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The Ancillary Proceeding - Chapter 23 - Asset Forfeiture Law in the United States - Third Edition
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22089
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Originally from Asset Forfeiture Law in the United States, Third Edition § 23-1 Overview
As we have seen, property belonging to a person other than the defendant cannot be forfeited in a criminal case. This is a consequence of the way criminal trials are conducted. Unlike a civil forfeiture case in which the forfeitability of the property is adjudicated in a proceeding in which anyone claiming an interest in the property is allowed to participate, the forfeitability of property in a criminal case is determined in the course of a criminal trial in which the only parties are the Government and the defendant. By the time a third party is allowed to intervene in a criminal case, the court (or the jury) has already determined that a crime has been committed and that the property in question was derived from or used to commit that crime. Obviously, such a proceeding cannot result in the forfeiture of the property of a person who was excluded from taking part. (…) The first part of this chapter discusses the nature and purpose of the ancillary proceeding and the procedures that apply. Those procedures are set forth in 21 U.S.C. § 853(c) and (n) and Rule 32.2(c), and govern such nuts-and-bolts issues as the sending of notice of the forfeiture to third parties, the time and manner of filing a claim, the burden of proof, the right to a jury trial, the conduct of discovery, and the availability of attorney’s fees for prevailing parties. The next part of the chapter discusses the requirements a third party must meet to establish standing to contest the forfeiture in the ancillary proceeding, and the grounds on which the third party can prevail on the merits. As we shall see, there are only two narrow grounds for relief under Section 853(n)(6), but to determine whether the third party has standing to contest the forfeiture and qualifies for relief under the statute, the court must address some complicated choice of law issues. Finally, the chapter concludes with a brief discussion of how the conclusion of the ancillary proceeding gives the Government clear title to the forfeited property and the right to dispose of it in accordance with law.
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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