Asset Forfeiture Law in the United States
Stefan D. Cassella
Price: $150.00 950 pages. 1 Hardcover Volume. Index. Published December 2006. CD-Rom.
ISBN-13: 978-1-929446-99-5 / ISBN-10: 1-929446-993
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Table of Contents
Preface
Part I — Overview and History
Chapter One. Overview of Asset Forfeiture Law in the United States
§ 1-1 Overview
§ 1-2 Why do Forfeiture?
§ 1-3 What can the Government Forfeit?
a. Proceeds
b. Drug cases
c. Other Crimes for Which Facilitating Property May be Forfeited
d. Money Laundering
e. RICO and Terrorism
§ 1-4 The Three Kinds of Forfeiture Under Federal Law
a. Administrative Forfeiture
b. Criminal Forfeiture
c. Civil Forfeiture
§ 1-5 Tactical Choices: Civil versus Criminal Forfeiture
a. The Advantages of Civil Forfeiture
b. The Disadvantages of Civil Forfeiture
c. The Advantages of Criminal Forfeiture
d. The Disadvantages of Criminal Forfeiture
Chapter Two. The Development of Asset Forfeiture Law in the United States
§ 2-1 Overview
§ 2-2 The First Forfeiture Statutes: What Does it Mean to File an Action in Rem?
§ 2-3 In Rem Forfeiture in the 20th Century: Forfeiting the Instruments of Crime
§ 2-4 The Late 20th Century: Expanding Forfeiture for Drug Offenses
§ 2-5 The Supreme Court’s Forfeiture Decisions: An Analytical Approach
§ 2-6 Due Process and Innocent Ownership in Civil Forfeiture Cases
§ 2-7 Due Process: The Right to Notice and an Opportunity to be Heard Before Property is Seized
§ 2-8 More Due Process: Post-seizure Notice and Delay
a. Post-Seizure Notice
b. Delay in Commencing the Forfeiture Action
§ 2-9 Proportionality and Excessiveness
a. Austin v. United States
b. Bajakajian and the “Gross Disproportionality” Test
§ 2-10 Double Jeopardy
a. The Early Double Jeopardy Cases
b. The Majority Opinion in Ursery
c. Why a Forfeiture can be “Punitive” for Eighth Amendment Purposes but not for Purposes of the Double Jeopardy Clause
§ 2-11 Searches and Seizures
a. Does the Exclusionary Rule apply in Civil Forfeiture Cases?
b. Exceptions to the Warrant Requirement
§ 2-12 Trial Procedures and the Sixth Amendment Right to Counsel
§ 2-13 Retrospective on the Evolution of Forfeiture Law
Part II — Administrative and Civil Forfeiture
Chapter Three. Starting a Forfeiture Case: The Seizure of Property for Forfeiture
§ 3-1 Overview
§ 3-2 Civil and Criminal Seizure
§ 3-3 Standard for Seizure
§ 3-4 Warrantless Seizures
§ 3-5 Airport and Traffic Stops
§ 3-6 Dog Sniffs
§ 3-7 Out-of-district Seizure Warrants
§ 3-8 Anticipatory Seizure Warrants
§ 3-9 Appeals
§ 3-10 Motion to Suppress
§ 3-11 Motion for the Return of Seized Property
a. The Proper Role of a Rule 41(g) Motion for the Return of Property
b. Filing a Rule 41(g) Motion Shortly After the Seizure but Before Forfeiture Proceedings are Commenced
c. Motion for Return of Property That was Never Forfeited
d. Motion for Pretrial Release of Property Needed for Attorneys Fees
§ 3-12 Motion for Pretrial Release of Seized Property to Avoid Hardship
Chapter Four. Administrative Forfeiture Under CAFRA
§ 4-1 Overview
§ 4-2 Reasons for Administrative Forfeiture
§ 4-3 Property Eligible for Administrative Forfeiture
§ 4-4 CAFRA and the Reform of Administrative Forfeiture
§ 4-5 The Interplay of CAFRA and the Customs Laws
a. The Effective Date of CAFRA
b. The “Custom Carve-out”
c. The Interplay of CAFRA and the Old Law When Both Apply
§ 4-6 Time for Sending Notice
a. Property Seized for Civil Judicial or Criminal Forfeiture
b. Property Seized for Evidence
c. Where the Judicial Forfeiture is Filed Before the 60-Day Period Expires
d. Adoptive Forfeitures
e. Cases Where the Identity of the Interested Party is not Known
f. Extensions of the 60-Day Period for Sending Notice
§ 4-7 Content of the Notice
§ 4-8 Persons to Whom Notice Must be Sent
§ 4-9 Manner of Sending Notice
a. The Mullane Standard
b. Sending Notice by Certified Mail
c. Notice by Publication
d. Person with Actual Notice
e. Sending Notice to the Claimant’s Attorney
§ 4-10 Special Rules for Sending Notice to Prisoners
§ 4-11 Sanctions for Failure to Provide Notice
§ 4-12 Quick Release Policy
§ 4-13 Filing a Claim in an Administrative Forfeiture Proceeding
a. Filing with the “Appropriate Official”
b. Time for Filing a Claim
c. Contents of the Claim
d. Forms; Elimination of the Cost Bond
Chapter Five. Judicial Review of Administrative Forfeiture
§ 5-1 Overview
§ 5-2 Scope of Review
§ 5-3 Statutory Basis for Judicial Review
a. Pre-CAFRA Cases
b. The Enactment of Section 983(e)
§ 5-4 Grounds for Relief; Standing; Burden of Proof
§ 5-5 Statute of Limitations on Due Process Challenge
§ 5-6 Laches
§ 5-7 Venue for Challenges to Administrative Forfeiture
§ 5-8 Remedy for Failure to Provide Adequate Notice
a. Pre-CAFRA
b. Section 983(e)
Chapter Six. Civil Forfeiture of Real Property
§ 6-1 Overview
§ 6-2 Method of Forfeiture
§ 6-3 No Seizure of Real Property
§ 6-4 Exceptions to the No-Seizure Rule
§ 6-5 Commencing a Civil Forfeiture Action Against Real Property
§ 6-6 Remedy for a Violation of § 985 or James Daniel Good
Chapter Seven. Judicial Forfeiture: Filing the Complaint, Claim & Answer
§ 7-1 Overview
§ 7-2 Application of the Supplemental Rules to Civil Forfeiture Cases
§ 7-3 Supplemental Rule G
§ 7-4 The Deadline for Commencing a Civil Forfeiture Action
a. Background
b. The 90-day Deadline
c. Returning the Property; Extending the Deadline
§7-5 Sanctions for Failure to Comply with the 90-day Rule
a. Return of the Property
b. The “Death Penalty” for Civil Forfeiture
c. Commencing a Criminal Forfeiture Within the 90-day Period
§ 7-6 Parallel Civil and Criminal Forfeitures
§ 7-7 Jurisdiction and Venue
a. Subject Matter Jurisdiction
b. In Rem Jurisdiction
1. Exceptions
2. Using the arrest warrant in rem to obtain in rem jurisdiction
3. Serving the arrest warrant in rem
4. Property located outside of the district
5. Jurisdiction over intangible property
6. Property that is moved to another district or changes in form
c. Venue 241
§ 7-8 Adoptive Forfeitures and the Concurrent Jurisdiction Doctrine
§ 7-9 Sending Notice to Potential Claimants
§ 7-10 Contents of the Complaint
a. Verification
b. Basis for Jurisdiction
c. Description and Location of the Property
d. The Statute Under Which the Forfeiture is Brought
e. Stating the Factual Basis for the Forfeiture
f. Amending the Complaint
§ 7-11 Stating the Factual Basis for the Forfeiture
a. Reasons for the Heightened Pleading Requirement
b. Cases Applying the Pleading Requirement
§ 7-12 Motions to Dismiss the Complaint
a. Rule G(8)(b)
b. The Complaint Need Not Establish Probable Cause for the Forfeiture
c. The Government May Move to Dismiss its Own Complaint
d. Only a Claimant with Standing May Move to Dismiss the Complaint
§ 7-13 Filing a Claim and Answer
a. Section 983(a)(4) and Rule G(5)
b. Time for Filing a Claim
c. Verification of the Claim
d. Identifying the Claimant and his Interest in the Property
e. Claim filed in the Administrative Proceeding
f. Filing an Answer to the Complaint; Responding to Interrogatories
g. Motions to Strike a Claim and Answer
Chapter Eight. Pre-Trial Procedural Issues
§ 8-1 Overview
§ 8-2 Civil Discovery
a. Interrogatories; Rule G(6)
b. Requests for Admissions
c. Protective Orders
d. Discovery Sanctions
§ 8-3 Stays 294
§ 8-4 Appointment of Counsel
§ 8-5 Pre-trial Restraining Orders
§ 8-6 Interlocutory Sales
Chapter Nine. Dispositive Pre-Trial Motions
§ 9-1 Overview
§ 9-2 The Fugitive Disentitlement Doctrine
§ 9-3 Statute of Limitations
a. Section 1621
b. What is the “Offense”?
c. Tolling the Statute While the Property is Absent or Concealed
d. The Interplay of § 1621 and 18 U.S.C. § 984(b)
e. Pleading the Statute of Limitations as a Defense
§ 9-4 Standing
a. Reasons for Contesting Standing
b. Statutory and Article III Standing
Chapter Ten. Standing
§ 10-1 Overview
§ 10-2 Standing and Ownership
§ 10-3 Article III Standing 337
a. Possession with an Explanation; Standing of Bailees
b. Persons Excluded from the Definition of “Owner” by CAFRA
i. nominees
ii. unsecured creditors
iii. beneficiaries of a constructive trust
c. Lienholders and Assignees
d. Standing to Contest Forfeiture of Bank Accounts
e. Standing of Bailor
f. Standing of Decedent’s Estate and Heirs
g. Persons with a Spousal Interest
h. Persons with Future or Equitable Interests and Potential Injuries
i. Standing to Challenge Forfeiture of Corporate Assets
j. Standing of Trust Beneficiaries
k. Estoppel of Criminal Defendant from Contesting Civil Forfeiture
§ 10-4 Procedure for Contesting Standing
a. Motion for Judgment on the Pleadings
b. Motion to Dismiss the Claim for Lack of Standing; Summary Judgment
Chapter Eleven. The Forfeiture Trial: Establishing Forfeitability
§ 11-1 Overview
§ 11-2 Trial Procedure
a. Right to a Jury Trial
b. Burden of proof
i. Burden-shifting in Pre-CAFRA Cases
ii. Section 983(c)
c. The Substantial Connection Requirement
d. Evidence
e. Invoking the Fifth Amendment
§ 11-3 Forfeitability / Tracing
a. What the Government Must Prove Depends on the Statute
b. Tracing is Part of the Government’s Burden
c. Fungible Property / Section 984
§ 11-4 Summary Judgment on the Forfeitability Issue
Chapter Twelve. The Innocent Owner Defense
§ 12-1 Overview
§ 12-2 Exemptions from the Uniform Innocent Owner Statute
§ 12-3 The Innocent Owner Defense is an Affirmative Defense
§ 12-4 Separating Pre-Existing and After-Acquired Interests
§ 12-5 Section 983(d)(2): Pre-existing Interests
a. Ownership
i. State v. Federal law
ii. Definition of “owner” in Section 983(d)(6)
iii. The temporal requirement
b. Alternative Grounds for Establishing Innocence
i. Knowledge and willful blindness
ii. “All reasonable steps”
§ 12-6 Section 983(d)(3): After-Acquired Property Interests
a. Bona fide Purchasers
b. “Without Cause to Believe”
c. Exception to the Bona fide Purchaser Requirement for Residences
§ 12-7 Severing the Property
§ 12-8 Summary Judgment on the Innocent Owner Defense
Chapter Thirteen. Post-Trial and Other Issues
§ 13-1 Overview
§ 13-2 Stay Pending Appeal
§ 13-3 Certificate of Reasonable Cause
§ 13-4 Post-trial Motion for Return of Forfeited Property
§ 13-5 Prejudgment Interest
§ 13-6 Abatement
a. Attorneys fees under EAJA and CAFRA
b. Exceptions to the Attorney Fee Provision
c. Calculating the Amount of the Fee Award
§ 13-8 Actions Against the Government
Chapter Fourteen. Parallel and Successive Civil and Criminal Cases
§ 14-1 Overview
§ 14-2 Commencing Civil Forfeiture While a Criminal Case is Pending
§ 14-3 Issue Preclusion: Issues Determined in a Parallel Criminal Case
§ 14-4 Effect of Civil Forfeiture on a Related Criminal Case
§ 14-5 Use of Grand Jury Information
Part III — Criminal Forfeiture Procedure
Chapter Fifteen. The Nature of Criminal Forfeiture
§ 15-1 Overview
§ 15-2 Criminal Forfeiture is Part of Sentencing
§ 15-3 The Consequences of Viewing Criminal Forfeiture as Part of the Sentence
a. Requirement of a Criminal Conviction
b. Property Related to the Offense of Conviction
c. Bifurcated Trial
d. Burden of Proof
e. Money Judgments and Substitute Assets
f. Property of Third Parties may not be Forfeited
g. Including the Forfeiture in the Sentence and Judgment
h. Application of the Ex Post Facto Clause
§ 15-4 When is Criminal Forfeiture Available?
Chapter Sixteen. Indictment
§ 16-1 Overview
§ 16-2 Rule 32.2(a)
§ 16-3 Listing Substitute Assets and the Amount of the Money Judgment in the Indictment
§ 16-4 Motion to Dismiss the Forfeiture Allegation
§ 16-5 Statute of Limitations
§ 16-6 Application of Rule 32.2(a) to Civil Forfeiture
Chapter Seventeen. Seizure Warrants and Pre-Trial Restraining Orders
§ 17-1 Overview
§ 17-2 Property Subject to a Parallel Civil Forfeiture or Held as Evidence
§ 17-3 Criminal Seizure Warrants
§ 17-4 Pre-Indictment Restraining Orders
§ 17-5 Obtaining a Post-Indictment Restraining Order
§ 17-6 Challenges to a Post-Indictment Restraining Order
§ 17-7 The Probable Cause Hearing
§ 17-8 Lis Pendens
§ 17-9 Repatriation of Foreign Assets
§ 17-10 Posting Bond in Lieu of Restrained Property
§ 17-11 Restraining a Foreclosure on Real Property
§ 17-12 Restraining Assets of Third Parties
§ 17-13 Third Party’s Right to Contest a Pre-trial Restraining Order
§ 17-14 Pretrial Restraint of Substitute Assets
§ 17-15 Interlocutory Appeals
Chapter Eighteen. Guilty Pleas and the Forfeiture Phase of the Trial
§ 18-1 Overview
§ 18-2 Bifurcated Proceeding
§ 18-3 Guilty Pleas
§ 18-4 The Right to a Jury
a. Rule 32.2(b)(4)
b. Invoking the Right to a Jury
§ 18-5 Procedure in the Forfeiture Phase of the Trial
a. Admissibility of Evidence
b. Presence of the Defendant During the Forfeiture Phase
c. Right to Counsel
d. Burden of Proof
e. Jury Instructions
f. Special Verdict forms
§ 18-6 “Ownership” vs. “Nexus”
Chapter Nineteen. Preliminary Order of Forfeiture
§ 19-1 Overview
§ 19-2 Rule 32.2(b)(2)
§ 19-3 Procedure for Issuing Preliminary Order
a. Proposed Orders Submitted by the Government
b. The Timing of the Preliminary Order
c. Entering a Preliminary Order in Generic Terms
§ 19-4 Directly Forfeitable Property, Substitute Assetsand Money Judgments
a. Directly Forfeitable Property
b. Substitute Assets
c. Money Judgments
§ 19-5 Joint and Several Liability
§ 19-6 Tools for Preserving the Forfeited Property
Chapter Twenty. The Final Order of Forfeiture and Sentencing
§ 20-1 Overview
§ 20-2 Forfeiture is Mandatory
§ 20-3 Rule 32.2(b)(3)
a. The Order Becomes Final as to the Defendant at Sentencing
b. The Order Must be Made Part of the Sentence
c. The Order Must be Included in the Judgment
§ 20-4 Obstructing a Forfeiture Order
§ 20-5 The Relationship Between the Forfeiture Order and a Fine
§ 20-6 The Relationship Between Forfeiture and the Sentencing Guidelines
§ 20-7 Revocation of Supervised Release
§ 20-8 Forfeiture and Restitution
§ 20-9 Stay Pending Appeal
Chapter Twenty-One. Forfeiture of Property Transferred to Third Parties
§ 21-1 Overview
§ 21-2 The Relation Back Doctrine
§ 21-3 Application of the Relation Back Doctrine to Substitute Assets
§ 21-4 Procedure for Forfeiting Property in the Possession of a Third Party
§ 21-5 Property Dissipated by the Third Party
§ 21-6 The Right of a Third Party to Object to the Forfeiture
Chapter Twenty-Two. Substitute Assets
§ 22-1 Overview
§ 22-2 Including Substitute Assets in the Order of Forfeiture
a. Including the Substitute Asset in the Preliminary Order of Forfeiture
b. Amending the Order of Forfeiture Pursuant to Rule 32.2(e)
c. A Typical Scenario
§ 22-3 The Requirements of Section 853(p)
§ 22-4 Preserving Substitute Assets for Forfeiture
§ 22-5 Sixth Amendment Issues
§ 22-6 Substitute Property in Money Laundering Cases
Chapter Twenty-Three. Ancillary Proceedings
§ 23-1 Overview
§ 23-2 The Purpose of the Ancillary Proceeding
§ 23-3 Commencing the Ancillary Proceeding
§ 23-4 The Time for Filing a Claim
§ 23-5 The Form and Content of the Claim
§ 23-6 The Right to a Hearing on the Third-Party Claim
§ 23-7 Discovery in the Ancillary Proceeding
§ 23-8 Evidence in the Ancillary Proceeding
§ 23-9 Burden of Proof in the Ancillary Proceeding
§ 23-10 The Award of Attorneys Fees; Rule 11 Sanctions
§ 23-11 Interlocutory Sale During Ancillary Proceeding
§ 23-12 Choice of Law
a. Overview
b. The Role of State Law
c. The Role of Federal Law
§ 23-13 Standing Under Section 853(n)(2)
a. Using State Law to Determine if the Claimant has a “Legal Interest”
b. The Defendant may not File a Claim
c. General Creditors do not Have Standing
d. Shareholders
e. Person Residing on Forfeited Real Property
f. Financial Institution Asserting a Right of Set Off
§ 23-14 Grounds for Recovery in the Ancillary Proceeding
a. Recovery is Limited to Two Narrow Categories of Claimants
b. A Claimant may have Standing yet Fail to Prevail on the Merits
c. Third Parties Cannot Challenge the Forfeitability of the Property
d. The Application of 92 Buena Vista to Criminal Forfeiture
§ 23-15 Superior Legal Interest Under Section 853(n)(6)(A)
a. Paragraph (6)(A) Embodies the Relation Back Doctrine
b. Innocence is not Required
c. Nominal Ownership is not Sufficient
d. Marital Property
e. Constructive Trusts
§ 23-16 Bona Fide Purchasers Under Section 853(n)(6)(B)
a. Section 853(n)(6)(B) is an Exception to the Relation Back Doctrine
b. The Bona Fide Purchaser Requirement
c. Claimant Must be Reasonably Without Cause to Believe Property was Subject to Forfeiture
§ 23-17 Clear Title to Forfeited Property
Chapter Twenty-Four. Appeals and Miscellaneous Post-Sentencing Topics
§ 24-1 Overview
§ 24-2 Appeals From the Order of Forfeiture
§ 24-3 Stay Pending Appeal
§ 24-4 Jurisdiction Pending Appeal
§ 24-5 Appeal by a Third Party from the Ancillary Proceeding
§ 24-6 Investigation to Locate Forfeited Assets
§ 24-7 Enforcement of the Forfeiture Order
§ 24-8 Abatement
§ 24-9 Parallel Civil and Criminal Forfeitures
§ 24-10 Division of Jointly Held Property
§ 24-11 Section 2255 / Court of Federal Claims
§ 24-12 Prosecutorial Immunity
Part IV — What Is Forfeitable?
Chapter Twenty-Five. Criminal Proceeds
§ 25-1 Overview
§ 25-2 Civil and Criminal Forfeiture
§ 25-3 Statutes Authorizing the Forfeiture of Proceeds
§ 25-4 The Definition of “Proceeds”
a. Property Obtained or Retained as a Consequence of an Offense: the “But For” Test
b. Property “Traceable to” an Offense
c. Interest, Insurance Proceeds, and Appreciated Property
d. Section 981(a)(2): Gross Proceeds v. Net Profits
e. Proceeds of a Fraudulently-Obtained Loan
§ 25-5 Establishing That Property Is “Proceeds” with Circumstantial Evidence
a. Lack of Legitimate Income
b. Other Circumstantial Evidence
c. Currency Seized During Highway, Airport and Passenger Train Stops
d. Dog Alerts
Chapter Twenty-Six. Instrumentalities and Facilitating Property
§ 26-1 Overview
§ 26-2 Facilitating Property Statutes / Instrumentalities and Facilitating Property
§ 26-3 The Definition of “Facilitating Property”
a. Real Property
b. Vehicles
c. Money and Monetary Instruments
d. Professional Licenses and Other Intangible Property
§ 26-4 The Substantial Connection Test
Chapter Twenty-Seven. Property Involved in Money Laundering
§ 27-1 Overview
§ 27-2 The Currency Reporting Offenses
§ 27-3 What Property Is “Involved in” a Currency Reporting Offense?
a. CTR Violations
b. CMIR Violations
c. Form 8300 Violations
d. Application of the Excessive Fines Clause
§ 27-4 Bulk Cash Smuggling
§ 27-5 Money Transmitting Businesses: 18 U.S.C. § 1960
§ 27-6 Money Laundering: 18 U.S.C. §§ 1956 and 1957
§ 27-7 What Property Is Involved in a Violation of § 1956 or § 1957?
§ 27-8 The Proceeds of the SUA Offense
§ 27-9 Property That Is the Subject Matter of the Money Laundering Offense
a. Reverse Money Laundering: Violations of § 1956(a)(2)(A)
b. Property Involved in a Purchase, Sale, or Exchange
c. Double Counting
d. Commingled Property
§ 27-10 Facilitating Property 823
a. The Substantial Connection Requirement
b. Property Used to Conceal or Disguise
c. Facilitating Property Outside of “Conceal and Disguise” Cases
§ 27-11 Property Involved in the Specified Unlawful Activity
Part V — Excessive Fines Clause of the Eighth Amendment
Chapter Twenty-eight. The Excessive Fines Clause
§ 28-1 Overview
§ 28-2 When Does the Excessive Fines Clause Apply?
§ 28-3 The Forfeiture of Proceeds
§ 28-4 Currency Reporting Offenses
§ 28-5 Bulk Cash Smuggling
§ 28-6 Instrumentalities and Facilitating Property
a. Overview
b. Using the Maximum Fine to Measure the Gravity of the Offense
c. Other Factors Used to Determine the Gravity of the Offense
d. Other Factors Used to Determine the Value of the Property
e. The Role of the Nexus Between the Property and the Offense
§ 28-7 Joint and Several Liability
§ 28-8 Forfeiting Facilitating Property From Third Parties
§ 28-9 Money Laundering Cases
§ 28-10 Procedure for Resolving Eighth Amendment Issues
a. Standing to Raise an Eighth Amendment Objection
b. Burden of Proof
c. Eighth Amendment Challenge May not be Raised Pretrial
d. Challenges Under Section 2255
e. The Eighth Amendment Issue is for the Court, not the Jury
f. Retroactive Application of Bajakajian
§ 28-11 Remedy for an Eighth Amendment Violation
CD-ROM
What is Forfeitable?
a. Chart matching each federal criminal offense with the corresponding forfeiture statue.