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Civil Forfeiture of Real Property - Chapter 6 - Asset Forfeiture Law in the United States - Third Edition
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22072
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Originally from Asset Forfeiture Law in the United States, Third Edition
§ 6-1 Overview This chapter discusses the procedure for commencing a civil forfeiture action against real property under 18 U.S.C. § 985. As discussed in Chapter 2, one of the seminal forfeiture cases of the 1990s was the Supreme Court’s decision in United States v. James Daniel Good Real Property, which held that real property may not be seized by the Government prior to trial without notice to the property owner and an opportunity to be heard. The only exception, the Supreme Court said, applies when exigent circumstances make it necessary for the Government to seize the property first and afford the property owner an opportunity to be heard later. Given the holding in Good, it was clear that the procedures for commencing a civil forfeiture action against real property would have to be different from the procedures that apply in personal property cases where pre-seizure hearings are not required, and that Congress would have to enact a statute setting forth those procedures. Section 985 is that statute. Enacted as part of CAFRA, it codifies the holding in Good regarding the right to a pre-seizure hearing and the exceptions to that requirement, and sets out the procedures that the Government must follow once it files a forfeiture complaint, such as posting a copy of the complaint on the property and serving notice of the forfeiture on the property owner. It also codifies the Justice Department’s pre-CAFRA policy requiring that all forfeitures of real property be handled judicially regardless of the value of the property.
The chapter discusses each of these provisions and concludes with a discussion of the remedies available when the Government violates Section 985, and how the statute applies to the seizure of businesses.
Stefan D. Cassella, as a federal prosecutor, was one of the federal government's leading experts on asset forfeiture law for over thirty years, and now serves as an expert witness and consultant to law enforcement agencies and the financial sector as the CEO of AssetForfeitureLaw, LLC.
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