461, Applicability of admiralty procedures to civil forfeitures
28 U.S.C. § 2464, Special bond for release of property
28 U.S.C. § 2465, Successful claimant is entitled to attorneys fees, post-judgment interest, and pre-
judgment interest on seized money.
28 U.S.C. § 2466, Fugitive disentitlement prevents fugitive from justice in criminal proceeding from
defending forfeiture case
28 U.S.C. § 2467, Enforcement of foreign forfeiture judgment
28 U.S.C. § 2680, Federal Tort Claims Act permits damages for injuries to property while seized if
claimant prevails in forfeiture case
18 U.S.C. § 3051, Special powers of ATF agents
18 U.S.C. § 3322, Information obtained by grand jury may be disclosed to forfeiture prosecutor and
used in civil forfeiture proceeding
18 U.S.C. § 3554, Order of criminal forfeiture after RICO (18 U.S.C. § 1962) and drug (21 U.S.C. §
853) convictions
Procedures applicable to criminal forfeiture cases in general:
18 U.S.C. § 982, Criminal forfeiture - This catch-all provision incorporates numerous federal crimes
by reference; other forfeiture statutes are scattered throughout US Code. (See FEAR website law
library's Federal Forfeiture Offenses A-G or H-Z for a comprehensive subject matter index to
forfeitable offenses under federal law.) Subsection 982(b)(1) incorporates by reference the criminal
22
http://www.fear.org/fedstat1.html 10/3/2008
FEAR Law Library - Federal Statutes Page 2 of 3
forfeiture procedures of 21 U.S.C. § 853 other than § 853(d) into all criminal forfeiture cases
21 U.S.C. § 853- Criminal forfeiture procedure governing all criminal forfeitures for violation of
federal drug laws (all offenses codified in title 21 U.S.Code). This provision is also incorporated by
reference into all other federal criminal forfeiture statutes through 18 U.S.C. § 982(b)(1)).
Federal Rules of Criminal Procedure, Rule 1 - Definitions; criminal rules inapplicable to civil
forfeiture proceedings [Rule 1(A)(5)(b)].
Federal Rules of Criminal Procedure, Rule 11 - Guilty pleas
Federal Rules of Criminal Procedure, Rule 32.2 - Criminal forfeiture rules
Federal Rules of Criminal Procedure, Rule 41(g) - Motion for return of property; this is also a remedy
generally for people whose property is seized by federal agents but no forfeiture case is filed.
Procedures applicable to civil forfeiture cases in general:
18 U.S.C. § 981, Civil forfeiture procedure
18 U.S.C. § 984, Civil forfeiture of fungible property
18 U.S.C. § 985, Civil forfeiture of real property
Supplemental Rule (for Admiralty) Rule C(2), In rem forfeiture actions - special requirement that
complaint be verified and that it describe property with reasonable particularity
Supplemental Rule (for Admiralty) Rule E(2)(a), In rem actions - special requirement that complaint
state circumstances with particularity
Supplemental Rule (for Admiralty) Rule G, Forfeiture actions in rem - rules applicable to civil
forfeiture under federal statutes
Civil forfeiture procedures applicable only to CAFRA cases: (For difference between "CAFRA cases"
and "customs carve-out cases" see 18 U.S.C. § 983(i).)
18 U.S.C. § 983, General rules for civil forfeiture proceedings
Civil forfeiture procedures applicable to customs carve out cases (these statutes still apply to CAFRA
cases unless inconsistent with the provisions of § 983)
19 U.S.C. § 1602, Customs procedure - seizure, report to customs officer
19 U.S.C. § 1603, Customs procedure - seizure; warrants and reports
19 U.S.C. § 1604, Customs procedure - seizure; prosecution
19 U.S.C. § 1605, Customs procedure - seizure, custody, storage
19 U.S.C. § 1606, Customs procedure - seizure; appraisement
19 U.S.C. § 1607, Seizure, value $500,000 or less
19 U.S.C. § 1608, Seizure; claims; judicial condemnation
19 U.S.C. § 1609, Seizure, summary forfeiture and sale
19 U.S.C. § 1610, Seizure; judicial forfeiture proceedings
19 U.S.C. § 1611, Seizure; sale unlawful
19 U.S.C. § 1612, Seizure; summary sale
19 U.S.C. § 1614, Release of seized property
19 U.S.C. § 1615, Burden of proof in customs carve-out cases
19 U.S.C. § 1616a, Transfer of property for state law forfeiture
19 U.S.C. § 1617, Compromise of claims
19 U.S.C. § 1618, Remission and mitigation
19 U.S.C. § 1621, Statute of limitations
23
http://www.fear.org/fedstat1.html 10/3/2008
Federal Forfeiture Procedures Page 1 of 1
Federal Forfeiture Procedure:
How Forfeiture Proceeds May Be Spent
Last update September 5, 2004
18 U.S.C. § 981(e), Equitable Sharing (federal adoption) of proceeds of FIRREA, Banking and
Monetary Transaction Violation Forfeitures
19 U.S.C. § 1613, Customs - Dispositions of proceeds of forfeited property
19 U.S.C. § 1613b, Customs Forfeiture Fund
19 U.S.C. § 1619, Rewards to informers
19 U.S.C. § 1620, Acceptance of kickback from forfeiture by government agent
28 U.S.C. § 524(c), Department of Justice Asset Forfeiture Fund, "federal adoption," and how state
and local police and informants can make commissions on federal forfeitures
31 U.S.C. § 9703, Department of Treasury Asset Forfeiture Fund
24
http://www.fear.org/fedst1a.html 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 1 of 21
Select Criminal Forfeiture Forms
U.S. Department of Justice Publication
by U.S. Department of Justice, Asset Forfeiture & Money Laundering Section
(publication date unknown)
Electronic version scanned in and annotated by Forfeiture Endangers American Rights
Foundation,
December 6, 2004
There are no copyright problems from printing out or disseminating this document because it is
in the public domain. It was created by government employees during the course of their official
duties, and published by the Superintendent of Documents, and there were no copyright notices
on the publication.
Preface to the Electronic Version by FEAR Foundation
by Brenda Grantland 12/06//2004
This almost-banned Department of Justice publication contains some statements about criminal forfeiture
procedure which could be very useful to forfeiture victims. I used a quote from the introduction, "Criminal
Forfeiture Procedure," to great effect in countering a prosecutor's argument that certain provisions of civil
forfeiture law did not apply to a seizure of some airplanes because (he said) they were seized with a criminal
forfeiture warrant. I knew they could not have legally seized them with a criminal forfeiture warrant
because they did not belong to any criminal defendant. I could have argued that all day, and cited all kinds
of case law, but nothing I could cite would have had the impact of quoting the Department of Justice's own
manuals on the subject. We faxed the forfeiture prosecutor the cover and applicable pages of this DOJ
publication, and he reacted by passing the case on to another prosecutor who released the planes a few days
later.
Only the first portion of the book is useful to forfeiture victims. The rest is sample criminal forfeiture forms
for use by prosecutors. Since you don't have any use for them, we didn't scan those portions in.
Table of Contents
Criminal Forfeiture Procedure
Summary of Terms
Basic Criminal Forfeiture Checklists
Sample Pleadings (omitted)
Criminal Forfeiture Procedure
Stefan D. Cassella, Deputy Chief
Asset Forfeiture and Money Laundering Section
I. Introduction
25
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 2 of 21
This outline summarizes the key points in criminal forfeiture procedure. It begins with the law on the drafting of
the forfeiture allegation in an indictment and continues more or less chronologically through the trial, sentencing,
ancillary proceeding, and post-trial phases of a criminal forfeiture case. The outline tracks the structure of Rule 32.2,
Federal Rules of Criminal Procedure, which governs all criminal forfeiture proceedings.
Overview
The Supreme Court has held that criminal forfeiture is part of the defendant's sentence. Libretti v. United States,
516 U.S. 29 (1995). It requires a conviction on the offense giving rise to the forfeiture. United States v. Aramony, 88
F.3d 1369 (4th Cir. 1996) (because 18 U.S.C. § 1957 conviction was reversed on appeal, 18 U.S.C. § 982 forfeiture
order had to be vacated); United States v. Tencer, 107 F.3d 1120 (5th Cir. 1997) (same for 18 U.S.C. § 1956).
In general, only the defendant's property can be forfeited in a criminal case. United States v. BCCI Holdings
(Luxembourg) S.A. (Petition of Chawla), 46 F.3d 1185, 1190 (D.C. Cir. 1995) ("only the property of the defendant
(including property held by a third party pursuant to a voidable transaction) can be confiscated in a RICO
proceeding"); United States v. O'Dell, 247 F.3d 655 (6th Cir. 2001) (criminal forfeiture "entitles the Government to
forfeiture of a convicted defendant's interests and nothing more"); United States v. Gilbert, 244 F.3d 888, 919 (11th
Cir. 2001) ("because it seeks to penalize the defendant for his illegal activities, in personam forfeiture reaches only
that property, or portion thereof, owned by the defendant"); id. at 920 (what distinguishes criminal forfeiture from
civil forfeiture is that "the property itself is not forfeited; rather, the defendant's interest in the property is forfeited")
(emphasis in original).
So if property really belongs-in whole or in part-to a third party, criminal forfeiture will not work. United States v.
Jimerson, 5 F.3d 1453 (11th Cir. 1993) (the Government may not use the ancillary proceeding to forfeit the interests
of third parties); United States v. Kennedy, 201 F.3d 1324 (11 th Cir. 2000) (where husband and wife are tenants by
the entireties, only husband's interest is forfeitable in a criminal case); United States v. Lester, 85 F.3d 1409 (9th Cir.
1996) (noting, in dicta, that defendant could have challenged forfeiture on the grounds that property was held by a
corporation, not by the defendant, and that unless corporate form could be ignored, defendant's only forfeitable
interest was his stock in the corporation). But property held by nominees, alter egos, and persons who did not acquire
their interest until after the crime was committed can be forfeited as property of the defendant. United States v.
Houlihan, 92 F.3d 1271 (1st Cir. 1996) (house forfeited from defendant based on evidence establishing that
defendant's uncle, whose name appeared on the deed, was a mere straw); United States v. Cuartes, 155 F. Supp. 2d
1338 (S.D. Fla. 2001) (upon conviction of money launderer under section 1956(h), Government may seek criminal
forfeiture of money defendant has sold to a third party through the black market; third party must assert bona fide
purchaser defense in the ancillary proceeding); United States v. fda, 14 F. Supp. 2d 454 (S.D.N.Y. 1998) (criminal
forfeiture of real property held in third party's name was proper where third party was a straw); United States v.
Simmons, 154 F.3d 765 (8th Cir. 1998) (corporate form may be ignored where defendants received bribe money
through nondefendant corporation).
This means that we can always forfeit the proceeds of the crime in a criminal case. If a person other than the
defendant claims an interest in the proceeds, he or she must satisfy the bona fide purchaser requirements of21 U.S.C.
§ 853(n)(6)(B). United States v. Hooper, 229 F.3d 818 (9th Cir. 2000) (because proceeds do not come into existence
until after the crime is committed, persons contesting the forfeiture of proceeds must be bona fide purchasers). This is
also how we forfeit attorneys' fees in a criminal case. United States v. Moffitt, Zwerling & Kemler, 83 F.3d 660 (4th
Cir. 1996) (property transferred to lawyer as attorney's fee); United States v. Saccoccia, 165 F. Supp. 2d 103 (D.R.I.
2001) (explaining how the relation back doctrine works).
II. Indictment
A. Naming property in the forfeiture allegation
Rule 32.2(a) provides that no forfeiture can be imposed unless the indictment contained a forfeiture allegation.
(a) Notice to the Defendant. A court shall not enter a judgment of forfeiture in a criminal proceeding
26
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 3 of 21
unless the indictment or information contains notice to the defendant that the [G]overnment will seek
the forfeiture of property as part of any sentence in accordance with the applicable statute.
The commentary explains this as follows:
Subdivision (a) is not intended to require that an itemized list of the property to be forfeited appear in
the indictment or information itself. The subdivision reflects the trend in case law interpreting present
Rule 7(c). Under the most recent cases, Rule 7(c) sets forth a requirement that the [G]overnment give
the defendant notice that it will be seeking forfeiture in accordance with the applicable statute. It does
not require a substantive allegation in which the property subject to forfeiture, or the defendant's
interest in the property, must be described in detail.
This is a notice provision: The property subject to forfeiture need not be itemized. United States v. Lino, 2001
WL 8356 (S.D.N.Y. 2001) (under Rule 32.2(a), Government need not detail property subject to forfeiture in the
indictment; to the extent that a bill of particulars is required, Government's agreement to provide particulars 60 days
before trial is sufficient); United States v. DeFries, 129 F.3d 1293 (D.C. Cir. 1997) (not necessary to specify in either
the indictment or a bill of particulars that the Government sought forfeiture of defendant's salary; to comply with Rule
7(c), the Government need only put defendant on notice that it would seek to forfeit everything subject to forfeiture
under the applicable statute, such as all property "acquired or maintained" as a result of a RICO violation); United
States v. Diaz, 190 F.3d 1247 (l1th Cir. 1999) (the Government complies with Rule 7(c)(2) and due process if the
indictment tracks language of the forfeiture statute and the Government informs defendant of its intent to forfeit
specific asset after the guilty verdict and before the forfeiture phase of the trial begins); United States v. Davis, 177 F.
Supp. 2d 470 (E.D. Va. 2001) (approving Government's naming automobile as subject to forfeiture in a bill of
particulars where indictment used general language tracking the forfeiture statute).
Furthermore, the extent of the defendant's interest need not be specified. United States v. Loe, 248 F.3d 449 (5th
Cir. 2001) (indictment that named the real property that was subject to forfeiture was sufficient; not necessary for
Government to allege that defendant held only 52.6 percent interest in the property, as was later established at trial);
United States v. Frye, 202 F.2d 270,2000 WL 32029 (6th Cir. 2000) (Table) (requirement that indictment allege
extent of defendant's interest is satisfied if indictment says that the Government will forfeit all of his interest); United
States v. Bainbridge Management, Inc., 2002 WL 538777 (N.D.Ill. 2002) (Government was not required to present
grand jury with evidence of defendant's ownership of the property; indictment only gives defendant notice that
whatever interest he may have will be forfeited).
B. Applying criminal forfeiture retroactively
Because criminal forfeiture is part of the defendant's sentence, it is regarded as punitive for purposes of the Ex
Post Facto Clause. This is relevant to offenses that occurred before the effective date of the applicable forfeiture
statute. United States v. Colon-Munoz, 192 F.3d 210 (1st Cir. 1999) (application of section 982(a)(2) to conspiracy
that began before effective date violates Ex Post Facto Clause where no overt act occurred after that date).
So although Congress enacted legislation permitting the criminal forfeiture of all criminal proceeds in 2000, it is
still necessary to charge money laundering to forfeit proceeds in most non-drug cases if the offense was committed
before August 23,2000.
III. Restraining Orders
A. Pretrial restraint of assets
The court is permitted to issue both pre-indictment and post-indictment restraining orders under 21 U.S.C. § 853
(e). This is an alternative to seizing the property with either a civil forfeiture warrant (l8 U.S.C. § 981 (b)) or a
criminal forfeiture warrant (section 853(f)). United States v. Walker, 943 F. Supp. 1326 (D. Col. 1996) (section 853(f)
27
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 4 of 21
requires showing that restraining order would not be adequate to preserve the property).
<> No pre-restraint hearing is required for either pre-indictment or post-indictment order. United States v. Acord, 47
F. Supp. 2d 1339 (M.D. Ala. 1999) (post-indictment restraining order may be issued ex parte to preserve the
Government's interest in movable property, such as an automobile). But if the restraining order is obtained pre-
indictment, it is good for only ten days, when a hearing is necessary before the temporary restraining order is
converted into a preliminary injunction. United States v. Kirschenbaum, 156 F.3d 784 (7th Cir. 1998) (Government
gets pre-indictment order ex parte; defendant gets hearing on Government's motion to continue the order for 90 days).
Post-restraint, most courts hold that a pretrial hearing required if Sixth Amendment is implicated. United States v.
Jones, 160 F.3d 641 (l0th Cir. 1998) (defendant has initial burden of showing that he has no funds other than the
restrained assets to hire private counselor to pay for living expenses; but if he makes this showing, he is entitled to a
hearing); United States v. Kirschenbaum, 156 F.3d 784 (7th Cir. 1998) (hearing is required when defendant raises
Sixth Amendment issue and demonstrates lack of alternative source of funds to hire counsel); United States v.
Jamieson, 189 F. Supp. 2d 754 (N.D. Ohio 2002) (same, following Jones; to satisfy Sixth Amendment requirement,
defendant must show he has no access to funds from friends or family; Government has right to rebut showing of lack
of funds if
hearing is granted); but see United States v. Bissell, 866 F.2d 1343, 1354 (l1th Cir. 1989) (no postrestraint hearing
required, even if Sixth Amendment is implicated); United States v. Register, 182 F.3d 820 (11th Cir. 1999) (dicta)
(noting that the Eleventh Circuit is the only court to hold that no postrestraint hearing is required even if Sixth
Amendment rights are implicated, and suggesting Bissell may need to be revisited).
The courts are split as to whether a post-restraint hearing is necessary if Sixth Amendment rights are not
implicated. United States v. Musson, 802 F.2d 384, 387 (l0th Cir. 1986) (no hearing required); United States v. Jones,
160 F.3d 641 (10th Cir. 1998) (reaffirming Musson on this point); United States v. Farmer, 274 F.3d 800,804-05 (4th
Cir. 2001) (agreeing with Jones; defendant gets no hearing unless he demonstrates that he lacks an alternative source
of funds to hire counsel); see United States v. Unimex, Inc., 991 F.2d 546,551 (9th Cir. 1993) (post-restraint hearing
required if defendant's motion presents a "substantial claim" that defendant lacks funds with which to hire counsel).
B. Restraining assets of third parties
The prevailing view is that property held by third parties may be restrained to preserve the Government's interest.
United States v. Jenkins, 974 F.2d 32 (5th Cir. 1992); In Re Billman, 915 F.2d 916 (4th Cir. 1990); United States v.
Regan, 858 F.2d 115 (2d Cir. 1988); United States v. BCCI Holdings (Luxembourg) S.A. (Final Order of Forfeiture
and Disbursement), 69 F. Supp. 2d 36 (D.D.C. 1999) (pursuant to 18 U.S.C. § 1963( e), court may appoint trustee to
liquidate assets of corporation where such liquidation is necessary for the Government to realize defendant's 61
percent interest). But some courts decline to restrain property held by third parties or to make restraining orders apply
to third parties. United States v. Kirschenbaum, 156 F.3d 784 (7th Cir. 1998) (restraining orders are directed at people,
not property; defendant may be enjoined from taking action with respect to property subject to forfeiture, but such
order applies only to defendant and his agents; order seeking to enjoin defendant's wife is void, but person who
knowingly aids defendant in violating restraining order may be held in contempt); United States v. Lugo, 63 F. Supp.
2d 896,897 n.2 (N.D. Ill. 1999) (following Kirschenbaum; order restraining drug defendant's use of two vehicles
applied to his agents, employees, and others acting in concert but cannot restrain family members or other third
parties).
Section 853(e)(4) specifically authorizes the court to include a repatriation order in a pretrial restraining order.
United States v. Sellers, 848 F. Supp. 73, 77 (E.D. La. 1994) (no Fifth Amendment violation if the Government does
not use evidence of the repatriation in its case in chief).
C. Pretrial restraint of substitute assets
Most courts do not permit the pretrial restraint of substitute assets, United States v. Gotti, 155 F.3d 144 (2d Cir.
1998); United States v. Floyd, 992 F.2d 498 (5th Cir. 1993); In Re Assets of Martin, 1 F.3d 1351 (3d Cir. 1993);
United States v. Ripinsky, 20 F.3d 359 (9th Cir. 1994); United States v. Field, 62 F.3d 246 (8th Cir. 1995); In Re:
28
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 5 of 21
Account Nos...Located at Bank One, 9 F. Supp. 2d 1015 (E.D. Wis. 1998) (pre-indictment restraint of substitute
assets not permitted); but the Fourth Circuit and individual district courts in the Sixth, Seventh, and Eleventh Circuits
do permit such restraint. In Re Billman,
915 F.2d 916 (4th Cir. 1990); United States v. Bollin, 264 F.3d 391, 421 (4th Cir. 2001); United States v. Scardino,
956 F. Supp. 774 (N.D. Ill. 1997) (holding that reference to "subsection (a)" property in section 853(c) applies to
substitute assets and stating, in dicta, that the same would apply to pretrial restraint under section 853(e)); United
States v. O'Brien, 836 F. Supp. 438 (S.D. Ohio 1993) (Government entitled to pretrial order restraining substitute
assets).
If property is directly forfeitable, there is no need to apply the rule against pre-trial restraint of substitute assets.
United States v. Stewart, 185 F.3d 112 (3d Cir. 1999) (if the money is forfeitable as criminal proceeds, and not as
substitute assets, there was nothing improper about the pretrial restraint).
IV. Guilty Pleas
The defendant, in a plea agreement, can agree to forfeit any property derived from, involved in, or used to commit
the offense to which he or she is pleading guilty. If there was no forfeiture allegation in the indictment for that
offense, the prosecutor may have the defendant plead to a criminal information that contains such an allegation.
Possibly, a defendant could waive the notice provision in Rule 32.2(a) and agree to the forfeiture anyway, but this is
an untested theory.
If the offense occurred before August 23, 2000, and there was no pre-CAFRA criminal forfeiture statute, the
defendant probably can plead and agree to the criminal forfeiture by waiving the ex post facto objection. But this is
also an untested theory.
If criminal forfeiture is impossible, the defendant can agree not to contest a parallel civil forfeiture. United States
v. Contents of Account Number 901121707,36 F. Supp. 2d 614 (S.D.N.Y. 1999) (defendant pleads guilty to
structuring offense and agrees not to contest civil forfeiture under 18 U.S.C. § 981(a)(l)(A)). In all events, the
defendant should recite, as part of the plea agreement, that the property belongs to him or her, and that he or she not
only agrees to the forfeiture, but agrees to assist the Government in opposing any claims by third parties. The
defendant, however, cannot agree to forfeit his or her spouse's property. If a third party's agreement not to contest the
forfeiture is part of the deal, the third party should sign the plea agreement and should be represented by counsel.
Christunas v. United States, 61 F. Supp. 2d 642 (E.D. Mich. 1999) (wife's apparent consent to forfeiture of her
interest in real property was void because wife did not sign consent decree and was not represented by her husband's
attorney).
Once the court accepts the guilty plea, it can enter a preliminary order of forfeiture under Rule 32.2(b) in the same
manner as it would if the jury had just returned a special verdict of forfeiture at trial. The procedure for converting the
preliminary order to an order that is final as to the defendant is described below.
V. Trial Procedure
A. Bifurcated proceeding
Before Rule 32.2 took effect, courts were divided as to whether bifurcation of a jury trial was required. But Rule
32.2(b)(1) resolved this issue by providing that the forfeiture proceeding takes place "as soon as practicable" after the
court enters a guilty verdict. In other words, the trial must be bifurcated
B. Special verdict/right to a jury trial
When Rule 32.2 was first proposed, it was meant to do away with the right to a jury trial on the forfeiture issue. The
notion was that the Supreme Court's decision in Libretti, holding that there was no constitutional right to a jury trial
on the forfeiture issue because forfeiture was part of sentencing gave the green light to efforts to repeal old Rule 31
29
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 6 of 21
(e).
What was originally proposed was the language in Rule 32.2(b)(1), which provides that "the court" determines
whether the requisite nexus has been established and "the court" determines the amount of any money judgment. But
the Standing Committee on the Criminal Rules did not approve that version and insisted that the jury right be
preserved at the defendant's option. For that reason, while paragraph (1) remained the same, the committee added
paragraph (4), which states the following:
Upon a party's request in a case in which a jury returns a verdict of guilty, the jury shall determine
whether the [G]overnment has established the requisite nexus between the property and the offense
committed by the defendant.
The things to notice are: (1) the default is that the forfeiture is tried to the court-a party must request a jury trial on
the forfeiture if the party wants one; United States v. Davis, 177 F. Supp. 2d 470 (E.D. Va. 2001) (under Rule 32.2(b)
(4), defendant must make a specific request to have the jury retained to determine the forfeiture; a general request for
a jury trial at the time of arraignment is not sufficient; defendant, who stood silent while the jury was dismissed,
waived his right to have the jury determine the forfeiture and could not request that a new jury be empaneled); and (2)
the Government has an equal right to demand a jury trial.
At least one court has held that because the forfeiture phase of the trial is part of sentencing, hearsay is admissible.
United States v. Gaskin, 2002 WL 459005 (W.D.N.Y. 2002) (in the forfeiture phase of the trial, the parties may offer
evidence not already in the record; and because forfeiture is part of sentencing, such evidence may include reliable
hearsay).
The trial phase of a criminal forfeiture involves only the defendant; third parties must await the ancillary
proceeding to contest the forfeiture, see 21 U.S.C. § 853(k). United States v. Pelullo, 178 F.3d 196 (3d Cir. 1999)
(criminal forfeiture occurs in two steps: first, the jury determines the forfeitability of the property and the district court
enters an order of forfeiture; second, third parties assert their interests
in an ancillary proceeding).
C. Burden of proof for criminal forfeiture
Virtually all courts hold that the preponderance standard applies in the forfeiture phase of a criminal trial. United
States v. Dieter, 198 F.3d 1284 (11 th Cir. 1999) (because forfeiture is part of sentencing, preponderance standard
applies to all section 853(a) forfeitures); United States v. Garcia-Guizar, 160 F.3d 511 (9th Cir. 1998) (preponderance
standard is constitutional because criminal forfeiture is not a separate offense, but only an additional penalty for an
offense that was established beyond a reasonable doubt); United States v. Smith, 966 F.2d 1045,1050-53 (6th Cir.
1992) (forfeiture is part of sentencing, which is governed by the, preponderance standard; same standard applies to
forfeiture of proceeds and facilitating property); United States v. Layne, 192 F.3d 556 (6th Cir. 1999) (reaffirming
Smith); United States v. Bellomo, 176 F.3d 580 (2d Cir. 1999) (following DeFries, Patel, and Rogers; because
forfeiture is part of sentencing and fact-finding at sentencing is established by a preponderance of the evidence, the
preponderance standard applies to criminal forfeiture).
Courts have also rejected the argument that Apprendi v. New Jersey, 530 U.S. 466 (2000), changes this to require
the forfeiture to be established beyond a reasonable doubt. United States v. Vera, 278 F.3d 672 (7th Cir. 2002) (like
restitution, forfeiture has no statutory maximum; it is open-ended; thus a forfeiture of property described by a criminal
forfeiture statute can never exceed the statutory maximum in a way that makes Apprendi applicable; the
preponderance of the evidence standard still applies); United States v. Corrado, 227 F.3d 543 (6th Cir. 2000)
(Corrado I) (Apprendi does not apply to criminal forfeiture; under Libretti, forfeiture is an aspect of the sentence, not
a separate offense; therefore, forfeiture need not be submitted to a jury or proved beyond a reasonable doubt); United
States v. Corrado, 286 F.3d 934 (6th Cir. 2002) (Corrado II) (petition for rehearing denied); United States v. Powell,
2001 WL 51010 (4th Cir. 2001) (Table) (same); United States v. Cabeza, 258 F.3d 1256 (11 th Cir. 2001) (same,
following Corrado and Powell); United States v. Davis, 177 F. Supp. 2d 470 (E.D. Va. 2001) (following Corrado and
Cabeza; preponderance standard still applies in the Fourth Circuit).
30
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 7 of 21
D. Special verdict/ownership issue
There had always been a great deal of ambiguity as to whether the finder of fact-whether it be the court or the
jury-was supposed to determine only whether there was a nexus between the property and the offense, or also was
supposed to determine if the defendant was the owner of the property. The problem was old Rule 31 (e), which
provided that the jury had to return a special verdict as to the "extent of the defendant's interest" in the property.
The commentary to Rule 32.2 describes this controversy at length, and notes the division in the case law. Some
cases held that the jury had to determine both nexus and ownership, while others held that the jury's role was to
determine nexus only. Compare United States v. Gilbert, 244 F.3d 888 (11th Cir. 2001) (forfeiture order is fatally
flawed if jury was not asked to determine how much of the property belonged to each defendant and how much to
third parties) with United States v. Frye, 202 F.2d 270,2000 WL 32029 (6th Cir. 2000) (Table) (as long as the
Government complies with Rule 7(c)(2) and puts defendant on notice that all of his interest is subject to forfeiture,
defendant cannot complain that jury did not determine extent of his interest; jury's finding on nexus issue is sufficient
to support forfeiture of all of defendant's interest). The commentary to Rule 32.2 explains that it makes no sense for
the court (or the jury) to determine the ownership issue in the Government's case because the same issue only has to
be litigated all over again if a third party files a claim asserting a superior ownership interest in the ancillary
proceeding.
In the end, Rule 32.2(b)(1) provides only that the finder of fact must determine "whether the Government has
established the requisite nexus between the property and the offense," while Rule 32.2(b)(2) provides that the
determination of the extent of the defendant's interest vis a vis third parties is deferred to the ancillary proceeding:
If the court finds that property is subject to forfeiture, it shall promptly enter a preliminary order of
forfeiture setting forth the amount of any money judgment or directing the forfeiture of specific
property without regard to any third party's interest in all or part of it. Determining whether a third
party has such an interest shall be deferred until any third party files a claim in an ancillary
proceeding under Rule 32.2(c).
So, the jury's role is only to determine if the nexus between the property and the offense has been established; it is not
to be concerned with whether the defendant had an ownership interest in the property. United States v. Gaskin, 2002
WL 459005 *9 n.4 (W.D.N.Y. 2002) (ownership is a question for the court alone to determine in the ancillary
proceeding); see also Advisory Committee Note (2000) (discussing reason for eliminating confusion over whether
extent of defendant's ownership interest should be determined by the jury and for providing that under the new rule
the court simply enters an order of forfeiture "of whatever interest a defendant may have in the property without
having to determine exactly what that interest is").
This is intended not only to avoid repetitious litigation-i.e., litigating the ownership issue first in the case in chief
and again in the ancillary proceeding-but also to preclude a defendant from objecting to the forfeiture on the ground
that the property did not belong to him or her. If the defendant says he or she does not own the property, then there is
no standing to object to the forfeiture. United States v. Saccoccia, 62 F. Supp. 2d 539 (D.R.I. 1999) (defendant lacks
standing to object to forfeiture of property as substitute assets on the ground that the property does not belong to him).
Rule 32.2(b )(2) makes this clear, and the commentary to that provision reinforces it:
The defendant would have no standing to object to the forfeiture on the ground that the property
belonged to someone else.
Prosecutors must be aware, however, that Rule 32.2 contains a peculiar procedure for what happens if no third
party files a claim in the ancillary proceeding. The committee was content to allow the ownership issue to be deferred
to the ancillary proceeding as Rule 32.2(b)(2) provides, but they did not want to create a situation where the
31
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 8 of 21
Government could forfeit just any property connected to the offense, regardless of who the owner was. That
would convert a criminal forfeiture into a civil in rem forfeiture.
So, if no one files a claim in the ancillary proceeding and the ownership issue is thus not being litigated by any
party, the court must nevertheless satisfy itself that at least one defendant had an interest in the property. Rule 32.2(c)
(2) states the following:
If no third party files a timely claim, the preliminary order becomes the final order of forfeiture, if the
court finds that the defendant (or any combination of defendants convicted in the case) had an interest
in the property that is forfeitable under the applicable statute. The defendant may not object to the
entry of the final order of forfeiture on the ground that the property belongs, in whole or in part, to a
codefendant or third party, nor may a third pay object to the final order on the ground that the third
party had an interest in the property.
Note once again that even at this stage, the defendant does not get to object to the forfeiture on the ground that the
property really belonged to a girl or boyfriend; nor does the court have to worry about determining whether the
property belonged to Defendant "A" or Defendant "B."
VI. ORDER OF FORFEITURE/SENTENCING
A. In general
Forfeiture is mandatory. United States v. Corrado, 227 F.3d 543 (6th Cir. 2000) (forfeiture is a mandatory aspect of
the sentence; district court erred in refusing to order forfeiture of "sufficiently quantifiable" proceeds of a RICO
offense); United States v. Maxwell, 189 F. Supp. 2d 395, 400 n.2 (E.D. Va. 2002) (because criminal forfeiture is
mandatory, the primary issue before the trial court is not whether to issue a forfeiture order, but its size and scope).
B. Preliminary order of forfeiture--procedure
Rule 32.2(b)(3) provides that a preliminary order of forfeiture may be entered at any time after the conviction or
guilty plea and becomes final as to the defendant at sentencing. United States v. Pelullo, 178 F .3d 196 (3d Cir. 1999)
(preliminary order is final as to the defendant and divests him of any interest he had in the property, including
property forfeited as a substitute asset; therefore, property did not become part of the bankruptcy estate); United States
v. BCCI Holdings (Luxembourg) S.A. (Final Order of Forfeiture and Disbursement), 69 F. Supp. 2d 36 (D.D.C. 1999)
(preliminary order transfers defendant's interest to the United States and is final as to the defendant at sentencing; it
remains preliminary as to third parties until the ancillary proceeding is concluded).
Forfeiture must be included in the verbal pronouncement of the defendant's sentence. United States v. Gaviria,
116 F.3d 1498 (D.C. Cir. 1997) (failure to announce the forfeiture portion of the defendant's sentence in his presence,
as required by Rule 43(a), means that forfeiture order must be vacated); United" States v. Shannon, 87 F.3d 1325,
1996 WL 341352 (9th Cir. 1996) (Table) (order of forfeiture vacated because judge failed to mention forfeiture at
sentencing, even though forfeiture was included in indictment and plea agreement and court amended judgment eight
days after sentencing to include order of forfeiture); United States v. Gilbert, 244 F .3d 888 (11 th Cir. 2001)
(forfeiture must be imposed in a proceeding where defendant has the right to allocution).
Moreover, Rule 32.2(b)(3) provides that the order of forfeiture "shall be made part of the sentence and included in
the judgment." That means that the order of forfeiture must be included in the judgment and commitment order.
Courts disagree as to what happens if the court fails to include forfeiture in the judgment. Some say the
Government's only remedy is to appeal. United States v. Seltzer, 199 F.3d 1324, 1999 WL 1024725 (2d Cir. 1999)
(Table) (when district court inadvertently failed to include forfeiture as part of the sentence, the Government's only
remedy was to appeal; it could not wait six weeks and then move district court to amend the sentence); United States
v. Gilbert, 244 F .3d 888, 925 n.81 (11 th Cir. 2001) (because forfeiture is mandatory, Government may appeal any
32
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 9 of 21
judgment that fails to contain an order of forfeiture as an illegal sentence; but if Government fails to take such
appeal, it waives the forfeiture and the judgment becomes final). Others say the Government can move to amend the
judgment under Rule 36. United States v. Loe, 248 F.3d 449 (5th Cir. 2001) (if district court forgets to include
forfeiture in the judgment, it may, pursuant to Rule 36, amend the judgment nunc pro tunc; even if the judgment is not
so amended, oral pronouncement of the forfeiture at the sentencing hearing is sufficient to comply with former Rule
32(d)(2)). But the Eighth Circuit holds that if the district court omits the preliminary order of forfeiture from the
judgment, the time for the defendant's appeal never begins to run, and the Government can return to the district court
to fix the problem. United States v. Covey, 232 F.3d 641 (8th Cir. 2000) (defendant's appeal, on the merits, from order
of forfeiture in money laundering case was premature because the preliminary order was not made part of the
judgment at sentencing; case remanded for district court to include order of forfeiture in the judgment); United States
v. Coon, 187 F.3d 888 (8th Cir. 1999) (preliminary order of forfeiture is final as to defendant and immediately
appealable only if it is included in the judgment; because district court failed to make the forfeiture part of the
sentence and include it in the judgment, the forfeiture order is still "preliminary" and not ripe for appeal).
C. Form of preliminary order
The court may order the forfeiture of an amount of money, specific property, or substitute assets. United States v.
Candelaria-Silva, 166 F.3d 19 (1st Cir. 1999) (criminal forfeiture order may take several forms: money judgment,
directly forfeitable property, and substitute assets). Thus, the preliminary order of forfeiture may include specific
property, include a money judgment, or describe property generically. United States v. BCCI Holdings (Luxembourg)
S.A. (Final Order of Forfeiture and Disbursement), 69 F. Supp. 2d 36 (D.D.C. 1999) (just as a preliminary order in a
drug case may direct the forfeiture of all proceeds up to a specific amount but not identify specific assets, the
preliminary order in a RICO case may direct the forfeiture of "all property acquired or maintained" or "affording a
source of influence"; the Government then uses post-trial discovery to identify specific assets and moves to amend the
preliminary order to include them).
If the order contains only a generic description of the property, or a money judgment, and the Government later
finds property traceable to the offense, it may move to amend the order to include the newly-discovered property; see
Rule 32.2(e).
D. Joint and several liability
Each of the defendants is jointly and severally liable for the full amount of an~: money judgment. United States v.
Candelaria-Silva, 166 F.3d 19 (1st Cir. 1999) (all co-defendants held jointly and severally liable for $6 million money
judgment in drug case; even minor participants in drug conspiracy are jointly and severally liable for forfeiture of the
full amount of the proceeds); United States v. Corrado, 227 F.3d 543 (6th Cir. 2000) (Corrado I) (all defendants in a
RICO case are jointly and severally liable for the total amount derived from the scheme; the Government is not
required to show that the defendants shared the proceeds of the offense among themselves, nor to establish how much
was distributed to a particular defendant); United States v. Corrado, 286 F.3d 934 (6th Cir. 2002) (Corrado II) (same;
because person who collected the proceeds was able do so because of his participation in a scheme, all members of
the scheme are jointly and severally liable); United States v. Bollin, 264 F.3d 391(4th Cir. 2001) (even minor
participant who received only $30,000 for his role in the scheme may be liable for full $1.2 million judgment if the
laundering of that amount was foreseeable to him; forfeiture of such foreseeable amount does not violate the
Excessive Fines Clause).
E. Substitute assets
Substitute assets may be forfeited to satisfy a money judgment. United States v. Candelaria-Silva, 166 F.3d 19
(1st Cir. 1999) (once the Government has obtained a money judgment, it may forfeit defendant's real property in
partial satisfaction of that judgment).
The order of forfeiture for substitute assets must be satisfied out of something not itself subj ect to forfeiture;
otherwise the forfeiture order would be satisfied out of something that belongs to the United States, rendering the
33
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 10 of 21
substitute assets provision meaningless. United States v. Candelaria-Silva, 166 F.3d 19 (1 st Cir. 1999) (absence of a
nexus between the substitute asset and the offense is irrelevant; if there were a nexus, it would not be necessary to
invoke the substitute assets theory); United States v. Davis, 177 F. Supp. 2d 470 (E.D. Va. 2001) (if property cannot
be forfeited as directly traceable to the offense, it can be forfeited as a substitute asset and used to satisfy the money
judgment); United States v. McCorkle, No. 6:98-CR-52-0RL-19JGG (M.D. Fla. Jan. 8, 2001) (there is no bar against
forfeiture-as a substitute asset-of the property the jury declined to find subject to direct forfeiture).
The prosecutor can switch theories of forfeiture-from direct forfeiture to substitute assets. United States v.
Candelaria-Silva, 166 F.3d 19 (1st Cir. 1999) (there was nothing improper in prosecutor's decision to move to strike
property from the forfeiture allegation before it was submitted to the jury and later seek forfeiture of the same
property as a substitute asset); United States v. McCorkle, No. 6:98-CR52-0RL-19JGG (M.D. Fla. Jan. 8,2001)
(prosecutor can drop civil forfeiture case against an asset and seek forfeiture of same property as substitute asset in
criminal case).
Procedure for obtaining substitute assets
Rule 32.2(e) provides unambiguously that the forfeiture of substitute assets is a matter for the court, not the jury.
It is also clear from the use of the mandatory language in Rule 32.2(e)(2) that the forfeiture of substitute assets is
mandatory, not discretionary, once the Government makes the necessary showing that the requirements of 21 U.S.C. §
853(p) are satisfied. United States v. McCorkle, No. 6:98-CR-52ORL-19JGG (M.D. Fla. Jan. 8,2001) (Rule 32.2(e)
governs procedure for amending order of forfeiture to include substitute assets; court cannot be concerned with
defendant's claim that the forfeiture of jewelry as a substitute asset would do irreparable harm in the event defendant
is successful in overturning conviction on appeal because forfeiture of substitute asset is mandatory once elements of
section 853(p) are satisfied); see United States v. Candelaria-Silva, 166 F.3d 19 (1st Cir. 1999) (the Government
satisfied requirements of section 853(p) by submitting motion and affidavit reciting its efforts to trace defendant's
drug proceeds). The Government just has to establish that the amount of money subject to forfeiture exceeds the value
of the substitute assets. United States v. Bennett, 2000 WL 1505986 (S.D.N.Y.2000).
Like the forfeiture order itself, forfeiture of substitute assets is mandatory. United States v. Bollin, 264 F.3d 391
(4th Cir. 2001) (Congress requires forfeiture of property as a substitute asset; the forfeiture judgment that the
substitute asset is used to satisfy is part of the defendant's criminal sentence; cannot insulate certain types of property
from forfeiture as a substitute asset); United States v. McCorkle, No. 6:98.CR-52-0RL-19JGG (M.D. Fla. Jan. 8,2001)
(court cannot be concerned with defendant's claim that the forfeiture of jewelry as a substitute asset would do
irreparable harm in the event defendant is successful in overturning conviction on appeal because forfeiture of
substitute asset is mandatory once elements of section 853(p) are satisfied).
Rule 32.2( e )(2) also makes it clear that whenever a court modifies an order of forfeiture to include a substitute
asset, it must conduct an ancillary proceeding. United States v. Lester, 85 F.3d 1409 (9th Cir. 1996); United States v.
Morgan, 224 F.3d 339 (4th Cir. 2000) (wife challenges forfeiture of joint bank accounts as substitute assets). But
challenging the forfeiture of a substitute asset in the ancillary proceeding is not just an option for the third party; it is
the only way to make such a challenge. In other words, the third party cannot object to the Government's motion to
amend the order of forfeiture to include the substitute asset at the time the motion is made. If a third party wants to
challenge the forfeiture of substitute assets, he or she must do so in the ancillary proceeding. United States v. Davis,
2001 WL 47003 (S.D.N.Y. Jan. 17,2001) (wife's objection to the forfeiture of substitute asset must be made in the
ancillary proceeding).
A defense attorney cannot object that substitute assets are needed to pay his fee. United States v. Numisgroup Inti.
Corp, 169 F. Supp. 2d 133 (E.D.N.Y. 2001) (Supreme Court's decision in Monsanto applies with even greater force to
post-conviction restraint of property, including property forfeitable as substitute assets); United States v. Stewart,
1998 WL 961363 (E.D. Pa. 1998) (Caplin & Drysdale applies to substitute assets), order aff'd, 189 F.3d 465 (3d Cir.
1999); United States v. O'Brien, 181 F.3d 105, 1999 WL 357755 (6th Cir. 1999) (Table) (same); United States v.
Helms, 2001 WL 1057751 (W.D. Va. 2001) (same; assets restrained pretrial as substitute assets are not available for
attorneys' fees unless there is reason to believe that they won't be forfeited).
34
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 11 of 21
F. Property transferred to third parties
As mentioned in the introduction, transactions transferring forfeitable property to third parties may be voided
under the relation back doctrine. See 18 U.S.C. § 1963(c); 21 U.S.C. § 853(c); United States v. Gilbert, 244 F.3d 888,
902 n.38 (11th Cir. 2001) (under the relation back doctrine, Government's interest dates back to the time of the act
that made the property subject to forfeiture; Congress included the provision to prevent a defendant from attempting
to transfer property to a third party prior to his or her conviction; third party who objects to application of the relation
back doctrine must file a claim in the ancillary proceeding). So, if the Government has established that the property
was subject to forfeiture in the forfeiture phase of the tria1-Dr pursuant to a guilty plea-the prosecutor can have it
named in the preliminary order of forfeiture even if it has been transferred to a third party.
The procedure is to give the third party notice of the preliminary order and let him or her file a claim in the
ancillary proceeding. United States v. Bennett, 252 F.3d 559 (2d Cir. 2001) (the procedure for recovering criminal
proceeds transferred by a defendant to a third party is codified at sections 853(c) and (n)(6)(B); the Government
forfeits the property in the criminal case, subject to the third party's right to contest the forfeiture in the ancillary
proceeding); United States v. McCorkle, 143 F. Supp. 2d 1311, 1318 (M.D. Fla. 2001) (any property of the defendant
that is subsequently transferred to a third party may be the subject of a special verdict of forfeiture; the district court
thereafter orders the forfeiture of the property, subject to any claim made by the transferee in the ancillary
proceeding); United States v. McCorkle, 2000 WL 133759 (M.D. Fla. 2000) (same).
The court should also order the third party to turn the property over to the court or to the Marshals Service
pending the conclusion of the ancillary proceeding. United States v. McCorkle, 2000 WL 33725124 (M.D. Fla. 2000)
(district court retains jurisdiction to hold third party in contempt for refusal to disgorge forfeited funds even though
third party has filed notice of appeal from denial of his petition in the ancillary proceeding). If the third party has
dissipated forfeitable property, the Government may file a conversion action in federal court to recover the property.
United States v. Swiss American Bank, 191 F.3d 30 (1 st Cir. 1999) (the United States has a cause of action in
conversion and unjust enrichment against a third party who receives property subject to criminal forfeiture and
converts it to his own use, and may file suit in federal court because the action arises under federal law; Rule 4(k)(2)
gives the court personal jurisdiction over third parties located outside of the United States); United States v. Moffitt,
Zwerling & Kemler, 83 F.3d 660 (4th Cir. 1996) (conversion action under Virginia tort law may be based on
Government's rightful ownership of forfeitable property under the relation back doctrine and filed in federal court),
rev'g 875 F. Supp. 1190 (B.D. Va. 1995) (Moffitt IV). Or the Government can sue to recover the property under the
Federal Debt Collection Act. United States v. Maxwell, 189 F. Supp. 2d 395 (E.D. Va. 2002) (when defendant
transfers his real property to a third party to prevent the Government from using it to satisfy the money judgment, the
Government may sue to void the transfer under 28 U.S.C. §§ 3304(b) and 3306(a)).
G. Effect on sentencing
Forfeiture is not a basis for a downward departure from the U.S. Sentencing Guidelines. United States v. Shalash,
36 F. Supp. 2d 1013 (S.D. Ohio 1999) (section 5E1.4 shows that the sentencing commission intended for forfeitures
to be considered separate and apart from sentencing; therefore forfeiture of the family residence cannot be a valid
basis for downward departure) (collecting cases).
VII. THIRD PARTIES
As mentioned before, criminal forfeiture is limited to the property of the defendant. A third party who was the
true owner of the property when it was used to commit the crime, or who received the property subsequently, may be
able to object to the forfeiture. The place where all of that gets worked out is not in the criminal trial, but in the
ancillary proceeding.
A. Right of third party to object to the forfeiture
A third party has no right to intervene in a criminal case until after conviction. 18 U.S.C. § 1963(i); 21 U.S.C. §
35
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 12 of 21
853(k); United States v. Messino, 122 F.3d 427 (7th Cir. 1997) (under sections 853(k) and (n), third parties must wait
until the court has entered a preliminary order of forfeiture to challenge the forfeiture action); United States v.
Bennett, 2000 WL 1505986 (S.D.N.Y. 2000) (wife cannot object to amendment of order of forfeiture to include
substitute assets except by filing claim in the ancillary
proceeding).
B. Ancillary hearing-procedural issues
In 1999, the last decision in the BCCI case set forth an excellent summary of the procedures involved in the
ancillary proceeding. Much of the case law summarized in that opinion now appears in Rules 32.2(c) and (e). For
example, under Rule 32.2(e), the court may amend the preliminary order of forfeiture at any time to include specific
property that has been recently discovered, e.g., pursuant to postconviction discovery under section 853(m). This
might happen if, for example, the preliminary order stated that all proceeds of the crime up to $20 million were
forfeited (i.e., a money judgment) and then, years later, the Government discovered a load of gold bars in the
defendant's garage that were directly forfeitable as part of the $20 million. In that case, the Government would have
the option, under Rule 32.2(e)(I), of seeking to forfeit the gold bars as a substitute asset or as newly-discovered
property. United States v. BCCI Holdings (Luxembourg) S.A. (Final Order of Forfeiture and Disbursement), 69 F.
Supp. 2d 36 (D.D.C. 1999) (each time the court amends the preliminary order to add new property, it must conduct
another ancillary hearing; but claimants may only assert interests in the property named in the amendment to the
order).
Notice requirement under section 853(n)(1)
The Government is required by statute to provide notice of the criminal order of forfeiture to interested third
parties. United States v. Phillips, 185 F.3d 183 (4th Cir. 1999) (even if the Government is required to send direct
written notice under section 853(n)(I)-which is not at all certain, given the permissive language in the statute-it does
not have to send notice to persons who lack standing to contest the forfeiture); United States v. Bouler, 927 F. Supp.
911 (W.D.N.C. 1996) (even though section 853(n)(1) states that the Government "may" send direct notice to third
parties, such notice is mandatory under 19 U.S.C. § 1607, which applies to criminal forfeitures).
Amendments to the preliminary order of forfeiture
Each time the court amends the preliminary order to add new property, it must conduct another ancillary hearing;
but claimants may only assert interests in the property named in the amendment to the order. United States v. BCCI
Holdings (Luxembourg) SA. (Final Order of Forfeiture and Disbursement), 69 F. Supp. 2d 36 (D.D.C. 1999).
Motions to dismiss
Rule 32.2(c)(l)(A) provides that in the ancillary proceeding, the court can grant a motion to dismiss the third party
claim for lack of standing or for some procedural violation. For example, third party claims may be dismissed as
untimely. United States v. Strube, 58 F. Supp. 2d 576 (M.D. Pa. 1999) (to the extent that claimant amended her claim
to add a constructive trust theory after the 30-day period for filing a claim had expired, it was untimely, and the court
was free to ignore the additional ground for relief); BCCI Holdings, supra. Or it may be dismissed on the pleadings
for lack of standing or failure to state a claim. United States v. BCCI Holdings (Luxembourg) SA. (Final Order of
Forfeiture and Disbursement), 69 F. Supp. 2d 36 (D.D.C. 1999) ("if a third party fails to allege in its petition all
elements necessary for recovery, including those relating to standing, the court may dismiss the petition without
providing a hearing").
A claim can be dismissed for failure to spell out the claimant's grounds for relief in the ancillary proceeding. Pegg
v. United States, No. 98-9617 (lith Cir. April 10, 2000) (unpublished) (section 853(n) requires a third party to state his
or her interest in the property with particularity; a petition that merely tracks the language of section 853(n)(6) and
does not provide the details it requires is insufficient and subject to dismissal on motion of the Government).
36
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 13 of 21
Discovery
Under Rule 32.2(c)(l)(B), the court can order discovery in the ancillary proceeding and can consider a motion for
summary judgment. United States v. Martinez, 228 F.3d 587 (5th Cir. 2000) (ancillary hearing is necessary only
where there are facts in dispute that must be resolved; ifpetitioner's claim lacks merit as a matter oflaw, it can be
disposed of on a motion for summary judgment); United States v. BCCI Holdings (Luxembourg) SA. (Petition of
Banque !ndosuez), 961 F. Supp. 282 (D.D.C. 1997) (applying Fed. R. Civ. P. 56(f), court denies claimant's motion for
summary judgment because the Government has not yet had opportunity to conduct discovery); United States v. BCCI
Holdings (Luxembourg) SA. (Petitions of People's Republic of Bangladesh and Bangladesh Bank), 977 F. Supp. 1
(D.D.C. 1997) (the Government is entitled to summary judgment if it demonstrates that under undisputed facts,
claimant cannot show that it had a legal right, title, or interest in the property at the time the crime occurred).
Note that Rule 32.2(c)(1) clearly states that no ancillary proceeding is necessary if the preliminary order of
forfeiture contains only a money judgment.
C. Choice of law
Federal law is used to determine whether a legal interest is the kind of interest Congress intended to protect.
United States v. Lester, 85 F.3d 1409 (9th Cir. 1996) (when claim is filed in the ancillary proceeding, court looks to
state law to see what interest the claimant has in the property and looks to the federal statute to see if that interest
is subject to forfeiture); United States v. BCCI Holdings (Luxembourg) SA. (Final Order of Forfeiture and
Disbursement), 69 F. Supp. 2d 36 (D.D.C. 1999) ("The nature of the claimant's interest is determined by
reference to applicable state property law, but the determination of whether such an interest defeats the
United States' claim to the property under [section] 1 963(l) is a matter offederallaw").
D. Standing under sections 853(n)(2) and 1963(1)(2)
General creditors do not have a legal interest in the forfeited property and therefore lack standing to contest the
forfeiture in the ancillary proceeding. United States v. BCCI Holdings (Luxembourg) SA. (Petition of Chawla), 46
F.3d 1185 (D.C. Cir.), cert. denied, Chawla v. United States, 515 U.S. 1160 (l995) ; United States v. Schwimmer, 968
F.2d 1570, 1581 (2d Cir. 1992); United States v. Campos, 859 F.2d 1233 (6th Cir. 1988) (trade creditors); United
States v. Ribadeneira, 105 F.3d 833 (2d Cir. 1997) (person holding check drawn on defendant's forfeited bank account
is a general unsecured creditor with no interest in specific funds); United States v. Strube, 58 F. Supp. 2d 576 (M.D.
Pa. 1999) (family members who obtained a judgment lien against defendant personally were general creditors, and not
bona fide purchasers of any interest in a specific parcel of property).
The third party's ability to trace assets is irrelevant. United States v. BCCI Holdings (Luxembourg) SA. (Final
Order of Forfeiture and Disbursement), 69 F. Supp. 2d 36 (D.D.C. 1999) (a person who voluntarily transfers his
property to the defendant is no longer the owner of that property; his ability to trace his property to the defendant's
assets is irrelevant; therefore, victims who transferred their property to the defendant have no greater standing to
contest the forfeiture order than other unsecured creditors). Stockholders do not have standing to challenge forfeiture
of corporate assets. United States v. Wyly, 193 F.3d 289 (5th Cir. 1999) (because stockholders, as a matter of state
law, do not have a legal interest in corporate assets, they cannot challenge the forfeiture of those assets when the
corporation is convicted).
E. Grounds for recovery in ancillary proceeding
The only grounds on which a third party can prevail in the ancillary proceeding are those set forth in sections 853
(n)(6)(A) and (B). United States v. BCCI Holdings (Luxembourg) SA. (Final Order of Forfeiture and Disbursement),
69 F. Supp. 2d 36 (D.D.C. 1999) ("The only grounds on which a third party can prevail in the ancillary proceeding are
those set forth in [s]ections 1 963 (l)(6)(A) and (B). That is, the claimant must establish either that he had a superior
right, title or interest in the property at the time the crime occurred, or that he acquired the property as a bona fide
purchaser for value without cause to know that the property was subject to forfeiture. If the claimant fails to establish
37
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 14 of 21
facts supporting his claim under one or the other of these theories, he is not entitled to any relief in the ancillary
proceeding."); United States v. Schecter, 251 F.3d 490 (4th Cir. 2001) (forfeiture is effective at the time of the
commission of the illegal act; to succeed with a third-party claim, a third party must have had an interest in the
property at that time or must have acquired it later as a bona fide purchaser); United States v. Hooper, 229 F.3d 818
(9th Cir. 2000) (given the clear direction in section 853(n)(6) limiting recovery to two categories of claimants, the
courts are not at liberty to create additional grounds for relief); United States v. Kennedy, 201 F.3d 1324 (11th Cir.
2000) (the alternative grounds set forth in sections 853(n)(6)(A) and (B) are the only grounds for recovery in the
ancillary proceeding, and one of them "is emphatically not that the criminal defendant gave the third party a gift").
Just because a third party has standing under section 853(n)(2) does not necessarily mean he or she will prevail
under section 853(n)(6). United States v. BCCI Holdings (Luxembourg) SA. (Final Order of Forfeiture and
Disbursement), 69 F. Supp. 2d 36 (D.D.C. 1999); United States v. Hooper, 229 F.3d 818, 819 n.4 (9th Cir. 2000) (a
spouse in a community property state has a colorable interest in the defendant's property sufficient to establish Article
1lI standing, but the spouse may not have the legal interest necessary to challenge the forfeiture on the merits). A third
party may have a present ownership interest sufficient to establish standing yet may not have had an interest at the
time of the offense, which he or she must have to prevail under paragraph (6)(A), and may not be bona fide purchaser,
which he or she must be to prevail under paragraph (6)(B). For example, a donee has standing because he or she has
an ownership interest but cannot prevail under either paragraph (6)(A) or (6)(B).
Third parties cannot challenge the determination made during trial that the property was subject to forfeiture.
United States v. Strube, 58 F. Supp. 2d 576 (M.D. Pa. 1999) (third party cannot challenge the propriety of the
forfeiture order; whether the order of forfeiture is proper or not is not the third party's problem; his only issue is
ownership; thus, claimant could not challenge forfeiture on the ground that the preliminary order was inconsistent
with the jury's special verdict).
F. Superior legal interest under section 853(n)(6)(A)
Section 853(n)(6)(A) embodies the relation back doctrine. United States v. BCCI Holdings (Luxembourg) S.A.
(Final Order of Forfeiture and Disbursement), 69 F. Supp. 2d 36 (D.D.C. 1999) (paragraphs (A) and (B) are the
procedural complements to the relation back doctrine); United States v. Hooper, 229 F.3d 818 (9th Cir. 2000) (the
temporal requirement in section 853(n)(6)(A) requiring the claimant to show that the property interest was vested at
the time the acts giving rise to the forfeiture were committed is the complement to sections 853(c) and (n)(6)(B),
which prevent the defendant from transferring the forfeitable property to anyone other than a bona fide purchaser).
Thus, the legal interest must exist at the time of the crime giving rise to forfeiture. United States v. Hooper, supra (to
prevail under section 853(n)(6)(A), the claimant must have a preexisting interest in the forfeited property; because
proceeds do not exist before the commission of the underlying offense, section 853(n)(6)(A) can never be used to
challenge the forfeiture of proceeds); United States v. Brooks, 112 F. Supp. 2d 1035 (D. Haw. 2000) (spouse cannot
assert marital interest under section 853(n)(6)(A) in property acquired with criminal proceeds because such property
was necessarily acquired after the commission of the act giving rise to the forfeiture); Rashid v. United States, 1996
WL 421855 (E.D. Pa. 1996) (same).
G. Bona fide purchasers under section 853(n)(6)(B)
The court does not reach a bona fide purchaser claim if the claimant does not first establish a legal right, title or
interest in the property. United States v. O'Brien, 181 F.3d 105, 1999 WL 357755 (6th Cir. 1999) (Table) (because
claimant had no legal interest in the property as a matter of state law, court need not reach bona fide purchaser claim).
The bona fide purchaser provision comes from commercial law. United States v. Harris, 246 F.3d 566 (6th Cir. 2001)
(bona fide purchaser provision comes from "hornbook commercial law"); United States v. Lavin, 942 F.2d 177, 185-
86 (3d Cir. 1991) (same); United States v. McCorkle, 143 F. Supp. 2d 1311 (M.D. Fla. 2001) (the bona fide purchaser
provision in section 853(n)(6)(B) is a codification of the protection for bona fide purchasers in section 2-403 of the
DCC). Creditors and victims are not bona fide purchasers. United States v. Meister, No. 4.97-CR-120-G (N.D. Tex.
May 18, 1999) (innocent victims who record judgment liens are not bona fide purchasers; remedy is to file remission
petitions; following McClung and Lavin).
38
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 15 of 21
To be a purchaser, the claimant must give something of value. United States v. BCCI Holdings (Luxembourg) S.A.
(Final Order of Forfeiture and Disbursement), 69 F. Supp. 2d 36 (D.D.C. 1999) (claimant gave nothing in return for
the judgment lien on the property; therefore, vendor was not a bona fide purchaser under section 853(n)(6)(B»; United
States v. Brooks, 112 F. Supp. 2d 1035 (D. Haw. 2000) (wife cannot assert a bona fide purchaser interest in husband's
criminal proceeds on the ground that she contributed uncompensated services that increased the value of the marital
estate).
The claimant also must be reasonably without cause to believe property was subject to forfeiture. United States v.
Cuartes, 155 F. Supp. 2d 1338 (S.D. Fla. 2001) (the test for the reasonableness of claimant's belief is objective, not
subjective; a genuinely held belief that the property is not subject to forfeiture is unavailing if it is not objectively
reasonable; Colombian businessman who bought dollars from a broker without concern for the source of the money,
under circumstances that would have alerted him to serious questions about the legitimacy of the transaction, was not
a bona fide purchaser; "blind reliance" on the broker is not objectively reasonable).
VIII. POST-TRIAL PROCEEDINGS
A. Appeals
The criminal rules apply to appeals from the forfeiture judgment. United States v. Apampa, 179 F.3d 555 (7th Cir.
1999) (because criminal forfeiture is part of sentencing, the appellate rules governing criminal appeals-not those
governing civil appeals-apply to appeals from the forfeiture judgment by the defendant). The Government has a right
to appeal from the district court's refusal to enter a forfeiture judgmeht. United States v. Corrado, 227 F.3d 543 (6th
Cir. 2000) (Government may appeal from district court's refusal to enter forfeiture judgment; because forfeiture is
mandatory, such refusal constitutes a sentence imposed in violation oflaw for which appeal is authorized under 18
U.S.C. § 3742(b».
B. Investigation to locate forfeited assets
The court may authorize the taking of depositions to locate assets ordered forfeited by the defendant. United
States v. Saccoccia, 898 F. Supp. 53 (D.R.I. 1995) (Government can take depositions of defense counsel to determine
source of their fees for the purpose of locating a pool of assets controlled by the defendant that is subject to
forfeiture); United States v. Saccoccia, 913 F. Supp. 129 (D.R.I. 1996) (defendant has a right to be present at any
deposition conducted for the purpose of locating his forfeitable assets) .
The court may also issue orders to third parties to discover the location and value of forfeited assets. United States
v. Barnette, 129 F.3d 1179 (lith Cir. 1997) (defendant and his wife held in contempt for failing to abide by order
regarding value and location of stock defendant had transferred to his wife to avoid forfeiture); United States v.
Yerardi, 192 F.3d 14 (1st Cir. 1999) (wife cannot assert privilege against testifying against husband's interest to avoid
revealing location ofhusband's forfeited assets, but wife can assert privilege if the testimony could be used to
prosecute husband for evading taxes on the forfeited property).
C. Parallel forfeitures
Parallel civil and criminal forfeiture proceedings are commonplace. United States v. CandelariaSilva, 166 F.3d 19
(1st Cir. 1999) (there is nothing improper in the government's beginning a forfeiture case with a civil seizure and
switching to criminal forfeiture once an indictment is returned; it is commonplace); United States v. Lugo, 63 F. Supp.
2d 896, 897 n.2 (N.D. Ill. 1999) (the Government may start a forfeiture action as an administrative forfeiture and then
proceed with a criminal forfeiture if the defendant files a claim and cost bond, but in that event it must return the cost
bond to the defendant); United States v. St. Pierre, 188 F.R.D. 415 (M.D. Fla. 1999) (court declines to consolidate
criminal forfeiture with civil forfeiture following defendant's conviction; under Rule 42(a), court may decline to
consolidate if it would result in delay; because defendant not yet sentenced, criminal case could delay civil one).
D. Stay of sale or disposition of forfeited property
39
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 16 of 21
The defendant may not seek a stay under 18 U.S.C. § 1963(f); whether defendant can seek a stay under Rule 38 is
an open question, but stay will be denied if delay would result in potential harm to the Government and third parties.
United States v. Stewart, 1999 WL 551891 (E.D. Pa. 1999).
E. Remission to victims
Section 1963(g) gives the Attorney General power to remit criminally forfeited property to victims by agreeing,
as part of a plea agreement, that half of all forfeited property will go to victims. United States v. BCCI Holdings
(Luxembourg) S.A. (Final Order of Forfeiture and Disbursement), 69 F. Supp. 2d 36 (D.D.C. 1999).
Courts are split, however, over whether the defendant is entitled to credit against the forfeiture for the amount
paid as restitution. Compare United States v. Emerson, 128 F.3d 557 (7th Cir. 1997) (forfeiture and restitution are not
mutually exclusive; defendant may be made to pay twice and is not entitled to reduce restitution by the amount of the
forfeiture) with United States v. Hawkey, 148 F.3d 920 (8th Cir. 1998) (remanding forfeiture judgment to the district
court to reduce it by the amount defendant returned to the victims of the underlying fraud). See United States v.
Stewart, 1999 WL 551891 (E.D. Pa. 1999) (although defendant cannot object to the sale of forfeited property, where
court orders that defendant receive credit against restitution order for the amount realized from the sale of the
property, defendant may seek additional credit if he establishes that the property was sold below market value).
Summary of Terms
PROTECTIVE ORDERS
Under 21 U.S.C. § 853(e), the Government may obtain either pre- or post-indictment restraining orders to secure
property subject to criminal forfeiture. Jurisdiction to enter a restraining order lies only in the district in which the
criminal investigation or prosecution is being conducted. However, the restraining order applies to all forfeitable
assets within its scope, regardless of their location. The authority to issue a restraining order lies solely with district
court judges and cannot be delegated to a magistrate judge. Procedures on issuance of restraining orders are
contingent on whether restraint is pre-indictment or post-indictment.
SUMMARY OF LIS PENDENS
State law may require that the lis pendens be re-recorded each year. Some states also provide that a lis pendens may
be filed in a criminal case prior to an indictment or information being filed. Other states may require that an action
must be pending prior to filing a lis pendens.
The term lis pendens (Latin for "a pending suit") originally referred to the common law doctrine that a pending
lawsuit is notice to all the world that property involved in litigation is subject to any judgment ultimately rendered in
the suit. Over the years, the doctrine has been modified by state law, which now generally provides that a litigant
claiming an interest in real property may record a notice of lis pendens with the county recorder's office in the county
where the property is located. This constitutes constructive notice that the property in question may be subject to a
judgment. As a practical matter, the filing of a notice of lis pendens creates a cloud on title that will block transfer of
the property until the notice is removed, either through a legal challenge to the filing, the posting of sufficient
security, or resolution of the lawsuit.
Pursuant to 28 U.S.C. § 1964, the Government must comply with the requirements of state law in order to give
constructive notice of a pending action in U.S. district court. Of course, those requirements vary from state to state,
and even from county to county. In many jurisdictions, a civil complaint or an indictment must be filed before a notice
of lis pendens can be recorded. State law may also require that the lis pendens be re-recorded each year.
40
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 17 of 21
GENERAL SUMMARY OF INDICTMENTS
Form of Indictment
An indictment or information must provide notice that the defendant's interest in property is subject to forfeiture. Rule
7(c)(2) Fed. R. Crim. P. Forfeiture in a criminal indictment is merely an "allegation," not a separate criminal charge.
Libretti v. United States, 516 U.S. 29, 38-39 (1995). You may choose to allege the forfeiture with the title "Forfeiture
Allegation" or you may be in a district where the court docketing system requests that it be listed as a "count" for
purposes of tracking it through the docketing system. Refer to your local practice to determine how the forfeiture
should appear in the indictment.
The sample indictment forms that follow are suggestions for your use. You may choose to describe or list the property
in a different format. There is no established format required.
As noted supra, page 2, the property subject to forfeiture need not be itemized in the indictment. It is sufficient to
track the language of the forfeiture statute. But only property named in the indictment or a bill of particulars can be
restrained pretrial. Also, the defendant is entitled to notice of what property the Government intends to forfeit before
the forfeiture phase of the trial begins.
You may wish to place the forfeiture portion of the indictment at the end of the indictment on a separate page so that
it may easily be redacted for jury deliberation on the substantive criminal charges. Forfeiture trials must be bifurcated,
allowing the jury to deliberate on the criminal charges without knowledge of the forfeiture allegations. Then upon
returning a verdict of guilty, the jury is advised of the forfeiture allegations and deliberates again on only the
forfeiture questions.
Substitute Asset Issues
The substitute assets section in these sample indictments is not essential. You may choose to eliminate that portion
from your indictment. If you allege specific property as substitute assets, your ability to restrain those assets prior to
trial depends on the circuit in which you are bringing the indictment. Fourth Circuit law allows substitute assets to be
restrained pretrial. In Re Billman, 915 F.2d 916 (4th Cir. 1990). Two district court cases also allow pre-trial restraint
of substitute assets: United States v. Scardino, 956 F. Supp. 771 (N.D. Ill. 1997) and United States v. O'Brien, 836 F.
Supp. 438 (S.D. Ohio 1993). The majority of courts, however, do not allow substitute assets to be restrained prior to
trial. United States v. Gotti, 15 F.3d 144 (2d Cir. 1998); United States v. Field, 62 F.3d 246 (8th Cir. 1995); United
States v. Ripinsky, 20 F.3d 359 (9th Cir. 1994); In Re Assets of Martin, 1 F.3d 1351 (3d Cir. 1993); United States v.
Floyd, 992 F.2d 498 (5th Cir. 1993); In Re: Account Nos...Located at Bank One, 9 F. Supp. 2d 1015 (E.D. Wis. 1998).
State law may permit a notice of pendency to be filed in the local property records against real property listed in the
substitute assets section of the indictment. You must refer to the law of the state in which the property is located.
Effective Dates
Several criminal forfeiture provisions were added by Congress with the passage of CAFRA, which became effective
on August 23, 2000. If the criminal conduct you are charging occurred before that date and the criminal forfeiture
provision was not available until CAFRA, you will likely not be able to charge the forfeiture. See Form CRM9004 for
a legal discussion of ex post facto issues regarding CAFRA changes.
Forfeiting Businesses
In the event you are considering forfeiting a business, please refer to Department of Justice Policy 9-111.124 and the
Criminal Resource Manual 2206 and 2207. Many businesses are successful due only to the illegal activity and will
fail once the criminal investigation is apparent. There are many issues to consider before seizing a business including
the liabilities as well as the assets of the business and the feasibility of running the business. You may consider
41
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 18 of 21
seizing specific assets of the business rather than the business itself, such as the real property. You are required to
contact the Asset Forfeiture and Money Laundering Section of the Criminal Division of the Department of Justice
prior to initiating a forfeiture action against or seeking a temporary restraining order affecting an ongoing business.
Corporations
Property is often titled in the name of corporate entities. If the corporation is the true owner of the property, you may
consider indicting the corporation; criminal forfeiture is limited to the property of convicted defendants and if only
individuals are convicted, only the individuals' interest in the corporation is forfeitable-not the corporate asset.
JURY INSTRUCTIONS
Where the Government seeks criminal forfeiture of property identified in the indictment or a bill of particulars,
additional factual findings must be made with respect to such property after the defendant is found guilty of an
offense triggering forfeiture before such property can be forfeited. Pursuant to Fed. R. Crim. P. 32.2(b)(4), such
factual findings may be made by the judge or, at the request of either party, by the jury. While we typically desire the
forfeiture issues to be resolved by the judge, we might want the jury to resolve them. In that event, we should make
our request as early as possible so that the jurors won't be surprised when they learn that they can't leave upon
rendering a guilty verdict.
Before December 1, 2000, the defendant had the right to have criminal forfeiture considered by a jury. As a result,
prosecutors often were put in the distasteful position of asking the judge to keep the jury to hear the forfeiture even as
the jurors were packing up to leave, thinking that their tasks were completed. Now, if the defendant does not ask that
the forfeiture be resolved by the jury, we need not ensure that the jury is kept after a guilty verdict is rendered.
Nevertheless, if the defendant asserts a right to a jury finding on forfeiture, the responsibility remains with the
prosecutor to ensure that the jury is not released before it considers the forfeiture issues.
To avoid landing in the distasteful position of asking the judge to keep the jury to consider the forfeiture even as the
jurors are gathering their belongings to go home, consider filing forfeiture jury instructions before trial. Then, if the
defendant asserts his or her right to have the jury hear the forfeiture questions (or we want the jury to do so), the judge
can notify the jurors of that task before they render their verdict on guilt or innocence. Conversely, if we file our
instructions early but the defendant fails to request the forfeiture be heard by the jury, then we can sit by placidly as
the jury departs or even state in their presence that the Government does not need them to stay.
If no party requests that the jury make such factual findings, the judge will do so pursuant to Fed. R. Crim. P. 32.2(b)
(1). If either party requests that the jury make such factual findings, then the judge must instruct the jury regarding
their additional task and provide them a special verdict form. The jury instructions and special verdict forms included
in this section obviously must be tailored to the specific charges and assets at issue in each case.
BASIC CRIMINAL FORFEITURE CHECKLIST
Rule 32.2, Federal Rules of Criminal Procedure, governs all criminal forfeiture proceedings, most of which are also
governed by 21 U.S.C. § 853.
This is a basic checklist -- it does not address every possible situation that could arise in a criminal forfeiture
proceeding, and does not take into account any variations in practice or procedure that may exist in your district.
Forfeiture law and procedures can change unexpectedly so please make sure to consult with your forfeiture Assistant
U.S. Attorney (AU SA) early and often. Along with this checklist, your district's forfeiture AUSA is available to
provide assistance and advice on specific procedures, forms, and required agency notifications during the criminal
forfeiture process.
42
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 19 of 21
PRE-INDICTMENT
□ Identify forfeitable assets
□ Ensure that counts charged provide adequate basis for forfeiture.
□ Use civil or criminal seizure warrants and criminal restraining orders to preserve assets pre-indictment.
□ Coordinate with agency and U.S. Marshals Service (in DOl agency cases) regarding assets.
□ Have agent fill out pre-seizure planning form.
□ Prepare post-indictment seizure warrants and restraining orders for property named in the Indictment to be signed
when Indictment is filed.
INDICTMENT
□ Indictment or Information must include forfeiture allegation or count according to local practice, which at least
tracks forfeiture statute language, including substitute assets provision (include specific property and/or specific
substitute assets).
□ Obtain all necessary post-indictment criminal seizure warrants or protective orders for seized property named in the
indictment.
□ For real property, ensure that /is pendens or other notice of pendency is immediately recorded in the county in
which the property is located.
□ Once Indictment/Information is filed, send a copy of the Indictment/Information to data entry personnel in the U.S.
Attorney's office, seizing agency, and U.S. Marshals Service or Treasury.
□ If additional forfeitable property is identified post-indictment, supplement the forfeiture allegation, either through a
Superseding Indictment (if you are planning to supersede) or by a Bill of Particulars.
TRIAL
□ During the trial, make sure to include asset-related evidence while establishing proof of the underlying crimes.
□ Determine whether there will be a jury on the issue of forfeiture, which can be elected by the United States or the defendant.
The forfeiture AUSA in your district can provide you with jury instructions and special verdict forms if a jury trial is elected.
PLEA AGREEMENTS
□ Consult with agent and forfeiture AUSA before entering plea agreement with defendant.
□ Never promise return of property that has already been administratively forfeited.
□ Check status of any property seized during the investigation and address the forfeiture or the return of the assets in the
agreement.
□ Defendant must agree to plead to a criminal count which supports the forfeiture allegation/count.
43
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 20 of 21
□ Make sure plea agreement includes the following:
□ A brief statement of defendant's ownership interest in the property to be forfeited;
□ Defendant's consent to the forfeiture and to any related civil forfeiture;
□ Defendant's agreement to cooperate in resolving third-party claims in favor of the United States; and
□ Defendant's agreement to endorse a preliminary order of forfeiture to be submitted to judge at the time the guilty plea is entered.
PRELIMINARY ORDER OF FORFEITURE
□ Send proposed Preliminary Order to opposing counsel and to pre-sentence report writer in advance, prior to entry of plea or
immediately after return of jury verdict.
□ Submit proposed Preliminary Order to the court after defendant has entered plea or after Special Verdict has been returned.
□ Make sure the Preliminary Order refers to the correct Official-Attorney General or Secretary of the Treasury.
□ Once the Preliminary Order is entered by the court, coordinate with forfeiture AUSA to send copy of the Preliminary Order to
the data entry personnel in the U.S. Attorney's office, seizing agency, and U.S. Marshals Service or Treasury. In real property
cases, iflocal practice requires it, coordinate to file the Preliminary Order in county property records.
□ If necessary to identify and locate the defendant's assets, apply to the court for discovery pursuant to 21 U.S.C. § 853(m) after
entry of the Preliminary Order.
□ Once Preliminary Order of Forfeiture is entered, serve notice of intended forfeiture on any person with known potential interest
in property, informing lienholders of expedited settlement procedure.
□ Forfeiture AUSA should be notified (1) if you receive a request from a legitimate lienholder for an Expedited Settlement
Agreement or (2) if you require proper procedures for the publication of notice of a Preliminary Order of Forfeiture.
ANCILLARY PROCEEDING
□ Upon receiving any third-party petitions, review to ensure they comply with the pleading requirements of 21 U.S.C.
§ 853(n)(3). Ifpetition does not comply or if claimant has failed to establish standing or to state a claim upon which
relief may be granted pursuant to 21 US.C. § 853(n)(6), file a motion to dismiss the petition without a hearing.
□ Apply to the court for civil discovery pursuant to Fed. R. Crim. P. 32.2(c)(1)(B) (where appropriate).
□ File Motion for Summary Judgment (where appropriate).
□ Inform Forfeiture AUSA prior to entering into any settlement agreements with third parties.
FINAL ORDER OF FORFEITURE
□ After 30 days have passed since last publication and all third-party interests have been resolved, file Motion for and
proposed Final Order of Forfeiture.
□ Order should recite publication dates, notice sent to known potential third-party interests, and resolution of each
third-party petition received.
44
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
DOJ Publication - Select Criminal Forfeiture Forms, from www.fear.org Page 21 of 21
□ Once court enters Final Order of Forfeiture, send copy to the data entry personnel in the U.S. Attorney's office,
seizing agency, and U.S. Marshals Service or Treasury.
□ Send notification to the U.S. Marshals Service or Treasury to dispose of property consistent with Final Order,
including paying recognized third-party interests.
□ For forfeited real property, coordinate with forfeiture AUSA to file Final Order in county property records to show
vesting of title in the United States.
SENTENCING & JUDGMENT
□ In addition to obtaining a Preliminary Order of Forfeiture and a Final Order of Forfeiture, ensure that all criminal
forfeitures are included in the court's oral pronouncement at sentencing and in the written judgment. If forfeiture is
omitted from the written judgment, move immediately to have the omission corrected.
EQUITABLE SHARING
□ Once Final Order of Forfeiture is entered, coordinate with forfeiture AUSA to present any equitable sharing
package with copy of Final Order for U.S. Attorney's signature/approval.
□ After approval, ensure that your office's data entry personnel enters equitable sharing information in CATS.
REPORTING DISPOSITION OF PROPERTY
□ Provide your office's FLU Unit with a copy of the Final Order of Forfeiture and all necessary information for data
entry. <>
SAMPLE PLEADINGS [omitted]
NOTE from FEAR website manager: The rest of this publication is comprised of numerous forms used by
federal forfeiture prosecutors. Because these forms are not useful to forfeiture victims, we didn't bother
scanning them in.
45
http://www.fear.org/briefbank/SCFF/DOJ_SCFF2.htm 10/3/2008
Table of Contents
Asset Forfeiture Policy Manual
Chapter 1 – Seizure/Restraint.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. Guidelines for Preseizure/Restraint Planning.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. Scope of assets covered by guidelines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
C. General policy guidelines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. Lead responsibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2. Preseizure planning defined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
D. Preseizure planning questionnaires and net equity worksheets. . . . . . . . . . . . . . . . . . . . . 5
1. Asset-specific net equity thresholds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. Preseizure planning questionnaires.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3. Net equity worksheet. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
a. Ownership and encumbrances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
b. Financial analysis: avoiding liability seizures.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4. Business seizures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
E. Trustees and monitors in forfeiture cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
II. General Procedures for Seizing Property .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. Notification by seizing agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. Preseizure judicial review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1. Preseizure judicial authorization of property seizures. . . . . . . . . . . . . . . . . . . . . . . . . 12
2. Preseizure judicial review favored for seizure of personal property. . . . . . . . . . . . . . 13
C. Forms of process to be used. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1. W arrant of arrest in rem. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2. Seizure warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3. Seizure of real property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
D. Responsibility for execution of process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
III. Seizures for Criminal Forfeiture .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A. W hen is a seizure warrant or restraining order required? .. . . . . . . . . . . . . . . . . . . . . . . . 14
B. Summary .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
1. Property seized pursuant to a civil seizure warrant.. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2. Property seized without a warrant based on probable cause. . . . . . . . . . . . . . . . . . . . 17
3. Property seized for evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4. Property obtained from the state for adoptive forfeiture. . . . . . . . . . . . . . . . . . . . . . . . 18
D. Proper use of writs of entry in civil and criminal forfeiture cases. . . . . . . . . . . . . . . . . . . . 19
1. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
IV. Contaminated Real Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
46
May 2007 Asset Forfeiture Policy Manual
B. Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
V. Financial Instruments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
A. Postal money orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1. Seizing agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2. The USMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
B. Personal and cashier’s checks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
1. Seizing agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2. The USMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
C. Certificates of deposit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
1. Seizing agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2. The USMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
D. Traveler’s checks.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
1. Seizing agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2. The USMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
E. Stocks, bonds, and brokerage accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
1. Seizing agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2. The USMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
F. U.S. savings bonds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
1. Seizing agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2. USMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
VI. Seized Cash Management.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Chapter 2 – Administrative and Judicial Forfeiture. . . . . . . . . . . . . . . . . . . . . . . . . . . 35
I. Interplay of Administrative and Civil Judicial Forfeiture.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
A. Preference for administrative forfeiture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
B. Administrative forfeiture of bank accounts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
C. Conversion of administrative forfeitures covered by the Customs carve-out. . . . . . . . . . 37
1. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
2. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
D. W hether to file a judicial forfeiture action when the timeliness or form of an
administrative forfeiture claim is in dispute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
1. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
2. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
3. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
E. 60-day notice period in all administrative forfeiture cases. . . . . . . . . . . . . . . . . . . . . . . . . 45
1. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
2. 60-day notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
F. Inadvertent violation of 60-day deadline for sending notice.. . . . . . . . . . . . . . . . . . . . . . . 45
1. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
2. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
3. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
II. Interplay of Administrative Forfeiture and Criminal Forfeiture. . . . . . . . . . . . . . . . . . . . . . . . . . 50
A. Starting a case administratively. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
B. Requesting the seizing agency to suspend the administrative forfeiture.. . . . . . . . . . . . . 51
C. Disposing of administrative forfeiture in a plea agreement. . . . . . . . . . . . . . . . . . . . . . . . 51
D. Seizure pursuant to a criminal warrant: availability of administrative forfeiture. . . . . . . . . 51
1. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
47
Asset Forfeiture Policy Manual May 2007
2. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
III. Form of the Claim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
A. Claims must be filed under oath by the claimant, not by an attorney or agent. . . . . . . . . 55
1. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
2. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
3. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
IV. Criminal Forfeiture Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
A. Filing a motion for reconsideration in a criminal forfeiture case . . . . . . . . . . . . . . . . . . . . 57
1. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
2. Applicable rules and statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
3. The traditional rule is that a motion for reconsideration suspends the
time for filing an appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
4. Rule 35(a) motions do not suspend the time.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
5. The rules applicable to Rule 35(a) motions may not apply to motions for
reconsideration of a forfeiture order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6. The Department’s policy, however, is to assume that Rule 35(a) applies.. . . . . . . . . 60
7. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
V. Preference for Federal Forfeiture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
VI. Firearms Forfeiture Policy Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
A. Firearms are treated differently. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
B. Preference for Forfeiture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Chapter 3 – Settlements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
I. General Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
A. Scope.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
B. Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
1. Factual basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
2. Consultation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
3. Recovery of investigative costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
4. Status of administrative forfeiture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
5. Disagreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6. Property located in another district . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7. Global settlements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
8. Partial payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
9. Reacquiring the property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10. Effect on taxes and other obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
11. Settlement authority.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
II. Authority of the U.S. Attorney to Enter Into a Settlement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
III. Authority of AFMLS to Approve a Settlement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
A. Examples. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
IV. Using Administrative Forfeiture to Effect a Settlement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
A. Settlement of forfeiture after a claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
B. Settlement of civil judicial forfeiture without prior administrative action. . . . . . . . . . . . . . . 76
C. Using administrative forfeiture to settle a criminal forfeiture action. . . . . . . . . . . . . . . . . . 76
V. References to the Remission Process in Settlements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
VI. Settlements in Civil Judicial Forfeiture Cases .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
VII. Settlements in Criminal Forfeiture Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
48
May 2007 Asset Forfeiture Policy Manual
VIII. Acceptance of a Monetary Amount in Lieu of Forfeiture. . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
IX. Agreements to Exempt Attorney’s Fees from Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Chapter 4 – Third Party Interests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
I. State and Local Real Property Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
A. Civil forfeiture cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
B. Criminal forfeiture cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
C. Payment of interest and penalties on state and local real property taxes. . . . . . . . . . . . . 82
II. Guidelines and Procedures for Restoration of Forfeited Property to Crime Victims via
Restitution in lieu of Remission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
A. Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
B. Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
C. Guidelines for restoration decisions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
1. Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
2. Statutory authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
3. Pro rata. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
4. Allowed losses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
5. Priority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
6. Petitions for remission or mitigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
D. Procedures for restoration decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
1. Restoration requests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
2. Time limits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
3. Evidentiary basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
4. Seizing agency investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
5. Decision by AFMLS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
E. Guidelines for imposing 12-month hold pending entry of a restitution order. . . . . . . . . . . 87
1. Notification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
2. Release or extension of hold period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
3. Official use and equitable sharing requests.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
III. W aiver of Costs to Owner Victims in Remission Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
IV. Using Civil Forfeiture to Recover Property for Fraud Victims in the Ninth Circuit. . . . . . . . . . 90
A. Summary of the issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
B. Summary of the legal advice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
C. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
1. Using forfeiture to recover property for victims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
2. Problems caused by the Boylan decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
3. Recommendation regarding future cases involving many victims.. . . . . . . . . . . . . . . 97
4. Recommendation regarding pending cases and smaller fraud cases. . . . . . . . . . . . 98
D. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Chapter 5 – Use and Disposition of Seized and Forfeited Property. . . . . . . . . . . . 103
I. Management and Disposal of Seized Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
A. Role of the U.S. Marshals Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
B. Department of treasury property custodians.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
C. Preseizure planning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
D. Coordination of custody and disposition decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
II. Use of Seized Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
49
Asset Forfeiture Policy Manual May 2007
A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
B. Use of seized property by department of justice personnel.. . . . . . . . . . . . . . . . . . . . . . 104
C. Use of seized property where custody is retained by the state or local
seizing agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
D. Use of seized real property by occupants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
III. Disposition of Forfeited Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
A. Forfeiture orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
B. Disposition of forfeited property in civil and criminal cases. . . . . . . . . . . . . . . . . . . . . . . 106
IV. Attorney General’s Authority to W arrant Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
B. Use of a special warranty deed and indemnification agreement. . . . . . . . . . . . . . . . . . . 108
C. Use of a general warranty deed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
V. Purchase or Personal Use of Forfeited Property by Justice Employees. . . . . . . . . . . . . . . . 109
VI. Review of Official Use of Forfeited Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Chapter 6 – Equitable Sharing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
I. General Adoption Policy and Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
A. Adoptive seizures are encouraged. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
B. Federal adoption form. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
C. Federal investigative agency review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
D. Minimum monetary thresholds.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
E. Forfeitures generally follow the prosecution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
F. Judicial review favored.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
G. 30–day rule for presentation for federal adoption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
H. U.S. Attorney recommendation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
I. Notice requirements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
J. Retention of custody by state or local agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
K. Use of anticipatory seizure warrants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
II. Processing Forms DAG–71 and DAG–72 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
A. Referral of DAG–71 and DAG–72 forms to U.S. Attorneys’ Offices. . . . . . . . . . . . . . . . 116
B. Notifying the Department of Justice Criminal Division. . . . . . . . . . . . . . . . . . . . . . . . . . . 117
III. Equitable Sharing Protocol. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
B. Equitable sharing check disbursement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
1. Judicial cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
2. Administrative cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
3. Role of law enforcement coordinating committees. . . . . . . . . . . . . . . . . . . . . . . . . . 118
C. Equitable sharing ceremonies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
D. Transmittal letters for equitable sharing checks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
IV. International Sharing of Forfeited Assets.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
V. W eed and Seed Initiative; Transfers of Real Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
B. General authorization.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
C. Transfer of forfeited real property pursuant to W eed and Seed Initiative. . . . . . . . . . . . 122
1. Sharing requests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
2. Transfers to state and local agencies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
D. Mortgages and ownership interests in W eed and Seed-transferred real property. . . . . 123
50
May 2007 Asset Forfeiture Policy Manual
1. Mortgages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
2. Qualified third party interests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
E. Asset seizure, management, and case-related expenses. . . . . . . . . . . . . . . . . . . . . . . . 123
F. Law enforcement concurrence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
VI. Guidelines for Administering the Permissible Use Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . 123
VII. Transfer of Property Forfeited Under the Magnuson Fisheries Conservation and
Management Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
B. General Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
C. Transfer request procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Chapter 7 – Assets Forfeiture Fund.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
I. Transfer of Funds From the Seized Asset Deposit Fund to the Assets Forfeiture Fund. . . . . 127
Chapter 8 – Attorney’s Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
I. Payment of Attorney’s Fees in Civil Forfeiture Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
A. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
B. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
C. Procedure for requesting payment of an award from the judgment fund. . . . . . . . . . . . 130
II. Forfeiture of Attorney’s Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
III. Payment of Attorney’s Fees in Criminal Forfeiture Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . 131
A. Defendant’s attorney’s fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
1. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
2. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
B. Third party petitioner’s attorney’s fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
1. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
2. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Chapter 9 – Grand Jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
I. Disclosures of Grand Jury Information Under 18 U.S.C. § 3322(a). . . . . . . . . . . . . . . . . . . . . 137
A. Summary .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
B. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
1. Issue I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
2. Issue II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
C. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
II. Presenting Forfeiture to the Grand Jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
A. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
B. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
1. The Constitution does not require a grand jury finding of probable cause
for forfeiture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
2. Criminal forfeiture statutes and the Federal Rules of Criminal Procedure. . . . . . . . 146
3. Although the constitution, statutes, and rules do not require a grand
jury finding of probable cause for forfeiture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
4. It is not necessary to ask the grand jury to determine the defendant’s interest in
forfeitable property.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
5. Presenting forfeiture evidence to the grand jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
6. Instructing the grand jury on forfeiture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
51
Asset Forfeiture Policy Manual May 2007
7. Memorializing and describing the grand jury’s probable cause finding. . . . . . . . . . . 155
Chapter 10 – International Forfeiture.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
I. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
II. Importance of Reciprocal Cooperation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
III. Policy on International Contacts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
IV. Foreign Property Management Issues .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
V. Publication of Notice Abroad.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
VI. Consultation W ith AFMLS or OIA W hen Seeking Repatriation of Forfeitable Assets
Located Abroad. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
VII. Probable Cause Finding to Seize or Restrain Assets Abroad . . . . . . . . . . . . . . . . . . . . . . . 160
A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
B. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
1. Civil forfeiture cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
2. Criminal cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
VIII. Approval Process for Section 981(k) Seizure From Correspondent Bank Account. . . . . . 165
IX. Lack of Administrative Forfeiture Authority for Overseas Property. . . . . . . . . . . . . . . . . . . . 166
X. Consultation for Civil Forfeiture of Property Located Overseas. . . . . . . . . . . . . . . . . . . . . . . 167
XI. Settlements, Plea Agreements, and Attorneys Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
XII. Enforcement of Judgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
XIII. International Sharing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Chapter 11 – Appointment of Trustees and Monitors. . . . . . . . . . . . . . . . . . . . . . . . 171
I. Quick Points. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
A. Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
B. Responsibilities of trustees and monitors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
C. Circumstances in which a trustee or monitor should be engaged. . . . . . . . . . . . . . . . . . 171
D. Preseizure planning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
E. Federal acquisitions regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
F. Selection and appointment of a trustee or monitor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
G. Payment of monitor and trustee fees and expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
H. Goals, duties, and powers of the trustee or monitor. . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
I. Reporting requirements of the trustee or monitor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
J. Dispute resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
II. Department of Justice Policy: Trustees and Monitors in Forfeiture Cases. . . . . . . . . . . . . . . 173
A. Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
B. Statutory authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
C. Definitions and responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
D. Determining when a trustee or monitor should be engaged. . . . . . . . . . . . . . . . . . . . . . 176
E. Prerequisites to the selection of a trustee or monitor: Preseizure planning and other
requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
F. Selection and appointment of a trustee or monitor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
1. Qualifications of the trustee or monitor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
2. Sources for potential trustees and monitors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
G. Procurement under FAR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
1. Three methods of contracting with a trustee or monitor. . . . . . . . . . . . . . . . . . . . . . 180
2. Statement of work. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
52
May 2007 Asset Forfeiture Policy Manual
3. Use of staff, consultants, and private counsel by trustees and monitors. . . . . . . . . 181
4. Cautionary note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
H. Payment of monitor and trustee fees and expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
1. Availability of Department of Justice Assets Forfeiture Fund. . . . . . . . . . . . . . . . . . 182
I. Defining the goals, duties, and powers of the trustee or monitor.. . . . . . . . . . . . . . . . . . 183
1. Defining. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
J. Reporting—trustees and monitors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Chapter 12 – Litigation Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
I. Avoiding Accusations of Vindictive Prosecution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
II. Is a Prosecutor Bound, Ethically or Otherwise, to Forego Forfeiture in Favor
of Restitution?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
III. Negotiating W ith Fugitives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
A. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
B. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
IV. Criminal Forfeiture and Brady Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Appendix A – U.S. Marshals Service Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Appendix B – U.S. Marshals Service Preseizure Planning Guide. . . . . . . . . . . . . . B-1
Appendix C – Land and Natural Resources Division Policy. . . . . . . . . . . . . . . . . . . C-1
Appendix D – Notice, Covenant and Warranty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
Appendix E – Redelegations of Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-1
Appendix F – Office of Legal Counsel Opinion, AG Order No. 1860-94. . . . . . . . . F-1
Appendix G – Department of Justice Asset Forfeiture Program Custodial and
Authority Chart. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G-1
Appendix H – Equitable Sharing Attachments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . H-1
Appendix I – Approval, Consultation and Notification Requirements.. . . . . . . . . . I-1
Appendix J – Examples of Responsibilities of Trustees and Examples of Duties
and Responsibilities of a Monitor. . . . . . . . . . . . . . . . . . . . . . . . . . . . J-1
53
Table of Contents: FEAR Asset Forfeiture Defense Manual Page 1 of 15
FEAR Asset Forfeiture Defense Manual
Introduction...................................................................................................................................... 1
Chapter 00
Forfeiture litigation after CAFRA
00A. The Hyde bill passed, but it’s not the reform bill we lobbied for........................................................ 8
00A01. CAFRA’s improved procedures.................................................................................... 10
00A01a. It abolishes the cost bond in most forfeiture cases............................................ 10
00A01b. CAFRA puts the burden of proof on the government........................................ 10
00A01c. CAFRA allows the court to appoint counsel for some indigent claimants............. 10
00A01c01. Right to counsel - forfeiture of residence......................................... 11
00A01c02. Discretion to appoint counsel: court-appointed counsel in pending federal
criminal case 12
00A01c03. Compensation for court appointed cases.......................................... 13
00A01c04. Other authority for court-appointment of counsel.............................. 14
00A01c05. Attorney’s fee award provisions...................................................... 14
00A01d. CAFRA allows property to be returned to the owner pending trial on a showing of
substantial hardship....................................................................................................................
15
00A01e. CAFRA allows suits for damages to property while detained.............................. 15
00A01f. CAFRA lengthens claimants’ deadlines and (finally!) imposes some deadlines on the
government 16
00A02. CAFRA’s expanded forfeiture powers for law enforcement............................................. 17
00A02a. Enforcement of foreign forfeiture judgment..................................................... 17
00A02b. Penalties for secreting assets to avoid forfeiture............................................... 18
00A02c. Mandatory waiver of foreign bank secrecy rights............................................. 19
00A02d. “Relaxing” the government’s statute of limitations............................................ 19
00A03. Abuses CAFRA did not address.................................................................................... 20
00A03a. Taking the income away from the police.......................................................... 20
00A03b. Lack of oversight over forfeiture programs...................................................... 22
00A03b01. The problem................................................................................. 22
00A03b02. CAFRA’s non-solution to the problem............................................. 23
00A03c. Abolition of federal adoption of state forfeitures............................................... 24
00A03d. Requirement of a criminal conviction.............................................................. 25
00B. How to tell whether CAFRA applies.............................................................................................. 26
00B01. The “Customs carve-out”............................................................................................ 26
00B02. CAFRA reforms apply to forfeiture proceedings “commenced” after 8/23/2000................. 27
00B02a. The Sixth Circuit says CAFRA’s reforms apply to pending cases!...................... 27
00B02b. The government’s probable argument.............................................................. 29
00C. The USA Patriot Act................................................................................................................... 30
00C01. Patriot Act expands forfeiture & law enforcement powers.............................................. 31
00C02. Applicability of CAFRA to Patriot Act forfeitures........................................................... 33
00D. Other laws and rules that apply to forfeiture.................................................................................. 34
00D01. Statutory procedures.................................................................................................. 34
00D02. Supplemental Rules for Admiralty................................................................................. 35
00D03. Federal Rules of Civil Procedure.................................................................................. 35
00D04. Federal Rules of Criminal Procedure............................................................................. 36
00D05. Local rules of procedure for the district court................................................................ 36
54
http://www.fear.org/contents.htm 10/7/2008
Table of Contents: FEAR Asset Forfeiture Defense Manual Page 2 of 15
00D06. State laws re: interests in property................................................................................ 37
00D07. The Constitution of the United States............................................................................ 37
Chapter 01
Basic principles of forfeiture
01A. Historical origins of forfeiture’s quirky procedures........................................................................ 40
01A01. Exodus, attainders, deodands and the goring ox.............................................................. 41
01A01a. Biblical origin................................................................................................ 41
01A01b. English common law..................................................................................... 42
01A01b01. Forfeiture of estate, “attainder”....................................................... 43
01A01b02. Statutory and common law forfeitures............................................. 43
01A01b03. Deodands..................................................................................... 43
01A01c. England’s Navigation Acts............................................................................. 43
01A02. Forfeiture comes to America........................................................................................ 44
01A02a. Colonial times............................................................................................... 44
01A02b. The American Revolution............................................................................... 44
01A02c. Early-American forfeiture law........................................................................ 45
01A02c01. Admiralty law - in rem seizures of pirate and enemy ships.................. 45
01A02c02. Customs law................................................................................. 45
01A02c03. If founded on guilt of individual, a conviction was required................ 45
01A02d. Civil War Confiscation Acts........................................................................... 46
01A02d01. Forfeiture constitutional only if applied to enemies............................. 46
01A02d02. Quasi-criminal nature of forfeiture................................................... 47
01A03. Twentieth century forfeiture........................................................................................ 47
01A03a. Prohibition-era forfeitures.............................................................................. 47
01A03b. World War II era forfeiture............................................................................ 48
01A03b01. Forfeiture in Nazi Germany............................................................ 48
01A03b02. Forfeiture in the U.S. during World War II....................................... 50
01A03c. RICO & modern forfeiture laws..................................................................... 53
01A03d. 1984 and the War on Drugs........................................................................... 54
01B. Civil vs. criminal forfeitures......................................................................................................... 55
01B01. Criminal forfeiture....................................................................................................... 56
01B02. Civil forfeiture............................................................................................................ 56
01C. Important Supreme Court cases from the past decade.................................................................... 60
01C01. Austin & Alexander: Eighth Amendment limits excessive forfeitures................................. 61
01C02. Buena Vista: government’s interest does not vest until final order of forfeiture.................. 63
01C04. Libretti: no factual nexus required for plea bargain forfeiting property.............................. 66
01C05. Bennis v. Michigan: Innocence is no excuse.................................................................. 67
01C06. Ursery/$405K: Double Jeopardy doublespeak................................................................. 70
01C07. Bajakajian: finally a test for proportionality................................................................... 74
01D. Applicability of the Bill of Rights to forfeitures.............................................................................. 75
01D01. Boyd: constitutional implications of the quasi-criminal nature of forfeitures....................... 75
01D02. Kennedy & Ward: “Civil” or “criminal” label as defining rights......................................... 76
01D03. Austin: Forfeitures that “serve in part to punish” trigger Eighth Amendment proportionality
requirement 78
01D04. “Punitive” vs. “remedial” forfeitures............................................................................. 80
01D05. Mathews v. Eldridge: due process test.......................................................................... 80
01D06. Fifth Amendment “takings” of property without just compensation.................................. 83
55
http://www.fear.org/contents.htm 10/7/2008
Table of Contents: FEAR Asset Forfeiture Defense Manual Page 3 of 15
Chapter 02
Statutory Grounds for Forfeiture
02A. General principles....................................................................................................................... 87
02A01. Statute authorizing forfeiture required........................................................................... 87
02A02. The government must allege and prove each “element”................................................... 87
02A03. Attempts, aiding & abetting, and conspiracy.................................................................. 88
02A03a. Aiding and abetting........................................................................................ 88
02A03b. Attempted crimes.......................................................................................... 89
02A03c. Conspiracies................................................................................................. 89
02A03c01. Overt act requirement.................................................................... 91
02A03c02. Withdrawal from the conspiracy..................................................... 91
02A03c03. Why prosecutors love conspiracy law............................................. 92
02B. The catch-all forfeiture statutes – 18 U.S.C. §§ 981 & 982............................................................. 93
02B01. Civil forfeiture under 18 U.S.C. § 981........................................................................... 94
02B01a. “Proceeds” defined for purposes of § 981........................................................ 97
02B01b. Substitute assets provision added by USA Patriot Act........................................ 97
02B02. Criminal forfeiture under 18 U.S.C. § 982...................................................................... 98
02C. Drug offense forfeitures............................................................................................................ 101
02C01. Civil forfeiture for drug offenses – 21 U.S.C. § 881...................................................... 101
02C01a. Elements of felony drug offenses.................................................................. 103
02C01a01. Possession.................................................................................. 103
02C01a02. Possession with intent to distribute................................................ 103
02C01a03. Distribution................................................................................. 104
02C01a04. Manufacture................................................................................ 104
02C01a05. Importation................................................................................. 104
02C01a06. Maintaining or establishing a manufacturing operation...................... 105
02C01a07. Drug conspiracy.......................................................................... 105
02C01b. Property that may be forfeited under § 881.................................................... 106
02C02. Criminal forfeiture provisions of the drug laws............................................................. 107
02C02a. 21 U.S.C. § 853.......................................................................................... 107
02C02b. Continuing Criminal Enterprise – 21 U.S.C. § 848........................................... 108
02C02c. Transporting contraband – 49 U.S.C. § 781................................................... 109
02D. Money laundering offenses........................................................................................................ 109
02D01. Financial transaction to promote unlawful activity – 18 U.S.C. § 1956(a)(1)(A)............... 110
02D02. Laundering Monetary Instruments – 18 U.S.C. § 1956(a)(1)(B)..................................... 111
02D03. Transporting Funds to Promote Unlawful Activity – 18 U.S.C. § 1956(a)(2)(A).............. 111
02D04. Transporting Monetary Instruments for the Purpose of Laundering – 18 U.S.C. § 1956(a)(2)(B)
112
02D05. Laundering of monetary instruments - 18 U.S.C. § 1956(a)(3)(A)-(B)............................ 112
02D06. Monetary transactions involving criminally derived property from “specified unlawful activity” – 18
U.S.C. § 1957.............................................................................................................................. 112
02D06a. “Specified unlawful activity” defined............................................................. 113
02D06b. The tracing requirement............................................................................... 115
02E. Offenses involving fraud........................................................................................................... 117
02E01. Mail fraud – 18 U.S.C. § 1341.................................................................................... 117
02E02. Wire fraud – 18 U.S.C. § 1343................................................................................... 118
02E03. Bank fraud – 18 U.S.C. § 1344................................................................................... 119
02E04. Bankruptcy fraud - 18 U.S.C. § 152............................................................................ 120
02E05. Credit card fraud - 18 U.S.C. § 1029........................................................................... 121
02E06. Computer fraud - 18 U.S.C. § 1030............................................................................ 121
02E06a. Computer fraud against U.S. - 18 U.S.C. § 1030(a)(1)..................................... 122
56
http://www.fear.org/contents.htm 10/7/2008
Table of Contents: FEAR Asset Forfeiture Defense Manual Page 4 of 15
02E06b. Computer hacking (obtaining information from financial institution or government
computer) - 18 U.S.C. § 1030(a)(2)
(A)........................................................................................... 122
02E06c. Computer hacking into “protected computers” and other offenses in 18 U.S.C. § 1030(a) &
(e) 122
02E07. Major fraud against the U.S. - 18 U.S.C. § 1031........................................................... 123
02E08. Other types of fraud that trigger forfeiture................................................................... 123
02F. False statement offenses ........................................................................................................... 124
02F01. False statement on a loan application - 18 U.S.C. § 1014............................................... 124
02F02. False entry with intent to defraud a bank – 18 U.S.C. § 1006......................................... 126
02F03. False statement to a government agency - 18 U.S.C. § 1001.......................................... 127
02G. Financial transaction reporting violations..................................................................................... 127
02G01. Currency Transaction Report (CTR) violations - 31 U.S.C. § 5313................................ 128
02G01a. Elements triggering CTR filing requirement.................................................... 128
02G01b. “Financial institution” defined....................................................................... 129
02G01c. Multiple transactions................................................................................... 130
02G01d. Persons exempt from reporting requirements................................................. 130
02G02. Cash & Monetary Instrument Report (CMIR) violations................................................ 132
02G02a. Elements of CMIR violation.......................................................................... 133
02G02b. Mistakes in the report.................................................................................. 134
02G02c. When the reporting requirement kicks in........................................................ 134
02G02d. Is knowledge of the reporting requirement an element?................................... 135
02G02e. Persons exempt from the CMIR reporting requirement.................................... 137
02G03. Structuring transactions to avoid reporting requirements – 31 U.S.C. § 5324................... 138
02G03a. Elements of structuring................................................................................ 138
02G03b. Property forfeitable because of structuring.................................................... 139
02H. Customs (import/export/smuggling) forfeitures............................................................................ 139
02I. Racketeer Influenced Criminal Organization Act (RICO) – 18 U.S.C. § 1961 et seq.......................... 140
02I01. Elements of RICO criminal offense.............................................................................. 141
O2I01a. “Racketeering activity”................................................................................. 142
02I01a01. “Racketeering activity” defined - pre-Patriot Act............................... 142
02I01a02. Patriot Act: terrorism as racketeering.............................................. 144
02I01b. “Pattern” of racketeering activity................................................................... 146
02I01c. “Enterprise”................................................................................................. 148
02I01d. Interstate commerce element......................................................................... 149
02I01e. Operation or management requirement............................................................ 150
02I01f. RICO conspiracy.......................................................................................... 150
02I02. Property that may be forfeited under RICO................................................................... 152
02J. Immigration forfeitures.............................................................................................................. 154
02K. Gambling forfeitures – 18 U.S.C. § 1955.................................................................................... 155
02L. Firearms forfeitures.................................................................................................................. 156
Chapter 03
Basic forfeiture theories and concepts
03A. Contraband.............................................................................................................................. 157
03A01. Inroads created by Florida v. White............................................................................ 158
03A02. Guns as contraband.................................................................................................. 159
03A03. Drug paraphernalia as contraband............................................................................... 160
57
http://www.fear.org/contents.htm 10/7/2008
Table of Contents: FEAR Asset Forfeiture Defense Manual Page 5 of 15
03B. Proceeds................................................................................................................................. 161
03B01. “Traceable” proceeds................................................................................................ 162
03B02. Co-mingling and the “expanding drop of ink theory”..................................................... 163
03B03. Gross income or net profit?........................................................................................ 165
03B04. Statutory presumption that certain property was purchased with proceeds...................... 165
03C. Facilitation, “used or intended for use in...,” or “involved in...”...................................................... 166
03C01. “Facilitation” defined................................................................................................. 166
03C02. Nexus or substantial connection requirement................................................................ 166
03C02a. Vehicles used to “facilitate” a crime............................................................... 168
03C02b. Real estate used to facilitate.......................................................................... 169
03C02b01. Effect of separate lots or tracts..................................................... 171
03C02b01A. Defining “lot or tract”.................................................... 171
03C02b01B. Did the “lot or tract” “facilitate”?..................................... 172
03C02c. Seizures of businesses for facilitation............................................................ 173
03C02d. Cash “furnished or intended to be furnished”.................................................. 174
03C03. Property “involved in” money laundering..................................................................... 175
03D. Substitute assets...................................................................................................................... 176
03E. Joint and several liability............................................................................................................ 177
03F. Fugitive disentitlement............................................................................................................... 179
03G. The “relation back” doctrine...................................................................................................... 182
Chapter 04
Innocent owner defense
04A. Bennis v. Michigan: the Supreme Court abandons innocent owners............................................... 186
04B. CAFRA’s uniform innocent owner defense.................................................................................. 191
04B01. CAFRA’s innocent owner requirements....................................................................... 192
04B01a. Owners whose interest pre-dated illegal act.................................................... 192
04B01b. Owners who acquired interest after illegal act................................................. 192
04B01b01. Bona fide purchasers or sellers...................................................... 192
04B01b02. Property obtained by divorce or inheritance ................................... 193
04B02. CAFRA’s effect on innocent spouses, dependants and heirs........................................... 194
04B03. CAFRA says owner may show lack of knowledge or consent ....................................... 195
04B04. Owner with knowledge need not make heroic efforts to police property.......................... 196
04B05. CAFRA repealed “willful blindness” as a substitute for actual knowledge......................... 199
04C. Does CAFRA’s innocent owner defense apply to all federal forfeiture statutes?............................... 200
04C01. CAFRA’s innocent owner defense appears to apply across the board, even to “Customs carve-out”
cases 200
04C02. Claimants who had a better defense under the prior innocent owner defense may still be able to apply
the old statute.............................................................................................................................. 202
04E. Pre-CAFRA case law on innocent ownership still applies except to the extent it conflicts with CAFRA 203
04E01. “Knowledge” defined................................................................................................. 203
04E01a. “Actual knowledge” – not “constructive knowledge”....................................... 203
04E01b. Effect of lis pendens.................................................................................... 204
04E02. Spouses as innocent owners....................................................................................... 205
04F. Innocent third parties in criminal forfeiture cases......................................................................... 206
Chapter 05
“Standing” to defend a forfeiture case and “ownership” issues
58
http://www.fear.org/contents.htm 10/7/2008
Table of Contents: FEAR Asset Forfeiture Defense Manual Page 6 of 15
05A. Standing in general................................................................................................................... 209
05A01. “Article III” standing................................................................................................. 209
05A02. Statutory standing..................................................................................................... 212
05A02a. Is statutory standing jurisdictional?................................................................ 212
05A02b. “Statutory standing” is a misnomer............................................................... 213
05A03. State law is used to define interests in property............................................................ 214
05A04. Standing should not be used to dismiss a claim for perceived lack of merit...................... 215
05A05. Standing and ownership issues in criminal forfeitures.................................................... 216
05B. Preliminary showing of standing................................................................................................. 216
05B01. Ownership or possessory interest is generally enough to confer standing......................... 217
05B02. Claimant must assert his own rights – not someone else’s............................................. 217
05B03. Prior to CAFRA, some circuits required additional evidence of standing to be filed along with the
claim 218
05B03a. Evidence of standing may come from the government’s complaint.................... 219
05B03b. Cases requiring proof of standing at the pleading stage are now suspect............ 219
05B04. Which comes first – standing or probable cause?.......................................................... 221
05B05. How much proof of standing is required to survive a Rule 12(b) motion to dismiss?......... 221
05B06. Establishing ownership to survive summary judgment................................................... 222
05B06a. “Naked possession” claims........................................................................... 222
05B06b. Other evidence of standing to survive summary judgment................................ 224
05B07. The standard at trial................................................................................................... 224
05C. Evidence of “ownership” .......................................................................................................... 225
05C01. Presumption of ownership from possession................................................................. 226
05C02. Ownership does not necessarily entail “dominion and control”....................................... 227
05C03. Effect of initial denial of ownership, or “How’d that get here?....................................... 231
05C04. Effect of assertion of Fifth Amendment....................................................................... 231
05C05. “Straw owners” lack standing.................................................................................... 232
05C06. Gifts: must owner be a “bona fide purchaser for value” to have standing?....................... 234
05D. Standing/ownership issues for particular kinds of interests............................................................ 234
05D01. Corporations and business partners as owners............................................................. 234
05D01a. Corporations as claimants and the “alter ego” doctrine..................................... 235
05D01b. Stockholder standing and ownership issues.................................................... 236
05D01c. Ownership interests in partnerships and joint ventures..................................... 238
05D02. Spousal standing and marital property interests............................................................ 240
05D02a. CAFRA’s effect on marital property interests................................................. 240
05D02b. Innocent spouses with their names on the title to the property.......................... 241
05D02b01. Tenancies by the entireties............................................................ 241
05D02b02. Tenancies by the entireties & civil forfeiture................................... 241
05D02b03. Tenancies by the entireties & criminal forfeiture............................. 242
05D02b04. Tenancies by the entireties after CAFRA........................................ 243
05D02c. Spouses who have only “inchoate” marital property interests........................... 243
05D02c01. Inchoate rights and civil forfeiture................................................. 244
05D02c02. Inchoate rights and criminal forfeiture........................................... 245
05D02c02a. Inchoate rights give standing to fight restraint of assets...... 245
05D02c02b. Inchoate rights trump forfeiture of substitute assets.......... 245
05D02c02c. Spouses can’t acquire third party rights in proceeds.......... 246
05D02d. Spouses who acquire a vested interest while the forfeiture is pending............... 246
05D02d01. Death of spouse while case is pending........................................... 247
05D02d02. Divorce while forfeiture case is pending......................................... 248
05D02e. Equitable remedies may give spouses a vested interest in marital property.......... 249
05D02e01. Resulting trust............................................................................. 249
05D02e02. Constructive trust........................................................................ 249
05D02f. Homestead laws.......................................................................................... 249
05D03. Minor children and heirs............................................................................................ 251
59
http://www.fear.org/contents.htm 10/7/2008
Table of Contents: FEAR Asset Forfeiture Defense Manual Page 7 of 15
05D03a. The problem with inchoate interests.............................................................. 251
05D03b. Heirs who inherit property before it is forfeited.............................................. 252
05D03c. Minor children who obtain their interests in a divorce decree........................... 252
05D03d. Guardians ad litem for minor claimants.......................................................... 253
05D04. Bailees: sometimes agent may defend on behalf of principal........................................... 253
05D04a. Bailee for unknown bailor may not have standing............................................ 254
05D04b. CAFRA: bailee must have an interest in the property to have standing............... 255
05D04c. Bailor or unsecured creditor?........................................................................ 255
05D04d. Bailor has standing...................................................................................... 256
05D04e. Incomplete gift becomes a bailment............................................................... 258
05D05. Joint owners of cash, bank accounts.......................................................................... 259
05D06. Creditors have standing only if debt is secured by a lien................................................ 260
05D06a. Lienholders have standing............................................................................ 260
05D06b. Unsecured creditors lack standing................................................................. 261
05D07. Equitable interests that may confer standing................................................................. 261
05D07a. Beneficiaries of trusts.................................................................................. 261
05D07b. Constructive trusts...................................................................................... 262
05D8. Potential financial liability resulting from forfeiture may create standing............................ 266
05D9. Victims of crime lack standing..................................................................................... 267
05E. Owners who acquire their interests after property is tainted & “relation back” doctrine.................... 268
05E01. Pre-CAFRA law – U.S. v. 92 Buena Vista Ave............................................................. 268
05E02. CAFRA limits Buena Vista......................................................................................... 269
05E02a. “Bona fide purchaser for value”..................................................................... 269
05E02b. Assignments of interests in seized property.................................................... 271
05E02c. Purchasers of forfeited property beware!....................................................... 272
60
http://www.fear.org/contents.htm 10/7/2008
Table of Contents: FEAR Asset Forfeiture Defense Manual Page 9 of 15
Chapter 06
Other defenses
06A. The Eighth Amendment’s Excessive Fines Clause........................................................................ 277
06A01. Is the forfeiture “punitive” for Eighth Amendment purposes?......................................... 278
06A01a. Did Bajakajian undermine Austin?................................................................ 280
06A01b. Rebellion among the circuits......................................................................... 281
06A01c. Is forfeiture of proceeds punitive for Eighth Amendment purposes?.................. 282
06A01d. How to tell if a forfeiture statute is punitive.................................................... 284
06A02e. CAFRA codifies the Bajakajian test.............................................................. 285
06A02. The standard for proportionality after Bajakajian......................................................... 286
06A02a. Nature and extent of criminal activity............................................................. 286
06A02b. Other related illegal activities......................................................................... 286
06A02c. Extent of the harm caused by the offense...................................................... 287
06A02d. Maximum penalties a court could have imposed for the offense........................ 287
06A02e. Where the Sentencing Guidelines fail............................................................. 289
06A02e01. Claimants not charged with crime.................................................. 289
06A02e02. Criteria from other sentencing statutes........................................... 290
06B. Denial of speedy trial................................................................................................................. 291
06B01. Length of the delay.................................................................................................... 292
06B02. Reason for the delay.................................................................................................. 293
06B03. Assertion of the right to speedy trial............................................................................ 294
06B04. Prejudice to the claimant............................................................................................ 295
06C. Lack of jurisdiction................................................................................................................... 295
06C01. The differences between subject matter and personal jurisdiction................................... 296
06C02. The difference between in personam and in rem jurisdiction.......................................... 298
06C03. In rem jurisdictional defenses - competing jurisdiction over the res................................. 299
06C04. Administrative forfeiture proceedings deprive the court of jurisdiction over motions for return of
property 301
06C05. Other limits on in rem jurisdiction............................................................................... 302
06C05a. Territorial limits of in rem jurisdiction............................................................ 302
06C05b. Continuing jurisdiction over the res............................................................... 303
06C05c. Judgment may not exceed property named and forfeited.................................. 303
06C06. Limits on in personam jurisdiction............................................................................... 303
06D. Statute of limitations................................................................................................................. 305
06D01. 5 year statute of limitations........................................................................................ 305
06D02. Accrual and the discovery rule................................................................................... 307
06D03. “Tolling” ................................................................................................................. 308
06D03a. Temporary tolling........................................................................................ 308
06D03b. Tolling the statute by commencing proceedings.............................................. 309
06D03c. Equitable tolling.......................................................................................... 310
06D04. Other deadlines for filing forfeiture complaint.............................................................. 312
06E. Entrapment.............................................................................................................................. 313
06E01. Evidence required to submit the entrapment defense to the jury...................................... 314
06E03. Predisposition........................................................................................................... 317
06E04. Entrapment by estoppel.............................................................................................. 318
06E05. Applicability of the entrapment defense in civil forfeiture cases....................................... 320
06E06. Outrageous government conduct................................................................................ 321
06E07. Sentence entrapment................................................................................................. 321
06F. Prosecutorial misconduct ......................................................................................................... 321
06F01. Selective or vindictive prosecution.............................................................................. 322
06F02. Outrageous government conduct................................................................................ 322
06F03. Prosecutor’s interference with the attorney-client relationship........................................ 324
61
http://www.fear.org/contents.htm 10/7/2008
Table of Contents: FEAR Asset Forfeiture Defense Manual Page 10 of 15
06F04. Prosecutors’ payments to witnesses for their testimony................................................ 326
06G. Ex Post Facto & retroactivity.................................................................................................... 328
06G01. Retroactivity of legislation and new rules announced by the courts................................. 328
06G01a. New rules of law announced by the courts.................................................... 329
06G01b. Applicability of new statutes to pending cases................................................ 329
06G01b01. A court is to apply the procedural law in effect at the time it renders its decision
330
06G01b02. The presumption against retroactive legislation................................ 335
06G02. The Ex Post Facto clause.......................................................................................... 336
06G02a. Mere changes in procedure distinguished....................................................... 338
06G02b. Exception for conspiracies and continuing crimes........................................... 338
06G02c. Applicability of Ex Post Facto clause to civil forfeitures.................................. 338
06H. Fifth Amendment “Takings” clause............................................................................................ 342
06H01. The “Takings” clause remedy for lienholders............................................................... 342
06H02. The “Takings” clause and third parties other than lienholders......................................... 344
06I. Vagueness................................................................................................................................ 345
06J. Defenses that don’t work........................................................................................................... 346
06J01. Double jeopardy........................................................................................................ 346
06J02. Bill of Attainder clause................................................................................................ 347
62
http://www.fear.org/contents.htm 10/7/2008
Table of Contents: FEAR Asset Forfeiture Defense Manual Page 12 of 15
Chapter 07
Suppression of evidence
07A. Fourth Amendment search & seizure law.................................................................................... 349
07A01. An overview of Fourth Amendment principles.............................................................. 349
07A02. Standing.................................................................................................................. 352
07A03. Search warrants....................................................................................................... 355
07A03a. Probable cause............................................................................................ 355
07A03a01. Informants.................................................................................. 356
07A03a02. Staleness..................................................................................... 357
07A03b. Specificity.................................................................................................. 358
07A03c. False affidavit (Franks)................................................................................ 359
07A03d. Leon “good faith” exception......................................................................... 360
07A03e. Execution of warrant................................................................................... 361
07A03f. Surreptitious entry warrants: “sneak and peek”............................................... 362
07A04. Warrantless searches................................................................................................. 363
07A04a. Search incident to arrest............................................................................... 363
07A04b. Stop and frisk: “Terry stop”.......................................................................... 366
07A04c. Automobiles............................................................................................... 368
07A04d. Borders and airports.................................................................................... 369
07A04e. Exigent circumstances................................................................................. 372
07A04f. Plain view................................................................................................... 372
07A04g. Consent..................................................................................................... 373
07A04h. Inevitable discovery and independent source.................................................. 374
07B. Suppression of statements......................................................................................................... 376
07B01. Suppression of statements for Miranda violations......................................................... 376
07B01a. “Custody” for Miranda purposes.................................................................. 377
07B01b. “Interrogation” for Miranda purposes............................................................ 378
07B01c. Waiver of Miranda rights............................................................................. 380
07B02. Suppression of involuntary statements......................................................................... 381
07B03. Suppression of statements for violation of right to counsel............................................. 382
07C. Fruit of the poisonous tree......................................................................................................... 383
07D. Wiretaps................................................................................................................................. 385
Chapter 08
Seizure and restraint of assets
08A. Does Due Process require a pre-seizure hearing?......................................................................... 388
08A01. U.S. v. James Daniel Good Real Property - seizure of real estate................................... 388
08A01a. Due Process test for pre-seizure hearing........................................................ 389
08A01b. What is a “seizure” requiring a pre-seizure hearing?......................................... 390
08A01b01. A seizure warrant ousting occupants is a “seizure”.......................... 390
08A01b02. An arrest warrant that doesn’t oust occupants is still a “seizure”....... 391
08A01b03. A lis pendens is not a seizure......................................................... 391
08A01c. The exigent circumstances exception............................................................ 392
08A01d. Remedies for a James Daniel Good violation................................................... 393
08A01d01. Eighth Circuit: dismissal is the remedy........................................... 393
08A01d02. Other circuits give the government a mere slap on the wrist............. 395
08A01e. Right to pre-seizure hearing comes before standing inquiry.............................. 397
08A01f. Pretrial seizure under CAFRA........................................................................ 398
08A02. Other types of property – no pre-seizure hearing required.............................................. 398
08B. When is a warrant required to seize property for forfeiture?.......................................................... 399
63
http://www.fear.org/contents.htm 10/7/2008
Table of Contents: FEAR Asset Forfeiture Defense Manual Page 13 of 15
08B01. Seizure without a warrant permissible for some types of property.................................. 399
08B01a. Must the warrantless seizure coincide with the criminal act?............................. 400
08B01b. Florida v. White: it’s okay to seize “contraband” at any time............................ 400
08B02. Seizure warrant requirement – or lack thereof.............................................................. 402
08B03. Warrantless seizures during execution of search warrants.............................................. 403
08B04. Remedies for illegal seizures....................................................................................... 404
08C. Procedures for obtaining in rem arrest or seizure warrants............................................................ 404
08C01. Seizure warrant........................................................................................................ 405
08C02. Warrant for arrest in rem........................................................................................... 405
08D. Asset restraining orders............................................................................................................ 406
08D01. Criminal forfeiture restraining orders........................................................................... 406
08D02. Restraint of assets pending foreign prosecution for offenses that would trigger forfeiture in U.S.
408
08D03. Can the court restrain substitute assets pending trial?.................................................... 408
08D04. Restraint/release of funds needed for attorney fees....................................................... 409
08D05. Restraints on non-seized property declared forfeited under criminal statutes.................... 412
08D06. Asset restraining orders under CAFRA........................................................................ 412
08D07. Appeal of asset restraining order................................................................................. 413
Chapter 09
Notice of Administrative Forfeiture
09A. Constitutional requirements of service of notice........................................................................... 415
09B. Constitutional requirements for the contents of notice................................................................... 420
09C. Statutory requirements for notices of administrative (non-judicial) forfeiture................................... 421
09C01. Applicability of administrative forfeiture process – dollar amount.................................... 421
09C01a. Value limit is jurisdictional............................................................................ 422
09C01b. Should multiple items be aggregated in determining value?............................... 423
09C02. Administrative forfeiture notice process....................................................................... 424
09C02a. Non-CAFRA nonjudicial forfeiture notice requirements.................................... 424
09C02b. Administrative forfeiture notice under CAFRA................................................ 424
09C02c. Government administrative notice deadlines under CAFRA............................... 425
09C02c01. Sixty-day rule + extensions........................................................... 425
09C02c02. The “10 exceptions” to the 60-day rule.......................................... 425
09C02c03. Effect of belated discovery of a property owner on notice requirements 427
09C02d. Contents of administrative forfeiture notice.................................................... 428
09D. Published notice....................................................................................................................... 428
09E. Judicial forfeiture notice requirements......................................................................................... 429
09F. Government’s failure to provide notice........................................................................................ 429
Chapter 10
Administrative Claim & Cost Bond, Summary Forfeiture
10A. The administrative (summary) forfeiture process......................................................................... 433
10A01. Pre-CAFRA claim and cost bond process.................................................................... 434
10A02. Deadline for filing claims - Customs carve-out cases.................................................... 435
10A03. CAFRA deadline for filing a claim............................................................................... 435
10A04. Requirements for contents of administrative claim........................................................ 436
10A05. Defects in the claim – claimant should be given an opportunity to correct....................... 437
64
http://www.fear.org/contents.htm 10/7/2008
Table of Contents: FEAR Asset Forfeiture Defense Manual Page 14 of 15
10B. Cost bonds.............................................................................................................................. 438
10B01. How the amount of the cost bond is determined........................................................... 439
10B02. Are multiple items aggregated for purposes of the cost bond amount?............................. 439
10B03. The petition for remission/mitigation as an alternative to posting a bond........................... 440
10B04. In forma pauperis requests to waive the cost bond....................................................... 440
10B04a. How to apply for IFP treatment..................................................................... 441
10B04b. Review of unfavorable IFP decision.............................................................. 442
10C. Consequences of failure to timely file a claim............................................................................... 443
Chapter 11
Remission, Mitigation and Other Administrative Remedies
11A. Petitions for remission and/or mitigation...................................................................................... 449
11A01. Who may file a petition for remission/mitigation........................................................... 449
11A02. Contents of petitions for remission/mitigation............................................................... 451
11A02a. Contents - Customs forfeitures..................................................................... 451
11A02b. Contents - drug law forfeitures..................................................................... 451
11A02c. Contents - FBI & other DoJ forfeitures......................................................... 452
11A02d. Contents - I.N.S. forfeitures......................................................................... 453
11A03. Deadlines for filing petition for remission/mitigation...................................................... 453
11A03a. Deadlines - Customs.................................................................................... 453
11A03b. Deadlines - drug law cases........................................................................... 453
11A03c. Deadlines - FBI cases.................................................................................. 454
11A04. Standards for granting petitions for remission/mitigation................................................ 454
11A04a. Standards for granting petitions for remission................................................. 454
11A04a01. DoJ cases................................................................................... 454
11A04a02. I.N.S. cases................................................................................ 455
11A04b. Standards for granting petitions for mitigation................................................ 456
11A04a02. I.N.S. cases................................................................................ 456
11A05. Petition for remission or mitigation filed after the order of forfeiture............................... 457
11A06. Petition for restoration of the proceeds of sale.............................................................. 457
11A06a. Customs cases............................................................................................ 457
11A06b. Drug law cases........................................................................................... 458
11A06c. FBI cases................................................................................................... 458
11A06d. I.N.S. cases............................................................................................... 458
11A07. Decisions on petitions for remission, mitigation, or restoration....................................... 458
11A07a. Customs cases............................................................................................ 458
11A07b. Drug law cases........................................................................................... 459
11A07c. FBI & other DoJ cases................................................................................ 459
11A08. Review of decisions on petitions for remission/mitigation............................................. 460
11A08a. Administrative review (within the agency) may be available.............................. 460
11A08a01. Customs..................................................................................... 460
11A08a02. Drug law cases............................................................................ 461
11A08a03. FBI cases.................................................................................... 461
11A08b. Judicial review is extremely limited................................................................ 461
11B. Constitutional issues regarding the remission/mitigation process..................................................... 461
11B01. Unreviewable discretion over agency decisions............................................................. 461
11B01a. Why is it said agencies have unreviewable discretion....................................... 461
11B01b. Exceptions to the rule.................................................................................. 462
11B02. Due process and the remission/mitigation process......................................................... 463
11B03. Unreasonable delay in remission procedure................................................................... 465
11C. Offer in compromise................................................................................................................ 466
65
http://www.fear.org/contents.htm 10/7/2008
Table of Contents: FEAR Asset Forfeiture Defense Manual Page 15 of 15
Appendix 1
CAFRA digested by key word......................................................................................................... 467
Appendix 2
A Guide For Pro Se Litigants......................................................................................................... 479
Appendix 3
Glossary........................................................................................................................................ 487
66
http://www.fear.org/contents.htm 10/7/2008
<!--AccessTemplate_Title--> Page 1 of 1
FEAR's Brief Bank II
Motions, pleadings and briefs
FEAR's Brief Bank II - index by type of pleading
*********************************************************************************************
Administrative forfeiture claim 3 document(s) updated 6/1/2006 [ 1]
Amicus brief 1 document(s) updated 6/1/2006 [ 2]
Answer to civil forfeiture complaint 7 document(s) updated 11/2/2006 [ 3]
Appellate brief 15 document(s) updated 7/11/2007 [ 6]
Certiorari petition 1 document(s) updated 6/1/2006 [ 7]
Civil rights actions (§ 1983 & Bivens) 2 document(s) updated 6/10/2006 [ 9]
Complaint for forfeiture in rem 1 document(s) updated 5/19/2007 [ 53]
Constitutional challenges 2 document(s) updated 12/12/2006 [ 10]
Criminal forfeiture motions 6 document(s) updated 3/14/2007 [ 11]
Declaration 2 document(s) updated 6/1/2006 [ 12]
Discovery - interrogatories 4 document(s) updated 6/1/2006 [ 14]
Discovery - objections 2 document(s) updated 2/28/2007 [ 15]
Discovery - request for admissions 1 document(s) updated 6/1/2006 [ 16]
Discovery - request for production of documents 3 document(s) updated 6/1/2006 [ 17]
Hardship release petition 5 document(s) updated 9/9/2006 [ 18]
In forma pauperis petition 3 document(s) updated 6/1/2006 [ 19]
Letter brief 4 document(s) updated 9/5/2008 [ 22]
Motion for appointment of counsel 2 document(s) updated 9/5/2008 [ 23]
Motion for change of venu 5 document(s) updated 5/19/2007 [ 52]
Motion for extension of time 1 document(s) updated 6/1/2006 [ 24]
Motion for interlocutory sale 4 document(s) updated 11/3/2006 [ 25]
Motion for reconsideration (Rule 59(e)) 4 document(s) updated 10/8/2007 [ 26]
Motion for release of assets for attorney fees 16 document(s) updated 5/19/2007 [ 49]
Motion for release of vehicle for hardship 3 document(s) updated 5/19/2007 [ 50]
Motion for return of property (Rule 41(g)) 8 document(s) updated 6/1/2006 [ 27]
Motion for summary judgment 24 document(s) updated 6/10/2006 [ 28]
Friday, September 05, 2008 page 1 of 2
First Previous Next Last
Page 1. (c) 2006 Forfeiture Endangers American Rights Foundation
67
http://www.fear.org/BriefBankII/BriefBankPleadingIndex.html 10/3/2008
<!--AccessTemplate_Title--> Page 1 of 1
FEAR's Brief Bank II
Motions, pleadings and briefs
FEAR's Brief Bank II - index by type of pleading
*********************************************************************************************
Motion to compel discovery 8 document(s) updated 11/3/2006 [ 29]
Motion to correct the record 1 document(s) updated 6/1/2006 [ 30]
Motion to dismiss civil forfeiture complaint 2 document(s) updated 6/1/2006 [ 31]
Motion to dismiss for undue delay 2 document(s) updated 6/1/2006 [ 32]
Motion to suppress 7 document(s) updated 6/15/2006 [ 33]
Motion to vacate admin default (§983(e)) 2 document(s) updated 4/23/2007 [ 34]
Motion to vacate default judgment (Rule 60(b)) 6 document(s) updated 11/3/2006 [ 35]
Notice of Appeal 1 document(s) updated 6/1/2006 [ 36]
Offer of judgment 1 document(s) updated 6/1/2006 [ 40]
Order 19 document(s) updated 9/5/2008 [ 51]
Petition for remission or mitigation 1 document(s) updated 6/1/2006 [ 41]
Proportionality motion 1 document(s) updated 6/1/2006 [ 42]
Settlement conference statement 1 document(s) updated 6/1/2006 [ 43]
Stay pending appeal 5 document(s) updated 11/3/2006 [ 44]
Stay pending criminal proceedings 8 document(s) updated 5/19/2007 [ 45]
Stipulation 1 document(s) updated 6/1/2006 [ 46]
Trial memorandum 10 document(s) updated 10/30/2007 [ 47]
Verified statement of interest (judicial claim) 4 document(s) updated 11/3/2006 [ 48]
Friday, September 05, 2008 page 2 of 2
First Previous Next Last
Page 2. (c) 2006 Forfeiture Endangers American Rights Foundation
68
http://www.fear.org/BriefBankII/BriefBankPleadingIndexPage2.html 10/3/2008
1 JOHN BALAZS, Bar #157287
Attorney At Law
2 916 2nd Street, 2nd Floor
Sacramento, California 95814
3 Telephone: (916) 505-1687
4 Attorney for Defendant
MIGUEL PRADO
5
6
7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10
11 UNITED STATES OF AMERICA, ) No. CR-S 02-021-DFL
)
12 Plaintiff, ) NOTICE OF MOTION AND MOTION TO
) BIFURCATE TRIAL; MEMORANDUM IN
13 v. ) SUPPORT OF MOTION TO BIFURCATE
) TRIAL
14 MIGUEL PRADO, and CRAIG )
MAYNARD, ) Dated: June 12, 2003
15 ) Time: 9:00 a.m.
Defendants. ) Hon. David F. Levi
16 _______________________________ )
17 TO: JOHN K. VINCENT, United States Attorney, and ANNE PINGS, Assistant
United States Attorney:
18
PLEASE TAKE NOTICE that on June 12, 2003, at 9:00 a.m., or other
19
time set by the Court, defendant MIGUEL PRADO, through counsel John
20
Balazs, will and does move this Court for an order bifurcating the
21
trial scheduled for July 7, 2003, into two phases. If and only if the
22
jury returns a guilty verdict against Mr. Prado on either of the two
23
charged offenses, should the trial proceed to a second phase in which
24
additional evidence would be presented and the jury would be asked to
25
return special verdicts on two issues: (1) whether the requisite nexus
26
under 21 U.S.C. § 853 between the property in question and the offense
27
or offenses to which the defendant has been found guilty has been
28
69
1 established; and (2) whether the offense or offenses to which the
2 defendant was found guilty involved at least 50 grams of a mixture or
3 substance containing cocaine base.
4 The grounds for this motion are 21 U.S.C. § 853 and Federal Rule
5 of Criminal Procedure 32.2, which require bifurcation of criminal
6 forfeiture counts for a jury determination “whether the government has
7 established the requisite nexus between the property and the offense
8 committed by the defendant.” Fed. R. Crim. P. 32.3(b)(4). Moreover,
9 bifurcation of the issue whether the offense involved at least 50 grams
10 of a mixture or substance containing cocaine base is based on Apprendi
11 v. New Jersey, 530 U.S. 466 (2000), and the principles set forth
12 therein. The grounds for this motion are set forth in greater detail
13 in the attached Memorandum in support of the motion.
14 This motion is based on the instant motion, the attached
15 Memorandum in support of the motion, the record in this case, and on
16 any other evidence or argument presented before or at the hearing on
17 this motion. The defendant does not request an evidentiary hearing on
18 this motion. A trial confirmation hearing is also scheduled for June
19 12, 2003.
20 DATED: May 28, 2003
21 Respectfully submitted,
22
23 __________________________
JOHN BALAZS
24
Attorney for Defendant
25 Miguel Prado
26
27
28
2
70
1 JOHN BALAZS, Bar #157287
Attorney At Law
2 916 2nd Street, 2nd Floor
Sacramento, California 95814
3 Telephone: (916) 505-1687
4 Attorney for Defendant
MIGUEL PRADO
5
6
7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10
11 UNITED STATES OF AMERICA, ) No. CR-S 02-021-DFL
)
12 Plaintiff, )
)
13 v. ) MEMORANDUM IN SUPPORT OF MOTION
) TO BIFURCATE TRIAL
14 MIGUEL PRADO, and CRAIG )
MAYNARD, )
15 )
Defendants. )
16 _______________________________ )
17
18 I. BACKGROUND
19 In a second superseding indictment filed June 27, 2002, Mr. Prado
20 is charged in count one with conspiring with co-defendant Craig Maynard
21 and others to distribute cocaine and cocaine base and in count six with
22 distributing approximately 54 grams of cocaine base. The Court has
23 granted the government’s motion to dismiss counts two and seven against
24 Mr. Prado as well as all counts against his wife Maria Ramirez.
25 Although co-defendant Craig Maynard is also charged in a number of
26 counts, he is known to be cooperating with the government and is
27 expected to enter a plea of guilty pursuant to a § 5K1.1 agreement with
28 the government.
3
71
1 Count eight of the indictment also charges criminal forfeiture of
2 a 2001 Ford Eddie Bauer Excursion, $16,087 in U.S. Currency, and
3 $17,062.18 seized from Mr. Prado’s Golden One Credit Union Account.
4 These properties are alleged to be forfeitable against Mr. Prado under
5 21 U.S.C. § 853 on the alternate grounds that such properties either
6 (1) constitute or were derived from drug proceeds or (2) were used to
7 commit or to facilitate the charged drug offenses. Although the
8 forfeiture count was also charged against Mr. Prado’s wife, Maria
9 Ramirez, all charges against her were dismissed without prejudice upon
10 the government’s motion. Consequently, if the properties were found to
11 be forfeitable in this action, such a finding would serve only to
12 extinguish any interest Mr. Prado has in the properties, not the
13 interests of his wife or any third party. See Fed. R. Crim. P. 32.2,
14 2000 Advisory Comm. Notes, subdivision (b) (“criminal forfeiture is an
15 in personam action which only the defendant’s interest in the property
16 may be forfeited”).
17 A trial confirmation hearing is set for June 12, 2003, and a jury
18 trial is set for July 7, 2003. For the reasons set forth below, Mr.
19 Prado moves the Court to bifurcate the trial.
20
21
22
23
24
25
26
27
28
4
72
1 II. ARGUMENT
2 THE COURT SHOULD BIFURCATE THE TRIAL INTO TWO PHASES WHERE, ONLY IF THE
JURY FINDS MR. PRADO GUILTY OF EITHER OF THE TWO CHARGED DRUG OFFENSES,
3 THE JURY WOULD DETERMINE IN A SECOND PHASE WHETHER THE GOVERNMENT HAS
PROVEN (1) THE REQUISITE NEXUS FOR FORFEITURE AND (2) WHETHER THE
4 OFFENSE(S) OF CONVICTION INVOLVED AT LEAST 50 GRAMS OF COCAINE BASE.
5 A. FEDERAL RULE OF CRIMINAL PROCEDURE 32.2 REQUIRES THAT THE
FORFEITURE ISSUES BE ADJUDICATED IN A SECOND PHASE OF THE TRIAL
6 AFTER AND ONLY IF THE JURY RETURNS A VERDICT OF GUILTY ON EITHER
OF THE TWO CHARGED OFFENSES.
7
8 Added in 2000, Federal Rule of Criminal Procedure 32.2 sets forth
9 rules concerning the adjudication of criminal forfeiture counts.
10 Section (b)(4) provides:
11 (4) Jury Determination. Upon a party’s request in a case
in which a jury returns a verdict of guilty, the jury must
12 determine whether the government has established the
requisite nexus between the property and the offense
13 committed by the defendant.
14 The advisory committee notes to this rule elaborate:
15 Subdivision (b)(4) addresses the right of either party to
request that a jury make the determination of whether any property
16 is subject to forfeiture. The provision gives the defendant, in
all cases, where a jury has returned a guilty verdict, the option
17 of asking that the jury be retained to hear additional evidence
regarding the forfeitability of the property. The only issue for
18 the jury in such cases would be whether the government has
established the requisite nexus between the property and the
19 offense. For example, if the defendant disputes the government’s
allegation that a parcel of real property is traceable to the
20 offense, the defendant would have the right to request that the
jury hear evidence on that issue, and return a special verdict, in
21 a bifurcated proceeding that would occur after the jury returns
the guilty verdict. The government would have the same option of
22 requesting a special jury verdict on this issue, as is the case
under current law. See Rule 23(a) (trial by jury may be waived
23 only with the consent of the government).
24 Fed. R. Crim. P. 32.2, 2000 Advisory Comm. Notes, subdivision (b).
25 Because the forfeiture nexus issues are expected to be disputed,
26 the defense intends to request a jury determination of such issues, if
27 the jury returns a verdict of guilt on either of the two charged
28 offenses. Thus, the Court should bifurcate the forfeiture issues to be
5
73
1 determined in a separate phase immediately after the jury renders a
2 verdict on the “guilt” phase of the trial.
3
4 B. IF THE JURY RENDERS A GUILTY VERDICT ON EITHER OF THE TWO
CHARGED OFFENSES, THE SECOND PHASE OF THE TRIAL SHOULD ALSO
5 INCLUDE A JURY DETERMINATION WHETHER THE COUNTS OF CONVICTION
INVOLVE A MIXTURE OF SUBSTANCE CONTAINING AT LEAST 50 GRAMS
6 OF COCAINE BASE.
7 In addition, a jury finding on whether the offenses involved at
8 least 50 grams of a mixture or substance containing cocaine base should
9 be reserved for the second phase of the trial along with the forfeiture
10 issues set forth above. In Apprendi v. New Jersey, 530 U.S. 466
11 (2000), the Court held that “[o]ther that the fact of a prior
12 conviction, any fact that increases the penalty for a crime beyond the
13 prescribed statutory maximum must be submitted to a jury, and proved
14 beyond a reasonable doubt.” Id. at 490. This rule has been held to
15 apply to the factual determination of drug type and quantity when such
16 facts raises the statutory maximum. United States v. Buckland, 289
17 F.3d 558, 568 (9th Cir.) (en banc), cert. denied, 535 U.S. 1105 (2002).
18 Here, a finding that the offenses charged in counts one and five
19 involve at least 50 grams of cocaine base increases the statutory
20 maximum penalty from 20 years to life imprisonment. Thus, after
21 Apprendi, whether the charged offenses involved the threshold quantity
22 of cocaine base has become a functional element of the offenses that
23 must be proven to a jury beyond a reasonable doubt.
24 Justice Breyer’s dissent in Apprendi argued that the rule
25 announced by the majority could in some cases cause unfairness to the
26 defense because “the issue of guilt or innocence -- could easily place
27 the defendant in the awkward (and conceivably unfair) position of
28 having to deny he committed the crime yet offer proof about how he
6
74
1 committed it, e.g., “I did not sell drugs, but I sold no more than 500
2 grams.” 530 U.S. at 557 (Breyer, J., dissenting). The dissent
3 explained that “special postverdict sentencing juries could cure this
4 problem,” but argued against the majority’s rule by explaining that in
5 the past “they have seemed (but for capital cases) not worth their
6 administrative costs.” Id. Likewise, other justices have advocated
7 the use of a bifurcated trial in other circumstances where a
8 defendant’s intention to contest two elements of an offense would cause
9 unfair prejudice. Apprendi, 530 U.S. at 521 n.10 (noting that “it has
10 been common practice . . . if the defendant decides not to stipulate,
11 to bifurcate the trial, with the jury only considering the prior
12 conviction after it has reached a guilty verdict on the core crime.”)
13 (Thomas, J., concurring); Monge v. California, 524 U.S. 721, 739 n.1
14 (1998) (“If simultaneous consideration of two elements would be
15 genuinely prejudicial to the defendant . . . , the trial can be
16 bifurcated without sacrificing jury factfinding in the second phase”)
17 (Scalia, J., dissenting, joined by Souter, J., and Ginsburg, J.).
18 Although in the majority of cases bifurcating the issue of drug
19 type and quantity would not be necessary, in this case it is
20 particularly appropriate. First, this is one of the few cases where
21 the defendant intends to contest both his guilt of the drug conspiracy
22 and drug distribution charges, as well as whether the offenses involved
23 the threshold type and quantity of drugs necessary to raise the
24 statutory maximum. Whether Mr. Prado is the person who conspired with
25 and delivered drugs to co-defendant Mr. Maynard is hotly contested.
26 The only substantial evidence comes from the mouth of Mr. Maynard,
27 after he received assurances of a substantial sentence reduction from
28 the government. Indeed, without going into full detail here, it is
7
75
1 worth noting that the other circumstances of the offense suggests that
2 Mr. Maynard has misidentified Mr. Prado as his supplier and that
3 another person other than Mr. Prado is Mr. Maynard’s supplier.
4 At the same time, if the jury finds Mr. Prado guilty of conspiracy
5 and drug distribution, he intends to contest a finding that he
6 delivered at least 50 grams of cocaine base to Mr. Maynard on June 7,
7 2001, as charged in count six. Mr. Prado intends to argue to the jury
8 that, even assuming Mr. Prado’s guilt of delivering drugs to Mr.
9 Maynard on June 7, 2001 as would be established by a jury’s guilty
10 verdict, Mr. Prado delivered the drugs as cocaine powder, not cocaine
11 base. Rather, it was Mr. Maynard or the informant who later converted
12 the drugs into “rock” or cocaine base form. Indeed, the evidence shows
13 that is what happened on an earlier occasion less than a month earlier.
14 That is, on May 10, 2001, Mr. Maynard’s supplier delivered cocaine
15 powder to Mr. Maynard and, afterward in the presence of a confidential
16 informant, Mr. Maynard converted the powder into “rock” or cocaine base
17 form. This is exactly the type of case that Justice Breyer
18 hypothesized may require a bifurcated trial to alleviate the unfairness
19 of a defendant arguing, what is likely to appear to a jury,
20 contradictory positions in contesting two essential elements of an
21 offense.
22 Finally, in this case, there would be little undue administrative
23 burden because the jury must already be bifurcated to determine the
24 forfeiture issues, assuming the jury returns a guilty verdict on the
25 underlying crimes.1 The second phase of the trial thus could address
26
1
27 The jury could consider the evidence in the first part of the
trial in determining in the second part whether the offenses involved
28 at least 50 grams of cocaine base. Thus, testimony in the first phase
would not need to be duplicated in the second phase.
8
76
1 both the forfeiture and the drug type and quantity issues.
2
3 III. CONCLUSION
4 For the reasons set forth above, the Court should order that the
5 trial in this case be bifurcated into two phases. If and only if the
6 jury returns a guilty verdict against Mr. Prado on either of the two
7 charged offenses, should the trial proceed to a second phase in which
8 additional evidence would be presented and the jury would be asked to
9 return verdicts on two issues: (1) whether the requisite nexus under
10 21 U.S.C. § 853 between the property in question and the offense or
11 offenses to which the defendant has been found guilty has been
12 established; and (2) whether the offense or offenses to which the
13 defendant was found guilty involved at least 50 grams of a mixture or
14 substance containing cocaine base.
15 Dated: May 28, 2003
Respectfully submitted,
16
17
18 ________________________________
JOHN BALAZS
19 Attorney for Defendant
MIGUEL PRADO
20
21
22
23
24
25
26
27
28
9
77
78
79
80
81
82
83
John Balazs
Attorney At Law
916 2nd Street, Suite F
Sacramento, CA 95814
916-447-9299; fax 916-557-1118
John@Balazslaw.com
VIA FEDERAL EXPRESS:
ATTN: FORFEITURE PARALEGAL SPECIALIST
Special Agent In Charge
Federal Bureau of Investigation
4500 Orange Grove Avenue
Sacramento, CA 95841
Re: Seizure Number 3720080041, Asset ID No. 08-FBI-004087
($21,343 In U.S. Currency)
VERIFIED CLAIM
Claimant Joanne Doe hereby claims the seized U.S. currency. I am the joint
owner of this currency with my husband John Doe.
I, Joanne Doe, declare under penalty of perjury that the foregoing is true and
correct.
Dated: September ____, 2008 _____________________
Joanne Doe, Claimant
84
rem001 Page 1 of 3
February 24, 1988
Dan Tool
Drug Enforcement Administration
Office of Chief Counsel
Asset Forfeiture Section
P.O. Box 28356
Washington, D.C. 20038 Petition for remission
Seizure # 32564
Case #GD880030
ID# WBA173300717475
Dear Mr. Tool:
Gerald Doe makes this petition for remission pursuant to 19 U.S.C. Sec. 1618 and 28 C.F.R. Sec. 9.3. His
car, a 1980 BMW was seized on November 6, 1987 by officers of the District of Columbia Metropolitan
Police Department. He and a codefendant, Wayne R, were stopped by police while riding in the car, and
were arrested for possession of cocaine and a glass smoking pipe. The codefendant pleaded guilty to
attempted possession of cocaine and the charges against Mr. Doe were nolled. There was only a very small
quantity of cocaine recovered in the case. The police reports indicate that $10 worth of cocaine was
recovered from a vial in Mr. R's (the codefendant's) pocket. A small quantity of a rock substance which the
police believed to be cocaine ($20 worth according to police reports) and a glass pipe were allegedly
recovered from the floor of the car.
Mr. Doe did not have any knowledge of the presence of the cocaine and pipe in his car. He states he was
driving back to work after taking the codefendant, Wayne Harrell, to a record shop during their lunch hour.
He stopped at a carryout to get a sandwich, double parking the car. Mr. Harrell stayed in the car. When Mr.
Doe came back out of the carryout he saw a burgundy station wagon driving close by his car, the three men
inside looking into his car suspiciously. Mr. Doe got back into the car and drove away. A marked police car
pulled him over about three blocks later. When they stopped them, the police asked him if they could search
the car. He gave them permission, thinking there was nothing to hide. Mr. Doe did not know where the pipe
came from. He had not seen it, and did not know it was in the car until the police showed it to him.
I am enclosing the police reports. As you can see, the two police reports contradict each other, the 251
saying both codefendants were seen using narcotics, while the 163 says the codefendant was seen holding
the pipe in his hands, with no mention of Mr. Doe's presence at the time the officer saw Mr. Harrell holding
the pipe.
There was extensive litigation, in Superior Court, on the motion for return of property filed by attorney
Penny Marshall of the Public Defender Service. Ms. Marshall, being a PDS employee, was prohibited from
representing Mr. Doe in forfeiture proceedings. His reliance on her efforts to secure the return of his car,
coupled with his serious medical problems over the past three months resulted in his contacting me too late
to file a claim and bond. We are thus forced to rely on your office to do justice in this case.
This incident represents Mr. Doe's first arrest. He is thirty years old, and has been employed since he was 16
or 17. Even when he was in college he worked part time. He finished his third year at the University of
Maryland (majoring in criminology), but had to drop out because of his health problems. He has applied to
the University of the District of Columbia and intends to enroll there starting in summer school. For the past
six years he has worked for the District of Columbia Department of Administration Services. He is a
85
http://www.fear.org/BriefBankII/briefbank/rem001.html 6/11/2008
rem001 Page 2 of 3
contract specialist, earning $17,500 per year. He purchased his car with earnings from employment. He still
owes approximately $1,200 on the car. He has a son, born February 2 of this year, who lives with him, and
whom he supports. In the past he has coached summer football league for 10-12 year olds at Lamont Riggs
Park in Northeast Washington. He also participated in the D.C. government employees' "Drug Awareness
Group", a program whereby government employees speak to youngsters about the dangers of drug abuse.
When he was arrested he discontinued his participation in the drug awareness group to prevent any
embarassment over his pending charges.
Mr. Doe has very serious medical problems. In 1975 he developed diabetes, chronic active hepatitis, an
infected liver, and internal bleeding of the esophagus, which have continued to cause chronic health
problems. In December 1987 he began having problems with inflammation in his feet, which was
exacerbated by his having to walk more for lack of use of his car. He has been hospitalized for two of the
last three weeks. He had surgery on one foot and infection was drained from the other. He was released
from the hospital on 2-17-88 with orders to stay off his feet. Since then he has been recuperating at home,
which delayed his coming into the office to get this petition notarized.
Because of his precarious medical condition, it would be extremely foolish for Mr. Doe to use drugs. Mr.
Doe says his medical reports will show no evidence of drug use, and that drug use was ruled out as the
cause of these medical problems, which should appear in the records. If you are interested in seeing the
medical records, let me know and I'll have him execute releases for them. This will take a few weeks, so let
me know as soon as possible.
As you can see, Mr. Doe needs his car back desperately. Denying this petition for remission and mitigation
would not be in the interest of justice, nor would it serve the goal of forfeiture - the deterence of drug
trafficking. Even taking the police allegations in their most serious light, there is no evidence that Mr. Doe
was connected in any significant way with drug use or trafficking. Therefore we urge you to return his car to
him as soon as possible.
Sincerely,
Brenda Grantland
DISTRICT OF COLUMBIA ss:
I, Gerald Doe, first being duly sworn on oath, depose and say that the foregoing is true and accurate to the
best of my knowledge and belief.
_______________________
Gerald Doe
Subscribed and sworn to before me this __________ day of ________________________, 1988.
______________________
Notary Public
My commission expires________________________.
86
http://www.fear.org/BriefBankII/briefbank/rem001.html 6/11/2008
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
UNITED STATES OF AMERICA :
: Case No. 5:05-CV-767-FL(3)
Plaintiff, :
: MOTION BY CARMEN BADRIAN
v. : FOR RELEASE OF HER SEIZED
: VEHICLE FOR SUBSTANTIAL
$19, 985.90 in U.S. Currency, etc. : HARDSHIP
:
Defendant. :
:
Claimant, Carmen Badrian, through undersigned counsel, petitions for release of her
seized vehicle – a 2004 BMW X5 3.0I, VIN # 5UXFA13594LU29466 – pursuant to 18 U.S.
Code § 983(f)(3)(A).
STATEMENT OF FACTS
Carmen Badrian is the wife of Avedis Djeredjian. She has not been charged with any
offenses nor implicated in the pending criminal proceedings against her husband. Her car was
seized on December 19, 2005, along with two other vehicles which belong to her husband. The
government left the couple with only one vehicle, a 1997 BMW, which Carmen cannot drive
because it has a manual transmission.
Loss of use of her vehicle is creating a substantial hardship on her and her family.
Carmen needs the vehicle to transport her children to and from school, after school activities
including dancing classes (twice a week), birthday parties and play dates, church activities and
tutoring. Their oldest daughter, Christina, formerly had math and history tutoring sessions 4
times a week, but because of the difficulty getting transportation, has had to decrease the sessions
1
87
to once per week. The children formerly went to movies twice a month, but have not been able
to go since the seizure of the car.
She also needs her car to transport her daughters to doctor’s appointments. Christina has
leukemia. Although it is in remission, she still has frequent appointments with her oncologist to
monitor her leukemia, as well as bimonthly appointments with a cardiologist and biannual
appointments with a dermatologist. She also has bimonthly orthodontist appointments.
Carmen is having to borrow her mother-in-law’s car to transport the children to school
and the most urgent of their other activities and errands. Her mother in law has health problems
herself, requiring frequent doctor’s appointments. Sharing her car with Carmen is a hardship,
and she has started complaining that she cannot continue to loan her car much longer.
Carmen also needs her vehicle to commute to work. She is employed as a real estate
agent for Century 21 Crest, in La Crescenta, California, but has not been able to work there since
the government took her car. Currently she is working out of her home because that is the only
employment she can find that does not require a car.
Claimant’s efforts to obtain the release of the vehicle administratively
On February 16, 2006, Carmen filed an administrative hardship petition with the Bureau
of Alcohol, Tobacco and Firearms. On March 3, Douglas Foss of the ATF Forfeiture Office
informed counsel that the decision was in the hands of the regional office, and that we would be
hearing from AUSA Joshua Royster when they made their decision. We have never heard ATF’s
final decision, but have been corresponding with AUSA Royster by email - to no avail.
2
88
Instead of responding to the merits of the hardship petition, the government has
demanded that Ms. Badrian give the government a $5000 irrevocable bond as a condition of its
releasing the vehicle back to her.
As claimant pointed out the government in her administrative hardship petition, there is
little or no equity in the car. Claimant provided the government with an online estimate from
Edmunds.com showing the average value of this car – if it were in good condition, and if it were
sold by a private party – would be $30,316. The lienholder, BMW Bank of North America, gave
a payoff amount of $28,577.07 as of December 31, 2005. Interest is running at $5.38 per day,
which brings the total owed, as of April 10, to $29,115.07 – assuming no additional late fees
have been incurred.1 Even with this estimate of value, there is insufficient equity in the vehicle
to protect the innocent lienholder’s interest.
On further examination of the criteria used by Edmunds.com and Kelley Blue Book’s
website, it appears the value of the vehicle is actually far lower than $30,000.
The vehicle is certainly not in excellent condition. It was involved in an accident that
damaged the front driver side bumper; that damage has not been repaired. The windshield was
chipped and cracked, and instead of replacing it, the insurance company only paid for it to be
repaired. The windshield repairman did not do a good job – the crack and chip are both still
visible. The vehicle also has scratches on the passenger door. Additionally the vehicle has been
at the dealer for repairs seven or eight times since its purchase, including some serious recurring
problems – the steering wheel locks while driving and the brakes are having to be repaired every
1
The monthly payments are $837.90 per month. In December Carmen arranged to have
the payments deferred for January and February, and has not resumed making the payments.
3
89
5,000 - 8,000 miles. Under the circumstances, it is more likely the vehicle would be rated in
“fair” or “average” condition. As the attached printouts from Edmunds and Kelley Blue Book
show, the value is in the $26,200 - $28,000 range.
If the government were to sell it at a forfeiture auction, it would very likely fetch far less
than the trade-in value, because it is a distress sale. Forfeited items are sold “as is.” Bidders
know they are buying a pig in the poke, and that the cars have been stored for an unknown
amount of time. They do not have a chance to test drive them or have their mechanics look them
over. All sales are final. Forfeiture auctions advertise the fact that cars can be purchased for a
fraction of their normal value. After that, the auction company’s commission and the Marshal
Service’s costs are reimbursed off the top. Given these facts, it is virtually certain that, if the
vehicle was sold at auction today, the lienholder would not be paid in full.
The two estimates claimant has submitted are widely recognized as representing accurate
market values in the geographic area selected. Despite this fact, the government continues to
insist the vehicle is worth much more. In his emails, AUSA Royster has claimed since March 7
that the government appraised the vehicle at $33,600 – but has refused to provide a copy of this
appraisal, despite numerous requests. In his email on March 23, Royster stated:
ATF has based the appraisal on information given to them by the company that
has the vehicle (EG&G). Initially, the vehicle was valued at $48,500 I believe,
but after looking into it more, they informed ATF the value was approximately
$33,600.
It is preposterous that they originally valued this used vehicle at $48,500. That is approximately
what it cost new, and the vehicle is now over 2 years old, and has 21,000 miles on it.
4
90
The government is being completely unreasonable. The claimant made a counter-
proposal that the car be sold by the lienholder in the normal course of business (in order to get
the highest amount possible), and the lien paid off, with any surplus proceeds of sale held as a
substituted res pending trial. The government flatly rejected this counteroffer as well, without
giving any reasons. This shows the government is acting in bad faith. Where the equity in
property is insufficient to adequately cover the liens and the costs of storage and sale, or where
assets are declining in value – both of which are true here – it is common practice to agree to an
interlocutory sale, pay off the lienholder, deposit the remainder in the seized assets fund and
substitute the proceeds of sale as the res in the forfeiture proceeding. It is supposed to be the
policy of the Justice Department to protect innocent lienholders.
The government has nothing to gain from taking this position.
ARGUMENT
The Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), effective August 23, 2000,
was enacted to reform a number of serious abuses of the federal asset forfeiture laws. One of the
most important reforms of that statute is the provision for the release of property during the
pendency of the forfeiture proceedings upon a showing of substantial hardship.
The release provisions are found in 18 U.S.C. § 983(f)(1), which provides:
a claimant under subsection (a) is entitled to immediate release of
seized property if -
(A) the claimant has a possessory interest in the property;
(B) the claimant has sufficient ties to the community to provide
assurance that the property will be available at the time of the trial;
(C) the continued possession by the Government pending the
final disposition of forfeiture proceedings will cause substantial
hardship to the claimant, such as preventing the functioning of a
5
91
business, preventing an individual from working, or leaving an
individual homeless;
(D) the claimant's likely hardship from the continued
possession by the Government of the seized property outweighs the
risk that the property will be destroyed, damaged, lost, concealed,
or transferred if it is returned to the claimant during the pendency
of the proceedings; and
(E) none of the conditions set forth in paragraph (8) applies.
Paragraph (8) prohibits the release of property under § 983 if the seized property:
(A) is contraband, currency, or other monetary instrument, or electronic funds
unless such currency or other monetary instrument or electronic funds constitutes
the assets of a legitimate business which has been seized;
(B) is to be used as evidence of a violation of the law;
(C) by reason of design or other characteristic, is particularly suited for use in
illegal activities; or
(D) is likely to be used to commit additional criminal acts if returned to the
claimant.
A claimant seeking possession of the seized property under 18 U.S.C. § 983(f)(1) must
first request the hardship release from the appropriate official and the request must set forth the
basis identified by the statute. 18 U.S.C. § 983(f)(2). If the property is not released after 15 days
from the date of the request, the claimant may petition the District Court for the district in which
the property was seized for the release of the property. 18 U.S.C. § 983(f)(3)(A). The court shall
render a decision on the petition not later than 30 days after the date of the petition's filing. 18
U.S.C. § 983(f)(5).
In compliance with the statute, on February 16, 2006, Claimant submitted an
administrative hardship petition with the ATF, seeking return of the car. Although it was never
formally denied in writing, it is now clear that informal attempts to obtain release of a vehicle
pending trial are futile. With the fifteen day period now long past, Claimant now request that the
Court enter an order directing the immediate return of Carmen’s vehicle.
6
92
Claimant qualifies for the release of her vehicle under the criteria set out in § 983(f).
Continued detention of the vehicle is causing a severe hardship on her, her children and her
mother-in-law, as claimant explained above.
Detention of these vehicles is seriously harming Carmen’s ability to stay fully employed.
She has a real estate license and had been employed at Century 21 in La Crescenta, California,
but has been unable to work there since the seizure of her car because of the lack of
transportation. She is currently working out of her house managing a store – Modern Video –
doing employee scheduling, payroll, video ordering and delivery, bill payment, etc. She needs to
visit the store in person more often, but the store is a two hour drive, and arranging transportation
there is very difficult.
Detention of the vehicles is also causing them to lose value without anyone getting any
use for it. It is being detained during the period of time when cars depreciate the most rapidly.
Additionally, having vehicles sit idle for extended periods of time causes damage to the engine
and other moving parts. Because of the pending federal criminal investigation, this forfeiture
case will soon be stayed by agreement of the parties, and resolution of the case could be delayed
several years. During this time it will depreciate substantially, while storage costs mount up.
Both Carmen Badrian and her husband have substantial ties to the community. Carmen is
an American citizen. She has lived in this country, and in the same community, since she was a
young child – over 25 years. Her children were born here. Her mother, sisters, and mother in
law have all lived in the same community for the same amount of time. Her younger sister is a
clerk in the Los Angeles Superior Court.
7
93
The hardship to the claimant from the continued detention of her vehicles outweighs the
risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is returned
to the claimant pending trial. If released the claimant will bring the payments current and keep
them current and will maintain insurance to cover any potential damage to the vehicles. It is
therefore in the best interest of the lienholder that the vehicle is released. The government does
not benefit from its continued detention, for the vehicle will continue to incur storage costs and
depreciate in value while detained. The government has nothing to gain from continued
detention of the property other than the inconvenience to Carmen Badrian and the damage to her
credit. Whatever it gains from its vindictiveness will be at the innocent lienholder’s expense.
WHEREFORE, for the foregoing reasons this Court should order the release of the
vehicle on whatever terms the Court deems just.
Respectfully submitted,
BRENDA GRANTLAND, ESQ.
Pro hac vice
20 Sunnyside Suite A-204
Mill Valley, CA 94941
(415)380-9108
(415)381-6105 (fax)
Joseph Zeszotarski, Esq.
Attorney for Claimant
Poyner & Spruill
P.O. Box 10096
Raleigh, NC 27605
919-783-1005
fax 919-783-1075
State Bar No. 21310
LR 83.1 Counsel
8
94
Case 2:96-cr-00350-WBS Document 685 Filed 12/01/2006 Page 1 of 3
1 McGREGOR W. SCOTT
United States Attorney
2 WILLIAM S. WONG
JASON HITT
3 Assistant U.S. Attorneys
501 I Street, Suite 10-100
4 Sacramento, California 95814
Telephone: (916) 554-2700
5
6
7
8 IN THE UNITED STATES DISTRICT COURT FOR THE
9 EASTERN DISTRICT OF CALIFORNIA
10
11 UNITED STATES OF AMERICA, ) 2:96-CR-00350-WBS
)
12 Plaintiff, )
) PRELIMINARY ORDER OF FORFEITURE
13 v. ) AND PUBLICATION THEREOF
) RE: REAL PROPERTY OF
14 HUY CHI LUONG, ) DEFENDANT HUY CHI LUONG
aka "Jimmy Luong", )
15 aka "Chi Fei", et al. )
)
16 Defendants. )
)
17
18 Based upon the guilty verdicts entered October 4, 2006, against
19 defendant Huy Chi Luong and the Court’s order regarding the
20 forfeiture, it is hereby
21 ORDERED, ADJUDGED AND DECREED as follows:
22 1. Pursuant to 18 U.S.C. § 982(a)(1), defendant Huy Chi Luong’s
23 interest in the following property shall be condemned and forfeited
24 to the United States of America, to be disposed of according to law:
25 a. Real property located at 7825 Skander Way,
Sacramento, California, Assessor’s Parcel Number
26 051-0383-030, and
27 b. Real property located at 8853 Dorington
Court, Elk Grove, California, Assessor’s Parcel
28 Number 116-0820-009.
95
Case 2:96-cr-00350-WBS Document 685 Filed 12/01/2006 Page 2 of 3
1 2. The above-listed properties constitute properties involved
2 in violations of 18 U.S.C. §§ 1956 and 1957 or are traceable to such
3 property.
4 3. Pursuant to Rule 32.2(b), the Attorney General (or a
5 designee) shall be authorized to seize the above-described properties.
6 That the aforementioned properties shall be seized and held by the
7 United States Marshals Service and/or the Department of Treasury, in
8 their secure custody and control.
9 4. a. Pursuant to 18 U.S.C. § 982 incorporating 21 U.S.C. §
10 853(n) and Local Rule 83-171, the United States forthwith shall
11 publish at least once for three successive weeks in the Daily Recorder
12 (Sacramento County), a newspaper of general circulation located in the
13 county in which the above-described properties are located, notice of
14 this Order, notice of the Attorney General or Secretary of Treasury’s
15 intent to dispose of the properties in such manner as the Attorney
16 General or Secretary of Treasury may direct, and notice that any
17 person, other than the defendant, having or claiming a legal interest
18 in the above-listed properties must file a petition with the Court
19 within thirty (30) days of the final publication of the notice or of
20 receipt of actual notice, whichever is earlier.
21 b. This notice shall state that the petition shall be for
22 a hearing to adjudicate the validity of the petitioner's alleged
23 interest in the properties, shall be signed by the petitioner under
24 penalty of perjury, and shall set forth the nature and extent of the
25 petitioner's right, title or interest in the forfeited property and
26 any additional facts supporting the petitioner's claim and the relief
27 sought.
28 2
96
Case 2:96-cr-00350-WBS Document 685 Filed 12/01/2006 Page 3 of 3
1 c. The United States may also, to the extent practicable,
2 provide direct written notice to any person known to have alleged an
3 interest in the properties that are the subject of the Order of
4 Forfeiture, as a substitute for published notice as to those persons
5 so notified.
6 5. If a petition is timely filed, upon adjudication of all
7 third-party interests, if any, this Court will enter a Final Order of
8 Forfeiture pursuant to 18 U.S.C. § 982(a)(1), in which all interests
9 will be addressed.
10 SO ORDERED this 29th day of November, 2006.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 3
97
Case 2:96-cr-00350-WBS Document 735-2 Filed 07/20/2007 Page 1 of 8
1 McGREGOR W. SCOTT
United States Attorney
2 WILLIAM S. WONG
JASON HITT
3 Assistant U.S. Attorneys
501 I Street, Suite 10-100
4 Sacramento, California 95814
Telephone: (916) 554-2700
5
6
7
8 IN THE UNITED STATES DISTRICT COURT FOR THE
9 EASTERN DISTRICT OF CALIFORNIA
10
11 UNITED STATES OF AMERICA, ) 2:96-CR-00350-WBS
)
12 Plaintiff, ) FINAL ORDER OF FORFEITURE
)
13 v. )
)
14 HUY CHI LUONG, )
aka "Jimmy Luong", )
15 aka "Chi Fei", et al. )
)
16 Defendants. )
______________________________)
17
18 WHEREAS, on December 1, 2006, this Court entered a Preliminary
19 Order of Forfeiture pursuant to the provisions of 18 U.S.C.
20 § 982(a)(1) based on the guilty verdicts entered October 4, 2006,
21 against defendant Huy Chi Luong forfeiting to the United States the
22 following property:
23 a. Real property located at 7825 Skander Way, Sacramento,
California, Assessor’s Parcel Number 051-0383-030, and
24
b. Real property located at 8853 Dorington Court, Elk
25 Grove, California, Assessor’s Parcel Number 116-0820-009.
26 AND WHEREAS, on January 4, 11, and 18, 2007, the United States
27 published notification of the Court's Preliminary Order of
28 Forfeiture in The Daily Recorder (Sacramento County), a newspaper of
1
98
Case 2:96-cr-00350-WBS Document 735-2 Filed 07/20/2007 Page 2 of 8
1 general circulation located in the county in which the above-
2 described properties are located. Said published notice advised all
3 third parties of their right to petition the court within thirty
4 (30) days of the publication date for a hearing to adjudicate the
5 validity of their alleged legal interest in the forfeited
6 properties;
7 AND WHEREAS, the United States sent direct written notice to
8 World Savings Bank, FSB; Eskanos & Adler, P.C.; Smud; U.S.
9 Attorney’s Office, FLU, Northern District; Muoi Lam and Tu Tu Luong;
10 AND WHEREAS, on or about January 25, 2007, World Savings Bank,
11 FSB filed Petitions For Ancillary Hearing regarding both real
12 properties listed above, as lien holders of the properties;
13 AND WHEREAS, the Court has been advised that no other third
14 party has filed a claim to the subject properties, and the time for
15 any person or entity to file a claim has expired.
16 Accordingly, it is hereby ORDERED and ADJUDGED:
17 1. A Final Order of Forfeiture shall be entered forfeiting to
18 the United States of America all right, title, and interest in the
19 above-listed properties pursuant to 18 U.S.C. § 982(a)(1), to be
20 disposed of according to law, including all right, title, and
21 interest of Huy Chi Luong.
22 2. Pursuant to the Stipulation for Expedited Settlement
23 approved by the Court on or about February 28, 2007, regarding the
24 real property located at 7825 Skander Way, Sacramento, California,
25 Assessor’s Parcel Number 051-0383-030-00 (hereafter "Skander
26 Property") and more fully described in Exhibit A attached hereto,
27 upon entry of this Final Order of Forfeiture forfeiting the Skander
28 Property to the United States and sale of the Skander Property, the
2
99
Case 2:96-cr-00350-WBS Document 735-2 Filed 07/20/2007 Page 3 of 8
1 U.S. Marshals Service shall pay Petitioner World Savings Bank, FSB
2 from the proceeds of the sale, after payment of outstanding taxes
3 and expenses incurred by the U.S. Marshals Service in connection
4 with its custody and sale of the Skander Property, the following:
5 a. All unpaid principal due to the Petitioner under
6 the Deed of Trust recorded in Sacramento County,
7 California, as instrument number 199508080717,
8 and dated August 1, 1995 and recorded on August
9 8, 1995. Said Deed of Trust secured a
10 promissory note in the original amount of
11 $35,000.00 dated August 1, 1995. As of January
12 17, 2007, the principal balance due and owing on
13 the Note was $23,093.40, together with accrued
14 interest, including, but not limited to,
15 insurance premiums and property taxes, if any,
16 advanced under the terms of the Deed of Trust.
17 b. All unpaid interest at the contractual base rate (not
18 the default rate) under the above Deed of Trust, as
19 of January 17, 2007 interest is 6.996% per annum,
20 until the date of payment.
21 c. Reasonable attorney's fees not to exceed $2,000.00.
22 d. A total fee of not more than $200 to process a
23 beneficiary demand statement and to record a
24 reconveyance of the deed of trust.
25 e. The exact amount to be paid to World Savings Bank,
26 FSB shall be determined at the time of payment, but
27 shall not be less than the amounts set forth above.
28 3. Payment to Petitioner World Savings Bank, FSB shall be in
3
100
Case 2:96-cr-00350-WBS Document 735-2 Filed 07/20/2007 Page 4 of 8
1 full settlement and satisfaction of all claims by World Savings
2 Bank, FSB to the Skander Property indicted by the United States on
3 or about August 2, 1996 and of all claims arising from and relating
4 to the seizure, detention, and forfeiture of the Skander Property.
5 The payment to World Savings Bank, FSB shall not include any penalty
6 payments, including any prepayment penalties.
7 4. Pursuant to the Stipulation for Expedited Settlement
8 approved by the Court on or about February 28, 2007, regarding the
9 real property located at 8853 Dorington Court, Elk Grove,
10 California, Assessor’s Parcel Number 116-0820-009-00 (hereafter
11 "Dorington Property") and more fully described in Exhibit B attached
12 hereto, upon entry of this Final Order of Forfeiture forfeiting the
13 Dorington Property to the United States and sale of the Dorington
14 Property, the U.S. Department of Treasury shall pay Petitioner World
15 Savings Bank, FSB from the proceeds of the sale, after payment of
16 outstanding taxes and expenses incurred by the U.S. Department of
17 Treasury in connection with its custody and sale of the Dorington
18 Property, the following:
19 a. All unpaid principal due to the Petitioner under the
20 Deed of Trust recorded in Sacramento County,
21 California, in Book 95-05-26, Page 97, and dated May
22 15, 1995 and recorded on May 26, 1995. Said Deed of
23 Trust secured a promissory note in the original
24 amount of $125,000.00 dated May 15, 1995. As of
25 January 17, 2007, the principal balance due and owing
26 on the Note was $93,585.70, together with accrued
27 interest, including, but not limited to, insurance
28 premiums and property taxes, if any, advanced under
4
101
Case 2:96-cr-00350-WBS Document 735-2 Filed 07/20/2007 Page 5 of 8
1 the terms of the Deed of Trust.
2 b. All unpaid interest at the contractual base rate (not
3 the default rate) under the above Deed of Trust, as
4 of January 17, 2007 interest is 6.827% per annum,
5 until the date of payment.
6 c. Reasonable attorney's fees not to exceed $2,000.00.
7 d. A total fee of not more than $200 to process a
8 beneficiary demand statement and to record a
9 reconveyance of the deed of trust.
10 e. The exact amount to be paid to World Savings Bank,
11 FSB shall be determined at the time of payment, but
12 shall not be less than the amounts set forth above.
13 5. Payment to Petitioner World Savings Bank, FSB shall be in
14 full settlement and satisfaction of all claims by World Savings
15 Bank, FSB to the Dorington Property indicted by the United States on
16 or about August 2, 1996 and of all claims arising from and relating
17 to the seizure, detention, and forfeiture of the Dorington Property.
18 The payment to World Savings Bank, FSB shall not include any penalty
19 payments, including any prepayment penalties.
20 6. All right, title, and interest in the above-described
21 properties shall vest solely in the name of the United States of
22 America.
23 5. The U.S. Marshals Service and/or the U.S. Department of
24 ///
25 ///
26 ///
27 ///
28 ///
5
102
Case 2:96-cr-00350-WBS Document 735-2 Filed 07/20/2007 Page 6 of 8
1 Treasury shall maintain custody of and control over the subject
2 properties until they are disposed of according to law.
3 SO ORDERED THIS day of , 2007.
4
5
WILLIAM B. SHUBB
6 United States District Judge
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6 103
104
105
106
107
108
109
110
1 McGREGOR W. SCOTT
United States Attorney
2 KRISTIN S. DOOR, SBN 84307
Assistant United States Attorney
3 501 I Street, Suite 10-100
Sacramento, CA 95814
4 Telephone: (916)554-2723
5 Attorneys for Plaintiff
United States of America
6
7
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 UNITED STATES OF AMERICA, )
)
12 Plaintiff, ) NOTICE OF COMPLAINT FOR
) FORFEITURE IN REM AGAINST
13 v. ) REAL PROPERTY
)
14 REAL PROPERTY LOCATED AT 5205 )
BEAR CREEK ROAD, GARDEN VALLEY, )
15 CALIFORNIA, EL DORADO COUNTY, )
APN: 062-420-40, INCLUDING )
16 ALL APPURTENANCES AND )
IMPROVEMENTS THERETO, and )
17 )
APPROXIMATELY $37,750.00 IN )
18 U.S. CURRENCY, )
)
19 Defendant. )
)
20
21 TO: ROLLIE WILLIAM TROUT
SCHARLYNN TROUT
22 WASHINGTON MUTUAL BANK, FA
23 A civil complaint seeking forfeiture pursuant to 21 U.S.C.
24 §§ 881(a)(6) and 881(a)(7) was filed on May 21, 2008, in the
25 United States District Court for the Eastern District of
26 California by Kristin S. Door on behalf of the United States of
27 America, plaintiff, against the defendant real property. The
28 complaint alleges that said property may, for the causes stated
1
111
1 in the complaint, be condemned and forfeited to the United
2 States.
3 In order to avoid forfeiture of the defendant real property,
4 any person claiming an interest in the defendant real property,
5 or any of them, must file a Claim, signed under penalty of
6 perjury, asserting that interest in the manner set forth in Rule
7 G(5)(a) of the Supplemental Rules for Admiralty or Maritime
8 Claims and Asset Forfeiture Actions (hereafter "Supplemental
9 Rules"), Federal Rules of Civil Procedure, except that such claim
10 must be filed not later than 35 days after the date of service of
11 the complaint or, as applicable, not later than 30 days after the
12 date of final publication of notice of the filing of the
13 complaint. In addition, any person having filed such a Claim
14 shall also file an Answer to the complaint or a motion under Rule
15 12 of the Federal Rules of Civil Procedure within twenty 20 days
16 of the filing of your claim. Supplemental Rule G(5)(a) provides
17 in pertinent part:
18 "A person who asserts an interest in the defendant
property may contest the forfeiture by filing a claim
19 in the court where the action is pending. The claim
must: (A) identify the specific property claimed; (B)
20 identify the claimant and state the claimant’s interest
in the property; (C) be signed by the claimant under
21 penalty of perjury; and (D) be served on the government
attorney designated under Rule G(4)(a)(ii)(C) or
22 (b)(ii)(D). If the claim is made on behalf of the
person entitled to possession by an agent, bailee, or
23 attorney, it shall state the authority in which the
agent, bailee, or attorney is duly authorized to make
24 the claim."
25 Claims should be filed with the Office of the Clerk, United
26 States District Court for the Eastern District of California, 501
27 I Street, Room 4-200, Sacramento, CA 95814, with a copy thereof
28 sent to Assistant United States Attorney Kristin S. Door, 501 I
2
112
1 Street, Suite 10-100, Sacramento, CA 95814. Additional
2 procedures and regulations pertaining to this forfeiture action
3 are found at 19 U.S.C. §§ 1602-1619 and at 18 U.S.C. §§ 981-985.
4 In accordance with 18 U.S.C. § 985, this Notice shall be
5 posted on the defendant real property and served on the property
6 owner, along with a copy of the Verified Complaint for Forfeiture
7 In Rem.
8 Dated: May 20, 2008 McGREGOR W. SCOTT
United States Attorney
9
10
11 /s/Kristin S. Door
KRISTIN S. DOOR
12 Assistant U.S. Attorney
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
113
1 McGREGOR W. SCOTT
United States Attorney
2 KRISTIN S. DOOR, SBN 84307
Assistant United States Attorney
3 501 I Street, Suite 10-100
Sacramento, CA 95814
4 Telephone: (916)554-2723
5 Attorneys for Plaintiff
United States of America
6
7
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 UNITED STATES OF AMERICA, )
)
12 Plaintiff, ) VERIFIED COMPLAINT FOR
) FORFEITURE IN REM
13 v. )
)
14 REAL PROPERTY LOCATED AT 5205 )
BEAR CREEK ROAD, GARDEN VALLEY,)
15 CALIFORNIA, EL DORADO COUNTY, )
APN: 062-420-40, INCLUDING )
16 ALL APPURTENANCES AND )
IMPROVEMENTS THERETO, and )
17 )
APPROXIMATELY $37,750.00 IN )
18 U.S. CURRENCY, )
)
19 Defendants. )
)
20
21 Plaintiff, United States of America, by and through its
22 undersigned attorney, in a civil case of forfeiture in rem,
23 alleges that:
24 I.
25 JURISDICTION AND VENUE
26 1. This Court has jurisdiction in this matter pursuant to
27 28 U.S.C. §§ 1345 and 1355, and 21 U.S.C. § 881.
28 2. This Court has venue pursuant to 28 U.S.C. § 1395.
1
114
1 3. The defendants in this action are described as real
2 property located at 5205 Bear Creek Road, Garden Valley,
3 California, El Dorado County, APN: 062-420-40, (hereafter
4 referred to as the "defendant real property") and more fully
5 described in Exhibit A attached hereto, and approximately
6 $37,750.00 in U.S. Currency (hereafter “defendant currency”).
7 The recorded owners of the defendant real property are Rollie W.
8 Trout and Scharlynn Trout, husband and wife, as joint tenants.
9 The defendant currency was seized on or about November 5, 2007,
10 at the defendant real property and is in the custody of the U.S.
11 Marshals Service, Eastern District of California. The Drug
12 Enforcement Administration (hereafter "DEA") adopted the
13 defendant currency for forfeiture proceedings on November 14,
14 2007.
15 II.
16 OVERVIEW
17 EXECUTION OF STATE SEARCH WARRANT
18 4. On information and belief, plaintiff alleges the
19 following facts: on November 5, 2007, law enforcement officers
20 with the West El Dorado Narcotics Enforcement Team (hereafter
21 “WENET”) executed a search warrant at the defendant real property
22 owned by Rollie William Trout (hereafter “Trout”) and Scharlynn
23 Trout (hereafter “Scharlynn”). Officers gave knock and notice
24 and Trout answered the door. They immediately searched the
25 premises and no other individuals were found.
26 5. Officers searched the spare bedroom inside the residence
27 and located approximately 37 pounds of processed marijuana inside
28 various bags and/or boxes and a digital scale.
2
115
1 6. A search of the master bedroom resulted in the officers
2 locating the following: approximately $37,750.00 in U.S. Currency
3 located in a large safe in the closet along with 12 firearms;
4 marijuana seeds; 14 cans of butane; a price sheet for marijuana
5 seeds; approximately 2 ½ pounds of marijuana in various bags;
6 ammunition; a semi-automatic handgun on the night stand and a
7 magazine loaded with eight rounds; and three additional shotguns.
8 In the master bathroom, officers located a marijuana bud hanging
9 above the tub and 12 two-gallon ziplock bags with marijuana
10 residue.
11 7. Officers searched the living room where they located
12 approximately 2 ½ pounds of marijuana in various bags.
13 8. A search outside the residence resulted in the officers
14 locating a marijuana bud trimmer and bag with approximately 4
15 pounds of chopped marijuana leaf; PVC tube used for THC
16 extraction located in a small metal shed; approximately 15
17 marijuana plants hanging and drying in a shed; and approximately
18 15 marijuana plants hanging and drying in a semi-truck trailer.
19 The marijuana plants weighed approximately 200 pounds.
20 9. In addition, officers found numerous financial
21 documents which revealed that Trout’s expenses greatly exceed his
22 monthly Social Security income; receipts reflecting large cash
23 payments made to creditors; and evidence that Trout’s
24 expenditures far exceed his known legitimate sources of income.
25 INTERVIEW OF ROLLIE WILLIAM TROUT
26 10. On November 5, 2007, officers interviewed Trout at the
27 defendant real property. Trout admitted that both he and his
28 wife, Scharlynn, were unemployed.
3
116
1 EMPLOYMENT HISTORY
2 11. On November 15, 2007, DEA Task Force Officer Larren
3 “Ron” Nelson received information from California Employment
4 Development Department indicating that Rollie William Trout and
5 Scharlynn Trout have no known employment history.
6 12. Trout was arrested for violations of California Health
7 and Safety Code § 11358 - Cultivation of marijuana, California
8 Health and Safety Code § 11359 - Possession of marijuana for
9 sales and California Health and Safety Code § 11397.6 -
10 Manufacturing a controlled substance. State charges are pending
11 against both Rollie William Trout and Scharlynn Trout.
12 III.
13 FIRST CLAIM FOR RELIEF
(21 U.S.C. § 881(a)(7))
14
15 13. The United States incorporates the allegations set
16 forth above in paragraphs 1 through 12, as though fully set forth
17 herein.
18 14. The United States seeks to forfeit the defendant real
19 property, including any right, title and interest in the whole of
20 any lot or tract of land and any appurtenances or improvements
21 thereon, on the grounds that said real property was used or
22 intended to be used, in any manner or part, to commit, or to
23 facilitate the commission of, a violation of 21 U.S.C. § 841 et
24 seq., an offense punishable by more than one year’s imprisonment,
25 and is therefore subject to forfeiture to the United States
26 pursuant to 21 U.S.C. § 881(a)(7).
27 ///
28 ///
4
117
1 IV.
2 SECOND CLAIM FOR RELIEF
(21 U.S.C. § 881(a)(6)
3
4 15. The United States incorporates the allegations set
5 forth above in paragraphs 1 through 12, as though fully set forth
6 herein.
7 16. The United States seeks forfeiture of the defendant
8 currency on the grounds that it is property, real or personal,
9 which constitutes proceeds traceable to an exchange for a
10 controlled substance or listed chemical in violation of 21 U.S.C.
11 § 841 (a)(1), an offense punishable by more than one year’s
12 imprisonment and is therefore subject to forfeiture to the United
13 States pursuant to 21 U.S.C. § 881(a)(6).
14 V.
15 THIRD CLAIM FOR RELIEF
(21 U.S.C. § 881(a)(6)
16
17 17. The United States incorporates the allegations set
18 forth above in paragraphs 1 through 12, as though fully set forth
19 herein.
20 18. The United States seeks forfeiture of the defendant
21 real property, including any right, title and interest in the
22 whole of any lot or trace and any appurtenances or improvements
23 thereon, on the grounds that it is property, real or personal,
24 which constitutes proceeds traceable to an exchange for a
25 controlled substance or listed chemical in violation of 21 U.S.C.
26 § 841 (a)(1), an offense punishable by more than one year’s
27 imprisonment and is therefore subject to forfeiture to the United
28 States pursuant to 21 U.S.C. § 881(a)(6).
5
118
1 19. The United States does not request authority from the
2 Court to seize the defendant real property at this time. The
3 United States will, as provided by 18 U.S.C. § 985(b)(1) and
4 (c)(1):
5 a. post notice of this Complaint on the defendant
6 real property,
7 b. serve notice of this action on the defendant real
8 property owner along with a copy of this
9 Complaint, and
10 c. file with the county where the real property is
11 located a lis pendens providing notice of the real
12 property’s status as a defendant in this in rem
13 forfeiture action.
14 20. Title 18 U.S.C. § 985(c)(3) provides that, because the
15 United States will post notice of this Complaint on the defendant
16 real property, it is not necessary for the Court to issue an
17 arrest warrant in rem, or to take any other action to establish
18 in rem jurisdiction over the defendant real property. 18 U.S.C.
19 § 985(b)(2) clearly states that "the filing of a lis pendens
20 shall not be considered a seizure under this subsection."
21 21. By reason of the foregoing, the defendant real property
22 located at 5205 Bear Creek Road, Garden Valley, California, El
23 Dorado County, APN: 062-420-40, and the approximately $37,750.00
24 in U.S. Currency are subject to forfeiture to the United States
25 pursuant to 21 U.S.C. §§ 881(a)(6) and/or 881(a)(7).
26 PRAYER FOR RELIEF
27 WHEREFORE, plaintiff prays that:
28 1. Process issue according to the procedures of this Court
6
119
1 in cases of action in rem;
2 2. Any person having an interest in said defendant real
3 property and defendant currency be given notice to file a claim
4 and to answer the complaint;
5 3. This Court enter a judgment of forfeiture of said
6 defendant real property and defendant currency to the United
7 States; and
8 4. For such relief as the Court may deem proper.
9 Dated: May 21, 2008 McGREGOR W. SCOTT
United States Attorney
10
11 /s/Kristin S. Door
KRISTIN S. DOOR
12 Assistant U.S. Attorney
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
120
1 VERIFICATION
2 I, Larren R. Nelson, hereby verify and declare under penalty
3 of perjury that I am a Task Force Officer with the United States
4 Drug Enforcement Administration, that I have read the foregoing
5 Verified Complaint for Forfeiture in Rem and know the contents
6 thereof, and that the matters contained in the Verified Complaint
7 are true to the best of my knowledge and belief.
8 The sources of my knowledge and information and the grounds
9 of my belief are official files and records of the United States,
10 information supplied to me by other law enforcement officers, as
11 well as my investigation in this case, together with others, as a
12 Task Force Officer of the Drug Enforcement Administration.
13 I hereby verify and declare under penalty of perjury that
14 the foregoing is true and correct.
15 Dated: 5/21/2008
16 /s/Larren R. Nelson
LARREN R. NELSON
17 Task Force Officer
Drug Enforcement Administration
18
19 (Original signature retained by
Attorney)
20
21
22
23
24
25
26
27
28
8
121
1 Exhibit A
(Real property located at 5205 Bear Creek Road, Garden Valley,
2 California, El Dorado County)
3 THE LAND REFERRED TO IN THIS DESCRIPTION SITUATED IN THE
STATE OF CALIFORNIA, COUNTY OF EL DORADO, UNINCORPORATED
4 AREA OF GARDEN VALLEY AND IS DESCRIBED AS FOLLOWS:
5 ALL THAT PORTION OF THE NORTHEAST QUARTER OF THE NORTHEAST
QUARTER OF SECTION 30, TOWNSHIP 12 NORTH, RANGE 11 EAST,
6 M.D.B. DESCRIBED AS FOLLOWS:
7 PARCEL 4, AS SHOWN ON THAT CERTAIN PARCEL MAP, FILED FOR
RECORD FEBRUARY 27, 1986 IN BOOK 35 OF PARCEL MAPS, PAGE 10,
8 TOGETHER WITH, AS APPURTENANCES TO THE REALTY FIRST
HEREINABOVE DESCRIBED, NON-EXCLUSIVE ROAD AND UTILITY
9 EASEMENT OVER, UNDER, ALONG, ACROSS AND THROUGH THE NON-
EXCLUSIVE ROAD AND UTILITY EASEMENTS LYING OUTSIDE THE
10 EXTERIOR LINES OF THE REALTY FIRST HEREINABOVE DESCRIBED, AS
SAID EASEMENTS ARE DELINEATED AND DESIGNATED ON THE PARCEL
11 MAP HEREINABOVE REFERRED TO.
12 APN: 062-420-40
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
122
123
124
Case 2:08-cv-01113-GEB-DAD Document 23 Filed 09/05/2008 Page 1 of 4
1 JOHN BALAZS, Bar No. 157287
Attorney At Law
2 916 Second Street, Suite F
Sacramento, CA 95814
3 (916) 447-9299
John@Balazslaw.com
4
Attorney for Claimants
5 Rollie William and Scharlynn Trout
6
7
8
9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE EASTERN DISTRICT OF CALIFORNIA
11
12 UNITED STATES OF AMERICA, ) No. CV-S 08-CV-01113-GEB-DAD
)
13 Plaintiff, )
)
14 v. )
) ANSWER TO COMPLAINT FOR
15 REAL PROPERTY LOCATED AT ) FORFEITURE IN REM
5205 BEAR CREEK ROAD, )
16 GARDEN VALLEY, CALIFORNIA, )
EL DORADO COUNTY, APN: 062- )
17 420-30, INCLUDING ALL )
APPURTENANCES AND )
18 IMPROVEMENTS THERETO, and )
)
19 APPROXIMATELY $37,750 IN U.S. )
CURRENCY, )
20 )
Defendants. )
21 _______________________________ )
22 Claimants Rollie William Trout and Scharlynn Trout, through counsel, answer the
23 Complaint as follows:
24 1. Claimants admit the allegations of jurisdiction in paragraph 1 of the
25 complaint.
26 2. Claimants admit the allegations of venue in paragraph 2.
27 3. Claimants admit the allegations in paragraph 3 that the Trouts are the
28 recorded owners of the defendant property as joint tenants and that approximately $37,750
125
Case 2:08-cv-01113-GEB-DAD Document 23 Filed 09/05/2008 Page 2 of 4
1 was seized on or about November 5, 2007. Claimants lack sufficient knowledge to admit
2 or deny the current location of the seized defendant currency.
3 4. With respect to paragraph 4, claimants admit that a search warrant was
4 executed at defendant property on November 5, 2007. Claimant Rollie William Trout
5 admits that he answered the door and that no other individuals were present during the
6 search by law enforcement officers.
7 5. As set forth in paragraph 12 of the complaint, state charges--which arise out
8 of the same series of underlying facts as this forfeiture action--are pending against both
9 Rollie William Trout and Scharlynn Trout. Because state charges are pending, claimants
10 assert their Fifth Amendment privilege to the allegations in paragraph 5 and as set forth
11 below.
12 6. Claimants assert their Fifth Amendment privilege.
13 7. Claimants assert their Fifth Amendment privilege.
14 8. Claimants assert their Fifth Amendment privilege.
15 9. Claimants assert their Fifth Amendment privilege.
16 10. Claimant Rollie William Trout asserts his Fifth Amendment privilege with
17 respect to the allegations in paragraph 10. Claimant Scharlynn Trout was not present
18 during the search of the property and has insufficient information to admit or deny the
19 allegations in paragraph 10.
20 11. Claimants have insufficient information to admit or deny what information
21 DEA Task Force Officer Larren “Ron” Nelson received from California Development
22 Department regarding the Trout’s known employment history.
23 12. Claimants admit the allegations in paragraph 12.
24 13. Claimants deny the allegations and claims for relief of defendant property and
25 defendant currency set forth in the first, second, and third claims of relief in section III of
26 the complaint.
27
28
2
126
Case 2:08-cv-01113-GEB-DAD Document 23 Filed 09/05/2008 Page 3 of 4
1 FIRST DEFENSE
2 14. The evidence seized during the search must be suppressed as the fruit of an
3 unreasonable search and seizure under the Fourth Amendment to the United States
4 Constitution and One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S.
5 693 (1965).
6 SECOND DEFENSE
7 15. The forfeiture of this property would be unconstitutionally excessive and
8 grossly disproportionate punishment in violation of the Eighth Amendment’s Excessive
9 Fines Clause and Austin v. United States, 509 U.S. 602 (1993).
10 THIRD DEFENSE
11 16. Claimants are the innocent owners of the defendant currency and property.
12 FOURTH DEFENSE
13 17. The government’s actions seeking forfeiture of the defendant currency and
14 property violate claimants’ Fifth Amendment substantive and procedural due process
15 rights.
16 FIFTH DEFENSE
17 18. 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 881(a)(6)&(a)(7) do not provide for
18 forfeiture of either the defendant property or defendant currency by its terms and under the
19 principles of the common law necessity defense where the alleged predicate criminal
20 offense involves marijuana for medical purposes that is legal under California law.
21 SIXTH DEFENSE
22 19. The government’s forfeiture proceedings are barred under the Americans with
23 Disabilities Act.
24 20. Claimants’ investigation concerning this matter is ongoing and they therefore
25 reserve the right to assert additional defenses as they may subsequently discover.
26 JURY DEMAND
27 Claimants hereby demand a trial by a jury of twelve on all issues and defenses.
28
3
127
Case 2:08-cv-01113-GEB-DAD Document 23 Filed 09/05/2008 Page 4 of 4
1 WHEREFORE, claimants pray:
2 1. That this action be dismissed;
3 2. That they be awarded reasonable attorney fees; and
4 3. For such other and further relief as may be deemed just and equitable.
5
6 Respectfully submitted,
Dated: September 5, 2008
7
8 /s/ John Balazs
JOHN BALAZS
9 Attorney for Claimants
10 Rollie William Trout
Scharlynn Trout
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
128
Case 2:08-cv-01113-GEB-DAD Document 25 Filed 09/18/2008 Page 1 of 4
1 McGREGOR W. SCOTT
United States Attorney
2 KRISTIN S. DOOR, SBN 84307
Assistant United States Attorney
3 501 I Street, Suite 10-100
Sacramento, CA 95814
4 Telephone: (916)554-2723
5 Attorneys for Plaintiff
United States of America
6
7
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 UNITED STATES OF AMERICA, )
) 2:08-cv-01113 GEB/DAD
12 Plaintiff, )
) STIPULATION TO STAY FURTHER
13 v. ) PROCEEDINGS AND ORDER
) THEREON [PROPOSED]
14 REAL PROPERTY LOCATED AT 5205 )
BEAR CREEK ROAD, GARDEN VALLEY,)
15 CALIFORNIA, EL DORADO COUNTY, )
APN: 062-420-40, INCLUDING )
16 ALL APPURTENANCES AND )
IMPROVEMENTS THERETO, and )
17 )
APPROXIMATELY $37,750.00 IN )
18 U.S. CURRENCY, ) DATE: September 29, 2008
) TIME: 9:00 a.m.
19 Defendants. ) COURTROOM: 10
)
20
21 Plaintiff United States of America and claimant Rollie
22 Trout, Scharlynn Trout, and Washington Mutual Bank stipulate
23 that a stay is necessary in the above-entitled action, and
24 request that the Court enter an order staying all further
25 proceedings pending the outcome of a related criminal case now
26 pending in El Dorado County (People v. Rollie William Trout and
27 Scharlynn Trout, El Dorado County No. P08CRF0018). This
28 stipulation is based on the following:
1
129
Case 2:08-cv-01113-GEB-DAD Document 25 Filed 09/18/2008 Page 2 of 4
1 1. Pursuant to 18 U.S.C. §§ 981(g)(1), (g)(2) and 21
2 U.S.C. § 881(i) the parties suggest that a stay of further
3 proceedings in this case is necessary. The United States
4 contends that the defendant real property was used to facilitate
5 a violation of federal drug laws (possession with intent to
6 distribute marijuana) and is therefore forfeitable to the United
7 States. The United States intends to depose the Trouts about the
8 claims they filed in this case and the facts surrounding the
9 presence of over 37 pounds of processed marijuana on the
10 defendant property. If discovery proceeds, claimants would be
11 placed in the difficult position of either invoking their Fifth
12 Amendment right against self-incrimination and losing the ability
13 to protect their interest in the defendant property, or waiving
14 their Fifth Amendment rights and submitting to depositions and
15 potentially incriminating themselves in the pending criminal
16 matter. If claimants invoke their Fifth Amendment rights, the
17 United States will be deprived of the ability to explore the
18 factual basis for the claims they filed in this action and the
19 defenses raised in their Answers.
20 2. In addition, if this case is not stayed claimants will
21 attempt to depose law enforcement officers who were involved in
22 the execution of the state search warrant at the defendant
23 property. Allowing depositions of these officers would adversely
24 affect the ability of the El Dorado County authorities to conduct
25 its related criminal prosecution.
26 3. Accordingly, the parties contend that proceeding with
27 this action at this time has potential adverse affects on the
28 prosecution of the related criminal case and/or upon claimants'
2
130
Case 2:08-cv-01113-GEB-DAD Document 25 Filed 09/18/2008 Page 3 of 4
1 ability to prove their claim to the property and to contest the
2 government's allegations that the property is forfeitable. For
3 these reasons, the parties request that this matter be stayed for
4 a period of six months. At that time the parties will advise the
5 Court whether a further stay is necessary.
6 4. While this case is stayed claimants agree to keep current
7 all payments due to claimant Washington Mutual Bank under the
8 promissory note dated June 23, 2003, in the original principal
9 amount of $80,300.00, and secured by the deed of trust recorded
10 in El Dorado County on July 1, 2003, encumbering the defendant
11 property. If claimants default on the promissory note (as
12 “default” is defined in the promissory note), claimants will not
13 object to a request by plaintiff or claimant Washington Mutual
14 Bank for an order permitting an interlocutory sale of the
15 defendant property in accordance with Rule G(7)(b) of the
16 Supplemental Rules for Admiralty or Maritime Claims and Asset
17 Forfeiture Actions.
18
19 DATED: September 9, 2008 McGREGOR W. SCOTT
United States Attorney
20
21 By: /s/ Kristin S. Door
KRISTIN S. DOOR
22 Assistant U.S. Attorney
Attorneys for plaintiff
23
24 DATED: September 12, 2008 /s/ John Balazs
JOHN BALAZS
25 Attorney for claimants
Rollie and Scharlynn Trout
26
27
28
3
131
Case 2:08-cv-01113-GEB-DAD Document 25 Filed 09/18/2008 Page 4 of 4
1 DATED: September 15, 2008 SCOTT J. STILMAN
OFFICE OF THE GENERAL COUNSEL
2
3 By: /s/ Scott J. Stillman
SCOTT J. STILLMAN
4 Attorney for claimant
Washington Mutual Bank
5
6
7 ORDER
8 Good cause having been shown, the Status (Pretrial
9 Scheduling) Conference is continued to March 30, 2009, at 9:00
10 a.m. The parties shall submit a joint scheduling report fourteen
11 days before the status hearing.
12
13 IT IS SO ORDERED.
14
Dated: September 17, 2008
15
16
GARLAND E. BURRELL, JR.
17 United States District Judge
18
19
20
21
22
23
24
25
26
27
28
4
132
COURT-APPOINTED REPRESENTATION
IN CIVIL FORFEITURE ACTIONS
I. "Ancillary" Appointments
(18 U.S.C. §983(b)(1))
APPOINTMENT UNDER CJA
(DISCRETIONARY)
(1) standing to contest forfeiture;
(2) represented by CJA counsel in related criminal case; and
(3) unable to afford counsel.
II. Mandatory "Primary Residence"
Appointments (18 U.S.C. §983(b)(2))
APPOINTMENT THROUGH LSC
(MANDATORY)
(1) standing to contest forfeiture;
(2) property subject to being used by the person as a
primary residence;
(3) unable to afford counsel; and
(4) claimant requests counsel.
133
1 QUIN DENVIR, Bar #49374
Federal Defender
2 TIMOTHY ZINDEL, Bar #158377
Assistant Federal Defender
3 Designated Counsel for Service
801 I Street, 3rd Floor
4 Sacramento, California 95814
Telephone: (916) 498-5700
5
6 Attorney for Claimant
CHARLES DAVID THOMPSON
7
8
9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE EASTERN DISTRICT OF CALIFORNIA
11
12 UNITED STATES OF AMERICA, ) No. CIV. S-04-2242 EJG/PAN
)
13 Plaintiff, )
) STIPULATION CONCERNING
14 v. ) REPRESENTATION AND CLAIM OF
) CHARLES DAVID THOMPSON
15 REAL PROPERTY LOCATED AT 1947 )
McPATT PLACE, SAN JOAQUIN )
16 COUNTY, STOCKTON, CALIFORNIA, )
APN # 177-300-07, INCLUDING ALL )
17 APPURTENANCES AND IMPROVEMENTS ) Judge: Hon. Edward J. Garcia
THERETO, )
18 )
Defendant. )
19 )
_______________________________ )
20
21 IT IS HEREBY STIPULATED AND AGREED between plaintiff, United States
22 of America, and claimant, Charles David Thompson, as follows:
23 1. On December 7, 2004, this Court issued an order relating the
24 above case to a criminal case, United States v. Charles David Thompson,
25 Cr. S-04-0440. Charles Thompson, who is on title of the defendant real
26 property, is represented in the criminal case by the Office of the
27 Federal Defender and Assistant Federal Defender Tim Zindel.
28 2. Mr. Thompson wishes to file a formal claim and answer stating
134
1 his interest in defendant real property but is presently unrepresented in
2 the civil case. On December 15, 2004, and January 14, 2005, counsel for
3 the United States agreed to afford Mr. Thompson additional time to file
4 a verified claim and answer and to seek appointment of counsel regarding
5 forfeiture of the real property.
6 3. Section 983, subd. (b)(1)(A) of Title 18, United States Code,
7 provides as follows:
8 If a person with standing to contest the forfeiture of property
in a civil judicial forfeiture proceeding under a civil
9 forfeiture statute is financially unable to obtain
representation by counsel, and the person is represented by
10 counsel appointed under section 3006A of this title in
connection with a related criminal case, the court may
11 authorize counsel to represent that person with respect to the
claim.
12
13 4. The Court may authorize Mr. Zindel and his office to represent
14 Mr. Thompson with respect to his claim in the above civil case, pursuant
15 to 18 U.S.C. § 983(b)(1)(A). The United States has no objection to this
16 appointment.
17 5. The United States agrees that the Court may extend the time for
18 filing the verified claim and answer to February 18, 2005.
19 IT IS SO STIPULATED.
20 Respectfully submitted,
21 QUIN DENVIR
Federal Defender
22
23 Dated: January 24, 2005 /s/ T. Zindel
TIMOTHY ZINDEL
24 Assistant Federal Defender
25 McGREGOR SCOTT
United States Attorney
26
27 Dated: January 24, 2005 /s/ C. Linn
COURTNEY J. LINN
28 Assistant U.S. Attorney
Thompson Claim Stipulation 2
135
1 DANIEL J. BRODERICK, #89424
Federal Defender
2 TIMOTHY ZINDEL, Bar #158377
Assistant Federal Defender
3 801 I Street, 3rd Floor
Sacramento, California 95814
4 Telephone: (916) 498-5700
5
6 Attorney for Claimant
MICHAEL LOMBARDO
7
8
9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE EASTERN DISTRICT OF CALIFORNIA
11
12
13 UNITED STATES OF AMERICA, ) No. 2:08-CV-00395 LKK-GGH
)
14 Plaintiff, )
) APPLICATION FOR ORDER APPOINTING
15 v. ) COUNSEL; ORDER (PROPOSED)
)
16 APPROXIMATELY $4,950,00 IN )
U.S. CURRENCY, ) Judge: Hon. Lawrence K. Karlton
17 )
Defendant. )
18 _______________________________ )
19
20
21 Michael Lombardo applies to the Court for an order appointing the
22 Office of the Federal Defender to represent him in the above case
23 pursuant to 18 U.S.C. § 983(b)(1)(A).
24 Section 983, subd. (b)(1)(A) of Title 18, United States Code,
25 provides as follows:
26 If a person with standing to contest the forfeiture of property
in a civil judicial forfeiture proceeding under a civil
27 forfeiture statute is financially unable to obtain
representation by counsel, and the person is represented by
28 counsel appointed under section 3006A of this title in
136
1 connection with a related criminal case, the court may
authorize counsel to represent that person with respect to the
2 claim.
3 On September 14, 2007, the Magistrate Judge determined that Michael
4 Lombardo was financially unable to hire counsel; the Court therefore
5 appointed the Office of the Federal Defender to represent Mr. Lombardo in
6 a case charging violation of 21 U.S.C. § 841 (manufacturing marijuana).
7 That case began with a DEA search of Mr. Lombardo’s property the previous
8 day and is presently pending before this Court as United States v.
9 Michael Lombardo, 2:07-cr-0439 LKK
10 As a result of the same seizure, the United States on February 22,
11 2008, filed the above complaint for forfeiture against $4,950 seized from
12 Mr. Lombardo’s residence during a DEA search. A portion of this money
13 belongs to Mr. Lombardo who contends that it cannot be lawfully
14 forfeited. He has standing to contest the forfeiture because the cash
15 was seized from his residence. Mr. Lombardo, a journeyman electrician
16 and member of I.B.E.W. Local 401, claims in good faith that he earned the
17 money through legitimate employment and that it cannot be lawfully
18 forfeited. Accordingly, he asks the Court to authorize counsel to
19 represent him with respect to his claim (to be filed simultaneously with
20 this application).
21 A proposed order is attached for the Court’s convenience.
22
23 Respectfully submitted,
24
25 Dated: March 20, 2008 /s/ T. Zindel
TIMOTHY ZINDEL
26 Assistant Federal Defender
Attorney for MICHAEL LOMBARDO
27
28
Order re Counsel -2-
137
1 O R D E R
2 The Office of the Federal Defender is hereby authorized to represent
3 Michael Lombardo in the above case, pursuant to 18 U.S.C. § 983(b).
4 IT IS SO ORDERED.
5
6 Dated: March __, 2008 ____________________________
HON. LAWRENCE K. KARLTON
7 United States District Judge
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Order re Counsel -3-
138
Case 2:08-cv-01113-GEB-DAD Document 16 Filed 07/29/2008 Page 1 of 4
1 Rollie William Trout
5205 Bear Creek Road
2 Garden Valley, CA 95634
3 Scharlynn Trout
5205 Bear Creek Road
4 Garden Valley, CA 95634
5 Pro Se Claimants
6
7
8
9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE EASTERN DISTRICT OF CALIFORNIA
11
12 UNITED STATES OF AMERICA, ) No. CV-S 08-CV-01113-GEB-DAD
)
13 Plaintiff, )
)
14 v. ) APPLICATION FOR APPOINTMENT
) OF COUNSEL AND ORDER
15 REAL PROPERTY LOCATED AT )
5205 BEAR CREEK ROAD, )
16 GARDEN VALLEY, CALIFORNIA, )
EL DORADO COUNTY, APN: 062- )
17 420-30, INCLUDING ALL )
APPURTENANCES AND )
18 IMPROVEMENTS THERETO, and )
)
19 APPROXIMATELY $37,750 IN U.S. )
CURRENCY, )
20 )
Defendant. )
21 _______________________________ )
22 Claimants Rollie William Trout and Scharlynn Trout, husband and wife, submit this
23 application for appointment of counsel, pursuant to 18 U.S.C. § 983(b)(2)(A), which states
24 as follows:
25 If a person with standing to contest the forfeiture of property in a judicial
civil procedure statute is financially unable to obtain representation by
26 counsel and the property subject to forfeiture is real property that is being
used by the person as a primary residence, the court, at the request of the
27 person, shall insure that the person is represented by an attorney for the Legal
Services Corporation with respect to the claim.
28
139
Case 2:08-cv-01113-GEB-DAD Document 16 Filed 07/29/2008 Page 2 of 4
1 Here, the Trouts qualify for appointment of counsel under this statute. They have
2 both filed verified statements of interest attesting under oath that they jointly own the real
3 property at issue in this forfeiture action and that they reside on the property. They have
4 also submitted financial affidavits showing that they are financially eligible for
5 appointment of counsel. Exhibit A. They have requested that CJA panel attorney John
6 Balazs jointly represent them in this civil forfeiture action and waive any potential conflict
7 that may exist with joint representation. Exhibit B. The Legal Services Corporation
8 consents to the appointment of Mr. Balazs in this action under § 983(b)(2)(A). Exhibit C.
9 The Trouts thus request that Mr. Balazs be appointed to represent them in this action. A
10 proposed order is attached.
11 Dated: July 28, 2008
12
/s/ John Balazs
13 John Balazs
14 Attorney Seeking Appointment for Claimants
Rollie William and Scharlynn Trout
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
140
Case 2:08-cv-01113-GEB-DAD Document 16 Filed 07/29/2008 Page 3 of 4
1 Rollie William Trout
5205 Bear Creek Road
2 Garden Valley, CA 95634
3 Scharlynn Trout
5205 Bear Creek Road
4 Garden Valley, CA 95634
5 Pro Se Claimants
6
7
8
9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE EASTERN DISTRICT OF CALIFORNIA
11
12 UNITED STATES OF AMERICA, ) No. CV-S 08-CV-01113-GEB-DAD
)
13 Plaintiff, )
)
14 v. ) [PROPOSED] ORDER RE
) APPOINTMENT OF COUNSEL
15 REAL PROPERTY LOCATED AT )
5205 BEAR CREEK ROAD, )
16 GARDEN VALLEY, CALIFORNIA, )
EL DORADO COUNTY, APN: 062- )
17 420-30, INCLUDING ALL )
APPURTENANCES AND )
18 IMPROVEMENTS THERETO, and )
)
19 APPROXIMATELY $37,750 IN U.S. )
CURRENCY, )
20 )
Defendant. )
21 _______________________________ )
22 Upon application of claimants Rollie William Trout and Scharlynn Trout, and
23 finding that under 18 U.S.C. § 983(b)(2)(a), the applicants are financially unable to obtain
24 representation by counsel in this case regarding real property subject to forfeiture that is
25 being used by the applicant as a primary residence, and on consent of the Legal Services
26 Corporation that attorney John Balazs may provide representation to the applicant on its
27 behalf and John Balazs having agreed to do so, IT IS HEREBY ORDERED that, pursuant
28 to 18 U.S.C. § 983, the Legal Services Corporation shall provide counsel to the applicant
3
141
Case 2:08-cv-01113-GEB-DAD Document 16 Filed 07/29/2008 Page 4 of 4
1 and that John Balazs shall be such counsel.
2 Furthermore, it is hereby ordered that any judgment for fees and costs for LSC
3 pursuant to 18 U.S.C. § 983(b)(2)(B) shall be awarded to John Balazs or the Legal
4 Services Corporation subject to the submission of appropriate statements of such fees and
5 costs and the consent of the Legal Services Corporation.
6 Dated: July 28, 2008
7
8
GARLAND E. BURRELL, JR.
9 United States District Judge
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
142
143
Related docs
