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Asset Forfeiture Law in the United States – 2nd Edition is a completely revised and up-to-date treatise that addresses important changes and significant developments in civil and criminal forfeiture law. Every chapter has been rewritten as a result of the explosive growth in this area of law and practice. This comprehensive one-volume resource examines and explores the outpouring of new case law stemming from federal law enforcement agencies that include the FBI, DEA, IRS and Homeland Security. These agencies initiate tens of thousands of administrative forfeiture cases every year and the second edition continues to lead the practitioner, prosecutor, judge and policy maker through the labyrinth of statues, rules and cases that govern this dynamic area of the law. Many countries in Europe, Asia and Africa, as well as Australia and the Americas, have enacted asset forfeiture statutes modeled on U.S. law, making the cases interpreting the statutes relevant beyond the borders of the United States. In addition, this updated publication explains the changes in detail to the civil forfeiture procedure with reference to Supplemental Rule G of the Federal Rules of Civil Procedure and the applicable case law. As with the first edition, Asset Forfeiture Law in the United States – 2nd Edition serves as both a primer on forfeiture law for the newcomer to this area, as well as a handy resource for anyone needing a comprehensive discussion of any of the recurring and evolving forfeiture issues that arise daily in federal practice.
TABLE OF CONTENTS
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. Seizing Property for Forfeiture
§ 3-1 Overview
§ 3-2 Seizure Warrants
a. Civil and Criminal Warrants
b. The Inadequacy of a Restraining Order
Requirement in § 853(f)
c. Multi-purpose Warrants
d. Keeping the Warrant Application Under Seal
e. Out-of-district Warrants
f. Anticipatory Seizure Warrants
g. Appeals
§ 3-3 Standard for Seizure
§ 3-4 Warrantless Seizures
a. The Automobile Exception: Florida v. White
b. Searches Incident to a Lawful Arrest; Plain
View Doctrine
c. Exigent Circumstances; Border Searches;
Abandoned Property
§ 3-5 Probable Cause in Airport and Traffic Stops
§ 3-6 Dog Sniffs
§ 3-7 Motion to Suppress
§ 3-8 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 Attorney’s Fees
e. Is There a Due Process Right to an Immediate
Probable Cause Hearing?
§ 3-9 Motion for Pretrial Release of Seized Property to
Avoid Hardship
§ 3-10 Maintaining the Evidentiary Value of Seized
Property
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 “Customs Carve-out”
b. The Interplay of CAFRA and the Old Law
When Both Apply
§ 4-6 Time for Sending Notice
a. The 60-day Deadline; Adoptive Forfeitures
b. Extending the Deadline
c. Situations Where the Deadlines Do Not
Apply
d. The Interplay of Administrative and Criminal
Forfeiture
e. Cases Where the Identity of the Interested
Party Is Not Known
§ 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 Disposition of Seized Property; Interest and
Costs
a. Quick Release Policy
b. Depositing Seized Currency
c. Unilateral Decision Not to Pursue Forfeiture
§ 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
e. Entering a Declaration of Forfeiture
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 and the Enactment of
Section 983(e)
b. Challenges for Reasons Other Than Lack
of Notice
§ 5-4 Procedure for Filing a Section 983(e) Petition
a. Standing
b. Burden of Proof
c. Statute of Limitations
d. Venue
§ 5-5 Inadequate Effort to Provide Notice; Lack of
Actual Notice
§ 5-6 Commencing a New or Parallel Forfeiture
Proceeding
§ 5-7 Property Not in the Government’s Possession
§ 5-8 Attorney’s Fees
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
§ 6-7 Seizure of a Business
Chapter Seven. Judicial Forfeiture: Filing the Complaint,
Claim and Answer
§ 7-1 Overview
§ 7-2 Section 983(a)(3) and Supplemental Rule G
§ 7-3 The History and Application of Rule G
§ 7-4 The Deadline for Commencing a Civil Forfeiture
Action
a. Background
b. The 90-day Deadline
c. When Does the 90-day Period Begin to Run
d. Equitably Tolling the 90-day Deadline
e. Complaints Filed Under Seal
f. Returning the Property; Extending the
Deadline
g. Commencing a Criminal Forfeiture Within
the 90-day Period
h. Exceptions to the 90-day Deadline
i. When there was no administrative forfeiture
ii. The Customs carve-out
§ 7-5 Sanctions for Failure to Comply with the 90-day
Rule
a. Return of the Property
b. The “Death Penalty” for Civil Forfeiture
§ 7-6 Parallel Civil and Criminal Forfeitures
§ 7-7 Jurisdiction and Venue
a. Subject Matter Jurisdiction
b. In Rem Jurisdiction
i. Exceptions
ii. Using the arrest warrant in rem to obtain
in rem Jurisdiction
iii. Serving the arrest warrant in rem
iv. Property located outside of the district
v. Jurisdiction over intangible property
vi. Property that is moved to another district
or changes in form
vii. Appellate jurisdiction
c. Venue
§ 7-8 The Concurrent Jurisdiction Doctrine
§ 7-9 Sending Notice to Potential Claimants
a. Rule G(4)
b. Notice by Publication
c. Direct Notice
d. Content of the Notice
e. Persons to Whom Notice Must be Sent
§ 7-10 Contents of the Complaint
a. Verification
b. Basis for Jurisdiction and Venue
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
g. Form of the Complaint
§ 7-11 Stating the Factual Basis for the Forfeiture
a. Reasons for the Heightened Pleading
Requirement
b. The “Reasonable Belief” Standard
c. The Pleading Requirement Is not a Probable
Cause Requirement
§ 7-12 Motions to Dismiss the Complaint
a. Rule G(8)(b)
b. The Complaint Need Not Establish Probable
Cause; the Ninth Circuit Rule is Incorrect
c. The Government May Move to Dismiss Its
Own Complaint
d. The Claimant Must Have Standing to File a
Motion to Dismiss
§ 7-13 Filing a Claim and Answer
a. Overview of Rule G(5)
b. Time for Filing a Claim
c. Verification of the Claim
d. Identifying the Claimant and His Interest in the
Property; Bailors and Bailees
e. Claim Filed in the Administrative Forfeiture
Proceeding
f. Filing an Answer to the Complaint
g. Counterclaims
§ 7-14 Default Judgments
a. Entry of Default and Default Judgment
b. Setting Aside a Default Judgment
Chapter Eight. Pre-Trial Procedural Issues
§ 8-1 Overview
§ 8-2 Special Interrogatories
§ 8-3 Civil Discovery
a. When Discovery Begins
b. Interrogatories, Depositions, Production of
Documents and Requests for Admissions
c. Protective Orders
d. The Fifth Amendment and Other Privileges
e. Discovery Sanctions
§ 8-4 Appointment of Counsel
§ 8-5 Pre-trial Restraining Orders
§ 8-6 Managing the Defendant Property
a. Appointment of a Receiver
b. Interlocutory Sales
§ 8-7 Stays
a. Legislative History
b. Relatedness
c. Government Motions Filed Under Section
981(g)(1)
d. Claimant’s Motions Filed Under Section
981(g)(2)
e. Time for Requesting a Stay
f. Entry of a Stay Is Mandatory
g. Protective Orders
h. Other Grounds for Entering a Stay
i. Interlocutory Appeals
j. Application of Section 981(g) to Forfeitures
Brought Under Other Statutes
§ 8-8 Severance of Claims
Chapter Nine. Dispositive Pre-Trial Motions
§ 9-1 Overview
§ 9-2 Challenges to Statutory Standing:
Rule G(8)(c)(i)(A)
a. Statutory and Article III standing
b. Failure to Establish Statutory Standing Under
Rule G(5)
c. Failure to Respond to Special Interrogatories
Under Rule G(6)
§ 9-3 Challenges to Article III Standing:
Rule G(8)(c)(i)(B)
a. Reasons for Contesting Standing; Distinguishing
Standing and Ownership
b. Motion for judgment on the pleadings
c. Evidentiary Hearing: Motion for Summary
Judgment
§ 9-4 The Fugitive Disentitlement Doctrine
§ 9-5 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 Section 1621 and Criminal
Forfeiture
e. The Interplay of Section 1621 and 18 U.S.C.
§ 984(b)
f. Pleading the Statute of Limitations as a
Defense
§ 9-6 Estoppel and Laches
Chapter Ten. Standing
§ 10-1 Overview
§ 10-2 Standing and Ownership
a. Standing Is a Threshold Issue; Ownership Is a
Requirement of the Innocent Owner Defense
b. Grafting the Definition of “Owner” in Section
983(d)(6) Into the Standing Analysis
§ 10-3 Article III and Prudential Standing
a. The Reason for Requiring Article III Standing
b. “Colorable Interests” versus “Imminent Injury”
c. Prudential Standing
§ 10-4 The Role of State Property Law
§ 10-5 Specific Examples of Article III Standing
a. Bailees; Persons in Possession
b. Nominees / Fraudulent Transfers
c. Unsecured Creditors
d. Beneficiaries of a Constructive Trust
e. Lienholders and Assignees
f. Standing to Contest Forfeiture of Bank
Accounts
g. Standing of Bailor
h. Decedent’s Estate and Heirs
i. Marital Interests
j. Persons with Future or Equitable Interests and
Potential Injuries
k. Standing to Challenge Forfeiture of Corporate
Assets
l. Trusts and Trust Beneficiaries
m. Finders of Lost Property
n. Former Owner Who Surrenders Title
o. Estoppel of Criminal Defendant from Contesting
Civil Forfeiture
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)
iii. The Customs Carve-out
c. The Substantial Connection Requirement
d. Evidence
e. Invoking the Fifth Amendment
§ 11-3 Establishing Forfeitability / Tracing
a. What the Government Must Prove Depends
on the Statute
b. Tracing Is Part of the Government’s Burden
c. Commingled Property
d. Tracing to a Particular Offense
§ 11-4 Fungible Property / Section 984
a. Using Accounting Principles and Circumstantial
Evidence
b. Section 984
§ 11-5 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
b. 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
§ 13-7 Attorneys Fees
a. Attorneys Fees under EAJA
b. “Substantially Prevails”
c. Exceptions to the Attorney Fee Provision
d. Calculating the Amount of the Fee Award
e. Applications of the Treasury Offset Program
§ 13-8 Actions Against the Government
§ 13-9 Disposal of Forfeited Property
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
§ 14-6 Use of Civil Discovery in a Parallel Criminal Case
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. Other Consequences of Forfeiture Being Part
of the Sentence
§ 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 Notice
§ 16-5 Statute of Limitations / Venue
§ 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
a. Obtaining a Warrant
b. Post-seizure Review
c. Effect of an Illegal Seizure
§ 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 Affirmative Orders / 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
a. Written Plea Agreements
b. Consent Order of Forfeiture
c. Reserving the Right to Contest the Forfeiture
d. Agreeing to Forfeit Property Involved in
Other Offenses
e. Withdrawal of the Guilty Plea
§ 18-4 The Right to a Jury
a. Rule 32.2(b)(5)
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)
a. The Purpose of the Preliminary Order;
Entering the Order “Promptly”
b. Describing the Property in General Terms
§ 19-3 Content of the Preliminary Order of Forfeiture
§ 19-4 Directly Forfeitable Property, Substitute Assets and
Money Judgments
a. Directly Forfeitable Property
b. Substitute Assets
c. Money Judgments
§ 19-5 Joint and Several Liability
§ 19-6 Tools for Preserving 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)(4)
a. Finality of the Order of Forfeiture;
Time to Appeal
b. The Forfeiture Must be Included in the Oral
Announcement of the Sentence
c. The Forfeiture Must be Included in the Judgment
d. The Failure to Enter Any Order of Forfeiture at
Sentencing
§ 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
§ 20-10 Remand for Resentencing
§ 20-11 Adding Newly-Discovered Property
Chapter Twenty-One. The Relation-Back Doctrine and the
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 Section 853(k) and the Bar on Third-Party Intervention
in a Criminal Proceeding
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)
a. Showing that the Property is Unavailable Due
to an Act or Omission of the Defendant
b. “Any Other Property”
c. Ownership of the Property
§ 22-4 Preserving Substitute Assets for Forfeiture
§ 22-5 Sixth Amendment Issues
§ 22-6 Substitute Property in Money Laundering
Cases
Chapter Twenty-Three. The Ancillary Proceedings
§ 23-1 Overview
§ 23-2 The Purpose of the Ancillary Proceeding
§ 23-3 Commencing the Ancillary Proceeding
a. Time for Commencing the Ancillary Proceeding
b. Notice
c. Persons to Whom Notice Must be Sent
§ 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. The Claimant Has the Burden of Establishing
Standing
b. The Defendant May Not File a Claim
c. General Creditors Do Not Have Standing
d. Shareholders
e. Person in Possession of the Forfeited 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. There Can Be No Pre-existing Claim to the
Proceeds of the Crime
c. “Legal Right, Title or Interest”
d. Derivative Claims
e. Innocence Is Not Required
f. Marital Property
g. 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; Rule 32.2(c)(2)
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
§ 24-13 Retention of Seized Property That Was Not
Forfeited
Part IV — What Is Forfeitable?
Chapter Twenty-Five. Criminal Proceeds
§ 25-1 Overview
§ 25-2 Civil and criminal forfeiture
a. “Proceeds” Means the Same Thing in Civil and
Criminal Cases
b. Applying Section 981(a)(2) in Criminal Cases
§ 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
f. Property Obtained “Indirectly”
§ 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
§ 25-6 Calculating the Amount of a Money Judgment
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. Forfeiture of 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
Section 1956(a)(2)(A)
b. Property Involved in a Purchase, Sale, or
Exchange
c. Double Counting
d. Commingled Property
§ 27-10 Facilitating Property
a. The Substantial Connection Requirement
b. Property Used to Conceal or Disguise
c. Property Traceable to Property Involved in an
Offense
d. Property That is Merely Present When the
Transaction Occurs
§ 27-11 Property Involved in the Specified Unlawful
Activity
§ 27-12 the “Intermediary” Exception in Money
Laundering Cases
Chapter 28. The Excessive Fines Clause of the
Eighth Amendment
§ 28-1 Overview
§ 28-2 When Does the Excessive Fines Clause Apply?
§ 28-3 The Forfeiture of Proceeds
§ 28-4 Currency Reporting Offenses
a. CTR, CMIR and Form 8300 Offenses
b. Structuring
§ 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
§ 28-11 Remedy for an Eighth Amendment Violation
Table of Cases
Index
Stefan D. Cassella is one of the federal government's leading experts on asset forfeiture law. As a federal prosecutor, he has been litigating asset forfeiture cases since the late 1980's, was a Deputy Chief of the Justice Department’s Asset Forfeiture and Money Laundering Section for many years, and is now the Chief of the Asset Forfeiture and Money Laundering Section in the U.S. Attorney's Office in Baltimore, MD. Mr. Cassella handled the forfeiture in one of the largest forfeiture case ever brought by the United States - the forfeiture of $1.2 billion in assets from the Bank of Credit and Commerce International (BCCI), was the principal author of much of the federal forfeiture legislation, including the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), and the applicable sections of the Federal Rules of Civil and Criminal Procedure, and is the author of numerous law review articles on asset forfeiture and money laundering. He teaches asset forfeiture procedure at the Federal National Advocacy Center at the University of South Carolina, and has given numerous presentations on the subject at Cambridge University and other institutions. In the 1980s, Mr. Cassella was Senior Counsel to the U.S. Senate Judiciary Committee. He has a J.D. from Georgetown University and a Bachelor of Science degree in Applied Physics from Cornell University.This book was written in the author's private capacity as a lawyer, and the book does not in any way constitute an official statement of the law or policy or otherwise reflect the views of the United States Department of Justice or any of its agencies.
