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Instrumentalities and Facilitating Property - Chapter 26 - Asset Forfeiture Law in the United States - Third Edition
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22092
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Originally from Asset Forfeiture Law in the United States, Third Edition
§ 26-1 Overview Chapter 25 discussed the forfeiture of the proceeds of a criminal offense. This chapter discusses the forfeiture of property that was used to commit or to facilitate the commission of a criminal offense. This theory of forfeiture is called the “facilitation theory,” and the property subject to forfeiture under it is called “facilitating property.” While proceeds forfeitures are now more common, the facilitation theory is actually the older concept. As noted in Chapter 2, prior to the 1970s, most forfeitures were limited to the property used to commit a criminal offense – the so-called “instrumentalities” of the crime; statutes authorizing the forfeiture of proceeds did not become common until after Congress made drug proceeds subject to forfeiture in 1978. Today, most forfeiture statutes authorize the forfeiture of both proceeds and facilitating property or of proceeds alone, but some statutes are still limited to the things used to commit the offense, or to facilitate its commission.
The chapter begins with a discussion of the statutes that authorize the forfeiture of facilitating property, and notes how the language describing the property subject to forfeiture differs from one statute to another. It also discusses the distinction between “facilitating property” and the older term “instrumentality” and explains why that distinction, while important, has little practical significance in most cases.
We will then look at how the term “facilitating property” has been defined in the case law and what the Government has to prove at trial under the “substantial connection” test – the standard for forfeiting facilitating property that was developed by the courts in the 1980s and 1990s and later codified by CAFRA. In the course of this discussion we will encounter many examples of the types of property – ranging from residences to vehicles to monetary instruments to intangible property rights – that have satisfied the substantial connection test and thus have been forfeited as facilitating property in a variety of circumstances.
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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