Substitute Assets - Chapter 22 - Asset Forfeiture Law in the United States - 2nd Edition
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Asset Forfeiture in the United States - 2nd Edition - Hardcover
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§ 22-1 Overview
The term “substitute assets” refers to property that may be
forfeited if the directly forfeitable property cannot be located or is
otherwise unavailable. We have previously touched on some of
the special procedures that apply when substitute assets are
involved in a forfeiture case,1 but we have deferred until now any
full-blown discussion of the procedures that apply, and the
requirements that the Government must satisfy, if the Government
wants to include substitute assets in an order of forfeiture.
This chapter contains that discussion. It begins by noting that
the court may order the forfeiture of substitute assets in two ways
— by including the substitute property in the preliminary order of
forfeiture, or by amending the order of forfeiture “at any time” to
include the substitute property pursuant to Rule 32.2(e). We will
discuss both procedures, noting that, in either case, the court must
find that the requirements of the substitute assets statute, 21
U.S.C. § 853(p), are satisfied. The chapter then discusses some
particular issues that have arisen in substitute asset cases, such as
the court’s authority to restrain substitute assets following the
defendant’s conviction but before such assets are forfeited, and
the defendant’s right to demand that he be allowed to use the
substitute assets to pay his attorneys fees.
The chapter concludes with a discussion of the special rules
that apply to the forfeiture of substitute assets in money
laundering cases pursuant to 18 U.S.C. § 982(b)(2).
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. As a Deputy Chief for the Justice Department's Asset Forfeiture and Money Laundering Section and later as the Chief of the Asset Forfeiture and Money Laundering Section in the U.S. Attorney's Office in Baltimore, MD, he litigated some of the Government's most significant forfeiture and money laundering cases and drafted many of the federal forfeiture and money laundering statutes. Mr. Cassella handled the forfeiture in one of the largest forfeiture cases 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. 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.